City of Louisville v. Coulter

• Decision Date: 19 October 1917
• Citation: 197 S.W. 819,177 Ky. 242
• Parties: CITY OF LOUISVILLE v. COULTER.
• Court: Kentucky Court of Appeals

197 S.W. 819

177 Ky. 242

CITY OF LOUISVILLE v. COULTER.

Court of Appeals of Kentucky.

October 19, 1917

Appeal from Circuit Court, Jefferson County, Criminal Branch Criminal Division.

Prosecution by the City of Louisville against Charles B. Coulter. From a judgment sustaining a demurrer to the warrant, the city appeals. Reversed and remanded.

Arthur M. Wallace, Wm. B. Thomas, and Wm. M. Duffy, all of Louisville, for appellant.

Kohn Bingham, Sloss & Spindle, of Louisville, for appellee.

HURT J.

This appeal involves only the validity of an act of the General Assembly, which became a law March 27, 1914, and is now section 3037f, Kentucky Statutes. It consists of 15 subsections. The title of the act is "An act to secure the registration of plumbers, and the supervision and inspection of plumbing and drainage in cities of the first class." The first section of the act is as follows:

"Any person now or hereafter engaged in or working at the business of a plumber in cities of the first class of this commonwealth, either as a journeyman plumber or as a master plumber working in the capacity of a journeyman plumber, or any person installing or placing any plumbing fixtures or materials, shall first receive a certificate, in accordance with the provisions of this act."

Section 3 of the act provides that a board of examiners shall be appointed in each city of the first class, consisting of four members, by the mayor and approved by the council, and section 2 provides that, within 90 days after the act becomes in force, all persons engaged in or working at the business of plumbing, either as journeyman plumbers or as master plumbers working in the capacity of journeyman plumbers, or any persons installing or placing plumbing fixtures or materials shall make application to the board of examiners, and undergo such an examination as to his qualifications and competency as a plumber as the board may prescribe, but the examination shall be of such character as to thoroughly test the applicant's ability for plumbing, both practically and theoretically. Section 5 provides that the board shall fix the time for the examination of the applicants, and--

"said board shall examine all applicants as to their knowledge of plumbing, house drainage, and plumbing ventilation, and, if satisfied of the competency of such applicant, shall thereupon issue a certificate to such applicant, authorizing him to work at the business of plumbing, and to place and install plumbing fixtures and materials, and it shall be unlawful for any person to work in the capacity of a journeyman plumber or to install plumbing fixtures or materials, unless he shall have first obtained a certificate of competency."

Other subsections of the act direct the above-mentioned board to formulate a code of rules regulating the work of plumbing and drainage, and materials, and workmanship, and manner of executing the work connected with plumbing and drainage, and to submit the regulations thus formulated to the council of the city, which shall approve or reject the rules, and, in the event of a rejection, the council shall prepare and adopt the necessary regulations upon that subject. Other subsections of the act provide for the appointment of inspectors, whose duty it shall be to inspect all plumbing and drainage done, and to enforce the provisions of the act. Subsection 9 provides that all plumbing and drainage of buildings in the city shall be done in accordance with the provisions of the act and the rules and regulations adopted by the board or city council, as provided in the act. Section 11 defines the word "plumbing," as used in the statute, to include all work of every character connected with the installation or repair of any plumbing fixture or material connected with the drainage of buildings or property, and all work requiring connections with street sewers or water mains, or with plumbing ventilation. A further subsection provides a penalty for any violation of the act.

It is insisted that the act is void because that it is unconstitutional, in that:

(1) The business of plumbing does not bear any such relation to the public health or safety as to authorize the Legislature, as a police measure, to regulate it.

(2) If the business of plumbing is subject to regulation, under the police power of the state, the act is nevertheless unconstitutional and void, because (a) the Legislature has adopted an arbitrary and unreasonable basis of classification in restricting the application of the act to cities of the first class; (b) the discrimination made by the act between master plumbers and journeyman plumbers is unreasonable and arbitrary; (c) the act is void, because it contains no provisions which exempts from its operation those who were plumbers at the time the act was enacted, or those who have been in the business for a number of years; (d) the act is violative of section 51, of the Constitution.

