Hench v. State Plumbing Board , 289 Mich. 108 ( 1939 )

While I concur in the result of Mr. Justice SHARPE'S opinion denying the writ, I cannot join in the reasoning by which that result was reached. I fail to find 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.) unconstitutional either because of the distinction made therein between master and journeyman plumbers, or because of the provision that all plumbing, exclusive of repairing leaks, must be performed with the supervision of a licensed master plumber and under a permit issued in his name.

Despite arguments now obsolete, like those found in the majority opinion in Lochner v. New York, 198 U.S. 45 (25 Sup. Ct. 539, 3 Ann. Cas. 1133), the courts, almost without exception, have recognized the reasonable regulation of the plumbing trade as a valid exercise of the police power. See the cases collected in 36 A.L.R. 1342; 57 A.L.R. 136. Under modern conditions of life it is evident that the dangers arising from defective plumbing are so great that the public welfare demands that every effort be made to minimize the possibility of injury to health through the escape of sewer gas or seepage and the spread of contagious disease, as well as to obviate the inconveniences and offensive discomforts as well as fire hazards caused by plumbing improperly installed.

The foregoing opinion, as I read it, does not quarrel with the power of the legislature, in the abstract, to enforce such regulation of plumbers, but holds that there was no "necessity" for the method here employed and that this method is unreasonably discriminatory and burdensome to the point of constitutional inhibition.

It has never been the function of this court to pass upon the necessity or wisdom of legislation. We exercise no veto power. Before a deliberate act of the legislature is stricken down, it must be shown unequivocally to offend some provision of the Constitution of the United States or of the State of Michigan. Whatever may be our personal conviction and judgment of the value or motives of the statute before us, our inquiry is narrowed to the single issue of constitutionality. We should literally observe the principles laid down by the Wisconsin court in the language which Mr. Justice SHARPE has quoted:

"This power (of regulating plumbers) 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 is simply whether they are really appropriate and reasonable measures for the promotion of the public health and safety, and hence are 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." State, exrel. Winkler, v. Benzenberg, 101 Wis. 172 (76 N.W. 345).

There is no doubt that inspection of plumbing may be constitutionally provided for; no question is raised as to the validity of 2 Comp. Laws 1929, § 6705 (Stat. Ann. § 14.471). It is equally settled that requiring all members of the plumbing trade to prove their competency by submitting to qualifying examinations and issuing certificates or licenses to successful applicants is a valid exercise of legislative power. See, for example, 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); Singer v. State, 72 Md. 464 (19 A. 1044,8 L.R.A. 551); Beltz v. City of Pittsburg, 211 Pa. 561 (61 A. 78), affirming 26 Pa. Super. 66. The imposition of minimum standards of competency upon the persons actually performing plumbing work certainly bears a reasonable relation to the end sought to be achieved; indeed, it is one of the most effective methods of minimizing the dangers to the public resulting from inefficient plumbing installation, and follows the same principle of licensing which this court has long sustained in the case of professions or trades requiring learning and skill. To assure enforcement of the standards so erected, it is likewise natural and proper for the legislature to prohibit work by non-licensed plumbers. See People v. Rogers, 74 Col. 184 (219 P. 1076);Commonwealth v. Beaulieu, 213 Mass. 138 (99 N.E. 955, Ann. Cas. 1913 E, 1080), and the cases cited in these opinions.

It is not argued that the standards required by the examinations outlined in section 8 of the act are unreasonably harsh or unfair, nor is it claimed that such examinations are an inaccurate or unreasonable index to the skill and ability possessed by the applicant. Petitioner suggests, however, that it was improper for the legislature to provide one type of examination for master plumbers and another type for journeymen, and that the distinction made in the act between the two divisions of the plumbing trade, as set forth in section 6, is an unreasonable and illegal one. Classification based on degree of skill or ability is the theory behind all license legislation, and it has been consistently upheld by the courts. See the cases collected in 12 Am. Jur. p. 166, note 17. Arising from medieval trade customs, the distinction between master plumbers and journeyman plumbers has been preserved in the statute and made to depend on the ability of the individual worker, rather than upon years of apprenticeship or his status as an employer of others. The master plumber, as defined by section 6, is one skilled in the planning, superintending and practical installation of plumbing and familiar with the laws, rules and regulations governing it. He must submit to a more difficult examination and pay a higher license fee than the journeyman plumber under the act. The journeyman is defined as a plumber other than a master plumber whose principal occupation is the practical installation of plumbing. He is directed to submit to a less difficult examination and must pay only a small license fee. The distinction between these two classes has been recognized in various ways in plumbing regulations of other States which have survived constitutional objections in the courts. See, for example, People, ex rel.Nechamcus, v. Warden of the City Prison, 144 N.Y. 529 (39 N.E. 686, 27 L.R.A. 718); Louisville v. Coulter, 177 Ky. 242 (197 S.W. 819, L.R.A. 1918 A, 811). Cf. St. Louis v. Bender,248 Mo. 113 (154 S.W. 88,44 L.R.A. [N. S.] 1072). The distinction is not without reason. A master plumber, having complete charge of plumbing work, should be skilled in planning and superintending and able to understand charts and specifications to a degree not required of journeymen actually doing the work. A master plumber might well be required to understand the principles of sanitation, or the proper installation of hot water systems, heaters and boilers to prevent fire and explosions while less proficiency is demanded by the work of the journeyman plumber. I do not think the legislature is prevented from recognizing in its regulation of the plumbing trade a distinction between master and journeyman which the trade itself has preserved for many years.

