Upon appeal to the circuit court, defendant was convicted of the offense of installing certain electrical fixtures and wiring in a residence without first having obtained the license required by Act No. 228, Pub. Acts 1935 (Comp. Laws Supp. 1935, § 8690-1 et seq., Stat. Ann. § 18.191 et seq.). Defendant admitted the acts of violation, but moved to dismiss the proceedings upon the ground that the above act is unconstitutional under the State and Federal Constitutions for the following reasons:
"a) That it contains unreasonable classification in that it discriminates between electricians wiring for light, power, and communication companies and those wiring privately and for private employers;
"b) That it unlawfully delegates legislative power to a purely administrative board;
"c) That the act contains unlawful delegation of judicial power to an administrative board;
"d) That the act deprives citizens of liberty and property without due process of law;
"e) That the act delegates blanket, unrestricted and arbitrary police power to an administrative board;
"f) That the act is vague and uncertain in its terms and is void for uncertainty;
"g) That the act requires certain electricians to secure a license in order to wire in the State of Michigan, the requirements for securing such license not being defined to the exclusion of arbitrary and discriminating official action in granting or refusing said licenses;
"h) That the act embraces more than one object, which are not expressed in the title; and
"i) That the act is based upon a nonexistent code for wiring and is impossible of definement and interpretation."
The trial court held the act constitutional and convicted and sentenced defendant, from which sentence defendant appeals and contends that the above act
is unconstitutional for the reasons given in the motion to dismiss.
Act No. 228, Pub. Acts 1935, provides:
"SECTION 1. * * * In this act, electrical wiring means and includes: (a) All wiring, generating equipment, of not over ten kilowatt capacity, fixtures, appliances, and appurtenances in connection with the generation, distribution and utilization of electrical energy with a potential of thirty volts or more between conductors, within or on a building, residence or structure, and including service entrance wiring as defined by the national electric code. * * *
"SEC. 5. * * * No person, firm or corporation shall engage in the business of 'electrical contracting,' unless such person, firm or corporation shall have received from the electrical administrative board, or from a municipal board of electrical examiners, an electrical contractor's license and a certificate therefor, nor shall any person, firm or corporation, except a person duly licensed and employed by and working under the direction of a holder of an electrical contractor's license, in any manner undertake to execute any electrical wiring; except that no license shall be required in order to execute any of the following classes of work: * * *
"(b) The installation, alteration or repair of equipment for the operation of signals, or the transmission of intelligence, where such work is an integral part of the communication system owned and operated by a telephone/or telegraph company in rendering its duly authorized service as a telephone and/or telegraph company;
"(c) The installation, alteration or repair of electric wiring for the generation and primary distribution of electric current, or the secondary distribution system up to and including the meters, where such work is an integral part of the system owned and operated by an electric light and power company in rendering its duly authorized service; * * *
"(g) Any work involved in the operation, maintenance, servicing or repairing of theatrical equipment such as motion picture projectors, stereopticons, public address systems, spot lights, flood lights or other electrical stage equipment; or any work done under the supervision of any licensed operating engineer."
The first objection raised by defendant is that the act contains unreasonable classification in that it discriminates between electricians wiring for light, power and communication companies and those wiring privately and for private employers. In his brief before this court, defendant adds the further reasons, i.e., that section 1 of the act requires licenses for electricians for wiring only where the load carried by such wiring is "not over ten kilowatt capacity" thereby permitting high tension wiring, where the danger to the public is great, without the electricians doing such work holding a license of any class under this statute and relieving such electricians from obtaining permits for such wiring or paying any fees for the inspection of such wiring installations; and that the act exempts "work involved in the operation, maintenance, servicing or repairing of theatrical equipment."
The people contend that in considering the question of unreasonable classification, only the reasons set forth in defendant's motion to dismiss can be properly considered on this appeal; and that the other reasons not having been presented to the trial court nor passed upon by him cannot be considered here.
