Mayor of Vicksburg v. Mullane

63 So. 412, 106 Miss. 199

• Court: Mississippi Supreme Court
• Decided: October 15, 1913
• Status: Published

Opinion

Reed, J.,

delivered the opinion of the court.

Eugene J. Mullane is a practical plumber in the city of Vicksburg. He is not a member of a firm nor an executive officer of a corporation engaged in plumbing work. Such work as he obtains he does himself, performing his own labor. He follows his trade for his livelihood. He does not maintain a bureau for the purpose of obtaining contracts. He has no special place of business in which he keeps plumbing supplies in order to furnish material to carry out contracts. By virtue of the construction of the laws of Mississippi, relative to privilege taxes (Code 1906, section 3854), in the case of Wilby v. State, 93 Miss. 767, 47 So. 465, 23 L. R. A. (N. S.) 677, he is not liable to pay such state tax before he can do his work as plumber in Vicksburg.

The city of Vicksburg constructed and now owns and controls a sanitary sewage system. In 1909 an ordinance-for the purpose of regulating and governing this system was passed, and is entitled “An ordinance regulating house sewerage, plumbing, drain laying, and connections-with the house sewers in and under the control of the city of Vicksburg, and for other purposes.” This ordinance is set out at length in the record, and makes quite a number of provisions for the government of the sewage system.

Section 12 provides for a “board of examiners of plumbers,” to consist of the city engineer, with one master plumber and one architect.

Section 13 is on the subject of “Qualification of Plumbers and Drain Layers,” and reads: “Every applicant for license as a plumber or a drain layer, as the case may be, shall appear before tbe board of examiners of plumbers; shall pass a thorough examination by said board as to the applicant’s experience, knowledge and skill in practical sanitary plumbing or drain laying; and shall satisfy the said board that the applicant, or at least one residént member of the firm, or one resident executive officer in the corporation making the application, is a master plumber, or a drain layer, as the case may be, skilled and experienced in his trade, competent to do sanitary plumbing or drain laying properly and in accordance with the city’s' ordinances, who will give his personal attention to the work, also that the applicant will employ only competent help and is financially responsible. Upon satisfactory proof of the qualifications and fitness of an applicant for license as plumber or as drain layer, the board of examiners of plumbers shall issue a certificate of qualification. ’ ’

Section 14, making provision for licensing plumbers and drain layers, is as follows: “License to do plumbing or drain laying, or both, in connection with the city’s sewers, shall be granted by the mayor and aldermen only after a written application has been made, in the form prescribed, accompanied by a certificate of qualification' issued by the board of examiners of plumbers; the application shall also be accompanied by a bond, with two ór more individuals, or with a surety company, as surety, acceptable to the mayor and aldermen, for one thousand dollars for plumbing or for plumbing and drain laying, or for five hundred dollars for drain laying only, conditioned substantially that the principal will indemnify and save harmless the city from all damages or injuries resulting from any work done, or any neglect or omission incident thereto, by the principal or his employees, or from any improper materials used therein; that the work will be faithfully performed and that the principal will comply with all ordinances and regulations of the city concerning plumbing, drain laying, and the city’s sewers, and will restore to like condition to that found, any street, sidewalk or other property disturbed by him or his agents, and shall keep the same in as good repair for one year. The application for the license for drain laying’ shall also be accompanied by a cash deposit of fifty dollars, which sum, or so much thereof as may be necessary, shall be used under the direction of the street commissioner, in repairing' any street or other public property, whenever said applicant shall fail to repair the same within twenty-four hours after being notified in writing by the street commissioner; and said deposit shall be at all times maintained by the applicant up to at least fifty dollars. Each plumber’s or drain layer’s license shall expire December 31st, and may be revoked at any time by the mayor and aldermen for a violation of this ordinance, also at any time when it is found that the public welfare so requires, or that the member of the firm or officer of the corporation, whose experience has formed the basis for the license, has ceased such relation. Each application and each license shall state whether it is for plumbing, or for drain laying or for both. The fee for a license for plumbing or for plumbing and drain laying shall be twenty-five dollars and that for drain laying only, fifteen dollars. No other person is allowed to use the name of a licensed plumber or drain layer, either directly or indirectly, to obtain a permit, to do work, or to make returns.”

