Wood v. City Board of Plumbing Examiners , 192 Ga. 415 ( 1941 )

It was erroneous to dismiss, on the ground of laches, a petition filed on January 13, 1941, seeking mandamus against the City of Atlanta Board of Examiners for Plumbing Certificates; the plaintiff having waited five years and four months to apply for a certificate, and from January 2, 1940, until January 13, 1941, to bring the present suit.

No. 13718. JUNE 16, 1941. On January 13, 1941, Richard F. wood, the applicant, presented his petition for mandamus to Hon. Paul S. Etheridge, one of the judges of the superior courts of the Atlanta Circuit. This petition was brought against the City Board of Examiners for Plumbing Certificates, B. J. Seckinger, Powell Wingate, Charlie Enright, A. G. Williams, and E. G. Quarles, and it was alleged that at the time of bringing the petition there was in effect a duly passed and approved ordinance of the City of Atlanta, regulating the trade of plumbing and providing, in section 6, for the issuance of certificates of proficiency to those persons who passed a prescribed examination, and, in section 10, that a certain class of persons, who before the passage of the said ordinance had performed plumbing work on their own responsibility and knowledge of the trade, and had the work accepted and approved by the city plumbing inspector, were entitled to a certificate of proficiency without examination; provided further, that in order to be entitled to such a certificate without examination, the applicant must have been continuously engaged in the trade of plumbing since the work was so approved and was working as plumber at the time of the passage of the ordinance. A copy of the ordinance attached to the petition showed that the ordinance was approved on September 20, 1935, and went into effect on that date. Section 10 thereof was follows: "The examination hereinbefore referred to shall not be required of such persons as are now actively engaged in plumbing trade and who have heretofore performed, on their own responsibility and knowledge of the trade, any plumbing work, installation, or construction, which was on inspection approved by the city plumbing inspector, and such person shall be automatically entitled to the said certificate of proficiency issued by the said board, without examination: provided, however, that such certificate of proficiency shall be issued to such of said persons as have been continuously following the trade of plumber since the time such work was so approved and are still working as plumbers." Section 13 showed that there was a penal provision for the payment of a fine up to $100, or imprisonment not exceeding thirty days, or both, in the discretion of the recorder, for any one convicted, in the recorder's court of the city, of engaging in the plumbing trade without first obtaining a certificate of proficiency from the city board of examiners for plumbing certificates.

The plaintiff alleged, that he was entitled to a certificate of proficiency without examination, because he had performed, on his own responsibility and knowledge of the trade, plumbing work, installation, and construction, which on inspection was approved by the city plumbing inspector; that such plumbing work, installation, and construction was performed and approved prior to the passage of said ordinance; that since the time such work was so approved he had been continuously following the trade of plumbing, and, as of the date of the presentation and filing of his petition, was engaged in the trade of plumber; that he had tendered to E. G. Quarles, as a member and secretary of the said board, two dollars, the amount set out in the ordinance as the fee which each applicant must pay to obtain a certificate of proficiency, with or without examination, and had demanded that Quarles, as secretary of the board, issue to him a certificate of proficiency without examination; that the said Quarles refused to issue the said certificate; that because of the facts set forth in his petition, as applied to the ordinance in question, he was entitled to the writ of mandamus compelling the board to issue the certificate to which he was entitled; and that he would be subject to the penalties provided in section 13 of the ordinance, unless the court compelled the issuance to him of a certificate of proficiency. He prayed that the court issue a mandamus nisi requiring the defendants to show cause why they should not issue a certificate of proficiency to plaintiff, and that upon the hearing the mandamus be made absolute.

