Burke v. Lynch

• Decision Date: 23 November 1914
• Parties: BURKE v. LYNCH et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

219 Mass. 219

106 N.E. 976

BURKE v. LYNCH et al.

Supreme Judicial Court of Massachusetts, Hampden.

November 23, 1914

COUNSEL

Frank J. McKay, of Holyoke, for petitioner.

Thos C. Maher and Jas. O'Shea, both of Holyoke, for respondents.

OPINION

SHELDON J.

The petitioner is a duly licensed journeyman plumber; and under our statutes there is nothing unlawful in his contracting to do or in his doing by his own labor the work which he has contracted with Sommers to do. St. 1912, c. 518; St. 1910, c 597; St. 1909, c. 536; Com. v. Beaulieu, 213 Mass 138, 99 N.E. 955, Ann. Cas. 1913E, 1080; Barriere v. Depatie, 106 N.E. 572. He is a competent plumber, with sufficient manual skill and technical knowledge to do the work, and intends to do it himself without employing any one to assist him. He is not a master plumber.

If we assume that the city of Holyoke could by ordinance require that a permit to do such work should be issued only to a master plumber, yet we are of opinion that this ordinance makes no such requirement. Without such a requirement, it is plain that a journeyman plumber, if found to be a fit person, could contract to do and could do by his own labor all the work that here is contemplated to be done. This right cannot be taken away without a clear provision to that effect. The provision that the plans to be filed under the ordinance must show 'the name or names of the master plumber or master plumbers who are to do the work,' is not such a clear provision; it fairly may be construed as applying only to the cases where the work is to be done by master plumbers, and not to cases where all the work is to be done by a journeyman plumber who is fully qualified to do it and is to do it wholly with his own hands. A privilege given or continued by statute, even though it be such as may be restricted or taken away by an ordinance or by-law, can be so restricted or taken away only when that is the manifest intent of the ordinance or by-law. That is the underlying doctrine of our decisions. Com. v. Turner, 1 Cush. 493; Newton v. Belger, 143 Mass. 598, 10 N.E. 464; Winthrop v. New England Chocolate Co., 180 Mass. 464, 62 N.E. 969; Belmont v. New England Brick Co., 190 Mass. 442, 77 N.E. 504; Durgin v. Minot, 203 Mass. 26, 89 N.E. 144, 24 L. R. A. (N. S.) 241, 133 Am. St. Rep 276; Com. v. Maletsky, 203 Mass. 241, 89 N.E. 245, 24 L. R. A. (N. S.) 1168; Cox v. Segee, 206 Mass. 380, 92 N.E. 620; Com. v. Hayden, 211 Mass. 296, 97 N.E. 783; Goldstein v. Conner, 212 Mass. 57, 98 N.E. 701. A construction of this ordinance which would deprive men in the position of the petitioner of the opportunity to earn their livelihood by the exercise of their trade in a manner recognized by the statutes as lawful is not to be needlessly adopted. Com. v. Perry, 155 Mass. 117, 120, 121, 28 N.E. 1126, 14 L. R. A. 325, 31 Am. St. Rep. 533; Com. v. Strauss, 191 Mass. 545, 550 et seq., 78 N.E. 136, 11 L. R. A. (N. S.) 968, 6 Ann. Cas. 842; Wyeth v. Cambridge Board of Health, 200 Mass. 474, 86 N.E. 925, 23 L. R. A. (N. S.) 147, 128 Am. St. Rep. 439. The trend of authority elsewhere is to the same effect. Indeed some of the state courts have gone farther than here is necessary, or than we should be disposed to do without full consideration. Davidson v. State, 77 Md. 388, 26 A. 415; Dexter v. Blackden, 93 Me. 473, 45 A. 525; State v. Justus, 90 Minn. 474, 97 N.W. 124; State v. Pennoyer, 65 N.H. 113, 18 A. 878, 5 L. R. A. 709; People v. Marx, 99 N.Y. 377, 386, 2 N.E. 29, 52 Am. Rep. 34; State v. Gardner, 58 Ohio St. 599, 51 N.E. 136, 41 L. R. A. 689, 65 Am. St. Rep. 785; State ex rel. Winkler v. Benzenberg, 101 Wis. 172, 76 N.W. 345; Slaughter House Cases, 16 Wall. 36, 21 L.Ed. 394; Butchers' Union Co. v. Crescent City Co., 111 U.S. 746, 4 S.Ct. 652, 28 L.Ed. 585; Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220.

There is nothing inconsistent with this view in Quincy v. Kennard, 151 Mass. 563, 24 N.E. 860; Com. v. Parks, 155 Mass. 531, 30 N.E. 174; Com. v. Ellis, 158 Mass. 555, 33 N.E. 651; Com. v. Hubley, 172 Mass. 58, 51 N.E. 448, 42 L. R. A. 403, 70 Am. St. Rep. 242; Com. v. McGann, 213 Mass. 213, 100 N.E. 355; or Storer v. Downey, 215 Mass. 273, 102 N.E. 321.

The fact that the petitioner has a partner who attends to tinning and roofing is immaterial. That partner has nothing to do with this work. See Schnaier v. Navarre Hotel & Importation Co., 182 N.Y. 83, 74 N.E. 561, 70 L. R. A. 722, 108 Am. St. Rep. 790; Davidson v. State, 77 Md. 388, 26 A. 415.

The defendants refused to issue a permit for the sole reason that the petitioner was not...