People Ex Rel. Nechamcus v. Warden of the City Prison

39 N.E. 686, 144 N.Y. 529, 64 N.Y. St. Rep. 51, 1895 N.Y. LEXIS 564

• Court: New York Court of Appeals
• Decided: January 29, 1895
• Status: Published

Opinions

Gray, J.

The act, for the violation of the. provisions of which the relator was arrested and convicted (Chapter 602 of the Laws of 1892), created a hoard for the examination of plumbers; which, in the cities of Mew York, Brooklyn and Albany, was to be known as the “ examining board of plumbers,” and in other cities of the state as “ the examining and supervising board of plumbers and plumbing.” The members of the board were to be appointed by the mayor and were to consist of five persons; two of whom were to be master plumbers, of not less than ten years’ experience in the business of plumbing, and one was to be a journeyman plumber of like experience. The two other members of the board were tobe the chief inspector of plumbing and drainage of the "board of health and the chief engineer having charge of the sewers. The fourth section of the act empowered the several hoards of examiners to examine all persons intending to engage in the business of plumbing, “ as employing plumbers ; ” with the power to examine all persons applying for certificates of competency as “ employing or master plumbers,” or inspectors of plumbing; to determine then- fitness and qualifications for conducting such business, and to issue certificates of competency to all such persons as, upon a satisfactory examination, were determined by the board to be qualified for conducting the business, “ as employing or master plumbers,” or inspectors of plumbing. The fifth section requires any person intending to conduct “ the trade, business or calling of a plumber, or of plumbing * * * as employing or master plumber,” to submit to examination before the board as to his experience and qualifications in such trade, business or calling, and declares that, after September first, 1893, it shall not be lawful in any city of this state for any person to conduct such “ trade, business or calling,” unless he shall have first obtained a certificate of competency from the board of the city. The sixth section provides that on and before September first, 1893, every “ employing or master plumber,” carrying on his “ trade, business or calling ” in any city of this state, shall register his name and address at the office of the board of health of the city, and that he shall thereupon be entitled to receive a certificate of such registration; provided that, at the time of his application for registration, he hold a certificate of-competency from the examining board. A further provision of the section makes it unlawful for any person to engage in the “ trade, business or calling ” of an “ employing or master plumber” without such registration. The thirteenth section provides that any person violating any of the provisions of the act, or any regulation of the board of health, or of the .board of examiners, shall be deemed guilty of a misdemeanor, etc.

The relator' was a master plumber, who had practiced his trade for some years past in the city of Hew York. He does not allege that he had applied for examination, or had been refused a certificate of competency from the examining board of plumbers of the city of Hew York; but he alleged in his petition his trade, his religion and Russian nationality, and then set forth various refusals of the board in that city to grant certificates to other persons, because discriminating against race and religion and because of their not belonging to an association of master plumbers. He says that the act is void, as a deprivation of his liberty and property, without due process of law; inasmuch as it grants to the individual members of the examining board of plumbers an exclusive privilege, immunity and franchise. He says that it is a denial to him of the equal protection of the laws of this state and that it is a discrimination against him on account of his race. In specification of his objections he says, first, that the object of the act is to create a monopoly;' because, if intended to secure good plumbing work, it would apply to journeyman plumbers and independent plumbers who work alone, or with the aid of apprentices, and do not employ other plumbers; and, second, that even if the act applied to all plumbers, journeyman as well as master, it would still be unconstitutional.

As a preliminary observation, I may say that the first ground partakes more of criticism upoti the extent to which the legislature has gone. Every person may follow the trade of a plumber, if he chooses, and the restriction is upon their employing men to work for them in their business, unless they hold a certificate of competency based on experience and qualifications. Another observation is that the act does not suggest, as the appellant says of it, any “discrimination against him on account of his race.” That is pure supposition ; based upon the way he claims to have seen the board perform its duties, and not upon the language of the act, or any possible inference therefrom. A final observation is that it is not made to appear by the petition for the writ that the relator has suffered anything at the hands of the board of examiners. In the absence of any allegations that he applied for examination ; that he passed the examination satisfactorily and that the board unjustly, or otherwise, refused him the cer tificate, we must assume, under Ms allegations of Ms competency and skill as a plumber, or master plumber, that he could have successfully applied for the certificate, which the board was authorized to grant.

