AGO 1962 No. 149 - Jul 26 1962
PROFESSIONAL ENGINEERS REGISTRATION ACT ‑- CORPORATION ‑- AUTHORITY TO PRACTICE ENGINEERING ‑- ADVERTISING ‑- ARTICLES OF INCORPORATION ‑- REGISTERED ENGINEERS ‑- CERTIFICATE OF REGISTRATION.
(1) A corporation or firm which is not authorized to practice engineering under chapter 18.43 RCW may not do business in this state under a name which includes the words "engineering," "engineers" or derivatives thereof where such name may be fairly construed as a representation of ability to perform engineering services.
(2) A corporation or firm which is not authorized to practice engineering under chapter 18.43 RCW may not list itself in telephone or business directories under the classifications "engineers," "engineering services" or similar classification, or in any printed matter on its business correspondence which refers to "engineers" or "engineering services," or otherwise represent in its advertising that engineering services can be performed by the corporation or firm.
(3) The articles of incorporation of a corporation not authorized to practice engineering under chapter 18.43 RCW may contain a declaration of purpose authorizing the practice of engineering but no practice can be carried on without a certificate of authorization.
(4) The criteria to be utilized in determining whether the operations of a corporation or business firm constitute the practice of engineering are the same as those applicable to individuals.
(5) A registered engineer may advertise to perform and/or perform engineering services in branches other than those listed on his certificate of registration.
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July 26, 1962
Honorable Louise S. Taylor
Director of Licenses
Department of Licenses
Cite as: AGO 61-62 No. 149
Dear Mrs. Taylor:
By letter previously acknowledged you have requested the opinion of this office on the following questions:
"1. May a corporation or business firm, which is [[Orig. Op. Page 2]] not authorized to practice engineering under RCW 18.43, do business in this state under a name which includes the word "engineering," "engineers" or derivatives thereof?
"2. May a corporation or business firm, which is not authorized to practice engineering under RCW 18.43, list itself in telephone or business directories under the classifications "engineers", "engineering services" or similar classifications, or carry in printed matter on its business correspondence any reference to "engineers" or "engineering services" or otherwise indicate in its advertising the fact that engineering services can be or are being performed by the corporation or firm?
"3. May the articles of incorporation of a corporation not authorized to practice engineering under RCW 18.43 contain a declaration of purpose authorizing the "practice of engineering"?
"4. In attempting to determine whether the operations of a corporation or business firm constitute the practice of engineering what criterion is to be used?
"5. May a registered engineer advertise to perform and/or perform engineering services in branches other than those listed on his certificate of registration?"
We answer questions 3 and 5 in the affirmative, question 2 in the negative, and questions 1 and 4 as explained in the analysis.
We understand the first three questions to be asked in reference to situations in which a company is not engaged in the practice of engineering in any sense other than as its name, directory listing, letterhead marking, or articles of incorporation may constitute such a practice in violation of RCW 18.43. The questions presented will accordingly be treated within this context.
"In order to safeguard life, health and property, and to promote the public welfare" the Professional Engineer's' Registration Act of 1947, subsequently amended by chapter 297, Laws of 1959, and chapter 142, Laws of 1961, was enacted requiring that those persons who would practice the professions of engineering and/or land surveying must be licensed and registered as therein provided. Only a registered engineer, or a corporation or partnership which [[Orig. Op. Page 3]] has designated one or more registered engineers as being in responsible charge of all engineering projects and activities and has received a certificate of authorization, may practice or offer to practice engineering. The practice of engineering is defined and legislatively construed to embrace certain activities by RCW 18.43.020, which, in pertinent part, appears as follows:
". . . The term 'practice of engineering' within the meaning and intent of this chapter shall mean any professional service or creative work requiring engineering education, training, and experience and the application of special knowledge of the mathematical, physical, and engineering sciences to such professional services or creative work as consultation, investigation, evaluation, planning, design and supervision of construction for the purpose of assuring compliance with specifications and design, in connection with any public or private utilities, structures, buildings, machines, equipment, processes, works, or projects.
