City of Mason City v. Zerble

• Decision Date: 18 November 1958
• Docket Number: No. 49595,49595
• Citation: 250 Iowa 102,93 N.W.2d 94
• Parties: City of MASON CITY, Appellant, v. E. L. ZERBLE, Appellee.
• Court: Iowa Supreme Court

Page 94

93 N.W.2d 94

250 Iowa 102

City of MASON CITY, Appellant, v. E. L. ZERBLE, Appellee.

No. 49595.

Supreme Court of Iowa.

Nov. 18, 1958.

Ray E. Clough, Mason City, for appellant.

Breese & Cornwell, Mason City, for appellee.

THOMPSON, Justice.

On March 24, 1956, the plaintiff City of Mason City enacted its Ordinance Number 718. It is entitled: 'An Ordinance creating the office of Electrical Inspector; prescribing the duties of said inspector; providing rules for the prevention of fire, safety of life, and the installation of wiring and equipment and operation thereof; providing permits and permit fees for the installation of electrical wiring and equipment; providing for the examination, licensing and bonding of electricians; providing a penalty for the violation hereof, and repealing all previous electrical ordinances.'

Section 19 of the ordinance, with which we are chiefly concerned here, is also set out in full: 'Licenses Required. No person, firm or corporation shall engage in the business of installing, maintaining, altering or repairing any electrical equipment within the scope of this ordinance unless such person, firm or corporation shall have obtained from the City of Mason City an Electrical Contractor's license, nor shall any such Electrical Contractor employ any but licensed electrical journeymen, employed by and working under, the direction of the holder of the license for one of the classes of licenses prescribed by this ordinance for apprentices working under the supervision, direction and control of a licensed electrical journeyman; except that the holder of existing electical licenses or certificates granted by the City may be issued renewals of their licenses or certificates without taking the examinations herein provided for; and also with the exception that no license shall be required in order to execute or perform any of the classes of electrical work exempted by the provisions of this ordinance. No license shall be required for the following described work:

'(a) Any of the three (3) classes of electrical work for which no permit is required as provided in Section 7 hereof.

'(b) Any work involved in the erection, installation, repairing, remodeling or maintenance of elevators, dumb-waiters or escalators, not including electrical equipment for supplying current to the control panels of elevators, dumb-waiters or escalators.

'(c) The assembly, erection and connection of electrical equipment by the manufacturer of such equipment, but not including any electrical equipment other than that involved in making electrical connections on the equipment itself, or between two or more units of said equipment.'

Section 20 provides for three classes of licenses: an electrical contractor's license, an electrical maintenance license, and an electrical journeyman's license. Section 21 fixes the annual fees to be charged for licenses. Section 23 requires the holder of a Class I or electrical contractor's license to furnish a $5,000 bond with conditions not important here. It is apparent also that the ordinance requires a permit from the city before any major electrical work can be done, and that no one except a holder of a Class I license, the electrical contractor's license, may apply for or secure this permit.

The defendant was charged with three separate violations of Ordinance No. 718. The first charge was that he engaged in the business of installing, maintaining, altering or repairing electrical equipment upon certain real estate without first obtaining a proper license therefor, in violation of Section 19, supra. The second and third offenses charged were the failure to obtain a permit for doing the same work on the same property. Upon conviction in police court the defendant appealed to the Cerro Gordo District Court, which held Ordinance No. 718 invalid so far as it attempted to require the procuring of licenses as set out above. It is from that decision that we have the present appeal.

I. The sole question before us is the power of the City of Mason City to require licenses as provided by Section 19 and following sections. One of the charges against the defendant is a direct one of doing electrical work without a license. The other two charge doing the same work without a permit; but since only the holder of a contractor's license may secure a permit, the same problem is involved. Chapter 368 of the Code of 1954, I.C.A. deals with the general powers of municipal corporations. Section 368.9 is the important one with which we are here concerned. We quote it so far as material: '368.9 Buildings. They shall have power to adopt a building code, and they may provide for the regulation and inspection of all construction, major repairs and remodeling, and the installation of electrical, heating, ventilating, air conditioning, and plumbing fixtures, apparatus, and equipment. * * *.'

It is the contention of the plaintiff city that the power to regulate includes the power to license. This the defendant denies. He urges that in attempting to license under the authority granted by Section 368.9 the city has exceeded the power granted it. The city also says that the power to license is a necessary part of the general police powers granted to cities and towns by Section 366.1 of the Code, I.C.A. We shall deal with this argument in Division II, infra.

The question of whether a grant of the power to regulate carries with it the power to license has been before this court in earlier cases. There are some general principles concerning implied powers given municipalities by the legislature, which are well stated in Gritton v. City of Des Moines, 247 Iowa 326, 331, 73 N.W.2d 813, 815. It is there said: 'It is fundamental that municipal corporations are wholly creatures of the state legislature. They have no inherent power to do what was done here. They possess and can exercise only the powers (1) expressly granted by the legislature, (2) necessarily or fairly implied in or incident to the powers expressly granted, and (3) those indispensably essential--not merely convenient--to the declared objects and purposes of the municipality.' Many authorities holding to the same rules are set out immediately following the quotation set out above. The governing principles are well settled, and it would serve no useful purpose to again discuss and analyze them.

The general rule seems to be, as the plaintiff contends, that a grant of power to municipalities to regulate includes the power to license, within reasonable limits. It is so stated in Section 26.27, McQuillen on Municipal Corporations. Cases from other jurisdictions holding the same principle might be cited. On the other hand, the defendant cites and relies upon Town of Akron v. McElligott, 166 Iowa 297, 147 N.W. 773; Bear v. City of Cedar Rapids, 147 Iowa 341, 126 N.W. 324, 27 L.R.A.,N.S., 1150; City of Des Moines v. Gilchrist, 67 Iowa 210, 25 N.W. 136; and City of Burlington v. Baumgardner, 42 Iowa 673. In each of these there is language of varying degrees of definiteness and applicability, which says that regulation and licensing are two distinct powers and the grant of the former does not include the latter, either as a power expressly given, or necessarily or fairly implied in or incident to it, or indispensably essential thereto. Town of Akron v. McElligott, supra, is particularly close to the point at issue here, since it concerns the power to license electricians. The empowering statute was somewhat different at that time, but it is doubtful if the case can fairly be distinguished from the one before us.

However, we shall not take the time and space needed to analyze these cases, and we shall not determine whether we would follow them against the general trend of authority in other jurisdictions if nothing else appeared in the case at bar. Something else which is controlling is before us. The Iowa legislature has made it clear that it draws a distinction between 'regulate' and 'license', and that it did not consider that by giving the municipalities power to regulate it intended that the power to license should be considered as either implied in, incident to, or indispensably essential thereto.

We have set out that portion of Section 368.9 which gives the municipality power to 'regulate and inspect' electrical installations. Immediately preceding this section are Sections...