Carpenter v. Comery

This is an information in the nature of quo warranto preferred by Herbert L. Carpenter, in behalf of the State upon the relation of George M. Rex, to determine the title of the respondent to the office of member of the State Board of Accountancy.

It appears that at the January session of the General Assembly, A.D. 1920, the governor with the advice and consent of the senate appointed the relator, George M. Rex, a member of the State Board of Accountancy to hold office from the first day of February 1920 until the first day of February 1923, and until the appointment and qualification of his successor in said office. The relator qualified and held the office during said term and claims that he continues to hold the office. On January 13, 1923, the governor nominated the respondent as a member of said Board of Accountancy for the term of three years from the first day of February 1923 to succeed the relator Rex, and on February 2, 1923 the senate gave its advice and consent to the appointment of the respondent.

The claim of the relator is that at the time of the appointment of the respondent he was not eligible to the office because he had not been actively engaged in the practice of accounting on his own account in this state for three years next preceding the date of his appointment, and that, notwithstanding his ineligibility, the respondent has done all things required by law for qualification to said office and is illegally using and exercising said office.

Section 1, Chapter 34, General Laws 1909, designates the persons who may practice as certified accountants in this state, as follows: "Any citizen of the United States, or person who has duly declared his intention of becoming such citizen, having a place for the regular transaction of business as a professional accountant in this state, being over the age of twenty-one years, of good moral character, who shall have received as hereinafter provided in this chapter a certificate of his qualifications to practice as a certified public accountant, shall be deemed and known as a certified public accountant under the provisions of this chapter."

Section 2 of said Chapter provides for the appointment of members of the State Board of Accountancy. In part the section is as follows: "Section 2. There shall be a board of examiners, to be known as the state board of accountancy, to carry out the purposes and enforce the provisions of this chapter. The members of said board, consisting of three persons, shall be citizens of this state and skilled in the practice of accounting, and when appointed shall have been actively engaged therein on their own account in this state for not less than the three years next preceding the date of their appointment. At the January session of the general assembly, A.D. nineteen hundred nine, and annually thereafter, the governor, with the advice and consent of the senate, shall appoint one member of said board, who when appointed shall be a certified public accountant, to hold office until the first day of February in the third year after his appointment, to succeed the member of such board whose term will next expire."

In the argument before us it was urged in behalf of the respondent that as to members of the board appointed by the governor with the advice and consent of the senate at and after the January Session 1909 the only requirement for eligibility is that the member appointed "shall be a certified public accountant at the time of his appointment."

The provision as to requirements for eligibility to the office of a member of the board, contained in Section 2, has some apparent uncertainty. No reason appears, however, which would lead the General Assembly to make the great difference, for which the respondent contends, between the requirements for eligibility of members appointed before, and those appointed at and after the January Session 1909. We are aided in determining the construction which should be given to Section 2 by reference to Chapter 1370, Public Laws 1906, in which the Board of Accountancy was created, and the business of certified public accountants was first regulated in this state. Under Section 2 of Chapter 1370, Public Laws 1906, it was provided that the members of the board "shall be citizens of this state and skilled in the practice of accounting, and when appointed shall have been actively engaged therein on their own account in this state for not less than the three years next preceding the date of their appointment." As at that time there were no public accountants, certified in accordance with the laws of this state, the requirement would have been unreasonable and inoperative that the members first appointed should be certified public accountants. By the further provisions of Section 2 it was required that members of the board appointed at and after the January Session 1907 should be certified public accountants. This was clearly intended not as the sole requirement of eligibility of members of the board appointed at and after the January Session 1907, but as and added requirement applicable to such later appointees. Upon the revision of the General Laws in 1909, Chapter 1370 Public Laws 1906 was reenacted as Chapter 34 with such changes only as the date of reenactment necessitated. The added requirement, contained in the Public Laws, Chapter 1370, with reference to members appointed at and after the January Session 1907, was made applicable to members appointed at and after the January Session 1909.

To be eligible to the office in question the respondent must have been at the time of his appointment a citizen of this state, skilled in the practice of accounting and a certified public accountant. All of these qualifications the respondent undoubtedly possessed. He must also at that time have been actively engaged in the practice of accounting on his own account in this state for not less than three years next preceding. As to the latter qualification, question is raised. It appears that on May 1, 1921, the respondent organized a firm of accountants doing business in Providence, and from that time until his appointment, February 2, 1923, it is not disputed that the respondent was engaged in the practice of accounting on his own account in this state. For about six years previous to May 1, 1921, the respondent was employed by the relator, in the later years as the relator's chief accountant. Because of the nature of the business of accountancy the respondent was employed by the day, receiving compensation for such days only as he rendered service. According to the testimony of the respondent, which was uncontradicted, during all the time that he worked for the relator he was engaged in the practice of accounting on his own account. The amount of such practice was not extensive but continued during all that period, on days in which he was not employed by the relator and in the evening. He had a place of his own where he regularly transacted business at his own home. At times when business came to him from his personal clients, which he could not perform without interfering with his employment by the relator, he gave the business to the relator.

The language of the statute is not explicit. The expression "engaged therein on their own account" is somewhat indefinite and the requirement is not that the practice on their own account should be so continuous as to exclude all other activities on the part of appointees. We think that in this respect the statute should receive a liberal construction in favor of the appointee. From the evidence before us we may reasonably find that the respondent, within the language of the statute, was engaged in the practice of accounting for his sole individual profit, although not exclusively, during at least three years next preceding the date of his appointment, and that he was eligible to the office. We are the more inclined toward this determination, because it is in accord with the finding of the governor in making the appointment, and with that of a house of the General Assembly in giving its advice and consent to such appointment. It has been the settled practice of this court to give great weight and persuasive force to the findings of fact of those coordinate branches of the government. They have each passed upon the eligibility of the respondent. Before we will hold adversely to their finding, the relator must satisfy us that their action can not be supported by reasonable intendments and allowable presumption in its favor.

The prayer is denied. The information is dismissed.