We have repeatedly held that where the question of constitutionality of a statute is not presented to the court below, this court will not consider the question on appeal,Maurer v. Greening Nursery Co., 199 Mich. 522; and that in the absence of the question of jurisdiction, the particular provision of the Constitution,
which it is claimed the act offends, must be pointed out with reasonable certainty, McBride v. Jacob, 201 Mich. 525. However, in the case at bar, defendant objected to the constitutionality of the act in the lower court upon the ground of unreasonable classification, and he now only points out further reasons to support his claim. We adopt the language in Fitch v. ManitouCounty Board of Auditors, 133 Mich. 178:
"In support of this objection (unconstitutionality of an act) certain reasons were advanced, certain arguments urged. It would be a monstrous proposition to say that other reasons may not be advanced in this court, and stronger arguments, if discovered, urged, against the action proposed to be taken. We do not think that this court should decline to hear and be influenced by these arguments, though it may be that if they had been brought to the attention of the trial judge his decision would have been different. It is generally true that the arguments in a case in this court, being made after counsel has had an opportunity to more thoroughly understand his case and examine the authorities, are different and better than they were in the court below."
The rule adopted in Michigan concerning classification may be found in Cook Coffee Co. v. Flushing, 267 Mich. 131, 134, where we said:
"The fourteenth amendment of the United States Constitution and article 2, § 1 of the Michigan Constitution of 1908 give the same right of equal protection of the laws. Naudzius v.Lahr, 253 Mich. 216 (74 A.L.R. 1189, 30 N.C.C.A. 179).
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Upon appeal to the circuit court, defendant was convicted of the offense of installing certain electrical fixtures and wiring in a residence without first having obtained the license required by Act No. 228, Pub. Acts 1935 (Comp. Laws Supp. 1935, § 8690-1 et seq., Stat. Ann. § 18.191 et seq.). Defendant admitted the acts of violation, but moved to dismiss the proceedings upon the ground that the above act is unconstitutional under the State and Federal Constitutions for the following reasons:
"a) That it contains unreasonable classification in that it discriminates between electricians wiring for light, power, and communication companies and those wiring privately and for private employers;
"b) That it unlawfully delegates legislative power to a purely administrative board;
"c) That the act contains unlawful delegation of judicial power to an administrative board;
"d) That the act deprives citizens of liberty and property without due process of law;
"e) That the act delegates blanket, unrestricted and arbitrary police power to an administrative board;
"f) That the act is vague and uncertain in its terms and is void for uncertainty;
"g) That the act requires certain electricians to secure a license in order to wire in the State of Michigan, the requirements for securing such license not being defined to the exclusion of arbitrary and discriminating official action in granting or refusing said licenses;
"h) That the act embraces more than one object, which are not expressed in the title; and
"i) That the act is based upon a nonexistent code for wiring and is impossible of definement and interpretation."
The trial court held the act constitutional and convicted and sentenced defendant, from which sentence defendant appeals and contends that the above act
is unconstitutional for the reasons given in the motion to dismiss.
Act No. 228, Pub. Acts 1935, provides:
"SECTION 1. * * * In this act, electrical wiring means and includes: (a) All wiring, generating equipment, of not over ten kilowatt capacity, fixtures, appliances, and appurtenances in connection with the generation, distribution and utilization of electrical energy with a potential of thirty volts or more between conductors, within or on a building, residence or structure, and including service entrance wiring as defined by the national electric code. * * *
"SEC. 5. * * * No person, firm or corporation shall engage in the business of 'electrical contracting,' unless such person, firm or corporation shall have received from the electrical administrative board, or from a municipal board of electrical examiners, an electrical contractor's license and a certificate therefor, nor shall any person, firm or corporation, except a person duly licensed and employed by and working under the direction of a holder of an electrical contractor's license, in any manner undertake to execute any electrical wiring; except that no license shall be required in order to execute any of the following classes of work: * * *
"(b) The installation, alteration or repair of equipment for the operation of signals, or the transmission of intelligence, where such work is an integral part of the communication system owned and operated by a telephone/or telegraph company in rendering its duly authorized service as a telephone and/or telegraph company;
"(c) The installation, alteration or repair of electric wiring for the generation and primary distribution of electric current, or the secondary distribution system up to and including the meters, where such work is an integral part of the system owned and operated by an electric light and power company in rendering its duly authorized service; * * *
"(g) Any work involved in the operation, maintenance, servicing or repairing of theatrical equipment such as motion picture projectors, stereopticons, public address systems, spot lights, flood lights or other electrical stage equipment; or any work done under the supervision of any licensed operating engineer."
