*1 Richmond Trading as Sellers Brothers Sellers, Sellers Louie Hubert Company. Trading as M. Bles v. M. J. Bles, Construction J. 23, 1956. April Record No. 4445.
Present, All the Justices. states the case. opinion T. Dodson and Stuart & Dodson Ryland (Fowler L. Craig brief), for the in error. *2 Wood & Bauk
Edwin B. Tate Meade Talbott & (Meade, and night brief), for defendant in error. the court. delivered the J.,
Miller, opinion Brothers, Sellers, as Sellers Hubert Sellers and Louis trading motion for hereinafter referred to as filed a judgment plaintiffs, to Bles, as Bles Construction M. M. Company, against trading J. J. breach $27,774 recover for in the amount of alleged damages aof written contract. that the con- a
Defendant motion to dismiss filed ground that it was un- tract sued and void.” He asserted on was “unlawful was ex- lawful and unenforceable because plaintiffs’ with, and be- $20,000, cess of and had not qualified registered Contractors, contrac- as fore the State Board for Registration subcontractors, tors or as Code of Chap- Virginia, required by §§ 54-145, ter Title to inclusive. 54-113 notice of motion The case was heard the court on the supple- by council, certain exhibits submitted mented a bill of particulars, and the motion dismiss. defendant, a and exhibits that as from the appeared pleadings 1953, with the contractor, entered into a contract July, Num- for Martinsville, entitled a “Contract Virginia, Projects
City for for Waterworks 4 and and bers Improvements Specifications that defendant was to The contract of Martinsville.” City provided lines, area, dam and clear a reservoir construct lay pipe spillways, whole incidental to the and other do certain things completion 2 was entitled No. waterworks “Pipe plan. Project improvement Area;” No. Reservoir No. 4 Line;” Project “Clearing Project be and the work to done area to be cleared Dam.” The “Earth Fill follows: was as No. 4 set out under Project above the and 300 ft. line at a upstream parallel “Beginning shall remove from dam, the contractor base line of and a flooded to be the entire marginal strip approximately area ft„ trees, brush area all flooded undergrowth, saplings, tfoe beyond He wood, trees, houses, fences, and other material. fallen perishable all the area.” shall also burn over him-
It was also that “the Contractor determine for may provided the method in which he or remove the timber self shall destroy be material to of and shall have the clearing disposed privilege eco- land with if found to be more bulldozers similar equipment nomical than with saws or similar axes, cutting equipment.”
In use the reservoir area the contractor was allowed to clearing but in storing explosives blasting, handling, using explosives was conform the laws required regulations City Martinsville State, and the so as not to en- to conduct blasting were Strict danger persons to property. requirements prescribed the com- to insure cleanliness to adequate sanitary protection shed, and to water in manner satis- munity prevent pollution Health, to the State the local Officer factory Sanitary Department that the be cut trees Engineer. specifications only required a short distance from the was not the removal of ground stumps removed; No dirt was involved. no grading required, *3 and none of this was done.