It seems to me that the constitutionality of this act is to be tested by its effect upon the citizen’s right to pursue a lawful employment. If it imposes an arbitrary restriction and if it has no reference to the welfare and health of the people, it must be condemned. I am not unwilling to concede that the act skirts pretty closely that border line, beyond which legislation ceases to be witMn the powers conferred by the people of the state, through the Constitution, upon its legislative body. When the legislature passes an act, which plainly transcends the limits of the police power of the state, it is the duty of the judiciary to pronounce its invalidity and to nullify the legislative attempt to invade the citizen’s rights. The court should never hesitate to interpose the barrier of its judgment against the operation of laws, which distinctly contravene constitutional rights. There has been much discussion upon the subject of what is a valid exercise of the police power of the state through legislative enactment and there is little to be added to what this and other courts have said. The police power extends to the protection of persons and of property within the state. In order to secure that protection, they may be subjected to restraints and burdens by legislative acts. If the act is a valid and reasonable exercise of the police power of the state, then it must be submitted to, as a measure designed for the protection of the public and to secure it against some danger, real or anticipated, from a state of things, which modifications in our social or commercial life have brought about. The natural right to life, liberty and the pursuit of happiness is not an absolute right. It must yield, whenever the concession is demanded by the welfare, health, or prosperity of the state. The individual must sacrifice his particular interest or desires, if the sacrifice is a necessary one in order that organized society as a whole shall be benefited. That is a fundamental condition of the state and which, in the end, accomplishes' by reaction a general good, from which the individual must also benefit. The restraint of personal action is justified, when it manifestly tends to the protection of the health and comfort of the community, and no constitutional guaranty is then violated. (People v. Ewer, 141 N. Y. 129.) The legislature, however, is not authorized to enact measures which, under the mere guise of a protection to the citizen, restrains him in the free pursuit of a lawful occupation and such legislation this court has had occasion, within recent years, to condemn. (In re Jacobs, 98 N. Y. 98; People v. Marx, 99 id. 377; People v. Gillson, 109 id. 389.) In the Gillson case it was observed by Judge Peokham that if legislation is calculated, intended, convenient or appropriate to accomplish the good of protecting the public health and of serving the public comfort and safety, the exercise of the legislative discretion is not the subject of judicial review; but those measures must have some relation to those ends. To this unassailable proposition I will add the remark, that the courts should always assume that the legislature intended by its enactment to promote those ends and if the act admits of two constructions, that should be given to it which sustains it and makes it applicable in furtherance of the public interests. What is, then, the construction which this act should receive from the court 1 In the first place, the intendment is warranted that the drainage and sewerage, whether of public works and buildings, or of private tenements,-shall be as skillfully planned and carried out, as the modern standard of the science admits. Whatever the individual doubts as to the benefits or success, in a sanitary sense, of the work of plumbing as now practiced, it is generally recognized to be essential to comfort and health ; and that it should be the subject of some supervision by the authorities ought not to be put in question. The very doubt should make us hesitate to place any obstacle in the way which the legislature, in its discretion, adopts, in order to accomplish something by which large communities shall benefit in their health and comfort. Is this statute not a regulation of a trade, which is in the public interest ? The trade Very closely concerns the inhabitants of cities and it should require no argument to show that the more skillful and the more competent the plumber, who is employed to do some large work upon the drainage and sewerage system of a city, or of a public or private building, the greater the security to those inhabitants.

