People ex rel. Nechamcus v. Warden of City Prison

Citation144 N.Y. 529,39 N.E. 686
PartiesPEOPLE ex rel. NECHAMCUS v. WARDEN OF CITY PRISON.
Decision Date29 January 1895
CourtNew York Court of Appeals

OPINION TEXT STARTS HERE

The relator, Peter Nechamcus, was arrested and convicted for doing business as a master plumber in the city of New York, in violation of the provision of chapter 602 of the Laws of 1892. A writ of habeas corpus was sued out by him, and he was brought before the special term of the supreme court, where, after a hearing, the writ was dismissed, and the prisoner remanded to the custody of the defendant. On appeal to the general term (30 N. Y. Supp. 1095) the order of the special term dismissing the writ was affirmed, and the relator has now appealed to this court. Affirmed.

Peckham, O'Brien, and Bartlett, JJ., dissenting. 30 N. Y. Supp. 1095, affirmed.

Roger Foster, for appellant.

John D. Lindsay, for respondent.

GRAY, J.

The act, for the violation of the provisions of which the relator was arrested and convicted (chapter 602, Laws 1892), created a board for the examination of plumbers, which, in the cities of New York, Brooklyn, and Albany, was to be known as the ‘examining board of plumbers,’ and in other cities of the state as ‘the examining and supervising board of plumbers and plumbing.’ The members of the board were to be appointed by the mayor, and were to consist of five persons, two of whom were to be master plumbers, of not less than ten years' experience in the business of plumbing, and one was to be a journeyman plumber of like experience. The two other members of the board were to be the chief inspector of plumbing and drainage of the board of health and the chief engineer having charge of the sewers. The fourth section of the act empowered the several intending of examiners to examine all persons intending to engage in the business of plumbing ‘as employing plumbers,’ with the power to examine all persons applying for certificates of competency as ‘employing or master plumbers,’ or inspectors of plumbing; to determine their fitness and qualifications for conducting such business; and to issue certificates of competency to all such persons as, upon a satisfactory examination, were determined by the board to be qualified for conducting the business ‘as employing or master plumbers,’ or inspectors of plumbing. The fifth section requires any person intending to conduct the ‘trade, business, or calling of a plumber, or of plumbing * * * as employing or master plumber,’ to submit to examination before the board as to his experience and qualifications in such trade, business, or calling; and declares that, after September 1, 1893, it shall not be lawful in any city of this state for any person to conduct such ‘trade, business, or calling’ unless he shall have first obtained a certificate of competency from the board of the city. The sixth section provides that on and before September 1, 1893, every ‘employing or master plumber,’ carrying on his ‘trade, business, or calling’ in any city of this state, shall register his name and address at the office of the board of health of the city, and that he shall thereupon be entitled to receive a certificate of such registration; provided that, at the time of his application for registration, he hold a certificate of competency from the examining board. A further provision of the section makes it unlawful for any person to engage in the ‘trade, business, or calling’ of an ‘employing or master plumber’ without such registration. The thirteenth section provides that any person violating any of the provisions of the act, or any regulation of the board of health, or of the board of examiners, shall be deemed guilty of a misdemeanor, etc.

The relator was a master plumber, who had practiced his trade for some years past in the city of New York. He does not allege that he had applied for examination, or had been refused a certificate of competency from the examining board of plumbers of the city of New York; but he alleged in his petition his trade, his religion, and Russian nationality, and then set forth various refusals of the board in that city to grant certificates to other persons because discriminating against race and religion, and because of their not belonging to an association of master plumbers. He says that the act is void, as a deprivation of his liberty and property without due process of law, inasmuch as it grants to the individual members of the examining board of plumbers an exclusive privilege, immunity, and franchise. He says that it is a denial to him of the equal protection of the laws of this state, and that it is a discrimination against him on account of his race. In specification of his objections, he says: First, that the object of the act is to create a monopoly, nopoly, because, if intended to secure good plumbing work, it would apply to journeyman plumbers and independent plumbers who work alone, or with the aid of apprentices, and do not employ other plumbers; and, second, that even if the act applied to all plumbers, journeyman as well as master, it will still be unconstitutional.

