City of Sioux Falls v. Kadinger, s. 9249

• Decision Date: 28 December 1951
• Docket Number: 9250,Nos. 9249,s. 9249
• Citation: 74 S.D. 217,50 N.W.2d 797
• Parties: CITY OF SIOUX FALLS v. KADINGER. CITY OF SIOUX FALLS v. CHAPMAN.
• Court: South Dakota Supreme Court

Page 797

50 N.W.2d 797

74 S.D. 217

CITY OF SIOUX FALLS v. KADINGER.

CITY OF SIOUX FALLS v. CHAPMAN.

Nos. 9249, 9250.

Supreme Court of South Dakota.

Dec. 28, 1951.

Blaine Simons, Sioux Falls, for defendants and appellants.

Thomas J. Barron, John E. Burke, Sioux Falls, for plaintiff and respondent.

ROBERTS, Judge.

These two cases involve the same question and were by stipulation consolidated for the purpose of appeal. The complaint in each action contains a charge that defendant had engaged in the business of contracting for plumbing work in the City of Sioux Falls without first having procured a license as required by ordinance. They contended that the ordinance is unconstitutional in that it violates Sections 1 and 2, Article VI, of the state Constitution and the Fourteenth Amendment to the federal Constitution. Trial to the court without a jury resulted in convictions and each of the defendants was fined $200 and costs.

The ordinance in question requires that a person desiring to engage in the business of a contracting or master plumber or do work as a journeyman plumber shall first make application for and secure a license from the Board of Plumbing Examiners. The board consisting of the plumbing inspector of the city, a master plumber and a journeyman plumber is authorized to adopt such rules and regulations as shall be necessary for the examination of applicants for licenses, and the same shall become effective upon approval of the Board of City Commissioners. The ordinance provides that the board shall examine all applicants 'as to their knowledge of the rules and regulations governing plumbing' and 'determine the qualifications and fitness' of all applicants. The ordinance further specifically provides that the examinations 'shall be of such a character as to test and determine the fitness and qualifications of the applicants for the class of license applied for and their ability to properly carry on the plumbing business and work authorized under the license applied for in such manner as to safeguard and preserve the public health, safety and general welfare and in compliance with the regulations and ordinances governing such work.' An applicant for a license must establish by the affidavit of a master or journeyman plumber that he has served at least three years as an apprentice. The license fee for a contracting or master plumber is $100. The annual renewal fee is $50. The license fee for a journeyman plumber is $1. After a license is once issued to a journeyman plumber, he can renew it by paying an annual fee of $1. An applicant aggrieved by action of the board of examiners may apply to the city commission to have the action reviewed and the commission may affirm, modify or reverse the action and may for good cause order the issuance of a license.

SDC 45.0201(64) provides that a municipality shall have power 'to license, tax, and regulate plumbers'. The purport of this provision is that the power shall be exercised in such manner as municipal officials in their discretion shall determine. The mode of exercise is not prescribed. It is conceded that a municipality acting pursuant to this grant of power may in the interest of the public health require the examination and licensing of persons engaged in the business or occupation of plumbing. In 41 Am.Jur., Plumbers, Electricians, and Other Artisans, Sec. 7, we find this statement of the law: 'Although the business and trade of a plumber may not require the same training and experience as some other pursuits in life, yet a certain degree of training is absolutely necessary to qualify one as a competent and skilful workman, and it is within the legislative police power to require examination or licensing, or both, of those engaging in the plumbing business as master plumbers, employers of plumbers, or journeyman plumbers, for the protection of the public from the incapacity or ignorance of such persons. Important plumbing work calls for plans and designs and requires skilled supervision, and it is some guaranty of the fulfilment of these requirements if the public authorities require that the plumber employed upon the particular work and his assistants in carrying out the work engaged upon be competently certified and therefore held out to be skilled and capable in that business.'

It is well recognized that if a business or occupation is so concerned with public health, safety and welfare as to come within the police power, the limit of the legislative power is regulation and its exercise cannot unduly abridge the right of a citizen to pursue a lawful vocation. The exercise of the power must be reasonable. The doctrine was thus stated by this court in Mundell v. Graph, 62 S.D. 631, 256 N.W. 121, 125: 'If it be once conceded that the...