Defendant, the No. 4 to contractor, sublet Project plaintiffs as subcontractors, and the latter undertook the the reser- of clearing voir area in that accordance with the of specifications plans acres, The area to be cleared consisted of 225 project. plaintiffs were to receive and the timber cut from acre $143 acreage. per work,
A few weeks after the Lester Lumber Com- began plaintiffs Inc., timber, made claim to the and the interested being parties pany, timber, defendant notified unable to on agree ownership to all work and the area. Plaintiffs leave complied stop plaintiffs with that demand 16,
and then their on 1954. action instituted April held were sub- in written court, The trial opinion, plaintiffs §§ 7, 54, to of Title 54-113 contractors within meaning Chapter 54-145, inclusive, 1950. It admitted that Code Virginia, being subcon- as a contractor or had not registered qualified § and that the cost the work 54-113(2), under to tractor per- $20,000, was in excess of court dismissed formed by plaintiffs a writ of error. we action. granted Upon petition plaintiffs, effect, if did the failure determination is: What The issue for any, as a Brothers, as Sellers to register qualify trading plaintiffs, their 7, Title 1950 have on under Code of subcontractor Chapter that an In their brief concede maintain this action? right made amendment Acts ch. 54-113(2) 1954,- p. is not here. applicable 54, Code, 1950,
So much of Title is material per- tinent as follows: reads
§54-113(2) General contractor’ or ‘subcontractor’ shall mean firm, association or that for a fixed any person, corporation price, commission, fee or undertakes to bid or con- percentage, upon, struct or of, the construction superintend building, any highway, line, sewer, or or bridge, railway, pipe grading, any improvement, structure or thereof, when cost or a sub- part contract thereunder is thousand dollars or more; twenty any firm, association or who shall or bid person, corporation engage or the construction of structure constructing superintending any or or or thereof above mentioned any undertaking improvements in the State, more, thousand dollars or shall be deemed costing twenty to have in the business of or subcontract- engaged general contracting in this State.” ing
§ 54-128: “It shall be unlawful for in, or any person engage offer in, or State, general contracting subcontracting unless he has been licensed and issued a certificate of duly registration under the of this provisions chapter.”
§ 54-129 for for fees, examination provides application registration, and issuance of certificates. 1 “(2) ‘General contractor’ firm, or ‘subcontractor’ shall mean asso any person, ciation or corporation commission, that for a fixed fee or under price, percentage, takes to bid accepts or upon, or to accept,* performing orders or contracts offers (a) or superintending-, any any building structure, on or in requiring or use paint, stone, brick, mortar, wood, cement, steel, iron, structural sheet iron galvanized iron, piping, metallic tin, lead, any building or other metal or other (b) material; any paving, curbing sidewalks, streets, alleys, or other work on highways, public private property, using asphalt, brick, stone, cement, concrete, (c) any composition; rock, wood or excavating earth, or other material for (d) purpose; other stone, brick, sewer foundation terra *4 (e) material; any cotta or other involving erecting, installing, altering work repairing, or wiring, electric appliances permanently devices or connected such wiring; or erecting, repairing maintaining or lines the transmission or (f) light power; any distribution altering electric involving installing, repairing any plumbing, or -fitting piping, steam or other when the amount order, the bid or cost of the contract or* undertaking, subcontract* is twenty more; firm, thousand or dollars association or who shall person, corporation accept, accept, doing bid or superintending in* the upon, offer State, more,
work above mentioned in the thousand dollars or shall costing twenty be deemed to have in the business of engaged general contracting subcontracting- in State.” this
53 § as misde- makes a violation 54-142 punishable meanor. them within
If the undertaken Sellers Brothers contract brought by work as then §54-113(2), engaging purview upon obtained the license and subcontractors without cer required having misdemeanor, (§§ 54-128 tificate of committed a registration, they Electric is unenforceable. Bowen 54-142), and their contract v. Hancock Inc. v. 92, 388; Co., Co. S. E. 2d 194 Va. 72 Foley, 349, et 332; 14 S. E. 2d al. v. Stephens, Massie, Dudley, 177 Va. etc. Ashland Con 42, 176; Colbert, 173 Va. 3 S. E. 2d Exec’r, 500, struction Va. S. E. 2d Co. v. Co., 612; 11 Products Lasting 1, 87 S. 2d Sutton Inc. Con Genovese, 811; 197 Va. v. Wise Co., E. et 705, Inc., al., 90 E. 2d 805. tracting Co., S.
Before determine if §54-113(2) interpret section includes what to do, contracted we consider the plaintiffs character 7, 54, embodied in Title Code of legislation Chapter 1950, of which it ais part. 7, 54, Title in the exercise the state’s enacted it remedial features, has it re- Though
police power. yet imposes strictions a common trade and it inis occupation, derogation of the common law and must be construed. strictly
“In the well-settled rule of construction is that even Virginia a statute be remedial, when, same time, at the also in though law, of common it must be construed.” O’Connor derogation strictly v. Smith, 214, 222, 188 Va. S. E. Statutes, 2d 310. 17 M. J., §§ 69, 331. p.
