North Carolina Board of Architecture v. Lee

142 S.E.2d 643 (1965)

264 N.C. 602

NORTH CAROLINA BOARD OF ARCHITECTURE v. C. A. LEE.

No. 538.

Supreme Court of North Carolina.

June 18, 1965.

*647 Arendell, Albright, Reynolds & Farmer by R. Mayne Albright, Raleigh, for plaintiff appellant.

Womble, Carlyle, Sandridge & Rice by I. E. Carlyle, and Charles F. Vance, Jr., Winston-Salem, for defendant appellee.

PARKER, Justice.

Plaintiff was empowered by the specific provisions of G.S. §§ 150-9 and 150-31 to institute this suit in the Wake County superior court for a permanent injunction to restrain defendant from allegedly practicing architecture in violation of the provisions of G.S. §§ 83-1(3) and 83-12.

Chapter 83 of the General Statutes is entitled "Architects." G.S. § 83-1(3) defines "The practice of architecture." G.S. § 83-12 provides in relevant part: "In order to safeguard life, health and property, it shall be unlawful for any person to practice architecture in this State as defined in this chapter, except as hereinafter set forth, * * * unless such person shall have secured from the Board a certificate of admission to practice architecture in the manner herein provided, and shall thereafter comply with the provisions of the laws of North Carolina governing the registration and licensing of architects." G.S. § 83-12 contains this express exception: "Nothing in this chapter shall be construed to prevent any individual from making plans or data for buildings for himself; * * *; provided that such persons preparing plans and specifications for buildings of any kind shall identify such plans and specifications by placing thereon the name and address of the author." G.S. § 83-12 further provides that anyone unlawfully violating the provisions of Chapter 83 of the General Statutes shall be guilty of a misdemeanor, and shall upon conviction be sentenced to pay a fine or imprisonment, or both, "each day of such unlawful practice to constitute a distinct and separate offense."

Plaintiff's first assignment of error is that the court erred in sustaining defendant's objection to the following question it asked its witness, Louis Polier, its executive secretary: "Do you recall that any warning was issued to Mr. Lee about unauthorized practice in connection with the educational building for Salem Baptist Church?" In sustaining the objection the court stated: "What difference does it make?" Counsel for defendant in replying stated in part: "The Board is not required to give warnings." This assignment of error is overruled on two grounds: First, because plaintiff failed to insert in the record what the answer of Polier would have been had he been permitted to respond, Hyde County Board of Education v. Mann, 250 N.C. 493, 109 S.E.2d 175; and second, because plaintiff concedes in his brief "that the showing of warnings is not required in order to warrant an injunction, a single act of unauthorized practice being sufficient, if shown, to invoke the criminal penalties of G.S. 83-12 or the injunctive relief of G.S. 150-31."

Plaintiff's second and last assignment of error is: "The court erred in rendering and signing the judgment as set forth herein." This assignment of error does not bring up for review the evidence upon which the findings of fact are based. It does, however, raise the question as to whether an error of law appears on the face of the record proper. This includes the question whether the facts found by the judge are sufficient to support the judgment, and whether the judgment is regular in form. Milwaukee Insurance Co. v. McLean Trucking Co., 256 N.C. 721, 125 S.E.2d 25.

Judge Copeland's findings of fact relate to defendant's activities in respect to three buildings: (1) The construction in 1955 of an educational building for Salem Baptist Church in Winston-Salem; (2) the construction *648 in 1963 of an addition to Deeds Hall for Piedmont Bible College; and (3) the construction in 1964 of an automobile sales and service building.

Judge Copeland's finding of fact in respect to the second building is that on 9 April 1963 defendant applied to the city of Winston-Salem for a building permit to construct a $45,000 addition to Deeds Hall for Piedmont Bible College, and the plans submitted were certified under seal of a duly licensed architect. Nothing in this finding of fact shows that defendant was engaged in the practice of architecture in violation of the provisions of Chapter 83 of the General Statutes. It appears that plaintiff has abandoned its allegation in its complaint and its contention that defendant violated the provisions of Chapter 83 of the General Statutes in respect to the construction of an addition to Deeds Hall for Piedmont Bible College, because upon the facts found by Judge Copeland it makes no contention in its brief that in doing this work defendant violated the provisions of Chapter 83 of the General Statutes. Further, plaintiff on the last page of its brief states: "Plaintiff contends that BOTH the church plans and the garage plans were violations, but that EITHER is sufficient to warrant an injunction against further violations by defendant." Judge Copeland was correct in his conclusion of law that in respect to the construction of this addition to Deeds Hall for Piedmont Bible College defendant was not engaged in the practice of architecture in violation of the provisions of Chapter 83 of the General Statutes.

