Banjavich v. Louisiana Licensing Bd. for Marine Divers, 44475

• Decision Date: 27 April 1959
• Docket Number: No. 44475,44475
• Citation: 237 La. 467,111 So.2d 505
• Parties: Mark P. BANJAVICH v. LOUISIANA LICENSING BOARD FOR MARINE DIVERS et al. Edward L. TAYLOR v. LOUISIANA LICENSING BOARD FOR MARINE DIVERS et al.
• Court: Louisiana Supreme Court

Page 505

111 So.2d 505

237 La. 467

Mark P. BANJAVICH v. LOUISIANA LICENSING BOARD FOR MARINE DIVERS et al.

Edward L. TAYLOR v. LOUISIANA LICENSING BOARD FOR MARINE DIVERS et al.

No. 44475.

Supreme Court of Louisiana.

April 27, 1959.

Lemle & Kelleher, Murphy Moss, New Orleans, for plaintiffs, petitioners.

Richard M. Mathews, New Orleans, for defendants.

McCALEB, Justice.

These suits, which reach us on writ of certiorari with other cases involving persons similarly situated,¹ present for decision the constitutionality of Act 196 of 1958, by which the Legislatute has undertaken the regulation of marine diving as an occupation. The plaintiffs herein, Mark P. Banjavich and Edward L. Taylor, are residents of Louisiana and have been engaged in marine diving for over ten years. Part of their experience was gained in the United States Navy and, since their separation from the service, they have engaged in commercial marine diving as a means of livelihood. They own certain diving equipment and, in pursuit of their business, are available for employment by firms requiring the use of specialized services in salvage work or other enterprises involving underwater operations, such as offshore oil explorations.

After the effective date of the Act and the appointment to and qualification of the personnel of the defendant Licensing Board created thereunder, plaintiffs made application for licenses as master marine divers. Their applications were denied and, in due course, they brought these suits against the Board and the individuals composing it, assailing the constitutionality of the legislation on various grounds specifically set forth in their petitions and, alleging that they would suffer immediate and irreparable injury should the Act be enforced, prayed for injunctive relief.

On the showing made, the trial judge issued temporary restraining orders, together with a rule nisi for the defendants (the Board and the individual members thereof) to show cause why a preliminary injunction should not be granted.

Thereafter, defendants appeared and moved to dissolve the temporary restraining orders, alleging that the Court was without jurisdiction and, further, that the petitions showed no right or cause of action. These exceptions were apparently referred to the merits of the cases as they were ultimately disposed of by the judge subsequent to the hearing on plaintiffs' application for a preliminary injunction.

In his written reasons following the hearing of the rule to show cause, the judge held that he had jurisdiction of the case because plaintiffs had a property right to enforce which was cognizable in the civil district court and also overruled the exceptions of no right or cause of action as being without merit. However, in considering the merits of the rule, the judge stated that, since the statute is a regulatory measure containing penal provisions, injunctive relief could not be granted plaintiffs under the rulings of this court (Le Blanc v. City of New Orleans, 138 La. 243, 70 So. 212; Godfrey v. Ray, 169 La. 77, 124 So. 151 and Olan Mills, Inc., of Tennessee v. City of Bogalusa, 225 La. 648, 73 So.2d 791) unless they were able to show (1) an invasion of their property rights; (2) that the statute was manifestly unconstitutional or illegal and (3) that they were threatened with irreparable injury against which the law, as administered by the criminal courts, afforded no adequate remedy. And, being of the opinion that plaintiffs have no property rights in the business of marine diving because the diving services rendered by them are performed in and beneath the navigable waters of the State, or within the public domain, it was concluded that the relief sought could not be granted. In support of this ruling, the judge cited the Olan Mills and Le Blanc cases and Louisiana Oyster & Fish Co. v. Police Jury, 126 La. 522, 52 So. 685 and, in accordance therewith, recalled the temporary restraining order and denied the rule nisi for a preliminary injunction. On plaintiffs' application, a writ of certiorari was granted and the matter has been argued and submitted for our decision.

Preliminarily, it is well to set forth the substance of the legislation in contest. As indicated, Act 196 of 1958 has for its purpose the regulation of the occupation of commercial marine diving and has been incorporated in the Revised Statutes as Sections 2251 through 2264 of Title 37, which embraces all the regulatory statutes affecting business pursuits under the heading 'Professions and Occupations'.

