Hench v. State Plumbing Board

Petitioner is a licensed journeyman plumber, having become so in January, 1930. Prior to the filing of the present petition, petitioner contracted for and did install certain plumbing for a citizen of St. Joseph, Michigan, said city having. a population of more than 5,000 and less than 10,000 people.

After the plumbing was completed, petitioner tendered to the State plumbing board the necessary permit and inspection fee. On May 23, 1938, the money advanced was returned to petitioner and the permit denied for the reason that, "plumbing permits are in no case issued to journeymen plumbers, nor are journeymen plumbers allowed to work on jobs in our jurisdiction, unless under the supervision of a licensed master plumber."

Petitioner filed a petition for a writ of mandamus to compel the State plumbing board to issue the necessary permit and attacks the constitutionality of Act No. 266, Pub. Acts 1929, as amended by Act No. 260, Pub. Acts 1933 (Comp. Laws Supp. 1935, § 6688 et seq., Stat. Ann. § 14.451 et seq.).

Petitioner contends that sections 4 and 5 of the act and Rule No. 140, adopted by the plumbing board, prohibit a "journeyman plumber" from pursuing his lawful occupation, trade or calling unless he subjects himself to the supervision of a "master plumber;" that such regulation is an invalid exercise of the police power, since it bears no reasonable relation to the public health or safety; that such regulation deprives a journeyman plumber of his property without "due process of law;" and that the apparent purpose of the act is to restrain trade by creating a monopoly in "master plumbers," and to benefit this particular class of plumbers, thus denying to "journeymen plumbers" the equal protection of the law.

Defendant contends that petitioner, as a licensed "journeyman plumber" under the act and having accepted its benefits, may not in this proceeding challenge its constitutionality.

Constitution of 1908, art. 7, § 4, provides:

"The Supreme Court shall have a general superintending control over all inferior courts; and shall have power to issue writs of error, habeas corpus, mandamus, quo warranto,procedendo and other original and remedial writs, and to hear and determine the same. In all other cases it shall have appellate jurisdiction only."

Section 13535, 3 Comp. Laws 1929 (Stat. Ann. § 27.29), provides:

"The Supreme Court * * * shall have power to issue writs of error, certiorari, habeas corpus, mandamus, quo warranto,procedendo, prohibition, supersedeas, and all other original and remedial writs which may be necessary for the due execution of the law and the administration of justice, and the full and perfect exercise of its jurisdiction, and to hear and determine the same."

In Toan v. McGinn, 271 Mich. 28, 34, this court said:

"To support mandamus, plaintiffs must have a clear legal right to performance of the specific duty sought to be compelled; defendants must have the clear legal duty to perform such act; and it must be a ministerial act, one 'where the law prescribes and defines the duty to be performed with such precision and certainty as to leave nothing to the exercise of discretion or judgment.' 38 C. J. p. 598. See, also, Globe Indemnity Co. v. Richer, 264 Mich. 224; Sezor v. Procter Gamble Soap Co., 267 Mich. 128."

See, also, Chemical Bank Trust Co. v. County of Oakland,264 Mich. 673.

The principle laid down in People, ex rel. Township of LaGrange, v. State Treasurer, 24 Mich. 468, 477, is applicable to the case at bar. We there said:

"It is the inadequacy, and not the mere absence, of all other legal remedies, and the danger of a failure of justice without it, that must usually determine the propriety of this writ."

See, also, Giddings v. Secretary of State, 93 Mich. 1 (16 L.R.A. 402).

In our opinion, plaintiff's petition for a writ of mandamus is a proper method of challenging the constitutionality of this act.

The question of whether the plumbing trade is subject to the police power is one of first impression in this State, but by the great weight of authority, statutes requiring the examination and licensing of plumbers, and providing rules and regulations for plumbing and drainage, in the interest of the public health, are valid as a proper exercise of the police power, and do not deprive members of the craft affected of personal rights guaranteed by the State and Federal Constitutions.

