
    HENRY v. STATE.
    (No. 7028.)
    (Court of Criminal Appeals of Texas.
    March 12, 1924.)
    1. Constitutional law <©=>88— State’s power to restrict exercise of lawful vocations limited.
    The state may place restrictions on the exercise of lawful vocations, but such power may not be directed against vocations which are mere private means of livelihood, the pursuit of which does not affect the public interest, nor be so exercised as to interfere unreasonably with pursuit of lawful vocations or violate the federal or state Constitutions.
    2. Constitutional law <@=>88 — Law restricting exercise of lawful vocations must be referable to object within police power.
    To find sanction, a law restricting the exercise of lawful vocations,must be referable to some object within the scope of police power, such as the preservation of public health, safety, morals, and general welfare.
    3. Constitutional law <@=>48 — Law restricting exercise of lawful vocation presumed valid and reasonable.
    In placing restrictions upon the exercise of lawful vocations, the selection of subjects of legislation and means of regulation adopted are primarily subject to legislative decision, and the presumption of validity and reasonableness obtains in a judicial inquiry unless the contrary is made to appear.
    4. Constitutional law <@=>88 — Licenses <@=>7(l) —Law regulating certified public accountants not invalid.
    Acts 34th Leg. (1915) c. 122 (Vernon's Ann. Pen. Code 1916, art. 999rr et seq.) authorizing the state board of public accountancy to issue certificates to applicants as certified public accountants and prohibiting persons not holding a certificate from representing themselves to be certified public accountants, being referable to an object within scope of police power, is valid.
    <§z=>J?or other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    
      5. Licenses <®=>42 (2) — Advertising as certified public accountant held illegal.
    That one advertising himself as a certified public accountant did not state in his advertisement that he was such certified public accountant of the state of Texas was no defense under Acts 34th Leg. (1915) e. 122 (Yernon’s Ann. Penn. Code 1916, art. 999rr et seq.).
    6. Licenses <§=42(4) — Letters written by defendant held relevant on question of illegal advertising.
    In prosecution for unlawful advertising as a certified public accountant without complying with Acts 34th Leg. (1915) c. 122 (Vernon’s Ann. Pen. Code 1916, art. 999rr et seq.), letters written by defendant on his stationery containing the words, “certified public accountant,” with the letters “O. P. A.” appended to his signature, were relevant.
    7. Licenses <@=e40 — -The statute does not inhibit certified public accountant from pursuing vocation.
    Acts 34th Leg. (1915) c. 122 (Yernon’s Ann. Pen. Code 1916, art. 999rr et seq.), reg- . ulating certified public accountants, inhibits the holding out to the public that one holds a certificate issued in compliance with the statute, by using in his advertisements the term “certified public accountant” or the initials “C. P. A.,” but does not inhibit one from pursuing such vocation in the state.
    «grroFor other cases see same topic and KEY-NUMBER- in all Key-Numbered Digests and Indexes
    Appeal from El Paso County Court at Law; J. M. Deaver, Judge.
    Horace .C. Henry was convicted of unlawfully advertising himself as a certified accountant, and he appeals.
    Affirmed.
    E. C. Wade, Jr., and C. M. Wilchar, both of El Paso, for appellant.
    Weldon, McDonald & Cummings, of Wichita Palls, E. G. Storey, of Dallas, and Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty!, both of Austin, for the State.
   MOBKOW, P. J.

Appellant was charged with unlawfully advertising himself as a certified public accountant.

The appellant was a public accountant, maintaining an office in the city of El Paso, Tex., and advertised himself as such. He justified upon the ground that he had received a certificate from the “National Association of Certified Public Accountants, Incorporated, Washington, D. C.”

The statute upon which the prosecution is founded is chapter 122, General Laws of the 34th Leg. p. 184 (Vernon’s Ann. Pen. Code 1916, art. 999rr et seq.) By that act, there was created a state board of public accountancy with certain prescribed qualifications and duties, whose members were appointed by the Governor of the State, required to taire the oath of office, required to examine applicants for certificates as “certified public accountant,” the examinations to embrace the subjects of “Theory of Accounts,” “Prac-tieal Accounting,” “Auditing,” and “Commercial Law as Affecting Accountancy,” and authorized to issue a certificate to the successful applicants as a “certified public accountant of the state of Texas.”