The act in reason, also and for that question penal, applying its sanctions, effect to its strict construction penal provision giving is required.
“This
ordinance,
is a
and is, therefore,
to be construed
penal
It is
not to
extended
and must be limited
strictly.
by implication,
in its
to cases
described
application
clearly
language
employed.
The books abound with cases
which is of
illustrating
principle,
universal
instances in which the doc-
application, except
particular
trine has been modified
&
statute.” Gates
Son Co. v. City
103 Va.
Richmond,
§
and their contract is enforceable. 17 M. Statutes, J., 329. p. *5 in a or con- is immoral
“There contrary public policy nothing Neither $20,000 or more. does contract struction involving § or forbid if.), either (Code, 54-113 expressly impliedly, is a contract. such unqualified merely prohibits persons—that taken out the license— those have not or who required registered Cohen v. Mayflower from into such an Corp., entering agreement.” 1153, 1160, E. 2d 860. 86 S. as contractors and subcontractors defined Only general an examination and a certificate. (2) 54-113 are to take get required That to whom these statutes are section that contractors provides con- bid construct or those who applicable superintend upon, (4) (1) (2) (3) struction of bridge, railway, building, highway, or (5) line, sewer, (6) (7) (8) grading, any improvement, pipe or (9) thereof, structure “when cost or undertaking more. or a dollars or thereunder is thousand subcontract twenty # # #» jt tpen who “shall bid that any person eXpressiy provides the construction or or constructing superintending upon or thereof structure or or any undertaking parts improvements * * * busi- be deemed to have above mentioned shall engaged ness or subcontracting.” general contracting a nor subcontractor
It is conceded that neither contractor general unless the work examination and take the required qualify $20,000 more. amounts to bids or undertakes he personally § 54-113(2) think We likewise fair application interpretation a sub- it is the character of leads to the inevitable conclusion that con- and not the character of contractor’s general undertaking not the whether or over-all determines tractor’s of the statute. within the terms subcontractor Consistency character of the that the over-all reason the idea general negative subcontractor’s determinative contractor’s work should con- with the well The subcontractor status. might agree aware of what was work and not be tractor to perform specified over-all contractor’s character of undertaking. did not come by plaintiffs
Certainly performed enumerated in the statute which within the defining things specific im the head come under did must What contractors. “any they covered statute. above if it be (8) numbered provement,” have The words may “any improvement” “improvement” have wide intends that the user when broad scope. meaning defines the word ed,, 2d International New Webster’s Dictionary, “a addition, valuable as a betterment, “improvement” building, drain, fence, etc., on land.” clearing,
“The term, word is a which includes ‘improvement’ comprehensive its whereunder work is done meaning any development money with reference to the benefit enrichment of the future expended *6 v. S. etc., 181 Va. 27 E. Eppes Eppes, Exec'x, premises.” 2d 164.
However, the word also have narrow mean- “improvement” may if that S., is intended. As “The word said in 42 C. ing page J. term, is a relative and whose ‘improvement’ very comprehensive must be ascertained matter from the context and the meaning subject instrument in which it a tract is a house used.” Building land is an and is the statute. covered malting improvement, by weeds, rocks, fertilizer, off an Cutting hauling planting spreading orchard would each be an kind but not the covered improvement, the statute. by
§In “construction,” 54-113(2) the words “construct” and modify and color the dominant enumerated are the They undertakings. words because all nine controlling undertakings susceptible construction. All listed things improvement” except “any must be constructed, and their contemplated §54-113(2). None but an can be accomplished “improvement” may without construction work. not be An may improvement of construction. Whether susceptible improve- contemplated ment is one what that will be constructed is wholly dependent type improvement contemplated.