As a preliminary observation, I may say that the first ground partakes more of criticism upon the event to which the legislature has gone. Every person may follow the trade of a plumber, if he chooses, and the restriction is upon their employing men to work for them in their business, unless they hold a certificate of competency based on experience and qualifications. Another observation is that the act does not suggest, as the appellant says of it, any ‘discrimination against him on account of his race.’ That is pure supposition, based upon the way he claims to have seen the board perform its duties, and not upon the language of the act, or any possible inference therefrom. A final observation is that it is not made to appear by the petition for the writ that the relator has suffered anything at the hands of the board of examiners. In the absence of any allegations that he applied for examination, that he passed the examination satisfactorily, and that the board, unjustly or otherwise, refused him the certificate, we must assume, under his allegations of his competency and skill as a plumber, or master plumber, that he could have successfully applied for the certificate, which the board was authorized to grant. It seems to me that the constitutionality of this act is to be tested by its effect upon the citizen's right to pursue a lawful employment. If it imposes an arbitrary restriction, and if it has no reference to the welfare and health of the people, it must be condemned. I am not unwilling to concede that the act skirts pretty closely that border line beyond which legislation ceases to be within the powers conferred by the people of the state, through the constitution, upon its legislative body. When the legislature passes an act which plainly transcends the limits of the police power of the state, it is the duty of the judiciary to pronounce its invalidity, and to nullify the legislative attempt to invade the citizen's rights. The court should never hesitate to interpose the barrier of its judgment against the operation of laws which distinctly contravene constitutional rights. There has been much discussion upon the subject of what is a valid exercise of the police power of the state through legislative enactment, and there is little to be added to what this and other courts have said. The police power extends to the protection of persons and of property within the state. In order to secure that protection, they may be subjected to restraints and burdens by legislative acts. If the act is a valid and reasonable exercise of the police power of the state, then it must be submitted to, as a measure designed for the protection of the public to secure it against some danger, real or anticipated, from a state of things which modifications in our social or commercial life have brought about. The natural right to life, liberty, and the pursuit of happiness is not an absolute right. It must yield whenever the concession is demanded by the welfare, health, or prosperity of the state. The individual must sacrifice his particular interest or desires, if the sacrifice is a necessary one, in order that organized society as a whole shall be benefited. That is a fundamental condition of the state, and which, in the end, accomplishes by reaction a general good, from which the individual must also benefit. The restraint of personal action is justified when it manifestly tends to the protection of the health and comfort of the community, and no constitutional guaranty is then violated. People v. Ewer, 141 N. Y. 129, 36 N. E. 4. The legislature, however, is not authorized to enact measures which, under the mere guise of a protection to the citizen, restrains him in the free pursuit of a lawful occupation, and such legislation this court has had occasion, within recent years, to condemn. In re Jacobs, 98 N. Y. 98;People v. Marx, 99 N. Y. 3771; People v. Gillson, 109 N. Y. 389, 17 N. E. 343. In the Gillson Case it was observed by Judge Peckham that if legislation is calculated, intended, convenient, or appropriate to accomplish the good of protecting the public health, and of serving the public comfort and safety, the exercise of the legislative discretion is not the subject of judicial review, but those measures must have some relation to those ends. To this unassailable proposition I will add the remark that the courts should always assume that the legislature intended by its enactment to promote those ends, and, if the act admits of two constructions, that should be given to it which sustains it and makes it applicable in furtherance of the public interests. What is, then, the construction which this act should receive from the court? In the first place, the intendment is warranted that the drainage and sewerage, whether of public works and buildings, or of private tenements, shall be as skillfully planned and carried out as the...

To continue reading

Request your trial
106 cases
  • Clark v. State
    • United States
    • Mississippi Supreme Court
    • February 26, 1934
    ... ... of a city having a population of five hundred or less ... and appreciates the needs of the people, and that its laws ... are aimed at conditions ... statute is upheld in People ex rel. v. Warden of City ... Prison, 144 N.Y. 529, 39 ... ...
  • State ex rel. Milwaukee Med. Coll. v. Chittenden
    • United States
    • Wisconsin Supreme Court
    • March 20, 1906
    ...21 Or. 301, 28 Pac. 8;People v. Moorman, 86 Mich. 433, 49 N. W. 263;State v. Forcier, 65 N. H. 42, 17 Atl. 577;People v. Warden, 144 N. Y. 529, 39 N. E. 686, 27 L. R. A. 718;Smith v. Alabama, 124 U. S. 465, 8 Sup. Ct. 564, 31 L. Ed. 508;State v. Gazlay, 5 Ohio, 14;Goldthwaite v. City Counci......
  • State v. Polakow's Realty Experts
    • United States
    • Alabama Supreme Court
    • October 22, 1942
    ... ... 1103, 27 A.L.R. 1280; Duncan v. City of Des ... Moines, 222 Iowa 218, 268 N.W. 547; ... Coker, 188 Ga. 170, 3 S.E.2d 636; ... People v. Warden of City Prison, 144 N.Y. 529, 39 ... ...
  • Loblaw, Inc. v. New York State Bd. of Pharmacy
    • United States
    • New York Supreme Court — Appellate Division
    • January 12, 1961
    ...Kan. 715, 193 P. 347, 20 A.L.R. 921, writ of error dismissed 258 U.S. 633, 42 S.Ct. 314, 66 L.Ed. 802). In People ex rel. Nechamcus v. Warden of City Prison, 144 N.Y. 529, 39 N.E. 686; 27 L.R.A. 718, an ordinance of the City of New York was upheld which required the licensing of master plum......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT