Opinion
February 23, 1951. Rehearing Denied April 5, 1951.
Appeal from the Circuit Court for Dade County, Charles Carroll, J.
Anderson Nadeau, Miami, for appellant.
Stockton, Ulmer Murchison, William A. Carter, Jacksonville, and L.L. Robinson, Miami, for appellee.
J. Thomas Gurney, Orlando, amicus curiae.
The record in this case disclosed that the accounting firm or partnership of Ernst Ernst was established in 1903 at Cleveland, Ohio. Since organization its operations have been extended into some thirty States and now has some fifty-four offices. The partnership of Ernst Ernst has maintained an office and representatives in the State of Florida continuously since 1923. The Florida representatives have been under the supervision of the firm's Atlanta, Georgia, office. On June 25, 1931, George B. Miller was the manager in Miami of the accounting firm of Ernst Ernst and J.H. Webb managed the Tampa office until it closed in 1929, but remained in Tampa without an office until transferred to the Miami office in 1941. Mr. Webb's certificate as an accountant was suspended in May, 1936, and the suspension continued until he was reinstated in 1941.
Section 8 of Chapter 12290, Acts of 1927, Laws of Florida, authorizes the issuance of certificates to practice Public Accountancy in the State of Florida to those then engaged in the practice of accountancy prior to January 1, 1928. Pursuant thereto certificates to practice were issued to A.C. Ernst, L.W. Blyth, F.H. Figsby and H.C. Royal under the firm name of Ernst Ernst. These men were authorized to practice under the name of Ernst Ernst on June 25, 1931, and continued so to do until death removed each member of the partnership. The last member, A.C. Ernst, died during the month of May, 1948. The partnership was reorganized upon the death of Mr. A.C. Ernst and the new organization consisted of eleven members, which divided the Country geographically into six Districts.
The Board of Accountancy, pursuant to the provisions of Chapter 15637, Acts of 1931, Laws of Florida issued certificates to practice accountancy in the State of Florida to each member of the firm of Ernst Ernst, to-wit: A.C. Ernst, L.W. Blyth, F.H. Figsby and H.C. Royal, who were each residents of the State of Florida. The last partner of the firm, A.C. Ernst, died in 1948. Subsequently thereto a reorganization occurred and eleven named partners succeeded to the firm of Ernst Ernst and none of the eleven partners were residents of Florida or held certificates to practice accountancy in the State of Florida.
The firm of Ernst Ernst, as reorganized in 1949, placed the State of Florida in the Central District. The Atlanta office of the firm was in charge of the State of Florida and general headquarters was in Cleveland, Ohio. We find nineteen other partners in the Central District practicing accountancy under the firm name of Ernst Ernst. Not a single member of the nineteen partners in the Central District nor one of the eleven partners doing accountancy in the thirty States are residents of the State of Florida, nor do any of them hold a Florida certificate to practice accountancy.
The thirty men practicing accountancy in Florida in 1949 under the firm name of Ernst Ernst constitute a different organization from the one recognized and approved by the Board of Accountancy in Florida during the year 1931. The Board denied the reorganized firm of Ernst Ernst a certificate to practice accountancy in the State of Florida.
The State Board of Accountancy, pursuant to the several provisions of Section 473.05, F.S.A., filed in the Circuit Court of Dade County, Florida, its bill of complaint in equity praying for a restraining order or injunction against J.H. Webb, as agent of the partnership of Ernst Ernst. It was alleged that Webb was the agent and manager of the firm of Ernst Ernst, in the unlawful practice of accountancy in the State of Florida. That the several persons practicing accountancy under the partnership name of Ernst Ernst were not authorized so to do under the provisions of Chapter 473, F.S.A. That the defendant-appellee Webb, as agent and manager of the firm of Ernst Ernst, was engaged in an unlawful act when assisting the firm to do an accountancy business without the several members of the firm being residents of Florida and obtaining certificates to practice through the State Board of Accountancy. The bill of complaint prayed that Webb's unlawful acts be permanently enjoined.