Judge Copeland's findings of fact in respect to the third building are to this effect: On 9 March 1964 defendant applied to and received from the city of Winston-Salem a building permit for the construction of an automobile sales and service building on land which he had bought in several tracts over a period of years, and that titles to some of these tracts composing this land were conveyed to him by deed and some to him and his wife as tenants by the entirety. That the application for the building permit indicated that the owners were E. L. Connor and C. A. Lee, though in fact prior to, and at the time the building permit was issued, the land on which the building was constructed was actually owned by defendant or by defendant and his wife as tenants by the entirety. Defendant had completed his own plans for this building on 27 December 1963, and revised them on 9 March 1964. After receiving a building permit, defendant commenced to construct the building for himself. E. L. Connor, defendant's brother-in-law, owned a smaller tract of land adjoining defendant's land on which the building was being constructed. On 31 March 1964 Connor decided to go in with defendant on this building, and on that day Connor and his wife and defendant and his wife executed deeds conveying their respective lands to Barbara Ann Adams, and she then executed a deed conveying both tracts of land to defendant and his wife and Connor and his wife. Prior to the conveyances to Adams, defendant, and defendant and his wife as tenants by the entirety, owned about 90% to 95% of the entire land and Connor about 5%. The building was later leased by the owners to an automobile agency.

Tenancy by the entirety was recognized by the common law, at least as far back as the reign of Edward III, when husband and wife were regarded as one person, and that person was the husband, "and a conveyance to them by name was a conveyance in law to but one person." Davis v. Bass, 188 N.C. 200, 124 S.E. 566; Motley v. Whitemore, 19 N.C. 537; Lee, North Carolina Family Law, 3d ed., Vol. 2, p. 55.

In tenancy by the entirety, "[t]he husband and wife take the whole estate as one person. Each has the whole; neither has a separate estate or interest; but the survivor of the marriage whether husband or wife is entitled to the entire estate * *." First Nat. Bank of Durham v. Hall, 201 N.C. 787, 161 S.E. 484.

During the existence of the tenancy by the entirety, the husband has the absolute *649 and exclusive right to the control, use, possession, rents, income and profits of the lands, and he does not have to account to his wife for the rents and income received from the property. Porter v. Citizens Bank of Warrenton, Inc., 251 N.C. 573, 111 S.E.2d 904; Davis v. Bass, supra; Lee, North Carolina Family Law, 3d ed., Vol. 2, § 115, where many cases are cited.

The estate by the entirety and the properties and incidents of this particular estate have not been changed or altered in their nature and character by statute or by constitutional provisions in North Carolina. In re estate of Perry, 256 N.C. 65, 123 S.E.2d 99; Davis v. Bass, supra.

Taking into consideration that during the existence of the tenancy by the entirety the husband has the absolute and exclusive right to the control, use, possession, rents, income, and profits of the lands held by him and his wife as tenants by the entirety, when defendant made plans for the construction of an automobile sales and service building upon lands composed of several tracts, title to some of the component tracts being in him, and some in him and his wife as tenants by the entirety, it seems clear that he was making plans for a building for himself within the meaning of the specific exception contained in G.S. § 83-12, and that this is true even though before the building was completed Connor and his wife acquired an interest in it, for the express statutory exception contains no provision preventing him from selling an interest in the building for which he made the plans. Plaintiff contends that making plans for the construction of a building for lease, as was the case here, or for use by the public, is not within the statutory exception of "buildings for himself." This contention is untenable, for there is nothing in the express exception in G.S. § 83-12 to justify such a contention. The words "buildings for himself" contained in the express statutory exception are broad and comprehensive, State v. Cuthrell, 235 N.C. 173, 69 S.E.2d 233; 12 C.J.S. Building, pp. 380-381, and contain no limitation of any kind. Our statutory exemption differs from that of the State of New Jersey. The New Jersey Statutes Annotated, § 45:3-10, prohibits the illegal practice of architecture, and has an express exception as follows: "Nothing herein contained shall * * * prohibit any person in this State from acting as designer of any building that is to be constructed by himself for his own occupancy or occupancy by a member or members of his immediate family * * *." So far as we can determine from the briefs of counsel and from our own research, no other state has a statutory exception similar to ours. Obviously, a building may be erected for any one or more of many purposes. It seems plain that the statutory exception contemplates possession by the designer of the building for whatever lawful purpose he may choose. If the General Assembly had intended the statutory exception to be limited to buildings actually occupied by the designer, and not for lease and use by the public, it could quite easily have said so. The General Assembly in its wisdom and discretion did not so limit the statutory exception. The General Assembly having thus formally and clearly expressed its will, the Court is without power to interpolate or superimpose conditions and limitations which the statutory exception does not of itself contain. Judge Copeland was correct in his conclusion of law that defendant in making plans for the construction of this automobile sales and service building was not engaged in the practice of architecture in violation of the provisions of Chapter 83 of the General Statutes.

In respect to the first building, Judge Copeland's findings of fact show that defendant in the year 1955 "prepared or assisted in the preparation of the plans" for the construction of an educational building for Salem Baptist Church in Winston-Salem; that on the plans submitted to the city of Winston-Salem appeared the notation: "Plans by C. A. Lee"; and that defendant "supervised the construction of the building for the church." That in 1955 defendant was a member of this church; that title *650 to the land upon which this educational building was constructed was held by five trustees, of whom he was one; and that he executed the mortgage to finance the construction of this educational building. The judge's findings of fact clearly show that defendant made the "plans" for a building for Salem Baptist Church, and not for himself.