"A person shall be construed to practice or offer to practice engineering, within the meaning and intent of this chapter, who practices any branch of the profession of engineering; or who, by verbal claim, sign, advertisement, letterhead, card, or in any other way represents himself to be a professional engineer, or through the use of some other title implies that he is a professional engineer; orwho holds himself out as able to perform, or who does perform,any engineering service or work or any other professional service designated by the practitioner or recognized by educational authorities as engineering." (Emphasis supplied.)
RCW 18.43.010 provides, in part, as follows:
". . .it shall be unlawful for any person to practice or to offer to practice in this state, engineering or land surveying, as defined in the provisions of this chapter,or to use in connection with his name or otherwiseassume, use, or advertise any title or description tending to convey the impression that he is a professional engineer or a land surveyor, unless such a person has been duly registered under the provisions of this chapter." (Emphasis supplied.)
RCW 18.43.120 states, in part, as follows:
[[Orig. Op. Page 4]]
"Any person who shall practice, or offer to practice, engineering or land surveying in this state without being registered in accordance with the provisions of the chapter, . . . or any person who shall violate any of the provisions of this chapter shall be guilty of a misdemeanor."
Questions 1 through 3 may be answered by a determination as to whether the stated circumstances constitute either of the proscribed activities set out in RCW 18.43.010, supra.
In construing this statute as it may apply to the stated circumstances, certain well-defined statutory rules of construction must be applied. Inasmuch as RCW 18.43.120 establishes that a violation of RCW 18.43.010 constitutes criminal behavior, this statute must be construed strictly to the end that offenses not entitled to be included shall not be prosecuted, and the section's punitive sanctions must be confined to such matters as are clearly and manifestly within the statutory terms and purposes. State v. Rinkes, 49 Wn. (2d) 664, 306 P. (2d) 205 (1957). An original act and an amendment to it should be read and construed as one law passed at the same time. Bradley v. Dept. Labor & Ind., 52 Wn. (2d) 780, 329 P. (2d) 196 (1958). If the language of a statute is doubtful or if the legislative intent is not clearly apparent therefrom it will not be given a retroactive effect when to do so would impair existing rights. Gillis v. King County, 42 Wn. (2d) 373, 255 P. (2d) 546 (1953). However, the intent of the legislature is controlling and where, considering the context and subject matter, that intent is clearly apparent from the plain meaning of the terms utilized, there is no room for further construction. Johnson v. Dept. Labor & Ind., 33 Wn. (2d) 399, 205 P. (2d) 896 (1949);Graffell v. Honeysuckle, 30 Wn. (2d) 390, 191 P. (2d) 858 (1948).
In applying these rules it becomes clear that the word "person" as used in the above‑quoted statutes may embrace corporations and firms as well as individuals, inasmuch as RCW 18.43 expressly provides for the corporate practice of engineering under § 7 (8), chapter 297, Laws of 1959, and § 5 (8), chapter 142, Laws of 1961 (RCW 18.43.130 (8)). See RCW 1.16.080.
(1) Does a corporation or business firm "hold itself out as able to perform any engineering service or work" by virtue of its corporate or firm name including the words "engineering," "engineers," or similar words?
In the absence of statutory provisions forbidding the use of certain descriptive words, a corporation formed under general laws [[Orig. Op. Page 5]] may adopt any name it desires so long as it does not infringe on existing rights to certain names. 13 Am. Jur., Corporations, § 132, page 269. RCW 23.31.040 and RCW 30.04.0201/ contain restrictions on the adoption of a corporate name including a prohibition against the use of certain descriptive words, none of which include the word "engineering" or derivatives thereof. No similar Washington legislation relevant to such word exists. See New York Education Law, § 7209. Neither is there any statutory direction that corporations holding a certificate of authorization to practice engineering must use the word "engineering" in their corporate names nor is there a corresponding provision stating that only the above corporations may use such words in their names. It would appear that there is no evidence of a blanket legislative prohibition against the use of such descriptive words in corporate or firm names.