The first objection raised by defendant is that the act contains unreasonable classification in that it discriminates between electricians wiring for light, power and communication companies and those wiring privately and for private employers. In his brief before this court, defendant adds the further reasons, i.e., that section 1 of the act requires licenses for electricians for wiring only where the load carried by such wiring is "not over ten kilowatt capacity" thereby permitting high tension wiring, where the danger to the public is great, without the electricians doing such work holding a license of any class under this statute and relieving such electricians from obtaining permits for such wiring or paying any fees for the inspection of such wiring installations; and that the act exempts "work involved in the operation, maintenance, servicing or repairing of theatrical equipment."
The people contend that in considering the question of unreasonable classification, only the reasons set forth in defendant's motion to dismiss can be properly considered on this appeal; and that the other reasons not having been presented to the trial court nor passed upon by him cannot be considered here.
We have repeatedly held that where the question of constitutionality of a statute is not presented to the court below, this court will not consider the question on appeal,Maurer v. Greening Nursery Co., 199 Mich. 522; and that in the absence of the question of jurisdiction, the particular provision of the Constitution,
which it is claimed the act offends, must be pointed out with reasonable certainty, McBride v. Jacob, 201 Mich. 525. However, in the case at bar, defendant objected to the constitutionality of the act in the lower court upon the ground of unreasonable classification, and he now only points out further reasons to support his claim. We adopt the language in Fitch v. ManitouCounty Board of Auditors, 133 Mich. 178:
"In support of this objection (unconstitutionality of an act) certain reasons were advanced, certain arguments urged. It would be a monstrous proposition to say that other reasons may not be advanced in this court, and stronger arguments, if discovered, urged, against the action proposed to be taken. We do not think that this court should decline to hear and be influenced by these arguments, though it may be that if they had been brought to the attention of the trial judge his decision would have been different. It is generally true that the arguments in a case in this court, being made after counsel has had an opportunity to more thoroughly understand his case and examine the authorities, are different and better than they were in the court below."
The rule adopted in Michigan concerning classification may be found in Cook Coffee Co. v. Flushing, 267 Mich. 131, 134, where we said:
"The fourteenth amendment of the United States Constitution and article 2, § 1 of the Michigan Constitution of 1908 give the same right of equal protection of the laws. Naudzius v.Lahr, 253 Mich. 216 (74 A.L.R. 1189, 30 N.C.C.A. 179).
"These constitutional provisions do not mean that there can be no classification in the application of statutes and ordinances, but only that the classification must be based on natural distinguishing characteristics and must bear a reasonable relation to the object of the legislation.
"The standards of classification given in Lindsley v. NaturalCarbonic Gas Co., 220 U.S. 61, 78 (31 Sup. Ct. 337, Ann. Cas. 1912C, 160), were quoted by this court in Naudzius v. Lahr,supra, at pp. 222, 223:
" '1. The equal protection clause of the Fourteenth Amendment does not take from the State the power to classify in the adoption of police laws, but admits of the exercise of a wide scope of discretion in that regard, and avoids what is done only when it is without any reasonable basis and therefore is purely arbitrary. 2. A classification having some reasonable basis does not offend against that clause merely because it is not made with mathematical nicety or because in practice it results in some inequality. 3. When the classification in such a law is called in question, if any state of facts reasonably can be conceived that would sustain it, the existence of that state of facts at the time the law was enacted must be assumed. 4. One who assails the classification in such a law must carry the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary.' "
In Kelley v. Judge of Recorder's Court of Detroit, 239 Mich. 204,214 (53 A.L.R. 273) we said:
The fundamental rule of classification is that it shall not be arbitrary, must be based on substantial distinctions and be germane to the purpose of the law."