The §54-113(2) words as they “any improvement” appear follow seven “constructed.” other that must be specified undertakings thereof.” also “structure or the words They immediately precede This un- indicates words contemplate “any improvement” the other which are construction as are dertakings susceptible listed things. a sociis and noscitur ejusdem two canons of construction which
generis indicate words “any general improvement” are modh follow all of which several enumerated things, specifically fled to in- were intended “construct” “construction” words con- clude be that were to through only undertakings accomplished struction.
“The
sociis,
discussed
connection
maxim Noscitur a
is frequently
doctrines,
these
where
with
maxim
tinder
generis, and
Ejusdem
words, the
there are
words
following particular
specific
words must be confined
as those
to matters of
same kind
S.,
Am.
S.,
1049;
66 C.
608. 28 C.
Jur.,
specified.”
p.
p.
J.
J.
§§
Statutes,
v.
248, 249, 250,
Gates & Son Co.
243-246;
City
pp.
State Western Union
196 Ala.
Richmond,
Co.,
supra;
Telegraph
570, 72
Dun
99;
450;
So.
Nettles v.
Ala.
So.
Lichtman, 228
ham v.
140 Fla.
State,
“Improvement” having It takes color and from its meaning. surroundings significance must be indicated its setting. interpreted given meaning will be Statutes, 50 Am. Jur., judged by company keeps. § 247, 241. p.
The work did, and what ask for was paid the reservoir area. That was the clearing undertaking personal them, and it was labor, mere and re- manual cutting brush, trees and more. Not even the moving nothing stumps the trees had to be taken was contracted to be out. No grading done. No dirt was contracted be moved. construction of No character was involved. *7 cleared,
Over the much land has been and to now it has years up not been considered that one does that of who sort necessary should first take an examination and a certificate. The get language of a statute which “new one who clears merely grounds” requires clear, take an examination a certificate certain to be and get ought and specific.
It seems obvious the statute is intended that this to regulate people in construction undertake to those who work—those who construct the enumerated construct like of character. things, things who do that kind of work will be to take exam- an People required ination ascertain their the their of qualifications performance whether and are re- i.e., the skill undertaking, they possess proper liable.
In the Bowen Electric Rohanna v. four cases Co. v. Foley, supra, 549, Va. Vazzana, 440, 84 S. E. 2d Cohen v. Mayflower Corp., , al., et Sutton Inc. v. Wise Co., Co., Inc., supra, supra Contracting 7, in which the Title contractor with non-compliance by 1950, 54, Code of to be invoked as a defense to sought plaintiff’s claim, issue the kind work in each instance no of done arose for upon work undertaken was construction of one kind or another. the cut a that he When subcontractor’s requires agreement merely it can trunks, or burn the and remove down trees twigs, boughs bid undertaken “to he has so upon, not said by doing fairly * ** im the construction construct, or to superintendend *# be the whatever thereof structure may provement contractor’s undertaking. Brothers con- what Sellers The facts are unless dispute statutes, contract is their crime under tracted to do constitutes §54-113(2) a fair and reasonable valid. Certainly application and in- facts of this case under principles would demand finding terpretation applicable was not within letter or their penal spirit the statute. provision court reversed stated, trial
For the reasons judgment with in accordance case for further remanded proceedings the views herein expressed.
Reversed and remanded. Spratley JJ., dissenting. Smith, J., dissenting.