Previous opinions issued by this office prior to 1959 and 1961 legislation do not compel a contrary conclusion. See AGO 47-4876 [[1947-48 OAG 76d to Department of Licenses on January 9, 1948]], AGO 51-53-39 [[to Department of Licenses on March 11, 1951]], and AGO 55-57 No. 73 [[to Nat Washington, State Senator on May 10, 1955]], copies of which are enclosed. In each of these opinions the basic issue was whether or not a corporation could engage in the practice of engineering and, after deciding in the negative, we expressed or implied our view, without benefit of additional citation, authority, or analysis, that a corporation unable to practice the profession could not claim a name including words which might be descriptive of the profession. Amendments in 1959 and 1961 settled the basic issue and the conclusion reached in our previous opinions as a corollary to that issue deserves separate analysis in the framework of a situation wherein no other unauthorized practice is presented. See AGO 51-53-460 [[to Earl Coe, Secretary of State on January 13, 1953]], a copy of which is enclosed. We conclude that it was not the legislature's intent to impose a blanket prohibition on the use of a corporate name including the word "engineering" or derivatives thereof by a corporation which is neither authorized to nor otherwise engaged in the practice of engineering.
However, it is clear from the plain meaning of the language in RCW 18.43.010 and 18.43.020 that the legislature intended to prevent the deception of the public by prohibiting representations of ability to perform engineering services by unlicensed persons.
[[Orig. Op. Page 6]]
It is equally clear that a corporate or firm name may constitute such a representation. Whether or not any given corporate or firm name does so is a question of fact to be decided in each individual case. In accord with this view is T. V. Engineers, Inc. v. District of Columbia, (Municipal Court of Appeals, District of Columbia, 1961) 166 A. (2d) 920. In that case the corporation was operating a television repair business, did not employ any professional engineers, and was not engaged in the practice of engineering. Nevertheless it was convicted of unlawfully representing itself as qualified to perform engineering services.
". . . finding of the trial court that appellant's corporate name did imply that it was a professional engineering firm. We believe this was a factual determination for the trial court and we see no reason for setting it aside. . . .
"Admittedly, appellant did not practice professional engineering within the terms of the statute. But the question presented to the trial judge was whether appellant implied, intentionally or not is of no matter, that it offered professional television engineering service. . . . We believe the trial court was justified in finding that the title, T. V. Engineers, Inc., implied a professional competence in that field. . . ." (p. 922.)
See alsoState Board of Examiners, Etc. v. Standard Engineer. Co., 157 Tenn. 157, 7 S.W. (2d) 47 (1928). By way of example, it would seem reasonably clear that the name "Registered Professional Engineers, Inc." would constitute an unlawful representation whereas the name "A & B Engineering Supplies, Inc." would not.
We conclude that a corporation or firm which is not authorized to practice engineering under RCW 18.43 may not do business in this state under a name which includes the words "engineering," "engineers" or derivatives thereof where such name may be fairly construed as a representation of ability to perform engineering services.
(2) The underlined portion of RCW 18.43.020 is directly applicable to advertising which is designed to or has the apparent effect of leading the reader to believe that the advertiser has the ability to perform engineering services. Listings in telephone or business directories and stationery markings on business correspondence are obviously forms of advertising. We think that listings under the classifications "engineers," "engineering services" and similar classifications, and markings indicating a status as an engineer [[Orig. Op. Page 7]] or that the firm is wholly or partially composed of engineers and which plainly constitute a representation that the advertiser is capable of performing engineering services are unlawful. Such a representation is an offer to practice engineering within the prohibition and condemnation of RCW 18.43.010 and RCW 18.43.120 when made by an individual, firm or corporation who or which is neither registered as a professional engineer nor the holder of a certificate of authorization to practice engineering. SeeState Board of Examiners, Etc. v. Standard Engineer. Co., supra. However, the existence of such a representation is a question of fact.
