City of Birmingham v. Allen

• Decision Date: 24 June 1948
• Docket Number: 6 Div. 667.
• Parties: CITY OF BIRMINGHAM v. ALLEN.
• Court: Alabama Supreme Court

36 So.2d 297

251 Ala. 198

CITY OF BIRMINGHAM v. ALLEN.

6 Div. 667.

Supreme Court of Alabama

June 24, 1948

Rehearing Denied July 31, 1948.

Graham Bibb, Wingo & Foster, of Birmingham, for appellant.

Gibson & Hewitt, of Birmingham, for appellee.

STAKELY Justice.

This is an appeal from a decree of the equity court overruling the demurrer to a bill in equity. The allegations of the bill which need to be here considered, show in substance the following.

Appellee is a master plumber, as defined in § 119, Title 62, Code of 1940. He is engaged in such business in the City of Birmingham and is duly qualified and licensed by the Board of Plumbers of the State of Alabama and by the City of Birmingham. On to wit, March 18, 1947, a Municipal Plumbing Code was adopted by Ordinance 581F of the City of Birmingham. Section 22 of said Municipal Plumbing Code provides as follows: 'Sec. 22: Certified Plumbers Only May Do Plumbing Work. It shall be unlawful for any person other than a certified master, journeyman, or registered plumber apprentice in the employ and under the supervision of a certified master plumber or journeyman plumber, to install alter, repair or make any connection with any water supply or water distributing pipe, sewer, drain, soil, waste or vent pipe or with any pipe connected therewith, or to enter any waste pipe, soil pipe or house drain, by fracture for rodding purposes or otherwise, within or in connection with any residence or building; provided, however, that nothing herein contained shall make it unlawful for certified gas fitters to install not exceeding ten (10) feet of water pipe in connection with the replacement of any gas appliance.'

Section 29 of said Municipal Plumbing Code provides as follows 'Sec. 29: Definitions Of Terms Used In This Code:

'Plumbing: Plumbing, in its broadest sense, is the science of creating and maintaining sanitary conditions in buildings where people live, work or assemble, by providing permanent means for a supply of safe, pure and wholesome water, ample in volume for drinking, cooking, bathing, washing and cleaning and to cleanse all waste receptacles and like means for receiption and speedy and complete removal from the premises of all fluid or semifluid organic waste and other impurities incident to human life and occupation. Plumbing, in a mechanical sense, is the art of installing in a building the pipes to provide the water supply, apparatus for its control and handling, fixtures, and appliances to receive wastes or surplus water, the soil waste, drain and sewerage system for removing the waste or surplus water, traps, to prevent sewer air from entering the occupied portion of the building, ventilating pipes to protect the trap seals and provide for a cleansing circulation of air throughout the plumbing system, leaders and roof, court and area rainwater drainage system. It includes extensions of the water supply distributing system for firefighting or mechanical purposes, and where no street or private sewer exists, it includes the means of sewage disposal. Generally all work usually and customarily done by plumbers; provided, however, that nothing herein contained shall make it unlawful for certified gas fitters to install not exceeding ten (10) feet of water pipe in connection with the replacement of any gas appliance.'

Appellee and others similarly qualified and licensed as master and journeymen plumbers in the City of Birmingham have property and pecuniary rights which will be and are detrimentally affected by the above quoted proviso, in that they earn their living as plumbers in said city. Appellee and other resident citizens of the city are detrimentally affected by the adoption and operation of said proviso in that the proviso attempts to legalize installation of water pipe by persons not qualified or licensed so to do, 'same constituting a menace to public health and safety'. With knowledge and approval of the appellant, its commissioners and employees having the duty to enforce the laws of the State of Alabama defining and regulating plumbing, installations of water pipe have been made and installations of water pipe are continuing to be made contrary to the laws of the State of Alabama defining the regulating plumbing on many and divers occasions by certified gas fitters who are not and at the time of installations were not, qualified or licensed as master or journeymen plumbers under the laws of the State of Alabama.

An actionable controversy is alleged to exist between appellant and appellee. The prayer of the bill is for a declaratory judgment declaring invalid the quoted provision which is as follows: 'Provided, however, that nothing herein contained shall make it unlawful for certified gas fitters to install not exceeding ten (10) feet of water pipe in connection with the replacement of any gas appliance.'

Counsel appear to agree that two questions are presented on this appeal, (1) the right of appellee to question the validity of the proviso set forth above contained in Sections 22 and 29 of the Municipal Plumbing Code relating to the installation of water pipe by gas fitters and (2) the validity of the proviso.

According to § 157, Title 7, Code of 1940, any person 'whose rights, status or other legal relations are affected by * * * municipal ordinance * * *, may have determined any question of construction or validity arising under the * * * ordinance * * * and obtain a declaration of rights, status, or other legal relations thereunder.' The bill alleges in substance that complainant is a resident citizen and taxpayer of the City of Birmingham and is a master plumber as defined by § 119, Title 62, Code of 1940, and that he is duly authorized, qualified and licensed by the Board of Plumbers of the state and by the municipality to engage in such occupation.

There is no doubt that the occupation of a plumber is connected with the public health and as such is a proper subject for police regulation. In recognition of this fact the legislature adopted the Plumbing Code (§ 115 et seq., Title 62, Code of 1940). The occupation being connected with the public health and safety, the legislature has seen fit to forbid all but those qualified by experience examination and license...