Opinion
No. 21264
Decided September 26, 1949.
Professional engineering — Act regulating practice of, comprehends, what — Sections 1083-1 to 1083-26, General Code — Injunction restraining use of term, "engineering," limited, how — Contempt for violation of injunction — Proof necessary to convict — Actually engaging in practice of professional engineering — Evidence insufficient to warrant conviction, when.
1. Sections 1083-1 to 1083-26, inclusive, General Code, regulating the practice of professional engineering comprehends only engineering that concerns the safeguarding of life, public health or property.
2. An injunction restraining a person from using the term, engineering, cannot rise higher than the statute, upon which the injunction was based, which comprehends only professional engineering involving the safeguarding of life, public health or property; and to warrant a finding of contempt for violation of such injunction proof that the defendant was actually engaged in the practice of professional engineering or holding himself out as engaging in such practice is essential.
3. In contempt proceedings for allegedly violating an injunction restraining the defendant from engaging in the practice of professional engineering, etc., evidence that the defendant's business activities related solely to the design or fabrication of manufactured products is under the exemptive provisions of Section 1083-20 (g), General Code, insufficient to warrant conviction.
APPEAL: Court of Appeals for Cuyahoga county.
Mr. Ira E. Arnold and Mr. H.R. Hawgood, for appellees.
Mr. S.J. Blair, Mr. R.J. Newton and Mr. E.J. Krock, for appellants.
This is an appeal on questions of law from a judgment in a civil case wherein the defendant was found guilty of contempt of court for violation of an injunction issued at the instance of the plaintiffs.
The action originated in the Common Pleas Court of Cuyahoga County on January 14, 1947, when a petition for injunction and equitable relief was filed by the Ohio Society of Professional Engineers, an Ohio corporation not for profit, and William C. Kammerer, individually and in behalf of the society, as parties plaintiff, against Ray D. Hulslander and three other defendants, praying for a permanent injunction under and by virtue of Sections 1083-1 to 1083-26, inclusive, General Code, to enjoin the defendants from "practicing or offering to practice engineering within the state of Ohio, or using the word `engineer' or any word of like import in connection with their name or their business."
Thereafter, upon application of the plaintiffs, the court dismissed all defendants except Ray D. Hulslander against whom the action then proceeded.
On November 12, 1947, a journal entry was signed by the trial court whereby defendant Ray D. Hulslander was "perpetually enjoined from practicing or offering to practice engineering either directly or indirectly, in the state of Ohio, or using the word `engineer' or any word or words of like import, in connection with or in reference to himself, unless and until he becomes registered by the Ohio State Board of Registration for Professional Engineers and Surveyors."
He was further "perpetually enjoined from listing, publishing, or advertising in any directory or any periodical, or from otherwise in any manner or form, either expressly or impliedly, advertising, publishing or representing that Ray D. Hulslander or any legal entity with which he may be associated, may engage in the practice of engineering in the state of Ohio." No appeal was prosecuted from that decree.
Subsequently, on August 13, 1949, charges in contempt were filed by plaintiffs against defendant, charging him with failure to comply with the injunctive order of the court in that he had published or caused to be published, in the June 1948 issue of the telephone directory, the words, "Aimes Engineering Company," in the alphabetical section thereof, and the same name in the classified section thereof under the headings, "Engineers — Mechanical" and "Engineers — Structural."
It was alleged further that the defendant was associated with Aimes Company, Inc., and that as a result of such listings he violated the injunction issued on November 12, and was "in contempt thereof."
On September 2, 1948, the defendant was tried upon the charges of contempt, found guilty, fined $500 and costs and sentenced to ten days in the county jail.
There are four assigned errors as follows:
"1. In overruling motion of defendant, Ray D. Hulslander, for the dismissal of the contempt charges.
"2. In overruling motion of defendant, Ray D. Hulslander, at the conclusion of plaintiffs' evidence, for a judgment for defendant.
"3. The final judgment and order are not sustained by sufficient evidence.
"4. The final judgment and order are contrary to law."
Insofar as pertinent to this case, Section 1083-1 et seq., General Code, under which the injunction was issued and the defendant later brought to trial on the charge of contempt, are hereinafter quoted.
"Section 1083-1. That in order to safeguard life, health, and property, any person practicing or offering to practice the professions of engineering * * * shall hereafter be required to submit evidence that he is qualified so to practice, and shall be registered as hereinafter provided; and it shall be unlawful for any person to practice or to offer to practice the professions of engineering * * * in this state, or to use in connection with his name or otherwise assume, use, or advertise any title or description tending to convey the impression that he is a professional engineer * * * unless such person has been duly registered or exempted under the provisions of this act." (Emphasis supplied.)
The terms, "professional engineer," and, "practice of professional engineering," are defined as follows:
"Section 1083-2. The term `professional engineer' as used in this act shall mean a person who, by reason of his knowledge of mathematics, the physical sciences, and the principles of engineering, acquired by professional education and practical experience, is qualified to engage in engineering practice as hereinafter defined.