Section 44 provides for penalty in the following words: “Any person, violating any of the provisions of this ordinance shall upon conviction, be finded not more than one hundred dollars for each offense, and every twenty-four hours continuance shall- constitute a separate offense. If the offender be a master plumber or drain layer, he shall also forfeit his license.”

The city of Vicksburg filed a bill in chancery setting forth the foregoing facts, and stating that Mr. Mullane contended that he was not liable to pay the fees provided in section 14 of tie ordinance, that he persisted in trying to do his work as plumber without paying his license fee, and in open violation of the ordinance, and that he claimed the- ordinance is illegal, discriminating, and not controlling upon him. An injunction was asked to restrain him from doing the plumbing work specified until he shall' have complied with the requirements of the ordinance. The writ of injunction prayed for was granted. An answer was filed, and the court heard the motion to dissolve upon bill, answer, and affidavit, and sustained the motion.

The city of Vicksburg contends that the ordinance, as it affects the present controversy, should be upheld for two reasons: “ (1) It is a sanitary measure, and falls under the police power of the city; and (2) it is for the protection and preservation, of property owned by the city. ’ ’

Municipalities have the power to adopt reasonable regulations to protect and preserve the property and health of the community. They may enact all proper ordinances to provide and enforce sanitary regulations. Since it is important under present conditions to have the drainage and sewage in public buildings and private residences done with skill and care, we deem it within the power of the municipality to make all reasonable and appropriate rules for the regulation and supervision of plumbing work. Counsel for the city have in their able brief quite clearly presented their position as to the power of the municipality to adopt proper sanitary measures and regulations for protection and preservation of property.

In discussing this subject, Judge WiNSLow, delivering the opinion of the court in the case of Winkler v. Benzeberg, 101 Wis. 172, 76 N. W. 345, said: “Under modern systems of house building and disposal of sewage, the dangers to the health of the entire public arising from defective -plumbing are so great, and at the same time so insidious, that, were the state unable to provide for the proper regulation and supervision of the plumber in his work, so as to minimize the danger to the public health from the escape of sewage gas, the state would certainly be unable to protect the public life and health in a most important particular. This power may be exercised by the legislature by demanding practical knowledge of his business on the part of the plumber, or it may be done by requiring inspection and supervision of his work by experts, or by both means combined, and, when such regulations are brought before the courts, the question simply is whether they are really appropriate and reasonable measures for the promotion of the public health and safety, and hence are a valid exercise of the police power, or whether they go further than this, and unreasonably invade the right of the citizen to pursue a lawful business, under the guise of a police regulation.”

Now it is contended by Mr. Mullane that the ordinance violates the Constitutions of the nation and the sta'te, in that it is oppressive, discriminatory, unreasonable, and tends to create a monopoly.

Section 13 of the ordinance, after providing that an applicant for a license as a plumber or drain layer shall appear before the board of examiners, and pass a thorough examination as to his experience, knowledge, and skill in practical sanitary plumbing or drain laying, continues: “And shall satisfy the said board that the applicant, or at least one resident member of the firm, or one resident executive officer of the corporation making the application, is a master plumber, or a drain layer, as the case may be, skilled and experienced in his trade, competent to do sanitary plumbing or drain laying properly, ’ ’ etc.

It is claimed that the provisions which only require one member of a firm, or one officer of a corporation, to qualify “discriminate against individuals in favor of firms and corporations, encourage and sanction monopolies, and are oppressive in their very nature.”

It has been held that “the right of every person to pursue any lawful business, occupation, or profession is subject to the paramount right inherent in every government as a part of its police power to impose such restrictions and regulations as the protection of the public may require. State v. Randolph, 23 Or. 74, 31 Pac. 201, 17 L. R. A. 470, 37 Am. St. 655. It is also held that such restrictions and regulations must be uniform, and that the obligations or burdens must be on all of the same class alike. For instance, a license fee cannot be imposed upon persons where others in the same class are exempt under similar circumstances and conditions. State v. Hinman, 65 N. H. 103, 18 Atl. 194, 23 Am. St. 22.