(3) A corporation, prior to obtaining a certificate of authorization to practice engineering, may have placed in its articles of incorporation a declaration of purpose providing that among its activities the corporation may engage in the field of engineering. A corporation may be formed "for any lawful business purposes" (RCW 23.01.020) which, after the 1959 and 1961 amendments referred to above (RCW 18.43.130 (8)) includes the practice of engineering. The purposes stated in articles of incorporation may include activities for which additional licensure is necessary before the corporation may lawfully engage in that activity. In such a case the declaration of purpose is only a basic empowering clause granting an inchoate and unexercisable power prior to the fulfillment of other requirements. Such a declaration of purpose is not unlawful prior to the time the corporation chooses to engage in the field even though it lacks a certificate of authorization. AGO 51-53-523, which reached a contrary result on the ground that the practice of engineering was not a lawful corporate business purpose, was superseded by the amendments which now allow the corporate practice of engineering.
(4) The criteria to be utilized in determining whether the operations of a corporation or business firm constitute the practice of engineering are the same as those with respect to individuals. As the Professional Engineers' Registration Act purports to comprehensively define and regulate the practice of engineering, the pertinent provisions of this act must be consulted. That part of RCW 18.43.020 previously quoted defines the practice of engineering and provides legislative construction of that definition. By way of exclusion that section further states:
"The practice of engineering shall not include the work ordinarily performed by persons who operate or maintain machinery or equipment."
A further exclusionary statement is contained in RCW 18.43.040, which provides:
"The mere execution, as a contractor, of work designed by a professional engineer, or the supervision of the construction of such work as a foreman or superintendent shall not be deemed to be practice of engineering."
[[Orig. Op. Page 8]]
With specific reference to corporations, RCW 18.43.130 states:
"This chapter shall not be construed to prevent or affect:
". . .
"(5) The work of a person rendering engineering or land surveying services to a corporation, as an employee of such corporation, when such services are rendered in carrying on the general business of the corporation and such general business does not consist, either wholly or in part, of the rendering of engineering services to the general public: Provided, That such corporation employs at least one person holding a certificate of registration under this chapter or practicing lawfully under the provisions of this chapter; or . . ."
From these provisions, it may be stated that the services ordinarily and customarily performed in the operation and maintenance of machinery or equipment do not constitute the practice of engineering. Furthermore, a contractor who legitimately carries out the instructions and plans contained in engineering designs toward the goal of constructing the product envisaged by the engineer is not engaged in the practice of engineering. Nor will a corporation violate the act by its employees' performance of engineering services rendered to and for the corporation in the conduct of its general business, which in no part consists of offering engineering services to the general public. It would appear that the manufacturing of a pre‑established product, although engineering services might of necessity be performed in the process of manufacturing, would not violate the act if the corporation has employed at least one registered engineer. When the corporation is in fact offering such product for sale and when it is actually offering the engineering services which must be performed in the course of the product's evolution would depend upon the circumstances of each case, as determined within the context of the statutory criteria set forth above.
(5) We think that a registered engineer is authorized to engage in the practice of engineering as that phrase is defined in RCW 18.43.020, and that this definition comprehensively covers all branches of the field. Consequently he may both advertise to perform and perform engineering services that may be characterized as falling within branches other than those which are listed upon his certificate of registration. RCW 18.43.070 provides that the director of the Department of Licenses shall issue a certificate of registration which "shall authorize the practice of 'professional engineering' and specify the branch or branches in which specialized, . . ." That the registrant's certificate should contain a [[Orig. Op. Page 9]] statement of his special abilities is obviously not a prohibition of activity which may fall outside his "specialty." RCW 18.43.040 states that an applicant must present a record of eight years' experience "indicating that the applicant is competent to practice engineering," without any mention of branches by way of limitation. However, that same section provides that the examination may be taken in two stages, the first testing the applicant's knowledge of the fundamentals of engineering subjects, and the second designed to "test the applicant's ability, upon the basis of his greater experience, to apply his knowledge and experience in the field of his specific training and qualifications." This statement need not necessarily compel a contrary conclusion since it would be virtually impossible to give one examination to all applicants which would serve as a test upon advanced subjects because advanced training in the various fields of engineering is known to cover a wide range. RCW 18.43.130, as amended by § 5 (8) (d) (1) (ii), chapter 142, Laws of 1961, requires that a corporate application for a certificate of authorization state "the type, or types, of engineering practiced, or to be practiced by such corporation," and § 5 (8) (d) (2) states that the certificate "shall specify the major branches of engineering of which the corporation has designated a person or persons in responsible charge." The only other section of the act which refers to branches of the field is RCW 18.43.090, referring to practitioners at the time the Professional Engineers' Registration Act went into effect. That section invites comparison with chapter 167, Laws of 1935, the act which was repealed by § 18, chapter 283, Laws of 1947, of the present act. In construing statutes which re‑enact, with certain changes, or repeal other statutes, or which contain revisions of codification of earlier laws, resort to repealed and superseded statutes may be had in ascertaining the legislature's intention, for, where a material change is made in the wording of a statute, a change in legislative purpose must be presumed. Graffell v. Honeysuckle, supra.