Spratley, court, I would affirm the of the trial affirmance judgment basing v. what we said in Bowen Electric Company Foley, involved. 72 S. E. 2d and the line the statute of cases applying In those cases we stated design repeatedly purpose statute. We legislature enacting recognized hardships which its nevertheless enforcement; result from but we may applied to a its without to resort subtlety reasoning provisions attempting some which in the effort to find ambiguity, might expression relieve of the statute. an contractor from unregistered penalties
In discussed Bowen Electric we Company Foley, supra, critically the cases Title Code reviewed provisions Chapter *8 acts, made the that Act and other following involving cognate statements:
“The statute from is to designed public inexperienced, protect to ef- or contractors incompetent unscrupulous, fectuate this irresponsible, character, a demonstration of it requires ability, purpose and financial as a record of as well good perform- past responsibility ance. Va. (194 96) page
[*******] “The has stated the rule that when a contractor legislature engages in the structure, thereof, construction of or and the cost of any part $20,000 more, amounts to then the performed public interest is involved to of sufficiently regulations justify imposition It is contractor. governing licensing registration cost the work done on a which determines given project whether or not contractor is to the section subject provisions of 54-113 et The reason the cost seq. limitation is obvious. The legislature has concluded that than $20,000 less do projects costing involve the sufficiently public imposition justify welfare whereas those statute, $20,000 more are costing of sufficient However, importance justify regulation. there in the nothing statute which is to work on the designed any hardship competent contractor.” (194 99) Va. qualified page [*] [*] [*] # # [*] # “The was (fur the work appellant engaged performing part certain which electrical went into nishing installing equipment), the construction of the What it was outdoor theater. did just much a as was the work completed project performed other contractor. The cost the work total performed by on this one theater appellant the cost $34,151.20. Since project the work was in excess performed $20,000, necessarily follows registration under statute was (194 100) required.” page (Italics ) ed. add
In Rohanna v. Vazzana, 196 Va. 84 S. E. 2d Mr. Justice Whittle, Bowen Electric said: Foley, Company supra, citing
“The of the Code here referred to chapter requires person who undertakes to bid construct other any building thing, is to cost dollars or thousand undertaking twenty more, if a State secure license in the A failure undertaking. engaging before with the statute the contractor on comply precludes recovery by his contract.” (Italics added.)
In Cohen v. Mayflower 196 Va. 86 S. Corp., E. 2d where the innocent sued the contractor for the breach party alleged of the latter’s contract, we said: “The ‘when the cost applies ” * * * thousand or more.’ (196 dollars twenty
59 or con- immoral added: “There is 1159), and later Va. nothing page $20,000 contract in involving to policy trary public ex- if.), either 54-113 (Code, Neither does the or more. un- a contract. forbid such merely prohibits impliedly, pressly taken out have not is, those who registered qualified persons—that (196 an into such license—from the agreement.” entering required 1160, 1161) Va. page involved, affords statement, made the facts there
The above under the here, because sub- contention no to the support the and the defendants here are the contractors unqualified persons innocent persons. 54-142, which do sections 54-128
The statement overlooks into from more than entering “merely unqualified persons prohibit” that “It 54-128 Section contracts in violation statute. provides in, in, or to to offer be unlawful for shall engage any person has been State, in unless he this general contracting subcontracting under the licensed issued certificate of registration provisions further that Section 54-142 anyone guilty provides Chapter.” of a the be deemed misdemeanor. statute shall guilty violating et Va. al., Inc. v. Wise 197 Co., Inc., In Sutton Co., Contracting statute, Mr. 705, 805, 90 S. E. 2d to referring purpose Smith said: Justice “* ** enforcement the contract is denied unregistered as a contractor, not because the transaction but of the nature of statutes, for to with the registration failing penalty comply conduct to the contract is innocent of other who any illegal party view is is enforce the contract. ‘This based to permitted de class innocent that such is among persons party principle in statutes, he delicto pari such is to be signed protected Or, entitled relief. with the unlicensed therefore is party, relief the innocent state the matter another party way, deny the statute and such cases would defeat penalize purpose case, Va., Cohen 196 supra, intended to be person protected thereby.’ at 1162.” page 1, S. E. 2d Products