Pertinent here is paragraph IV of the defendant-appellee's answer viz: "IV. On June 25, 1931, and at the time of the enactment of Chapter 15637, Laws of Florida, Acts of 1931, the aforesaid accounting and auditing business of Ernst Ernst in the State of Florida was being conducted by a firm of certified public accountants residing beyond the limits of the State of Florida and said firm was at each of said times represented in the State of Florida by this defendant as a representative, agent or manager. At all times subsequent to June 25, 1931 said business has been conducted by a firm of certified public accountants residing beyond the limits of the State of Florida and said business is now being conducted by a firm of certified public accountants residing beyond the limits of the State of Florida. At all times since June 25, 1931, this defendant has continued to represent the firm conducting said business as such representative, agent or manager. Section 16 of Chapter 15637, Laws of Florida, 1931, expressly authorized such representation by this defendant to continue from the time of its enactment, whether or not each member or any member of the firm conducting said business might hold a certificate as a certified public accountant, or a certificate of authority to practice as a public accountant, issued under any Law of Florida. Section 473.16, Florida Statutes, 1941, as re-enacted as a part of Florida Statutes, 1949, expressly authorized such representation by this defendant to continue, whether or not each or any member of the firm conducting said business holds such a certificate as a certified public accountant or certificate of authority to practice as a public accountant."
Section 473.01, F.S.A., defines the terms (1) "certified public accountant"; (2) "public accountant"; and (3) the "State Board of Public Accountants". Section 473.02 defines the practice of a public accountant. Section 473.05 prescribes the legal procedure to follow in proceedings against those unlawfully engaged in the practice of accountancy. Section 473.06 creates or establishes the State Board of Public Accountancy and prescribes some of its duties, among which is to conduct examinations of applicants to practice accountancy as set out in Section 473.10. Section 473.08 prescribes the qualifications of applicants for examination to practice accountancy. The applicant must be a citizen of the United States and resident of the State of Florida, over 21 years of age, of good moral character, a graduate of a high school, or its equivalent, and possessing not less than three years of experience in the practice of public accounting. For the purpose of Section 473.08 "a resident of Florida" is defined as one who has resided in this State for at least twelve months immediately preceding the filing of his application. The Board has the power and authority to grant certificates to successful applicants to practice accountancy in the State of Florida.
Section 473.12 provides that persons holding certificates issued by the State Board of Accountancy as certified public accountants, or a certificate as public accountants, shall notify the State Board of his place of residence, the name of any accountancy firm by whom he is employed and pay the sum of $10.00 as a registration fee, shall receive from the State Board of Accountancy a card showing that such persons have duly registered and are entitled to practice accountancy in the State of Florida. The failure to pay the annual registration fee shall be sufficient cause to suspend the certificate previously issued. Section 473.14 authorizes the Board to adopt rules which in turn will provide for the issuance of temporary certificates to persons for the purpose of enabling such persons to fill specific engagements, such temporary certificate shall be valid only for a period of ninety days.
On final hearing the Chancellor below dismissed the bill of complaint and the State Board of Accountancy perfected its appeal here. The facts, as we consider them, are not in serious dispute but the controversy presented turns on the construction of Section 473.16, F.S.A. It is viz:
"Unlawful for certificate holder to act as agent for nonresident accountant; exceptions
"It is unlawful for any person holding a certificate as a certified public accountant or a certificate of authority as a public accountant to act as a representative, agent or manager, in the State of Florida, in connection with the practice of public accounting, of any person not authorized under the provisions of this chapter to practice public accounting in this state, or of any firm or association of persons, unless each member of such firm or association of persons shall be authorized to practice public accounting in this state under the provisions of this chapter; provided, that any certified public accountant or firm of certified accountants residing beyond the limits of the State of Florida, who was or were represented on June 25, 1931, in the State of Florida by a representative, agent or manager, shall be permitted to continue to be represented in this state by such representative, agent or manager, but no new or successor representative, agent or manager in the State of Florida shall be appointed, employed or selected for such certified public accountant or firm of certified public accountants without the approval in writing of the board first being had and obtained." (Emphasis supplied.)