Under the 1935 law the practice of professional engineering was defined to "include civil, electrical, mechanical, structural and/or hydraulic engineering" and a professional engineer was "a person who . . . is qualified to practice one or more of the above enumerated branches of the profession of engineering." Section 1, chapter 167, Laws of 1935. The applicant for registration was required in his application form to state "the particular branch or branches of engineering . . . in which he desires to be registered." Section 6, chapter 167, Laws of 1935. The examiners' list of successful examinees included "the respective branch or branches of engineering . . . in which the applicants . . . are entitled to registration." Section 7, chapter 167, Laws of 1935. The director's certificate of registration was in a form "clearly indicating that the recipient is registered as a professional engineer and . . . is entitled to practice the profession of engineering [[Orig. Op. Page 10]] as a civil, electrical, mechanical, structural, and/or hydraulic engineer . . . or any number of these branches of engineering . . . in which he has been found qualified . . ." Section 8, chapter 167, Laws of 1935, and "The issuance of a certificate of registration by a director of licenses shall be evidence that the person named therein is entitled to all the rights and privileges of a registered professional engineer . . . in the branches specified in such certificate . . ." Section 13, chapter 167, Laws of 1935. In direct reference to the subject of the question presented by this opinion request, section 2, chapter 167, Laws of 1935 stated:
". . .Provided, That this section shall not be construed as prohibiting any person duly registered under this act as a professional engineer in any branch of engineering, from supervising any engineering work of another branch of engineering, or from making any necessary surveys, incidental to the prosecution of his work as a professional engineer . . ."
A comparison between the provisions of the 1935 Act and the present (repealing) statute compels the conclusion that the endeavor of a registered engineer is not limited to that branch of engineering which appears on his certificate of registration.
Furthermore, where a statute is open to two constructions, one of which will render it constitutional and the other unconstitutional or open to grave doubt in this respect, the former construction and not the latter will be adopted. Hammack v. Monroe St. Lbr. Co., 54 Wn. (2d) 224, 339 P. (2d 684 (1959). InProuty v. Heron, 127 Colo. 168, 255 P. (2d) 755 (1953), a suit was commenced to enjoin the Colorado Board of Examiners for Engineers and Land Surveyors from classifying qualified engineers as to specific branches of their profession. That suit was successful in striking down the statute upon the ground, inter alia, that the act constituted an improper delegation of legislative power without sufficient standards by which the board might determine the distinction to be drawn between the various branches of specialization within the broad field of engineering. The Colorado statute was substantially similar to the present Washington act. At least a grave doubt may be held with regard to our act if a conclusion contrary to that expressed herein were reached. See Trautman, Administrative Law Problems of Delegation and Implementation in Washington, 33 W.L.R. 33 [[33 Wash. L.Rev. 33]].
[[Orig. Op. Page 11]]
We trust that the foregoing sufficiently answers the questions presented and will be of assistance to you.
Very truly yours,
JOHN J. O'CONNELL
DAVID C. CUMMINS
Assistant Attorney General
*** FOOTNOTES ***
1/Applied in Union Trust Co. v. Moore, 104 Wash. 50, 175 Pac. 565 (1918); State ex rel. Osborne, Etc. Co. v. Nichols, 38 Wash. 309, 80 Pac. 462 (1905); andClark Bros. & Klein v. Hinkle, 157 Wash. 484, 289 Pac. 59 (1930).