In Lasting Genovese, Company Court, said: 811, Chief Hudgins, speaking Justice a statute “The made violation rule a contract general safe- fraud, or to enacted to against imposition, public protect unenforceable health or morals illegal guard public cited. Cases guilty party.” § 54-113, we
When review we find that the history original statute, 1944, Acts was amended Chapter page Acts made 634, to subcontrac- page apply tors well as contractors. The definition of subcon- contractors, tractors and to their with respect undertakings, “or broadened the words after the by adding thereof *10 “any or structure” and after the “any language improvement, phrase structure or any or It will be undertaking noted that improvements.” “or words any instead “or other im- used improvement” and that the definition when the cost of “any provement,” applies structure or any or or undertaking improvement part thereof $20,000 added.) or more. (Italics decisions of this Court
Subsequent applying provisions statute, of the Acts legislature by page amended and reenacted the Act and restricted the definition gen- eral contractors or subcontractors to in certain undertakings specified activities. The amendment deals with classes of special undertakings, and in each class. The words and particularizes “railway,” “grading” structure, “or or or thereof” language any improvement, part structure, or or or “any any undertaking, improvement, part thereof” are absent If revision. the 1954 amendment indicated intention of the inten- any particular legislature, obviously tion amend restrict the of the and effect coverage prior thereto itas had been construed this Court. is not and the policy legislation questioned, language is,
§54-113(2) me, clear and so when unambiguous, especially read in the of the statute. light design purpose 54-113(2)
Section defines contractor or subcontractor as who undertakes to in certain stated activities when any person “the cost or a subcontract thereunder is undertaking twenty thousand dollars or more, who in the con any person engages struction of structure undertaking improvements # * above mentioned *.” added.) (Emphasis thereof
Here, Bles, as contractor, was awarded a contract three for each which was an essential and aof Federal projects, integral part Works for the “construction” a “structure,” “an Agency Project “Water Works improvement” constituting Improve- ments for Martinsville.” His contract was identified City of its front as follows: outside page
“CONTRACT
for & 5 2,4 NOS. PROJECTS SPECIFICATIONS
for IMPROVEMENTS WORKS WATER MARTINSVILLE OF CITY Martinsville, Va. Lines No. 2—Pipe Project Area Reservoir No. 4—Clearing
Project Dam No. 5—Earth Fill Project Drawings Accompanying inclusive C-l, D-l toD-22 Nos. Sheets *11 Works Federal Agency No. VA—44—P—113.” Project a Plaintiffs undertook to thereunder” a “subcontract perform went into which contractor the of of the general “undertakings” part the the reservoir, aof according and completion a contract, for cost latter’s exceeding in the general specifications reservoir and a safe Under those $20,000. sanitary specifications, material, was as and trees, area, cleared of perishable undergrowth works water in the and essential improvement necessary completed in an fixtures electrical of and as the installing furnishing project, certain be for theater, as an excavation buildings. outdoor may Inc. Co., and Sutton v. Foley, supra, Electric Bowen Company Cf. et al., Inc., supra. Wise Contracting Co., of the stated in the The facts are majority beginning correctly that it is later stated However, undertaking opinion. labor, the mere manual them, and it was was “personal plaintiffs work more. and and brush trees nothing removing cutting * * * state- This was involved.” character No construction subcontract consideration leave out of and conclusion ment plaintiffs’ con- a constituent part work general which perform tractor’s a cer- construct reservoir in accordance with undertaking tain and strict as to specifications sanitary requirements protection.
In First, of their that “It is the opinion, say: support majority a character of subcontractor’s the character not undertaking contractor’s over-all that determines whether or not the Second, subcontractor is within terms of the statute.” that the “work did within the not come performed by plaintiffs which the statute enumerated in contractors.” specific things defining Third, that what “Unless Sellers Brothers contracted to do constitutes statute, crime under the their contract is valid.” The first asserted is in contradiction of the direct ground language § of 54-113(2), and our Bowen 54-113(2) in the case. holding the same definition for and sub- contractors provides exactly contractors in activities, enumerated “when cost un- of the aor subcontract thereunder is thousand dollars or dertaking twenty more.” “It is the cost work to done be given project which determines whether not the contractor to the is subject §of et 54-113, provisions seq.”