Section 12 of the act (article 999uuu) reads thus:

“If any person represents himself to the public as having received a certificate as provided for in this act, or advertises as a ‘certified public accountant,’ or uses the initials ‘C. P. A.,’ or otherwise falsely holds himself out as being qualified under this act, while practicing in this’state, without having actually received such certificate, or it has been recalled or revoked, and he shall continue to use the initials ‘O. P. A.,’ or shall refuse to surrender such certificate after revocation thereof, or shall otherwise violate any provisions of this act, he1 shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined any sum not to exceed $200.00. No audit company, incorporated or unincorporated, shall use the title ‘certified public accountants’ or the initials ‘C. P. A.,’ and no firm or partnership shall use this title, or these initials, unless each member of said firm or partnership is a legal holder of a certificate issued under the provisions of this act, and any violation of these provisions shall be punished by a fine not to exceed the sum of $200.00..
“The use by any person, firm or corporation , of the abbreviated title ‘certified accountant,’ or of the initials ‘O. A.,’ shall be construed a violation of this act, and shall subject such person, firm or corporation to a fine not to exceed the sum of $200.00.”

Section 14 (article 999vv) reads thus:

“Nothing herein contained shall be construed to prevent any person from being employed as an accountant in this state in either public or private practice. The purpose of this law is to provide for the examination and the issuance of a certificate, or degree, granting the privilege of the use of the title ‘certified public accountant,’ and the use of the initials ‘C. P. A.,’ as indicative of the holder’s fitness to serve' the public as a competent and properly qualified accountant in public practice, and to prevent those who have no such certificate or degree from using such title or initials; provided, however, the use of the initials ‘C. P. A.’ or ‘O. A.’ to designate any business other than the practice of accountants or auditors is not prohibited by this act.”

The authority of the state government to place restrictions upon the exercise of lawful vocations is too well settled for controversy. Dent v. West Virginia, 129 U. S. 114, 9 Sup. Ct. 231, 32 L. Ed. 623; Rose’s Notes on U. S. Rep. (Revised Ed.) vol. 14, p. 565; Corpus Juris, vol. 16, p. 921, § 431, notes; Dowdell v. McBride, 92 Tex. Rep. 239, 47 S. W. 524; Ex parte McCloskey, 82 Tex. Cr. R. 531, 199 S. W. 1101. Limitations upon the power mentioned, however, inhibit its exercise so that it may not be directed against vocations which are mere private means of livelihood, the pursuit of which does not affect the public interest; nor does the law tolerate an unreasonable interference with the pursuit of a lawful vocation, nor the enforcement of laws offending against the provisions of the federal or the state Constitutions. Corpus Juris, vol. 12, p. 921, § 431; Ruling Case Law, vol. 6, p. 219, § 212; Matter of Aubrey, 36 Wash. 308, 78 Pac. 900, 100 Am. St. Rep. 952, 1 Ann. Cas. 927. To find sanction, such a law must be referable to some object within the scope of the police power, such as the preservation of public health, safety, morals, or general welfare. H. & T. C. R. R. Co. v. Dallas, 98 Tex. 398, 84 S. W. 648, 70 L. R. A. 850; Corpus Juris, vol. 12, pp. 425 to 430, inclusive; Ex parte Flake, 67 Tex. Cr. R. 216, 149 S. W. 146. A great variety of occupations have been recognized as proper subjects for regulation under the polices power. See Corpus Juris, vol. 12, p. 924, § 432; 129 Am. St. Rep. 209 to 294. Professions or callings demanding special training have 'frequently been held within the scope of the police power (Dent v. West Virginia, supra; Douglas v. Noble, 201 U. S. 165, 43 Sup. Ct. 303, 67 L. Ed. 590); and such regulations are not inhibited by the Fourteenth Amendment to the United States Constitution. The selection of subjects of such legislation and the means of regulation adopted are primarily subject tp legislative decision, and the presumption of validity and reasonableness obtains in a judicial inquiry unless the contrary is made to appear. Touching the xjarticular subject of the present inquiry, the question raised by the record cannot be regarded as altogether open. Public accountant acts regulating the profession or vocation of public accountants, not dissimilar from the one under consideration, have been upheld by the Supreme Court of the United States and in Several of ¿he states.

