People v. Hall , 290 Mich. 15 ( 1939 )

I can and do concur in Mr. Justice SHARPE'S holding that the act here involved (Act No. 228, Pub. Acts 1935 (Comp. Laws Supp. 1935, § 8690-1 et seq., Stat. Ann. § 18.191 et seq.]) is unconstitutional, but I am not prepared to agree with the reasons he has assigned in support of his conclusion.

My Brother has detailed the numerous reasons and grounds upon which the constitutionality of Act No. 228 is challenged, and they need not be repeated. He holds the act invalid because he finds in two particulars the classification, upon which depends the necessity of obtaining a license to engage in electric wiring, "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."

The above holding relates in the first instance to section 1 of the act which provides:

"Electrical wiring; definition. 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, including service entrance wiring as defined by the national electric code."

For reasons stated by him my Brother holds this provision embodies an improper classification. Evidently the legislature which enacted the statute did not think so, and the record before us contains no testimony, neither does it disclose any facts, sustaining a contrary conclusion. For that reason alone we should not, on this record, sustain appellant's claim of unconstitutionality of the act in this particular.

" 'When a statute is challenged as in conflict with the fundamental law, a clear and substantial conflict must be found to exist to justify its condemnation.' " People v. Morris,80 Mich. 634 (8 L.R.A. 685).

"It is an axiom in American jurisprudence that a statute is not to be pronounced void * * * unless the repugnancy to the Constitution be clear, and the conclusion that it exists inevitable. Every doubt is to be resolved in support of the enactment." Township of Pine Grove v. Talcott, 19 Wall. (86 U.S.) 666, 673.

Further, if we are to take judicial notice of commonly known relevant facts, the following appears incident to reading section 1 of Act No. 228. It has two requisites as the basis of its classification, and both must be considered in determining whether the classification is one that the legislature was justified in adopting. The first requisite or limitation covers the class of installations commonly used in dwellings, mercantile places, and the like — i. e., "wiring, [and] generating equipment, of not over ten kilowatt capacity." It is common knowledge that wiring and generating equipment of more than ten kilowatt capacity is almost wholly, if not exclusively, used where the installation, control and use are by service or utility companies or by industrial plants or transportation companies. As to such it may be reasonably presumed they have skilled employees and that their own interests necessitate proper safety measures as to installation, maintenance and use. When considered with the second basis or element of classification the foregoing is obviously reasonable in that it affords protection of person and property to the general mass of citizens in their use of electric current. It is fair and reasonable to conclude that this is what the legislature believed there was need of doing.

The second ground of classification in section 1 of the act is its further provision that electric wiring also means and includes " 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." This latter provision prevents the unlicensed and unskilled from doing electrical wiring if the voltage between conductors is potentially 30 or more. This provision restricting operations of unlicensed persons to the lower and therefore less dangerous voltage is so obviously a reasonable requisite for public safety that argument is unnecessary. On this unsatisfactory record I am not prepared to hold the classification in section 1 of the act is unreasonable or arbitrary and the act unconstitutional because thereof.

Nor am I in accord with the holding of Justice SHARPE that, because of the exemptions in subdivisions (b), (c), and (g) of section 5 of the act, class legislation results and the act being discriminatory is invalid. These subdivisions are quoted in my Brother's opinion. In a general way they include electrical wiring used in operating signals, telegraphing, telephoning, in the operations of electric light and electric power companies, and in theatrical equipment such as motion picture projectors and general electrical stage equipment. These excepted phases of electrical wiring or maintenance might logically have been considered by the legislature to be such as are safeguarded by voluntary inspection and use of reasonable safety precautions by those engaged in these phases of electrical work or such uses of electrical current. The legislature might well have concluded that the public was sufficiently safeguarded by the financial responsibility or the high degree of skill possessed by those who engage in the phases of electrical industry or the uses of electric current covered by the subdivisions (b), (c), and (g). So concluding, the legislature may properly have attempted to enact a statute designed to protect the general public in its use of electric current without including those whose business, by its very nature, necessitates its conduct by skilled employees in a manner which in itself affords reasonable protection to the general public.

On this phase of the case my Brother quotes somewhat at length from Southeastern Electric Co. v. City of Atlanta,179 Ga. 514 (176 S.E. 400). Examination of the report of this decision discloses that my Brother's quotation is not from the court's decision, but instead it is a part of the court's statement of what was alleged in the plaintiff's petition for an injunction. Besides this quoted portion of the pleadings a large number of other reasons were therein asserted in support of plaintiff's contention that the ordinance in controversy was unconstitutional. Among such other reasons was the following:

"And the ordinance operates unequally upon members of the same class, because it imposes the burden of an examination upon those who do electrical work in new structures, but exempts others of the same class from such examination who do work upon structures where the original connections have been made."

In disposing of the case the Georgia court contented itself by merely providing a "syllabus" opinion, in which it stated the ordinance was discriminatory, that it violated certain portions of the State Constitution and also the due process and equal protection clause of the Federal Constitution. It is quite impossible to determine what phase of the ordinance led the Georgia court to the above conclusion. We do not know whether it was plaintiff's contention quoted in my Brother's opinion, or whether it was some other contention, for example, the one hereinbefore quoted. The latter is not and could not be asserted in the instant case. Because of these circumstances the Georgia decision may or may not be in point, and at least it is not very persuasive of what constitutes proper decision in the instant case.