Plaintiff commenced this suit by the issuance of a summons on 27 October 1964. Defendant's answer was verified on 24 November 1964. The final hearing was held by Judge Copeland in December 1964. Conceding that in making these "plans" for the construction of this educational building for his church defendant violated the provisions of G.S. § 83-12, plaintiff is guilty of unreasonable delay in applying for an injunction for this violation. Plaintiff has shown no legal ground for such delay. Considering all the facts and circumstances of defendant's preparing or assisting in preparing the plans for an educational building for his church in 1955, and plaintiff's waiting until 27 October 1964 to commence a suit to apply for an injunction for what defendant did in 1955, and that plaintiff has shown no other violation by defendant of the provisions of Chapter 83 of the General Statutes, it is our opinion that plaintiff's delay in seeking an injunction in respect to what defendant did in 1955 on this church building has been continued so long and under such circumstances as to make it inequitable for a court of equity to issue an injunction against defendant for this violation, that plaintiff is guilty of laches, and has forfeited any claim it may have to injunctive relief against defendant for making or assisting in making plans for this church building in 1955. As a general rule, equity protects the vigilant, and not those who sleep on their rights, and courts of equity discourage laches and unreasonable delay in the enforcement of rights. 43 C.J. S. Injunctions § 171c, Laches; Pomeroy's Equity Jurisprudence, 5th ed., Vol. II, § 419c, p. 175; 28 Am.Jur., Injunctions, § 59.

Judge Copeland's findings of fact do not support his legal conclusion that "since the defendant was a member of the church and a Trustee when he assisted in the preparation of plans for a church building he stood in the position of owner and had both a legal and an equitable interest in the building to be constructed." His judgment is modified by eliminating from it this conclusion of law.

Judge Copeland's conclusion of law in respect to the automobile sales and service building is modified by adding thereto these words: "and by him and his wife as tenants by the entirety."

Judge Copeland's conclusion of law that "under the evidence presented the Court concludes that the plaintiff has failed to establish that the defendant has violated any provisions of the statutes relating to the practice of architecture," is modified by adding thereto these words: "except in respect to his preparing or assisting in the preparation of the plans for the construction of an educational building for Salem Baptist Church in Winston-Salem, and that plaintiff by reason of its laches has forfeited any claim it may have to injunctive relief for this violation."

Judge Copeland's findings of fact support his conclusions of law as modified in this opinion, and his findings of fact and conclusions of law as modified support his judgment. The judgment is regular upon its face.

Modified and Affirmed.

HIGGINS, Justice (concurring).

Judge Copeland, by finding of fact No. 3, determined that Mr. Lee, a member of the Salem Baptist Church and one of its five Trustees, drew the plans and specifications for the construction of a building on the church's property to be used in its church program. He made no charge for drawing the plans which complied with the building code and met all safety standards.

*651 At the time (1955) Mr. Lee made the plans for the erection of the building on the church property, he held title as one of five Trustees. The Architects' Licensing Act exempted him from the licensing requirement. "Nothing in this chapter shall be construed to prevent any person from making plans or data for buildings for himself." G.S. § 83-12. By the 1957 amendment the word person was stricken and the word individual was substituted. Webster's Third International Dictionary, at p. 1686, defines "person": "(6) A human being, a body of persons, or a corporation, partnership or other legal entity that is recognized by law as the subject of rights and duties." Commissioner of Corporations & Taxation v. Co-operative League of America, 246 Mass. 235, 140 N.E. 811. The word "person" as above defined was broad enough to include "the body of persons (Salem Baptist Church) recognized by law as the subject of rights and duties," to the end that one of the members could be designated by the body to prepare its building plans. The provision "for himself" includes "for herself" or, as in this case, "for itself," referring to the church. Black's Law Dictionary, 4th Ed., p. 1299.

The Architects' Licensing Act contains highly penal provisions. Drawing plans without an architect's license is made a misdemeanor for which punishment shall be by fine of not less than $100.00 nor more than $500.00, or imprisonment not exceeding three months, or both fine and imprisonment. Each day constitutes a separate offense. The Act, being penal, must be strictly construed in favor of the exemption, and against the implication of criminal intent and against the infliction of the penalty. State v. Garrett, 263 N.C. 773, 140 S.E.2d 315; Hinson v. Dawson, 241 N.C. 714, 86 S.E.2d 585, 50 A.L.R.2d 333; State v. Scoggin, 236 N.C. 1, 72 S.E.2d 97; Hilgreen v. Sherman's Cleaners & Tailors, Inc., 225 N.C. 656, 36 S.E.2d 252. The General Assembly evidently construed the word "person" as used in the original Act to mean something different from "individual." Otherwise, by making the substitution the lawmakers were merely spinning their wheels.

I am unwilling to join the majority in striking out conclusion of law No. 1. By doing so the Court in effect is holding that Mr. Lee was guilty of a misdemeanor and subject to punishment for each day he worked on the plans. If the Court's decision is correct, only the statute of limitations offers refuge from prosecution. I think Mr. Lee on this record has a better defense than the one the Court allows himlaches on the part of the plaintiff in bringing this action.

RODMAN, J., concurs in this opinion.