In the case of Winkler v. Benzenberg, supra, the question involved was the validity of a statute in Wisconsin relative to the licensing of plumbers and the supervision of the plumbing business. A provision in the law was: ‘ ‘ In the case of a firm or corporation the examination o.r licensing of any one member of the firm or of the manager of the corporation shall satisfy the requirements of the act.” It was decided that this was a discrimination in favor of firms and corporation and against plumbers doing business alone, and that it was an infringement upon the provisions of the fourteenth amendment of the Federal Constitution, that “no state shall deny any person within its jurisdiction the equal protection of the laws.” We quote, with approval, from the opinion of Judge WiNslow as follows: ‘ ‘ The fourteenth amendment to the Federal Constitution requires that no state shall deny to any person within its jurisdiction the equal protection of the laws. In the language quoted with approval in the case of Bittenhaus v. Johnston, 92 Wis. 588, 596, 66 N. W. 805, 806 (32 L. R. A. 380), it is required ‘that all persons subject to such legislation shall be treated alike, under like circumstances and conditions, both in the privileges conferred and in the liabilities imposed.’ Under the law before us, it seems entirely clear that there is discrimination in favor of firms and corporations as against a plumber doing business alone. The plain meaning and effect of the law is that several plumbers may form a partnership or corporation, and all engage in practical plumbing, when only one of their number has obtained or perhaps is able to obtain, a certificate of competency. Thus, three or four incompetent plumbers may associate themselves with another who had a certificate, and become thus enabled to do business, while a man perfectly competent, but doing business alone, must go through an examination, and obtain a certificate. This is certainly discrimination between persons .under the same circumstances and conditions. It grants special privileges to members of a firm or corporation, and imposes special restrictions upon persons engaged in the same business who wish to prosecute their business alone. ’ ’

In State v. Gardner, 58 Ohio St. 599, 51 N. E. 136, 41 L. R. A. 689, 65 Am. St. 785, it was decided: “A statute requiring all who engage in the business of plumbing, whether master, or employing plumber, or journeyman, to first pass an examination as to fitness and procure a license, but providing that in case of a firm, or corporation, the examination and licensing of any one member of such firm, or the manager of the corporation, shall satisfy the requirements of the act, thus permitting all members of a firm or corporation to pursue the business when only one member or the manager has procured such license, is unconstitutioanl and void, as not' operating equally upon all of the class pursuing the same business under similar circumstances. A statute which imposes special restrictions or burdens, or grants special privileges, to persons engaged in the same business under similar circumstances cannot have a uniform operation, and is void, because it is in contravention of the equal right guaranteed to all in the enforcement of laws and in the enjoyment of liberty and of an equal right in the acquisition and possession of property. A statute is unconstitutional and void if it operates unequally, in that it imposes the burden of an examination and license fee upon certain persons, and exempts others of the same class pursuing the same business under similar circumstances.”

In the case of Commonwealth v. Shafer, 32 Pa. Super. Ct. 497, it was decided that a regulation in an act which provided for the registration of master plumbers and fails to provide for the registry of journeymen is invalid as lacking in uniformity.

A law in Minnesota which required journeymen plumbers only to stand an examination and procure a certificate of competency was held invalid as making an arbitrary and unjustifiable distinction. Chapel v. Justus, 90 Minn. 474, 97 N. W. 124.

The following is a provision from an ordinance in the city of Atlanta in regard to licensing persons engaged in the plumbing business: “No person, firm, or corporation engaged in or working at the business of plumbing shall engage in or work at said business in the city of Atlanta, either as master, employing, or journeyman plumber, unless such person, firm, or corporation first receives a license therefor, in accordance with the provisions of this ordinance. Any person desiring to work at or engage in the business of plumbing, either as master, employing, or journeyman plumber, in the city of Atlanta shall be required to submit to an examination before a board of examiners, as hereinafter provided, as to his experience and qualifications in such trade, business, or calling. In the case of a firm or corporation, the examination or licensing of any one member of a firm or the manager of the corporation shall satisfy the requirements of this ordinance.”