Another decision which may possibly be considered as having something of a bearing upon this phase of the law will be found in State v. Gantz, 124 La. 535 (50 So. 524, 24 L.R.A. [N. S.] 1072). But in this latter case, wherein a statute providing for the licensing of electricians was held to be invalid, the statute was made applicable to only one city in the State; and obviously it was class legislation as between electricians within the city and others residing in other portions of the State. It is true the decision of the Louisiana court was not placed on this ground but, insofar as it is not in harmony with our holding herein on this phase of the case, we should decline to follow it.

In view of the unsatisfactory state of the record presented on this appeal we are not justified in holding Act No. 228, Pub. Acts 1935, unconstitutional on either of the grounds hereinbefore considered. But the ground upon which I can concur with the result reached by Mr. Justice SHARPE is presented by appellant's contention that the act "is vague and uncertain in its terms and is void for uncertainty," and that the requirements of the act are measured and defined by the national electric code.

In section 2, subdivision (b), the act provides:

"The electrical administrative board shall have general supervision of all such electrical wiring and shall, after not less than thirty days' notice and public hearing, prescribe and publish minimum standards therefor, which shall be uniform,and not less than the minimum standards described by thenational electric code."

Note also the embodiment of reference to "the national electric code" in section 1 above quoted.

In his brief appellant's position is stated as follows:

"Further this appellant urges upon this court that the above section, by prescribing that such rules shall be 'not less than the minimum standards described by the national electric code,' * * * delegates to the National Board of Fire Underwriters, who promulgate the national electric code, the right to prescribe what minimum offenses shall become criminal offenses for the citizens of this State.

"That this is done even though the National Board of Fire Underwriters is not even a body composed of Michigan citizens, but is an organization of business men of the several States which meets to determine these code rules outside the borders of the State of Michigan. And yet the rules established by this foreign body, when adopted by them, instantly become a part of the criminal law of the State of Michigan."

Delegation of legislative power of this character and to this extent cannot be countenanced. It has repeatedly been condemned by this court. People, ex rel. Bolt, v. Riordan, 73 Mich. 508;King v. Concordia Fire Ins. Co., 140 Mich. 258, 268 (6 Ann. Cas. 87); Chemical Bank Trust Co. v. Oakland Co.,264 Mich. 673, 684.

The identical question involved in the instant case came before the supreme court of Kansas in the case ofState v. Crawford, 104 Kan. 141 (177 P. 360, 2 A.L.R. 880). The first paragraph of the syllabus of this decision reads:

"The legislature cannot delegate to private individuals and private associations of persons the power to make obligatory rules concerning the management and care of property, nor can it provide that the breach of such rules shall be a penal offense."

The Kansas statute contained the provision, "All electric wiring shall be in accordance with the national electrical code." The trial court, upon defendants' motion, quashed the informations charging them with misdemeanors committed in violation of the statute, such ruling being on the ground that the quoted provision rendered the statute unconstitutional. Upon review the supreme court said:

"In considering the correctness of the district court's decision in quashing the informations against the defendants, it is only necessary to recur to the most simple and elementary principles of civil government. In our commonwealth the power to make, amend, alter and repeal the laws is vested in the legislature. That body may not abdicate its functions nor delegate its power to any other body, however learned, wise and farsighted the latter may be. This principle of our Constitution and of our public policy is fundamental.

"Some courts, including our own, have relaxed, or seemingly relaxed, the rigid enforcement of this principle in some instances, by giving countenance to legislation enacted to punish as misdemeanors or otherwise to penalize the breach of rules promulgated or to be promulgated afterwards by some subordinate official body created by the legislature. * * *

"But none of the cases cited has ventured so far afield as to intimate that the legislature might delegate to some unofficial organization of private persons, like the National Fire Protective Association, the power to promulgate rules for the government of the people of this State or for the management of their property, or that the legislature might prescribe punishment for breaches of these rules. We feel certain that no such judicial doctrine has ever been announced."

In an attempted exercise of police power the legislature of Arizona enacted a statute providing for regulation of electricians and electrical wiring. The statute empowered municipalities to enact electrical codes, and the statute provided that the regulations in existing national electrical codes and subsequent additions thereto should be prima facie evidence of approved methods, but that the electrical code of a municipality should govern in cases where there was conflict. In Tucson v. Stewart, 45 Ariz. 36 (40 Pac. [2d] 72, 96 A.L.R. 1492), the Arizona supreme court held the act was invalid for uncertainty and as a delegation of lawmaking power of the municipalities.

Appellant's contention that Act No. 228, Pub. Acts 1935, is unconstitutional, because of uncertainty in its terms and because the legislature attempted an unauthorized delegation of legislative power, must be sustained. This defect appears from the act itself. The provision that minimum standards in this State shall be those prescribed in the national electric code so affects this whole regulatory act that this provision cannot be segregated and still leave a working statute. It was in this provision that the legislature designated the test of what would constitute minimum standards. Without it the act is materially altered and the remaining portion ceases to embody the legislature's intent. Therefore, the act in toto must fail.

For the reason above indicated I concur in reversal and without a new trial.

WIEST, POTTER, and McALLISTER, JJ., concurred with NORTH, J.