Counsel for appellee submits the following question as pertinent to this controversy: When a legislative Act restricting the rights of a qualified Florida accountant to act as the representative of others in this State provides that any nonresident firm or certified public accountants having a representative in this State at the time of the passage of the Act shall be permitted to continue to be represented by the same representative, does such representation become unlawful upon a change in the membership of such non-resident firm?
The basis of appellee's question, supra, is the following provisions of Section 473.16: "provided, that any certified public accountant or firm of certified public accountants residing beyond the limits of the State of Florida, who was or were represented on June 25, 1931, in the State of Florida by a representative, agent or manager, shall be permitted to continue to be represented in this state by such representative, agent or manager, but no new or successor representative, agent or manager in the State of Florida shall be appointed, employed or selected for such certified public accountant or firm of certified public accountants without the approval in writing of the board first being had and obtained." We have held on many occasions that it is the duty of this Court to ascertain the intention of the Legislature and effectuate it. See Beebe v. Richardson, 156 Fla. 559, 23 So.2d 718.
If the several members of the reorganized firm of Ernst Ernst should now apply to the State Board of Accountancy for certificates to practice accountancy in the State of Florida, it would be necessary to comply with the terms and provisions of Section 473.08, and prior to obtaining such certificates, it would be necessary to establish that the applicants had resided in the State of Florida for "at least twelve months" prior to filing the applications. Section 473.26 provides that each member of a firm of accountants must be the holder of a certificate of authority prior to practicing accountancy. It is unlawful for any certificate holder to practice under "an assumed name". It is admitted on the record that the individuals now practicing accountancy in the State of Florida under the name of Ernst Ernst are not the holders of certificates issued by the Board of Accountancy, nor residents of Florida. Their only claim to the right to practice in Florida rests on the construction of the language stated in the proviso in Section 473.16, supra.
It is not contended here that the Legislature was without power to enact the several provisions of Chapter 473, F.S.A. In ascertaining the legislative intent, the courts will consider the history of the Act, the evil to be corrected, the purpose of the enactment, and the law then in existence bearing on the same subject. Curry v. Lehman, 55 Fla. 847, 47 So. 18. Section 16 of Chapter 15637, Acts of 1931. § 473.16, F.S.A., made it unlawful for certificate holders to act as agents for nonresident accountants but the proviso thereof excepted from the Section nonresident accounting firms, who in 1931 were then represented in the State of Florida by a representative, agent or manager, and the proviso made it lawful for such representative to continue without limitation of time after June 25, 1931. It provided further that "no new or successor representative, agent or manager (for now resident accounting firms) in the State of Florida shall be appointed, employed or selected for such" nonresident accounting firm "without the approval in writing of the board first being had and obtained."
The firm or partnership of Ernst Ernst lawfully continued to practice accountancy in the State of Florida under the provisions of Section 16, supra, until the time of the death of A.C. Ernst in May, 1948. A.C. Ernst was a resident of the State of Florida and, under the proviso of the Act, could lawfully act as agent, manager or representative of the non-resident accounting firm of Ernst Ernst. The non-resident firm of Ernst Ernst, under the proviso, is now without lawful authority to appoint a "new or successor representative, agent or manager in the State of Florida" for the non-resident firm of Ernst Ernst "without the approval in writing of the board first being had and obtained."
When the several provisions of Chapter 473, F.S.A., are considered in their entirety, the conclusion is inescapable that the Legislature, in the enactment of Chapter 15637, supra, in 1931, did not intend to molest or interfere with the established practice of non-resident accounting firms represented by agents or managers residing in the State of Florida, but upon the dissolution of this relationship for any cause the words of the proviso in Section 473.16 made it unlawful for such non-resident accounting firm to appoint a new or successor agent or manager and continue the practice of accountancy without the written approval of the Board.
The decree appealed from is reversed with directions for further proceedings in the Court below not inconsistent with the views herein expressed.
SEBRING, C.J., and ADAMS and ROBERTS, JJ., concur.