The regulation of electricity is a proper exercise of the police power. See Berry v. City of Chicago, 320 Ill. 536
(151 N.E. 581).
In Becker v. Pickersgill, 105 N.J. Law, 51 (143 A. 859), the court said:
"The broad assertion of counsel of prosecutor that the ordinance in question deprives the latter of his personal rights and property, finds no support from a plain reading of the ordinance. One of the results of being a member of organized society, under the Constitution and laws, unquestionably is the yielding by the individual of certain absolute rights for the benefit and welfare of the community which he joins. Salus populi suprema lex. Such natural and absolute rights which the individual possessed become as to him as a member of civil society, purely relative,
and therefore are subject to regulation. The safety and general welfare of the community require that certain businesses and occupations, because of their dangerous tendencies to injure the safety, health or general welfare of the public, require regulation, and, hence, the requirement of a license to carry on such businesses or occupations, and the imposition of a tax for revenue are nothing more than the proper exercise of the police power to safeguard the community, and such legislation is permissible."
In Southeastern Electric Co. v. City of Atlanta, 179 Ga. 514
(176 S.E. 400), the court said:
"The ordinance is also violative of the above constitutional provisions (14th amendment of the Federal Constitution), because imposing on electrical contractors the burden of standing a prescribed examination, while it exempts from such burden persons installing the same equipment for 'public utility companies such as central stations, telephone or telegraph companies or their subsidiaries, who have in their employ or may hereafter employ specialists to install, repair, or maintain equipment located in their own buildings or on their property or service equipment located on customers' property,' as provided in section 33. The ordinance further exempts utility companies by section 46, which provides: Before starting work on installation for systems over 600 volts, a completed lay-out in detail shall be submitted to the superintendent of electrical affairs and his approval obtained; provided, however, that this shall not apply to public utility companies, such as central stations, telephone or telegraph companies and their subsidiaries, when installing equipment on their own property or service equipment on the property of their customers;' thereby discriminating against electrical contractors coming within the purview of said ordinance, by denying them the same rights and privileges. * * * The difference between electrical installations in the instances above
mentioned is not so substantial as will support separate classifications for the purpose of imposing said burden on one and exempting the other, for the reason that the work is just as hazardous when done by the exempt class as when done by the subject class."
An examination of the mentioned act discloses that section 1 requires licenses for electricians for wiring only where the load carried by such wiring is "not over ten kilowatt capacity." It necessarily follows that if the load carried by such wiring is over ten kilowatt capacity, no license is required for the installation of such wiring. Nor is a license required in order to execute any of the work mentioned in subsections (b), (c), and (g) of section 5 of the act. The result of the above sections is that of relieving electricians from obtaining a license for certain classes of installation and wiring or for the operation, maintenance, servicing or repairing of theatrical equipment.
It appears to us that there is a necessity for protection to the public in the exempted classes as well as in the classes of work for which a license is required. To justify such a classification there must appear some substantial reason for the regulation of one kind of work not equally applicable to the other. In our opinion the classification here made is not based upon any real or substantial distinction and is not a valid exercise of police power, having for its purpose the prevention of fire and public safety.
Other claims of unconstitutionality of the above act have been presented to us, but under our decision we find it unnecessary to discuss them.
The judgment is reversed, without a new trial. No costs will be allowed.
BUSHNELL, J., and CHANDLER, J., concurred with SHARPE, J.