This act does not restrain individuals from working as plumbers. It restrains persons from engaging in the business of master or employing plumbers; unless, from experience and qualifications, they are shown to be, themselves, of competent skill. We know that important plumbing work calls for plans and designs and requires skilled supervision. It is some guaranty of these requirements being met, that the plumber, employed upon the particular work and who must employ plumbei’S and assistants in carrying out the work engaged upon, is competently certified and, therefore, held out to be skilled and capable in his business. The layman in his ignorance is obliged to put some trust in the plumber he engages; for the plumber’s work is not only one calling for the exercise of skill, but it is done in places which are dark, or more or less inaccessible. The legislature in creating a system by which the qualifications of plumbers, who propose to have work performed by others under their direction, as it seems to me, aids the citizen, in unimportant degree, in placing his confidence and furnishes some safeguard against the per formanee of had and unsafe work. That the men employed by "the master plumber may prove untrustworthy in practice, or may neglect the work committed to them, certainly can furnish no ground for attacking the purpose of this statute; for the presumption and the natural probability are the other way, that a master plumber, who has been certified by the board, will exercise care in the selection of his employés and that he will be competent to see and correct their faults and omissions. Every reason, in my opinion, which hears upon the citizen’s comfort and health, demands that we sustain this statute as a step in the right direction.

ISTor is the act vicious for affecting the general individual; or as operating as some restraint upon other business occupations, in connection with which the work of plumbing may be undertaken ; as, for instance, in the case of a contract for the erection of a building, which may include the doing of the plumbing work. As I have previously observed, it does not operate to prevent the individual from following the trade of a plumber. It, merely and only, requires of those who propose to do business as master plumbers, to submit to an examination as to their general competency. The application of the statute is to persons following the trade of a practical plumber. The terms “ trade, business or calling,” employed in the statute are synonymous and have relation to the mechanical employment. One’s trade is that business which he has learned and fitted himself to follow and when the legislature speaks of a “ person intending to conduct the trade, business or calling of a plumber,” it has used the words, as they would naturally and ordinarily be understood by all, and, particularly, by that class of the people to whom they were intended to apply.

So regarded, there can be no reasonable doubt that the application of the statutory provision is to the person, whose actual and real occupation is that of the practical plumber. It cannot have a more extended application, nor comprehend those persons whose business is not that of the plumber, as it is understood to be. Kindred occupations would not be affected. Whenever a person holds himself out to the public as a plumber, undertaking to do work as such, he must, if he employs assistants to perform the work, comply with the law and procure his certificate.

Nor is it a ground' of objection that, as the statute was intended to apply only to master or employing plumbers, the inference follows that a monopoly in the business is created or sanctioned. It may, or may not, have been wiser that the legislature should require examinations by, and certificates from, the examining boards in the case of every person engaged in the business of plumbing; but if the act is a step in the direction of something which will enure to the public health and comfort, that it does not go as far as it might, is not a reason for invalidating it. I am able to see how this act may limit the number of master plumbers, and with great wisdom; but I am not able to see hów any monopoly will necessarily follow. The purpose of the act is in the direction of limiting the business to those persons who will perform the work, presumably, with some regard to the public health and comfort and it would be a misuse of language to speak of such provisions as creating, or even tending to create, a monopoly. As well might it be said that to compel physicians, or druggists, to take out licenses, is a provision giving a monopoly of the particular business to those who become licensed. If the measure is not so obvious a precaution in the case of plumbers, as in that of physicians, or of druggists, is that a reason for condemning it, if it may reasonably be considered as some precaution? I think not and I think the measure, as one relating to the general health of cities, is evident and intended to be so from the provisions of the act; which require the board of examiners to contain the chief examiner of the city sewers and the chief inspector of plumbing of the board of health; which require not only registration with the board of health, but that the business shall be conducted under rules and regulations prescribed by that board, and which authorize that body to cancel registrations, for violations of rules and regulations for the plumbing and drainage of the city.

ÜSTor is the constitutionality of an act to be determined by the manner in which its provisions may be carried out by those upon whom devolves the duty of acting as examiners. If they act unfairly or oppressively, as alleged by the relator in his petition, that is conduct which may call for a remedy against the persons who compose the board; but it- does not furnish ground for assailing the validity of the statute. A.s the act was framed it provided for an impartial board, made up of persons to whom, in human intendment, such duties as were imposed could safely be entrusted for performance.

I deem it unnecessary to refer to the other objections to this act. They were sufficiently answered at the General Term. It is my opinion that it would be unfortunate for the public interests, if this statute should be condemned. It is a step in a direction which should be encouraged; for it does distinctly relate to the public health and welfare.

The order appealed from should be affirmed.