"The practice of professional engineering within the meaning and intent of this act includes any professional service, such as consultation, investigation, evaluation, planning, design or responsible supervision of construction or operation, in connection with any public or privately owned public utilities, structures, buildings, machines, equipment, processes, works or projects, wherein the public welfare, or the safeguarding of life, public health or property is concerned or involved, when such professional service requires the application of engineering principles and data. * * *"
It will be observed from an examination of the foregoing provisions of the statute that the prime purpose of the act is to protect the public from the unauthorized practice of professional engineering as defined by the act. This purpose is clearly indicated in the first words of Section 1083-1, General Code, and in the second paragraph of Section 1083-2, General Code.
These sections differentiate between professional engineering therein intended to be regulated and other fields of engineering not intended to be regulated and which by their very nature cannot be the subject of regulation. It therefore follows that all engineering remains unaffected under the act except that which involves or concerns the safeguarding of life, public health or property. It should be noted that after the act undertakes to regulate certain kinds of engineering involving public health, welfare and safety, it then provides for exemptions from the provisions of the act. These exemptions are as follows:
"Section 1083-20. The following persons shall be exempted from the provisions of this act, to wit:
"* * *
"(g) Nothing in this act shall be construed as requiring registration for the purpose of practicing professional engineering, or surveying by an individual, firm or corporation on property owned or leased by said individual, firm or corporation, unless the same involves the public safety or public health; or for the performance of engineering or surveying which relates solely to the design or fabrication of manufactured products." (Emphasis supplied.)
That the provisions of the act do not apply to those engaged in designing or fabricating manufactured products was recognized by the Attorney General of Ohio, the legal advisor of the State Board of Engineers and Surveyors, in an informal opinion (No. 199) dated May 2, 1947. He there stated in substance that engineering relating to the design and construction of all kinds of aircraft for every purpose, including commercial, military and experimental aviation, and the designing and construction of all devices, contrivances, and accessories pertaining to such aircraft including engines, motors and other machinery of every sort, while they constituted the practice of professional engineering, obviously came within the exemption of Section 1083-20 (g), General Code. This opinion was given in pursuance of a request by the Secretary of State who had refused to accept for filing proposed articles of incorporation of a company which included in its charter the purposes above described. This construction appears to us to carry the force of logic and reason.
Referring now to the original decree herein, there is no finding by the trial court that the defendant actually practiced "professional engineering" as defined by the statute. However, the defendant was enjoined from practicing or "offering to practice engineering" or from using the word, "engineer," or any word or words of like import. Further the decree does not in specific terms enjoin the defendant from performing or offering to perform any of the particular services described in Section 1083-2, General Code, as the practice of "professional engineering."
The decree uses only the term, "engineering," which is a generic term covering many phases of human activity which do not come within the classification of "professional engineering" as defined by the statute.
Also, it is important to observe that in the publication of which complaint is made, defendant did not use the term, "professional engineer," which is specifically prohibited by the statute. Consequently it cannot be said that the mere use of the generic term, "engineer," would be, per se, a violation of the act. To warrant a finding of guilty it would be necessary to show by the requisite degree of proof that the defendant was actually engaging in the practice of "professional engineering" or actually holding himself out as engaging in such practice as defined by the act.
In our opinion the injunctive decree could not, by its terms, rise higher than the act (Section 1083-1 et seq., General Code) from which the court derived its jurisdiction in the first instance. In other words, it was not within the province of the court to broaden or extend the meaning of "professional engineering," beyond the definition of the term as set forth in the statute. Its provisions should therefore be construed to prohibit only those activities proscribed by the statute. Concerning this phase of the subject, the Supreme Court of Illinois, in the case of Krebs v. Thompson, Dir., 387 Ill. 471, 56 N.E.2d 761, in passing upon a statute similar to that under consideration herein, said in paragraph four of the syllabus:
"Where an act defines terms therein used, those terms must be construed according to the definitions in the act, and as the act to regulate professional engineering attempts to define the term 'professional engineering' by referring to other terms not defined and leaves to the examining committee provided in the act the power to determine its application, it is invalid as a delegation of legislative power."
And at page 477 the court said:
"It will be noted that the definition contained in Section 2 gives little insight into what activities are included in the act. Briefly stated, the term `professional engineering' is there defined to mean any professional service wherein the public welfare or the safeguarding of health, life or property is concerned or involved when such professional service requires the application of engineering principles and data. When an act defines the terms therein used, those terms must be construed according to the definitions contained in the act. Smith v. Murphy, 384 Ill. 34; Rozran v. Durkin, 381 Ill. 97."
From an examination of the evidence as shown by the record, it appears that some time in December 1947, after the issuance of the injunction, the defendant sought the advice of counsel who advised him as to his rights and liabilities under the injunctive decree and that he conformed to such advice.
The evidence further shows that the defendant was president of The Aimes Company, Inc., and that the company for a period of time built centrifugal casting machines and permanent molds and did only the structural detailing of shiploading towers all of which in our opinion comes within the exemptive provisions of Section 1083-20, General Code.
Upon consideration of all the evidence, the members of this court are unanimously of the opinion that the evidence shows the business activities of the defendant related solely to the design or fabrication of manufactured products.
Construing the provisions of the injunction in the light of the act, we conclude that there is no evidence showing that defendant violated the injunction, and the finding and judgment below are therefore not supported by any evidence upon a material issue. The judgment therefore should be reversed and a decree entered for the defendant appellant.
Judgment reversed and decree for defendant appellant.
SKEEL, P.J., FESS and HURD, JJ., concur.
FESS, J., of the Sixth Appellate District, sitting by designation in the Eighth Appellate District.