I dissent.
Plaintiff seeks to recover for services rendered as an architect, and to foreclose a mechanic’s lien filed by him to secure his claim. The defendant Nielsen, in his answer to the complaint and in his counterclaim, among other things, alleged a general denial, that plaintiff represented himself to be a registered, architect and prayed that plaintiff take nothing by this action. The record discloses that plaintiff was not licensed or registered as an architect in this state, which fact he admitted on cross-examination. The appellant demands a trial de novo in this Court.
“No person shall practice architecture as a profession in this state unless he has obtained from the board a certificate of registration and is registered as an architect.” Sec. 43-0309, N.D.R.C. of 1943.
This provision was orginally Ch. 58, § 15 of the 1917 S.L. as follows:
“No person shall begin to use the title ‘Licensed Architect’ or any variation of the same, or any others words, letters dr device to indicate that the person using the same is a licensed architect, after the approval of this act, without being registered as an architect, in accordance with the provisions of this act.”
*164This court, construing such section, in State v. Gillespie, 39 N.D. 512, 168 N.W. 38, 40, dated May 11, 1918, held: “There is no express prohibition of the practice of architecture by an unlicensed person.”
Thereafter Ch. 58, § 15, supra, was amended by Ch. 17 of the 1919 Sp. Session Laws by adding to such section, “All persons not engaged in the practice of architecture as a profession prior to March 15, 1918, shall obtain a license to practice architecture in this State.”
The foregoing clause, however, was omitted from the present law.
Question now arises whether the present law is a continuation of the former law or a new enactment.
Our legislature, in the revision of our code, re-enacted the laws set forth therein, including certain statutes defining the construction to be given the provisions of the Revised Code, as follows:
“The rule of the common' law that statutes in derogation thereof are to be construed'strictly has no application to this code. The code establishes the law of this 'state respecting the subjects to which it relates, and its provisions and all proceedings under it are to be construed liberally, with a view to effecting its objects and to promoting justice.” Sec. 1-0201, N.D.R.C. of 1943.
“No source note shall be deemed a declaration by thé legislative assembly as to the purpose, scope, or effect of any section to which such source note or reviser’s note relates.” Sec. 1-0211, N.D.R.C. of 1943.
“The provisions of this code, so far as they are substantially the- same as existing statutes, must be construed as continuations thereof, and pot as ,new enactments.” Sec.-1-0225, N.D.R.C. of 1943.
“No statute, law, or rule is continued in force because it is consistent with the prov isions of this code on the same subject, but in all cases provided for by this code all statutes, laws, and rules heretofore in force in this state, whether consistent or not with the provisions of this code, unless expressly continued in force by it, are all repealed and abrogated. * * * ” Sec. 1-0219, N.D.R. C. of 1943.
“This code shall take effect and be in force upon such date as may be fixed therefor by proclamation of the governor.” Sec. 1-0235, N.D.R.C. of 1943.
■ Also, in that connection, this court has held:
“In the- codification of statutes the general- presumption obtains that the codifiers did not intend to change the law; and mere changes of phraseology or punctuation, or the addition or omission of words, or the rearrangement of sections or parts of a statute, of the placing of portions of what formerly was a single section in separate sections, does not operate to change the operation, effect or meaning of the statute unless the changes are of such nature as to manifest clearly and unmistakably a legislative intent to change the former law.” State ex rel. Johnson v. Broderick, 75 N.D. 340, 27 N.W.2d 849, 852; Eisenzimmer v. Bell, 75 N.D. 733, 32 N.W.2d 891; Chester v. Einarson, 76 N.D. 205, 34 N.W.2d 418, 35 N.W.2d 137; Belakjon v. Hilstad, 76 N.D. 298, 35 N.W.2d 637.
It will be noted that Sec. 43-0309, supra, is not now substantially the same law as originally enacted in Ch. 58, § 15 of the 1917 S.L. and does not consist of mere changes- of phraseology or punctuation, or omission of words, but instead made a basic change and prohibits the practice of architecture by anyone without a certificate of registration, a fact which this court in State v. Gillespie, supra, said the old act did not prohibit.
Since Sec. 43-0309, supra, is not substantially the same as the original act, it may not be construed as a continuation thereof as prescribed by Sec. 1-0225, but instead must be deemed a new enactment, *165which, under the provisions of Sec. 1-0219, supra, repeáled and abrogated such original act.
This conclusion is in harmony with the decisions of this court above cited, wherein the question of what was the clear intent of the legislature was made the determining factor as to when an existing statute is a continuation of an earlier one, or a new enactment. That intent has been clearly and positively expressed in Sec. 43-0309, supra. No person may practicfe architecture without a certificate of registration.
It is my opinion that the plaintiff was required to have a license to practice architecture; that the burden -was upon him to prove such fact, and therefore he is not entitled to recover in this action.
“A contract, entered into by a person in the course of an occupation or business in which he is engaged .without taking out a license or paying a license fee or tax as required by law, is void and unenforceable where the statute or ordinance expressly vitiates such contracts, or where it expressly prohibits/ the carrying on of such occupation or business without a license, permit, or approval, or the payment of the tax, even though it does not expressly declare such contracts to be void. * * ” 53 C.J.S., Licenses, § 59, p. 711; Grant v. Weatherholt, 123 Cal.App.2d 34, 266 P.2d 185; Minter Bros. Co. v. Hochman, 231 Minn. 156, 42 N.W.2d 562; Comet Theatre Enterprises v. Cartwright, 9 Cir., 195 F.2d 80, 30 A.L.R. 2d 1229 and Annotation.
The majority do not dispute that under Sec. 43-0309, N.D.R.C.1943, the plaintiff was required to be registered as an architect, but urge that no issue was raised on this fact and even emphasize that plaintiff did not claim to be a registered architect.
The statute is mandatory and plaintiff’s complaint does not state a cause of action. without an allegation that he was registered. The defendant alleged that plaintiff represented himself to be a registered architect and demanded that the plaintiff take nothing. On this appeal, he has demanded a trial de novo, which simply means that the case should be tried the same as if it had not been tried before.
The pleadings formed the issutes, and the evidence supported defendants’ 'allegation! that 'plaintiff was not registered. That issue was raised by defendants’ answer and coünterclaim in the 'District Court and tnay not • be disregarded ón a trial de novó in this Court. The rule that issues may not be raised for the first time-ori appeal has no application in' this case. ■ ’ ■ '
The plaintiff is. not entitled to recover-
I concur in tbe conclusion that' the defendant is not .entitled to reco.ver on his counterclaim.