Loughlin v. North Carolina State Board of Registration for Professional Engineers & Land Surveyors

PARKER, Judge. Appellants first contend that the trial court erred in its construction of G.S. 89C-13(b) (l)h. They argue that this section, properly construed, does not require the Board to issue a license to practice land surveying to a person who was licensed to practice professional engineering at the time the statute was passed merely upon the timely filing of a written application within one year next after 19 June 1975 and without regard to whether the applicant had engaged in land surveying prior to passage of the act. In support of this contention, appellants argue that G.S. 89C-13(b) (l)h must be construed together with the remaining sections of G.S. Ch. 89C and that, when this is done, a reasonable, consistent, and harmonious construction of the entire chapter requires that the persons to whom G.S. 89C-13(b) (l)h applies be restricted to “Engineers in Land Surveying” as reflected by applications which show that they were regularly engaged in land surveying prior to the effective date of the act. Such a construction, however, ignores the plain language of G;S. 89C-13(b) (l)h. To incorporate into it the limitation which appellants suggest requires both that we ignore the clear and express language which the legislature employed and that we read into the statute by strained judicial construction words which it simply does not contain. Therefore, we reject appellants’first contention and agree with the trial judge that G.S. 89C-13(b) (l)h, as enacted in 1975, does not require that a person duly licensed as a professional engineer when that act was passed show that he had also engaged in the practice of land surveying as a condition to obtaining a license as a registered land surveyor. [355] Appellants’ second contention is that if G.S. 89C-13 (b) (l)h does require issuance of licenses to practice land surveying to all persons who were licensed to practice professional engineering when the act was passed, provided only that they file written application with the Board within one year next after 19 June 1975, then the statute is unconstitutional in that it purports to grant a separate emolument or privilege forbidden by Art. I, Sec. 32, and in that it creates an unjustifiable classification in violation of the “equal protection of the laws” clause of Art. I, Sec. 19, of the Constitution of North Carolina. “The constitutionality of a statute, however, may never be tested by injunction unless a plaintiff alleges and shows that its enforcement will cause him individually to suffer a personal, direct, and irreparable injury to some constitutional right. A party who is not personally injured by it may not assail a statute’s validity.” D & W, Inc. v. Charlotte, 268 N.C. 577, 583, 151 S.E. 2d 241, 245 (1966). “When public officials act in accordance with and under color of an act of the General Assembly, the constitutionality of such statute may not be tested in an action to enjoin enforcement thereof unless it is alleged and shown by plaintiffs that such enforcement will cause them to suffer personal, direct and irreparable injury.” Fox v. Commissioners of Durham, 244 N.C. 497, 500, 94 S.E. 2d 482, 485 (1956). See 42 Am. Jur. 2nd, Injunctions, § 187. In the present case the complaint contains allegations to the effect that the plaintiffs would be seriously, immediately and irreparably harmed if defendants comply with G.S. 89C-13(b) (l)h by issuing the licenses as therein directed, in that plaintiffs’ licenses to practice land surveying would be seriously impaired, their competency would be subject to question, their income would be reduced, and the public’s confidence in the plaintiffs and in their profession in general would be undermined as a result of having unqualified persons licensed to practice in the field of land surveying. It is obvious that these allegations have no application to the corporate plaintiff, the North Carolina Society of Surveyors, Inc., which is identified only as “a corporation dedicated to the improvement of surveying in North Carolina” and which is not alleged to be itself licensed to practice or to be engaged in practicing land surveying in this State. Insofar as these allegations may apply to the three individual plaintiffs, Loughlin, Close, and Duncan, who are alleged to be “registered land surveyors, licensed and prac [356] ticing under the laws of the State of North Carolina,” we note that similar allegations as to lowering of standards and diminishing of income were found in Motley v. Board of Barber Examiners, 228 N.C. 337, 45 S.E. 2d 550 (1947), to be insufficient to give plaintiffs already licensed standing to invoke equitable protection to prevent others from being licensed in their occupation by virtue of a statute alleged to be unconstitutional. We find the allegations in the present case also insufficient. Here, prior to passage in 1975 of the act now codified as G.S. 89C, of which the challenged G.S. 89C-13(b) (l)h is a part, every registered engineer could lawfully engage in the practice of land surveying in this State. Former G.S. 89-12(9) expressly so provided. After passage of G.S. 89C, only those registered engineers who file written application with the Board within one year next after 19 June 1975 may lawfully engage in land surveying. Necessarily the number of registered engineers who elect to file such applications cannot be greater, and in all probability will be substantially smaller than the total number of registered engineers eligible to file. If registered professional engineers are in fact not qualified by their specialized education and training to engage in land surveying, which is not shown on the present record, then we fail to see how plaintiffs could suffer any “personal direct, and irreparable injury” to any constitutional right because of a statute which permits fewer than all to do what all might have lawfully done before. Nothing in this opinion should be interpreted as suggesting that we disagree with the trial judge’s expressed view that G.S. 89C-13(b) (l)h is a valid exercise of legislative authority. We hold only that plaintiffs have failed to show standing to challenge its constitutionality in this action. Affirmed. Chief Judge Brock and Judge Hedrick concur.