Tom Welch Accounting Service v. Walby

• Decision Date: 30 November 1965
• Citation: 29 Wis.2d 123,138 N.W.2d 139
• Parties: TOM WELCH ACCOUNTING SERVICE, Respondent, v. Roger WALBY, Appellant.
• Court: Wisconsin Supreme Court

Page 139

138 N.W.2d 139

29 Wis.2d 123

TOM WELCH ACCOUNTING SERVICE, Respondent, v. Roger WALBY, Appellant.

Supreme Court of Wisconsin.

Nov. 30, 1965.

Orville S. Luckenbach, Shawano, for appellant.

Jack J. Schumacher, Shawano, for respondent.

CURRIE, Chief Justice.

The principal contention advanced by defendant on this appeal is that plaintiff, although not licensed as a public accountant or CPA, held himself out to defendant as being such, and, therefore, is precluded from recovering for the services rendered for which recovery is sought in the instant action.

Ch. 135, Stats., creates the State Board of Accountancy and provides for the licensing of CPAs and the registering of public accountants.

Sec. 135.11(5) and (6), Stats., provide:

'Any person shall be deemed guilty of a misdemeanor, and upon conviction shall be punished by a fine of not more than five hundred dollars for each offense, or by imprisonment in the county jail for not more than one year, or by both such fine and imprisonment: * * *

'(5) Who holds himself out to the public as a certified public accountant or who assumes to practice as a certified public accountant unless he has received a certificate as such from the board; or

'(6) Who holds himself out to the public as a public accountant or who assumes to practice as a public accountant unless he has received a certificate of authority from the board; * * *.'

Sec. 135.02, Stats., defines engaging in practice as a public accountant. The definition includes any person who holds himself out to the public as skilled in the practice of accounting or 'Who maintains an office for the transaction of business as a public accountant, or who, except as an employee of a public accountant, practices accounting, as distinguished from bookkeeping, for more than one employer; * * *.' However, the broadness of the definition is considerably restricted by sub. (9) of sec. 135.02, which will be adverted to later herein.

The designation 'public accountant' refers to those persons who in 1935 were engaged in public accounting in this state and were issued a certificate of authority to practice as a 'public accountant' prior to December 31, 1935. Except as to those who had received such certificates of authority, the practice of public accounting in the state after 1935 was restricted to those licensed as CPAs.

It has been held that one who violates a statute similar to sec. 135.11(5) and (6) by holding himself out as a public accountant or CPA when he has not been licensed, is precluded from recovering for his services. ¹ The theory on which recovery is denied is that a contract will not be enforced which contravenes good morals, public policy, or the common or statute law. ² This court has held that a firm could not recover for architectural services where neither the firm nor one of its members had been registered as an architect as required by statute. ³

Defendant testified that plaintiff had represented himself to be a CPA. Two other witnesses were called by defendant who also testified to having heard plaintiff state he was a CPA. Plaintiff categorically denied having made any such representation. The creditability of the testimony on this point was for the trial court which expressly found that plaintiff had not held himself out 'as a licensed or certified public accountant.' Defendant raises no issue that this finding is against the great weight and clear preponderance of the evidence.

Defendant relies on three undisputed facts to establish that plaintiff did hold himself out to defendant as a registered public accountant. First, plaintiff conducted his business under the name of 'Tom Welch Accounting Service.' Secondly, plaintiff in his answer to the counterclaim admitted the allegation that he 'holds himself out as a professional man rendering accounting services.' Thirdly, plaintiff lists himself in the yellow pages of the Shawano telephone directory under the heading, 'Accountants.' However, this directory lists in its yellow pages, 'Accountants--Certified Public' and plaintiff does not list himself under this latter category. This court takes judicial notice of the fact that other Wisconsin telephone directories also list in their yellow pages a third category of accountants, 'Accountants--Public.'

As we view it, the narrow question presented is whether one who holds himself out as an accountant, and who is neither registered as a public accountant nor licensed as a CPA, violates sec. 135.11(5) and (6), Stats. To answer this question it is necessary to interpret sec. 135.02(9), which provides:

'Nothing contained in this chapter shall apply to any persons who may be employed by more than one person, partnership or corporation, for the purpose of keeping books, making trial balances or statements, and preparing audits or reports, provided such audits or reports are not used or issued by the employers as having been prepared by a public accountant.'

While some of the services enumerated in this subsection might properly be classified as bookkeeping rather than accounting services, the preparing of audits and reports constitutes accounting services. This subsection makes it clear that what is prohibited is not the practing of accountancy by unregistered or unlicensed accountants, but the use of their audits or reports under the guise that they were made by a CPA or public accountant.

There is considerable authority from other jurisdictions holding that an accountant licensing statute similar to ch. 135, Stats., is unconstitutional as an unwarranted regulation of private business if it be interpreted as prohibiting noncertified accountants from practicing the profession of accountancy. ⁴ Several of these cases were cited and considered by this court in Wangerin v. Wisconsin State Board of Accountancy ⁵ and were distinguished on the ground of difference in wording of ch. 135 from that of the statutes before these other courts. The Wangerin Case in interpreting our statute stated:

'A bookkeeper can do anything now that he could do before the chapter was enacted except that he cannot represent himself to be a public accountant. He can render the same service to his employers as any other accountant may render, but it cannot be put before the public as work of a public accountant or a certified public accountant. Chapter 135 deals solely with the relation of the practice of accountancy of the public, not to private individuals and firms.' ⁶

Apparently defendant interprets this language as meaning that a nonregistered accountant such as plaintiff is prohibited by the statute from holding himself out as an accountant, and can only practice his occupation under the title of bookkeeper or offering bookkeeping services. We think this is too narrow a construction of the statute in view of the...