In of the assertion, that with- did come support plaintiffs’ in the which the enumerated, statute specific things majority enters into a dialectic discussion of certain words opinion statute, and that concluded those have words definite or fixed no Thus is had resort noscitur a canons of sociis and meaning. ejusdem generis. for the there some
Assuming, purpose argument, Act has remedial ambiguity agreeing features, law, restrictions of the common yet imposes derogation is, at the same time must, therefore, also penal, strictly construed, it must be remembered that a strict construction does not consideration the Court of the prevent general purpose design of the legislature.
“The is to statutes ascertain the object interpretation meaning *12 of the is to be from the obtained legislature. Primarily language If used. the used is and its language plain unambiguous, meaning definite, clear and effect must be to it what courts given regardless think of its wisdom or v. etc., Charles, Co. Fairbanks, Cape policy.” 56, 63, Va. 131 E. 144 S. 437.
“The of a statute is to ascertain object judicial interpretation the intention the intent is legislature, express implied,
63 Va. State 146 Entomologist, Miller v. of the statute.” the vital 813. 188, 135 S. E. 175, 604, 607, 82 S. 695. E. v. 116 Va. Commonwealth Werth,
See also 418, 441, 2d we 420, S. E. Va. 69 Commonwealth, Tiller v. 193 In said: is rule the cardinal a statute
“In construing law, constitutes the intention of the legislature primary that intention. is ascertain in object interpretation 2d v. Va. 26 S. E. 58.” 181 Joyner, Anglin cases, is most intent statutes, “In in legislative construing penal in which found words the be meaning by giving Va. Gates & 103 Richmond, Son Co., used ordinary speech.” S. Tiller v. Commonwealth, 49 E. 965. supra. It is do not have to We justify policy legislature. intent the direct to search for and follow function legislative judicial and attain the results that sense words used which will adopt intended mindful not to enlarge legislature, being by implica- tion obvious effect of statute. rule “of universal
The is not one ejusdem generis application construction, instances. It is rule is all controlling only intent, or an in to be as an aid in the legislative applied ascertaining when of words the correct ascertaining meaning strumentality # * However, “it where the there uncertainty; inapplicable § Statutes, b, S., intent is 82 C. legislative clearly expressed.” J. words follow The rule where 663. does not pages apply class, their nor which exhaust all words or embrace specific objects from one where the words different greatly signify specific subjects § Statutes, another, of a different class. 50 Am. Jur., pages b, 247, 248; S., and 82 665. Statutes, C. page J. con- built or
The define “structure” as something lexicographers dam, Interna- structed; a framework. Webster’s building, bridge, Ed., tional 2d 2501. Dictionary, page undetermined, un- an means one or “any” many, adjective or lim-
measured or unlimited lack of restriction indicating quantity, itation. those
Had the intended statute to only legislature apply no add named, need to activities there engaged particular structure,” undertak- “or the words “any any improvement, each effect was intended be should given ing.” presumed Bureau v. Rockingham Harrisonburg, of those words.
64
344, S. E. is 908. them as only by treating surplusage their connection with the context meaningless, by disregarding of the statute conclusion of object legislation can be reached. majority § 54-113(2), Code, 1950,
The in listed ex- undertakings particular the class each haust The in specific undertaking. undertakings most instances diverse character. A in essentially “building” line,” differs a a a from from “sewer” or “highway,” “bridge” “pipe a Therefore, from words “railway” “grading.” general which follow the enumerated be a must undertakings given meaning outside of the class indicated the latter; otherwise, the general words would be mere and void of When this surplusage meaning. occurs, the does rule not and the must re- apply general expression ceive natural its and wide meaning.
“The rule of construction limiting meaning scope general words, such as ‘other’ and ‘otherwise’ used in with connection definite enumerations, to those class specific things family named, no has when the context manifests intention to application a them more Also, extensive it effect. since give meaning really a rule of strict its should be relaxed the case severity of statutes aof remedial nature.