In the case of Lehman v. State Board of Public Accountancy et al., 44 Sup. Ct. 128, 68 L. Ed. —, the Supreme Court of the United States on December 10, 1923, upheld the decision of the Supreme Court of Alabama in its conclusion that the Public Accountant Law of that state (Acts 1919, p. 124 et seq.) was valid. A like law was upheld by the Supreme Court of New York on April 12, 1923, in the case of People v. Marlowe (N. Y. Sp. Sess.) 203 N. Y. Supp. 474. See, also, McCullough v. Scott, 182 N. C. 865, 109 S. E. 789. A similar ruling was made by the Supreme Court of Louisiana on February 26, 1923, in the case of De Verges, 153 La. 349, 95 South. 805, 27 A. L. R. 1526. In the case of People v. Marlowe, supra, one of the points made, like in the present case, was that Marlowe held a certificate from the corporation known as the National Association of Certified Public Accountants; that in his advertisements he used the abbreviation “C. P. A., (N. A.),” indicating that he was a certified public accountant of the National Association. It was contended that in view of his using the letters “N. A.” after the letters “C. P. A.,” in the advertisement, he did not violate the law. It was also contended that the act was unconstitutional in that it was not properly within the purview of the police power. Rejecting the latter position, the Supreme Court of New York held that the Legislature unquestionably had the power to regulate the highly skilled and technical profession of public accountant in the manner in which it did, and quoted from the Supreme Court of Louisiana, this language :

“It is important to note that the law does not purport to prevent or punish the practicing of accountancy without license or certificate from the board, but only the holding of one’s self out to the public as possessing the certificate which it is authorized to issue under the provisions of the act, the practicing as a certified accountant and the using of the abbreviation ‘C. P. A.,’ or similar letters of designation to deceive the public into believing that the person so acting is a certified public accountant under the law, without first undergoing the examination by the state board of accountants, as required by said statute and otherwise complying therewith. In other words, any one is at liberty to practice as an accountant, notwithstanding this law, so long as he does not represent himself to be a certified public accountant, as defined thereby, or use the abbreviation ‘C. P. A.,’ or similar letters, or device to indicate that he is a certified public accountant. It is true .that neither morals, health, or safety of any one is jeopardized by the practicing of this profession, however incompetent a person may be, but the power of the state in matters of this sort is not confined to professions involving such consequences. It may also act, whenever the general welfare requires to protect the public, in the skilled trades and professions against ignorance, incompetence, and fraud.”

No precedents have been furnished contradicting the soundness of the decisions cited, nor is this court aware of any principle of law which would justify overturning the act of the Legislature in question.

Appellant’s criticisms of the charge of the court are directed against that phase of it which declines to sanction his contention that his act in advertising himself as a certified public accountant was not illegal inasmuch as he did not state in his advertisement that he was such certified public accountant of the state of Texas. The objection cannot be sustained.

The receipt of letters written by the appellant upon his stationery containing the words “certified public accountant,” with the letters “C. P. A.” appended to his signature, were not improperly received in evidence. They were relevant upon the averment in the complaint that he was advertising himself as a certified public accountant in this state. It was conceded that he had taken no steps to comply with the terms of the statute of this state.

Note is to be taken of tbe fact that tbe law does not inhibit tbe appellant or others similarly situated from pursuing tbe occupation or vocation of a public accountant in tbe state of Texas, but tbe act inhibited is that of bolding out to tbe public that be bolds a certificate issued in compliance with tbe statute of this state by using in his advertisements tbe term “certified public accountant” or tbe initials “C. P. A.”

Tbe law is not deemed subject to tbe attacks addressed against it, nor is there found any fault in tbe procedure of tbe trial which warrants a reversal.

Tbe judgment is affirmed.  