Judge Paul S. Etheridge sanctioned the petition on the day it was presented, and made the case returnable on January 24, 1941. ordering the defendants to show cause why the prayers of the petition should not be granted. They answered, admitting jurisdiction, that the defendants were members of the board, that the ordinance referred to in the petition was in force and effect at the times alleged, that it was approved and went into effect on September 20, 1935, and that by the provisions of section 10 of the ordinance any one who came within the class exempt from examination, as alleged in the petition, was entitled to a certificate of proficiency without examination; but they denied the other allegations. They pleaded that the plaintiff had never contended that he was entitled to a certificate of proficiency without examination, until the bringing of this mandamus action. They moved to dismiss the action, on the grounds: (1) "It appears from plaintiff's petition that the plaintiff did not, within the time contemplated by law, apply to the City of Atlanta, or its proper officers, for a certificate of proficiency as a plumber under existing laws and ordinances." (2) "It appears from plaintiff's petition that plaintiff carried on his business for a number of years after passage of the ordinance involved in said case, without obtaining certificate of proficiency as contemplated therein, and consequently his business during said years was carried on in violation of law; and therefore this court should not at this time issue a mandamus requiring such certificate to be awarded to the plaintiff, for said additional grounds." (3) "Because plaintiff's petition does not show sufficient grounds for granting a mandamus." Judge Hendrix sustained the motion and dismissed the action, although he overruled grounds 2 and 3 of the motion. To this judgment the plaintiff excepted. The only issue of law involved in this writ of error is whether or not the judge erred in interposing a bar of laches to the plaintiff's action. No specific time limit is set out in the ordinance as to the length of time within which an applicant for a certificate shall apply to the board of examiners for a plumbing certificate and have it issued to him without examination. No attack is made on the constitutionality of the ordinance in question. Code section 3-712 reads as follows: "The limitation herein provided shall apply equally to all courts; and in addition to the above, courts of equity may interpose an equitable bar, whenever, from the lapse of time and laches of the complainant, it would be inequitable to allow a party to enforce his legal rights." The doctrine of stale demands is purely an equitable one, and arises only whenever from lapse of time and laches of the plaintiff it would be inequitable to allow a party to enforce his legal rights. City of Barnesville v. Stafford, 161 Ga. 588, 592 (131 S.E. 487). Mandamus is a common-law writ, not an equitable remedy. Gay v. Gilmore, 76 Ga. 725: Spence v. Miller,176 Ga. 96, 98 (167 S.E. 188). "The authorities are much in conflict as to whether a statute of limitations, without express words to that effect, governs a proceeding in mandamus as though it were an ordinary civil action. Some of the cases hold the affirmative of this question. While others hold that a mandamus proceeding is not an `action' or `civil action' within the meaning of statutes limiting actions or civil actions. Statutes of limitations have been applied to mandamus proceedings by analogy even where they were not considered to be a technical bar." 18 Rawle C. L. § 285. Counsel for the defendants in error invoke the rule, recognized in R. C. L. § 286, that, irrespective of the question as to whether or not the statutes of limitation apply to mandamus proceedings, an application for the writ must be made within a reasonable time after the alleged neglect of duty. The same section, however, states, that, "In determining what constitutes such unreasonable delay as will justify the refusal of the writ, regard may be properly had to the circumstances which justify the delay, to the character of the case, to the nature of the relief demanded, and to the question whether or not the defendant or other persons have been injured by the delay. If it is apparent that the delay has not resulted in prejudice to the rights of the adverse party, and that the relief sought does not depend on the determination of doubtful and disputed questions of fact, the writ may be allowed although there has been delay in asking for it where a reasonable excuse is given for the delay."

In the instant case it is difficult to see how there could have been any prejudice to any of the defendants, to those whom they as public servants represent, or to any other person or group of persons by reason of the fact that the plaintiff waited five years and four months to apply for a certificate, and when it was refused he waited only from January 2, 1940 until January 13, 1941, to bring the present suit. Talmadge v. Cordell,167 Ga. 594 (146 S.E. 467), was a suit for mandamus, brought by a discharged fertilizer inspector, filed April 7, 1928, to compel the commissioner of agriculture to issue to him warrants for the monthly payments of his salary ending with July, 1927. It was ruled: "To justify the court in refusing the writ of mandamus on the ground that the party applying has slept over his rights, the laches must be gross — the delay must be unreasonable. Mayor c.Savannah v. State, ex rel. Green, 4 Ga. 26 (3). From the facts alleged in the petition it does not appear that the relator was guilty of such gross neglect as to bar him from applying for mandamus in this case. Mattox v. Jones, 141 Ga. 649 (81 S.E. 861)." It was error to sustain the motion to dismiss the action on the ground "It appears from plaintiff's petition that the plaintiff did not, within the time contemplated by law, apply to the City of Atlanta, or its proper officers, for a certificate of proficiency as a plumber under existing laws and ordinances."

Judgment reversed. All the Justices concur.