See annotations in 36 A.L.R. 1342; 57 A.L.R. 136; 5 L.R.A. (N.S.) 674; 8 L.R.A. (N.S.) 1116; 50 L.R.A. (N.S.) 421; Douglas v. People, ex rel. Ruddy, 225 Ill. 536 (80 N.E. 341, 8 L.R.A. [N. S.] 1116, 116 Am. St. Rep. 162); State v.Gardner, 58 Oh. St. 599 (51 N.E. 136, 41 L.R.A. 689,65 Am. St. Rep. 785).

In Kelley v. Judge of Recorder's Court of Detroit, 239 Mich. 204,214 (53 A.L.R. 273), this court said:

"Regulation of certain lawful trades, occupations, and business activities is a question for the legislature. Its determination comes within the proper exercise of the police power of the State unless affirmatively shown so unreasonable, oppressive, extravagant, and arbitrary as needlessly to invade property or personal rights as protected by the Constitution."

See, also, 11 Am. Jur. pp. 1147-1151, §§ 336, 337.

In State, ex rel. Winkler, v. Benzenberg, 101 Wis. 172 (76 N.W. 345), the court 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 sewer 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."

The above act classifies plumbers into two classes. Section 6 of the act provides, in part:

"A master plumber is any person skilled in the planning, superintending and the practical installation of plumbing, and who is familiar with the laws, rules and regulations governing the same. A journeyman plumber is any person other than a master plumber, who, as his principal occupation, is engaged in the practical installation of plumbing. A master plumber may also work as a journeyman."

The act regulates all members of the plumbing trade by requiring of both "masters" and "journeymen" a license. Section 8 of the act provides:

"The examination shall cover the theory and practice of plumbing, knowledge of the Michigan state plumbing code, interpretation of charts and blue prints, and plans of plumbing installation. The character, experience and fitness of the applicant shall also be taken into consideration. When oral examinations are given, a stenographic report of the examination shall be made and filed. The examination fee for a master plumber shall be twenty-five dollars and for a journeyman plumber, five dollars."

The act also regulates each plumbing job or the 'business of plumbing' and requires a permit as a condition precedent to any installation. It provides that all plumbing installation must be made under the supervision of a master plumber.

Act No. 260, § 4, Pub. Acts 1933, provides:

"And that no plumbing shall be done, except repairing leaks, without a permit upon prescribed conditions."

Section 5 of the act provides:

"No person, firm or corporation shall install plumbing unless at all times a licensed master plumber is in charge who shall be responsible for proper installation."

Section 140 of the code of minimum standards provides:

"Permits for all plumbing work shall be issued only in the name of a person who is a regularly licensed master plumber. Exception. Permits are granted to owners exercising constitutional privileges."

In Lochner v. New York, 198 U.S. 45, 57 (25 Sup. Ct. 539, 3 Ann. Cas. 1133), the court said:

"The mere assertion that the subject relates though but in a remote degree to the public health does not necessarily render the enactment valid. The act must have a more direct relation, as a means to an end, and the end itself must be appropriate and legitimate, before an act can be held to be valid which interferes with the general right of an individual to be free in his person and in his power to contract in relation to his own labor."

The State of Michigan under the act requires both a master and a journeyman plumber to be qualified; and that a permit be issued for each job with subsequent inspection (sections 2[b], 3). We are unable to see the necessity of requiring that all plumbing work be done under the supervision of a master plumber. The licensing of all plumbers, the plumbing permits and subsequent inspection should be sufficient to protect the public health and safety. In our opinion the requirement that all plumbing must be done under the supervision of a master plumber and Rule No. 140, which requires that permits for all plumbing work shall be issued in the name of a licensed master plumber only, has no application to public health and safety.

But in view of the fact that petitioner failed to comply with that part of the act providing for the obtaining of a permit prior to the time when installation of the plumbing was begun, he is not entitled to a writ of mandamus. No costs will be allowed as a constitutional question is involved.

CHANDLER, J., concurred with SHARPE, J. WIEST, and NORTH, JJ., concurred in the result.