CORPORATIONS, STATED PURPOSE AND NAME, PRACTICE OF ENGINEERING OR SURVEYING, FILING OF ARTICLES OF INCORPORATION.
Corporations may not lawfully practice the professions of engineering or land surveying; accordingly, the Secretary of State should refuse to issue certificates of incorporation where the stated purpose or required corporate name displays the intent to practice such professions or to hold the corporation out as proposing to do so.
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May 11, 1951
Honorable J. D. McDougall
Acting Director of Licenses
Olympia, Washington Cite as: AGO 51-53 No. 39
It appears from your request for an opinion dated March 9, 1951, that, in your attempt to enforce the engineers and land surveyors act, chapter 283, Laws of 1947, you follow an earlier opinion of this office advising that corporations may not legally advertise, practice or offer to practice professions of engineering, professional engineering or land surveying, but you find that the Secretary of State is accepting filings of new corporations whose stated purpose is to practice such professions or whose proposed corporate name contains the word "engineer" and have asked for a clarification as it applies to such professions.
Our conclusion is that corporations may not lawfully practice the profession of engineering or land surveying; accordingly, the Secretary of State should refuse to issue certificates of incorporation where the stated purpose or requested corporate name displays the intent to practice such professions or to hold the corporation out to the public as proposing to do so.
[[Orig. Op. Page 2]]
The registration of engineers and land surveyors act, chapter 283, Laws of 1947, has been interpreted by this office by an opinion addressed to the Director of Licenses on January 9, 1948, on the basis that such act refers only to the words "person" or "persons" having certain educational qualifications which a corporation, being an artificial entity, is unable to acquire.
This opinion is consistent with the general law that corporations cannot practice professions, and we concluded that a corporation or company may not legally advertise, practice or offer to practice said professions of engineering, professional engineering or land surveying in this state.
It is the duty of the Secretary of State to issue certificates of incorporation to new corporations and it is not his duty to police the same after the incorporation. That is the duty of the Director of Licenses. Under the laws relating to the filing of corporations, section 1, chapter 143, Laws of 1939 (Rem. Rev. Stat. Supp. 3803-5), which states in part as follows:
"* * * If the Secretary of State finds that the articles of incorporationconform to law he shall put an endorsement of his approval upon each set, * * *"
A study of the corporation act further discloses that under section 11, chapter 185, page 778, Laws of 1933 (Rem. Rev. Stat. Supp. 3803-11) subdivision 1 provides that corporations shall have authority to perform any such acts as are necessary or proper to accomplish its purpose and which are not repugnant to law, and further, under subdivision 2 (e), to conduct business in this state and elsewhere as may be permitted by law.
While it is lawful to practice the professions of engineering and land surveying in this state, this does not mean that a corporation may do so or that the practice of any profession by a corporation is such a lawful practice which a corporation may have as its purpose. It, therefore, would follow that a proposed corporation name or stated purpose which shall manifestly show the intent to hold itself out to the public as practicing such professions as engineering or land surveying, in particular, would be proposing to contract with the state and its people to carry out a purpose which it is not lawfully entitled to do.
[[Orig. Op. Page 3]]
While it is true that in many of his duties the Secretary of State is acting solely in a ministerial capacity, this does not hold true when he is required to pass upon whether the proposed articles of incorporation conform to law and, as was said inState ex rel. Gorman v. Nichols, 40 Wash. 437, 82 Pac. 743, following its holding that a corporation is not entitled to file certain articles because it proposes to carry on a kind of business which that type of corporation is not entitled to do, the court stated:
"* * * This same question was presented in State ex rel. Osborne, Tremper & Co. v. Nichols, 38 Wash. 309, 80 Pac. 462, and we there held that the secretary of state was under no duty to file articles not entitled to be filed, and that this court will not compel him to do a vain or illegal act."
We refer you also to Fletcher, Cyclopedia Corporations (Perm. Ed.) chapter 5, section 97, page 339, in which that authority states:
"A statute authorizing the formation of corporations to carry on any lawful business does not include the work of the learned professions. Such an innovation with the evil results that might follow, would require the use of specific language clearly indicating the intention. The reasons lie deeper than lack of statutory sanction for it. Human personal qualifications for such professions cannot be possessed by a corporation. They would inhere in the members as distinct from the corporation, and it could not have the power to do illegally an act requiring a license which only they could obtain. * * *"
He goes on to state further that the case law generally is somewhat divided, but that usually a corporation cannot be formed for the purpose of practicing a profession where only an individual may qualify therefor. See alsoState ex rel. Lundin v. Merchants Protective Association, 105 Wash. 12, 177 Pac. 694, andState ex rel. Standard Optical Co. v. Superior Court, 17 Wn. (2d) 323, 135 P. (2d) 839.
[[Orig. Op. Page 4]]
It must, therefore, follow that inasmuch as only individuals may qualify to practice the professions of engineering and land surveying, a corporation may not be formed for such stated purpose nor be permitted to include in its corporate name terms significant of such professions, and the Secretary of State, therefore, should refuse to issue certificates of incorporation in such event as not conforming with the law.
Very truly yours,
PHILIP W. RICHARDSON
Assistant Attorney General