In-the case of Henry v. Campbell, 133 Ga. 882, 67 S. E. 390, 27 L. R. A. (N. S.) 283, 18 Ann. Cas. 178, it was decided that this ordinance, where one member of a firm or the manager of a corporation has been licensed, permits others than the member or manager, by virtue of the license, to do the work of plumbing, witliont standing examination and procuring license as is required of others doing like work, and that the ordinance is discriminatory in character and therefore unconstitutional. In delivering the opinion of the court, Judge Holdek said: ‘ ‘ This provision of the ordinance can have no meaning other than that, when one member of a firm or the manager of a corporation shall successfully stand the examination before the board of examiners and obtain a license to engage in or work at the business of plumbing, at least any other member of the firm and the corporation, through officials other than the manager, can engage in or work at the business of plumbing without obtaining the license required by the ordinance. The ordinance relates to persons, firms, or corporations engaged in or working at the business of plumbing, and the provisions of the ordinance state that the examination or. licensing of any one member of the firm or the manager of the corporation shall satisfy the requirements of the ordinance. If the licensing of one member of a firm, or the manager of a corporation, satisfies the requirements of the ordinance £in the case of a firm or corporation/ there is nothing else to be done in order to entitle any other members of the firm and the officials of the corporation other than the manager, who have not obtained a license, to do plumbing work. Giving the ordinance this construction, the conclusion is inevitable that it is discriminatory, for the reason that under its provisions one who is not a member of a firm or corporation, before engaging in or working at the business of plumbing, would have to stand the examination and obtain the license; whereas, one who is a member of a firm, and the corporation through officials other than the manager thereof, could engage in or work at the business of plumbing without having stood the examination or obtained a license, if some other member of the firm, or the manager of the corporation, in the case of a corporation, had stood the examination and obtained a license.”

We understand from the brief of counsel for the city that they consider the ordinance saved from invalidity, on the grounds of discrimination and inequality, because it provides that the member of a firm or officer of a corporation who stands the examination and g’ets the license shall do or superintend the- work, using the words in the ordinance, “who will give his personal attention to the work.” We do not think.this is so. The provision for personal attention or personal oversight will not answer the objections of inequality, or that the regulation is discriminating in its operation.

Are all the plumbers in Vicksburg treated alike? Are the burdens placed upon them by the regulations equal? Are they all therein granted the equal protection of die law? ■ Is there not a discrimination in favor of firms and corporations and against plumbers working alone?

It seems to us that this ordinance imposes special restrictions and burdens.on-some and grants special privileges to others engaged in the same work in Vicksburg. All the plumbers in that city are not required to stand the examination and incur the expenses of a license fee. This burden is not placed on those working for a corporation where an officer qualifies or on a firm where one member procures license. It is imposed upon those like Mr. Mullane, laboring alone, doing his work by his own hands.

If a plumber works for a firm or corporation, he will not have to comply with the requirements of examination and pay for license. But he will have to do so if he attempts to work alone. No matter how skilled and competent he may be, he must be under the employment of a firm or a corporation, or he must bear the burden of examinations and expense of fee. A firm or corporation, under the ordinance, may employ plumbers without number who, when so employed, are taken from the operation of the ordinance. Surely this amounts to discrimination against plumbers working alone and in favor of plumbers employed by a' corporation or a firm,' and also in favor of corporations and firms. Surely this will tend to monopoly.

Mr. Mullane is a skilled laborer, doing1 work very important and, in these days, quite necessary. As such laborer and as a citizen he has rights guaranteed him by the law. Among these is “the preservation of his inalienable rights to labor.” Government should protect him in his sacred right to earn his livelihood by working at his trade. It should see that no unequal burdens are imposed upon him, and that there is no discrimination against him because he labors alone. This ordinance does not operate equally upon Mr. Mullane and all other plumbers in that city. It is discriminatory as to him.

Sanitary measures designed for the protection and preservation of the health and property of a community may be adopted by a municipality. But these must be general and equal in their application. The regulations must be uniform. They must not be discriminatory against and in favor of any persons subject to their operation.

The ordinance in this case, intended for a good purpose, we consider invalid for the reason we have stated. The chancellor did not err in dissolving the injunction.

In view' of the conclusions we have reached relative to the invalidity of the ordinance, we deem it unnecessary to enter into a consideration of the fee of fifteen dollars charged Mr. Mullane for drain laying only. If proper and unobjectionable regulations of sewage, plumbing, and drain laying are adopted, then a reasonable fee may be charged in order to raise funds necessary to defray the expenses of examination of applicants, etc., the reasonableness of the amount of the fee to be determined by the facts in the case. We note in this case that the board of examiners have not required the applicants to be examined as provided by the ordinance, and from the testimony of Mr. Twiss, the city engineer, who seems to have had the matter in charge, that he has not drawn any pay from the city for his services as an examiner.

Affirmed.