Touching the contention that the legislative authority is not authorized to make any law providing for the regulation of the business of plumbing, it may be said that it is elemental that any citizen has a right, under our Constitution, to engage in any lawful business or occupation or to pursue any calling or profession which he may elect, and that he can use such right as a means of livelihood for himself and family. This right is secure to him beyond cavil, but, where it is necessary for the benefit of society generally that the citizen should give up some degree of his freedom of action, the state government has authority to put upon the citizen's right to engage in an occupation or to follow a calling or profession such regulations as may be reasonable. The power and right of the Legislature to enact laws for the protection of health, lives, and comfort of the citizens and the protection of their property is what is denominated an exercise of the police powers of the state, which simply means the power to put such regulations and restrictions upon the rights of individuals as may be necessary in a practical way for the general welfare of all. While there is some divergence of opinion, the weight of authority is to the effect that the Legislature has the power to make laws prescribing reasonable regulations for the control of the business of plumbing in centers of population, upon the ground that defective plumbing, and plumbing unskillfully executed, and plumbing not done upon proper scientific principles, greatly endangers the health of the public in such localities where the escape of sewer gas and other evils arising from plumbing faultily done is conducive to the creation and spread of epidemic diseases of a virulent and dangerous character. Regulations for the protection of the public against the evil consequences arising from the ignorance and incapacity of persons engaging in the business of plumbing is held to be a proper and legitimate exercise of the police power of the state, and that the state may impose such restraint upon the business or work of plumbers by any reasonable regulations, which are calculated and are necessary for the purpose of insuring a character of plumbing which will not endanger the safety or health of the citizens generally. In Franke v. Paducah Water Co., 88 Ky. 467, 11 S.W. 432, 718, 11 Ky. Law Rep. 17, 4 L.R.A. 265, while the question here was not exactly the question for determination there, in relation to the power of a municipality to regulate the business of plumbing, the court said:

"That the council of a city may require a license of all plumbers for the protection of its people from fraud and imposition, may be conceded. * * *"

Statutes regulating the business of plumbing and requiring licenses of those engaged therein have been upheld in various states, but not all, where such legislation has been adopted. State ex rel. Winkler v. Benzenberg, 101 Wis. 172, 76 N.W 345; Ex parte Smith, 231 Mo. 111, 132 S.W. 607; Nechamcus v. Warden, 144 N.Y. 529, 39 N.E. 686, 27 L.R.A. 718; Com. v. Beaulieu, 213 Mass. 138, 99 N.E. 955, Ann.Cas. 1913E, 1080; Com. v. Shafer, 32 Pa. Super. Ct. 497; Douglas v. People, 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; State v. Gardner, 58 Ohio St. 599, 51 N.E. 136, 41 L.R.A. 689, 65 Am.St.Rep. 785; Caven v. Coleman (Tex. Civ. App.) 96 S.W. 774; Vicksburg v. Mullane, 106 Miss. 199, 63 So. 412, 50 L.R.A. (N. S.) 421. Wherever a business or calling has concerned the public health, or special training or experience has been found to be necessary in an individual to fit him for the exercise of a business or calling with safety for the public health, it has uniformly been held that the Legislature may make reasonable regulations for the control of the business or calling to protect the public from the incapacity or ignorance or fraud of those attempting such business or calling. The statutes in this state prohibit the practice of law, or medicine, or surgery, or embalming, or pharmacy, without the individual who essays to engage in such matters has a license authorizing him so to do, and these statutes have been uniformly upheld. They require an examination to test the qualifications of the applicants for certificates or licenses. These statutes have never been held as being in any wise violative of the Fourteenth Amendment or any part of either the state or federal Constitutions, because the right to engage in any lawful occupation is not denied, but the right to engage in the business or follow the occupation or calling is subject to the right of the public, which is paramount to the right of the individual, to have reasonable regulations imposed upon its exercise, and such regulations as are necessary for the...