A licensing Board is created and established by Section 1 of the law, which provides for the appointment by the Governor of five members, each of whom shall be at least thirty years of age, residents of the State for five successive years preceding their appointments and shall have had at least ten years experience as professional marine divers, except that the first members of the Board shall be issued licenses as master marine divers by virtue of their appointments.

Section 2 provides for a bond to be furnished by the Secretary-Treasurer of the Board and Section 3 sets forth the general authority of the Board to carry out the purposes of the Act and to make rules and regulations for its proper administration. Section 4 deals with meetings of the Board; Section 5 provides for the accounting of its funds by the Secretary-Treasurer, his keeping of records and roster of the licensed divers and the submission by him of reports to the Governor; Section 6 provides that the Secretary-Treasurer shall open a bank account in a bank in the City of New Orleans, where the funds of the Board shall be deposited.

Section 7 defines a marine diver or tender to be any person, firm, partnership, etc., engaging in any commercial activity for the construction, demolition, salvage, repair, etc. of equipment, machinery, installations or other property in or below the inland and offshore waters of Louisiana, from the bottoms or beds thereof and the surface of said waters.

Section 8 declares that no person shall be engaged in commercial marine diving in this State unless he has paid the fees and been issued a license by the Board, as provided in the Act.

Paragraph B(1) of Section 8 provides that an apprentice marine diver shall be required, as a prerequisite to obtaining a license as such, to continuously work for a period of one year as a tender under supervision and employment '* * * by a Master Marine Diver licensed under the provisions of this Act, and shall qualify under such examinations as may be prescribed by the board.'

Paragraph B(2) of Section 8 defines a Journeyman Marine Diver declaring that, as a prerequisite to obtaining a license as such, he shall be required to have continuously worked for a period of four years as an apprentice diver under the supervision and employment of a Master Marine Diver licensed under the provisions of the Act '* * * and shall qualify under such examinations as may be prescribed by the board.'

Paragraph B(3) of Section 8 provides that a Master Marine Diver shall be required, as a prerequisite to obtaining a license as such, to have continuously worked for a period of five years as a qualified Journeyman Marine Diver under supervision and employment of a Master Marine Diver licensed as such under the provisions of the Act '* * * and shall qualify under such examinations as may be prescribed by the board.'

Paragraph B(4) of Section 8 sets forth the qualifications of a tender and the procedure for obtaining a license as such. The applicant is required to be a bona fide resident of the State, of good moral character, at least 18 years of age and recommended for licensing as a tender by a person licensed as a Master Marine Diver under the provisions of the Act who also has certified that the person so recommended will be employed by him in such capacity upon the granting of the requested license.

Paragraph (C) of Section 8 makes it a misdemeanor for anyone to engage in commercial marine diving without a license and provides that, on conviction, he may be fined in a sum not to exceed $2,000 or sentenced to six months in prison, or both.

Section 9 provides the yearly license fees to be paid by those who qualify under the Act; $75 for tenders; $150 apprentice divers; $200 for journeymen divers and $250 for master marine divers.

Section 10 vests the Board with authority to conduct examinations. It declares: 'The board may conduct any examinations as well as require physical demonstrations of fitness that it deems necessary and proper as a prerequisite to the issuance of any license under the provisions of this Act'. (Emphasis ours.)

Section 11 provides that the Board may cause to issue in any competent court a writ of injunction enjoining any person from engaging in commercial marine diving or any of its classifications until such person obtains a license as required by the Act. It further declares that any court of competent jurisdiction '* * * shall issue a temporary restraining order upon a verified petition of this board and said testraining order shall issue without hearing, solely upon the verified allegations that the person sought to be enjoined is engaging in commercial marine diving without having obtained a license under the provisions of this Act.'

Section 12 invests the Board with power to suspend or revoke for good cause any existing license.

Section 13 provides that no employer of marine divers shall engage in any negotiations or contract with any person unless he is a licensed master marine diver and that any violation by any such employer or his agent subjects him to punishment on conviction by a fine of not less than $1,000, nor more than $1,500, and imprisonment in the parish prison for not less than 30 days nor more than 3 months, or both.

Section 14 of the Act contains a 'grandfather' clause. It declares that any bona fide resident of Louisiana at the time of the passage of the law...