If there is any discrimination in this procedure, however, it is discrimination to the benefit rather than to the detriment of journeyman plumbers, of which class petitioner is a member. Had the legislature desired, it could have imposed rigorous regulations and standards indifferently upon the entire plumbing trade, so long as they were reasonably bound up with public protection. With such regulations only highly skilled workmen might possibly have been able to comply. The legislature might have required all plumbers to demonstrate the same understanding of charts and blueprints, plans of installation, complicated architects' specifications, as well as familiarity with the plumbing code — accomplishments demanding training, ability and experience. Instead of imposing such standards and thereby excluding many less skilled plumbers, the legislature sought to allow journeymen to continue working in their trade even though they lacked the qualifications of master plumbers. If anything, this preserved the rights of journeymen rather than restricted them.

When the journeyman attains sufficient competency, the act permits him to become a master plumber by qualifying examination. There is nothing in the statute, it should be noted, which "freezes" the status of any person engaged in the plumbing business. It does not make the journeyman dependent upon a master plumber by requiring an arbitrary period of apprenticeship or association. The journeyman can take the examination, demontrate his ability, pay the fee, and obtain a license as a master without any burdensome conditions. Until he establishes his qualifications, however, the legislature has provided that the public interest should not be left unprotected. If the journeyman himself is unskilled in the "practical installation of plumbing," the law provides in section 5 that a master plumber who is so skilled should remain in charge and be "responsible for proper installation." If petitioner is unable to qualify as a master plumber because he is unfamiliar with the "laws, rules and regulations" of the plumbing trade, he must work under the supervision of a master who is familiar with these rules and regulations.

I see nothing in this procedure which is arbitrary or capricious. Short of prohibiting journeyman plumbers from working altogether if they cannot establish their capacity, how better could the public interest in safe plumbing installation be protected? If petitioner's independence is restricted by the supervision of a master plumber, he has only to satisfy the plumbing board that he is competent to work without supervision. If, however, he cannot meet the standards of a master, I do not see how the Constitution anchors upon the public the burden of his deficient workmanship.

It is argued that provisions for plumbing permits and subsequent inspection "should be sufficient to protect the public health and safety." Whether the legislature has been more zealous in its desire to safeguard the public health than we might think was strictly justified is not, as above indicated, a question which concerns us. The legislature knew that the very nature of plumbing installation renders a completed job incapable of full inspection and it might also have considered the ease with which defective workmanship can be concealed. It cannot be said to be unreasonable to require a licensed master plumber to be in charge of installations under such conditions. If inspection after installation is valid, how is supervision during installation invalid? Because the legislature has already imposed some safeguards against defective plumbing, I know of no constitutional reason preventing it from making doubly sure and certain the protection to the public which was sought.

Section 140 of the code of minimum standards issued by the plumbing board, providing for granting permits only in the name of a regularly licensed master plumber, is not an unreasonable fulfillment of the mandate of the statute. It is a practical method of assuring supervision of plumbing work as the legislature has directed.

I also find myself unable to concur in the views of Mr. Justice POTTER as expressed in his separate opinion. The title to the act under consideration "An act to provide for the licensing of plumbers, the supervision and inspection of plumbing and the adoption and enforcement of minimum standards therefor by a plumbing board," is, I think, sufficient indication of the regulatory and punitive measures embodied within it. The case of People v. Beadle, 60 Mich. 22, cited by Mr. Justice POTTER, was distinguished from a situation like the present as early as Hartford Fire Ins. Co. v. Raymond, 70 Mich. 485,500. This court has consistently held that the omission from the title of an act to regulate a specific business or trade of a statement that its object is also to punish violators thereof does not render it subject to constitutional objection. People v. O'Neil, 71 Mich. 325; People v.Miller, 88 Mich. 383; Johnson v. Sergeant, 168 Mich. 444 (2 N.C.C.A. 334). See, also, People v. Snowberger, 113 Mich. 86 (67 Am. St. Rep. 449). It should be pointed out, moreover, that the penal section of the present statute is in no way involved in the present application for mandamus.

Nor does the act seem to me to be vulnerable to the charge that it occasions an unlawful delegation of legislative power to the plumbing board. The right to allow an administrative agency to adopt rules and regulations to effectuate the purpose of the legislature is well recognized. United States v.Grimaud, 220 U.S. 506 (31 Sup. Ct. 480); People v. Soule,238 Mich. 130. See, also, Sherlock v. Stuart, 96 Mich. 193 (21 L.R.A. 580). In the Soule Case, supra, it was also held that where a statute provides a punishment for violating the regulations or orders of an administrative body, the power to create a crime is not delegated to the body, but is still retained by the legislature. See, also, Hurst v. Warner,102 Mich. 238 (26 L.R.A. 484, 47 Am. St. Rep. 525). However, since these latter questions were not raised by either party in the court below, nor on this appeal, I think that we should properly refrain from deciding them.

For these reasons, therefore, I think that the statute is free from the constitutional objections here asserted, and the writ accordingly should be denied because of constitutional grounds.

McALLISTER, J., concurred with BUTZEL, C.J.