“It should also noted that if the term is general, preceding well follows, as that which the rule can have no Nor application. does where the words dif apply specific signify subjects greatly ferent from one for another, here general expression might very case, add one more such term In consistently variety. # # must receive its natural and wide 17 Michie’s Jur., meaning Statutes, Section 326. page
To the same effect see 17 Law Review, Va. 514, 515; pages v.Co. Corby Baking Commonwealth, 96 S. 133. E. The work called under subcontract con- itself plaintiff’s betterment, stituted a not a more condition, desirable and thus an only made with reference future of the benefit reser- improvement, voir; a but was contractor, part is, the construction of a reservoir, structure under meaning The word. dam was useless for the desired without a purpose for the area. reservoir What “did was clearing sanitary as 'much as was the work just completed project per- formed other contractor.” Bowen Electric v. Company Foley, 194 Va. 100. page Miller, in a form of Mr. mild reasoning, Finally, sophistic Justice Brothers contracted to
makes the “unless what assertion that Sellers statute, their is valid.” a crime under the contract do constitutes is, answer the contract question. validity Mr. said in Cohen Mayflower Corp., supra, As Eggleston Justice the contract. or immoral in 196 Va. there is nothing wrong *14 contract, such a forbid The statute does not expressly impliedly such an into from entering merely prohibits unqualified persons and denies enforcement. agreement thereby com-
Nor is here whether Sellers Brothers there issue as to that the en- mitted a crime There is no under the statute. provision a the innocence of of such contract forcement guilt upon depends must be in the Guilt innocence of a crime determined contractor. a different forum under rules evidence different of and procedure those from in this proceeding. here, issue,
The issue
the sole
the
and
stated in
clearly
forepart
is,
effect,
the
the
It
“What
if
did
failure
of
any,
majority’s opinion.
Brothers,
as a
as Sellers
to
and
plaintiffs, trading
register
qualify
have
subcontractor under
Title
Code
Therefore,
the test as
the
their
this section?”
to
to
maintain
right
right
their
of Sellers
to enforce
contract is
Brothers
dependent upon
statute,
whether
were
and
under the
licensed
they
registered
duly
invalid,
nor whether
were
not whether their contract
valid or
they
of a
in
into
contract. The criminal
crime
the
entering
penalty
guilrv
their action
contract.
emphasizes
merely
illegality
making
v.
176;
Massie
173 Va.
E.
Bowen Electric
Dudley,
3 S.
2d
Co.
The
Foley,
the contractor was to be invoked as the defense to sought plaintiffs’ claim, and no issue arose, the kind work done for in each say instance the work undertaken was construction of one kind or an- other. That can be true if a foundation, dirt as only excavating in the Sutton case, can be supra, different from remov- considered trees, material from ing an shrubbery, undergrowth perishable area to basin for a reservoir. None of the provide sanitary plaintiffs in those cases, nor the case, in view of former our plaintiffs decisions, had the to assert that the over-all character temerity contractors’ work bore no relation to the sub- the status of contractor, nor that it must first be determined that an unqualified contractor is committed a misdemeanor under the guilty having statutes before an innocent can its person rely upon provisions. 1 am unable to accept comprehend position majority did not contract for did not in the con- struction the reservoir, of the waterworks improvement for Martinsville. project a statement of the aWhen subcontractor’s
Paraphrasing majority: that he cut down trees and remove or bum the undertaking requires trunks, a reservoir area under a sub- boughs, twigs prepare *15 contract from one who has reservoir, to construct a agreed surely subcontractor has undertaken to of the construction perform part of the completed project. Code, 54-113(2) fair and construction, reasonable
Giving of the manifest intention light legislature, object attained from the natural words common ac- import in which and the usage, cepted eral structure setting employed, gen- Title a whole, decisions Court, it is and, contract.was inescapable plaintiffs’ illegal therefore, unenforceable them. well be that the enactment of the 1954 amendment will may
forthwith remove the new or different construction necessity itas stood thereto. prior concurs in this J., dissent. Smith,