City of Tacoma v. Fox

• Decision Date: 26 August 1930
• Docket Number: 22541.
• Citation: 158 Wash. 325,290 P. 1010
• Parties: CITY OF TACOMA v. FOX et al.
• Court: Washington Supreme Court

290 P. 1010

158 Wash. 325

CITY OF TACOMA v. FOX et al.

No. 22541.

Supreme Court of Washington

August 26, 1930

Department 1.

Appeal from Superior Court, Pierce County; E. D. Hodge, Judge.

J. J Fox and others were severally convicted in the police court of the City of Tacoma of the offense of following the trade of journeyman plumber without submitting to an examination and obtaining a certificate of competency as required by ordinance. Defendants appealed to the superior court, where the several cases were consolidated for hearing and for appeal to the Supreme Court. From judgments of dismissal, the city appeals.

Reversed and remanded with directions.

E. K Murray, Bartlett Rummel, Henderson, Carnahan & Thompson, W W. Mount, and John E. Gallagher, all of Tacoma, for appellant.

A. O Burmeister and J. H. Gordon, all of Tacoma, for respondents.

TOLMAN J.

These several cases all raise the same question, and they were consolidated for hearing in the superior court and have been consolidated for the purposes of this appeal. The several cases were originally instituted in the police court of the city of Tacoma, each charging the offense of following the trade of journeyman plumber in the city of Tacoma without first submitting to an examination and obtaining a certificate of competency as required by Ordinance No. 9981 as amended by Ordinance No. 10099 of the city of Tacoma. Each of the respondents was convicted in the police court and a small fine was assessed in each case. Appeals were taken to the superior court and the cases consolidated were there heard upon a demurrer to the complaints. The demurrer was sustained by the trial court, apparently upon the sole ground that the ordinance, in so far as by its terms it forbids engaging in the occupation of journeyman plumber without obtaining a certificate of competency, was invalid under the decision of this court in State ex rel. Richey v. Smith, 42 Wash. 237, 84 P. 851, 854, 5 L. R. A. (N. S.) 674, 114 Am. St. Rep. 114, 7 Ann. Cas. 577. The city elected to stand upon the complaints and judgments of dismissal followed, from which the city has appealed.

The question involved requires a consideration of only a portion of the ordinance. After prescribing a system of specifications for the installation of plumbing and creating the machinery for the enforcement thereof, the ordinance in section 46 provides: 'The term 'Journeyman Plumber' shall be held and construed to mean and include every person engaged in, or engaging in plumbing as an artisan, or in placing, replacing, installing, constructing, or reconstructing of pipes, fittings, fixtures, or other materials connected with the business of plumbing, in any building, or elsewhere, intended for the conducting of fluids, water or sewage.

'It shall be unlawful to engage in, or to work as an artisan at the trade of plumbing, either as a journeyman plumber or as a master plumber working in the capacity of a journeyman plumber, or to place, install, construct or reconstruct any pipe, fitting, fixture or other material connected with the business of plumbing, in any building, or elsewhere, intended for the conducting of fluids, water or sewage, without having first obtained and being the authorized holder of a valid and subsisting 'Journeyman's Certificate of Competency.' The fee therefore shall be Two Dollars ($2.00) per annum.'

Section 47, as amended by Ordinance No. 10099, creates an examining board consisting of the commissioner of public welfare, the chief plumbing inspector, the chief examiner of the civil service commission, a master plumber and a journeyman plumber; the last two to be appointed by the mayor and to serve without compensation.

Section 48 provides:

'It shall be unlawful for any person to engage in or work at the plumbing trade as an artisan, either as journeyman plumber, or as a master plumber working in the capacity of a journeyman plumber, or in or at the placing, replacing, installing, constructing or reconstructing of pipes, fittings, fixtures, or other materials connected with the business of plumbing, in any building, or elsewhere, intended for the conducting of fluids, water or sewage, without first making application to the Examining Board for Plumbers, hereinafter provided for, and, at such time and place as said board may designate, submitting to and passing such examination as to his qualifications and competency as a journeyman plumber, as said board may prescribe. The examination shall be of such character, both practical and theoretical, as to thoroughly test the applicant's ability and competency as an artisan and journeyman plumber. A period of ninety (90) days after the effective date of this ordinance shall be allowed within which those at present engaged in such trade shall make application.'

Section 49 reads:

'The Examining Board for plumbers shall, within thirty (30) days after this ordinance becomes effective, meet and organize and select a chairman and designate the time and place of the first examination and shall thereupon issue a Journeyman Plumber's Certificate of Competency. Further examinations shall be held from from time to time, but no applicant shall be compelled to wait more than thirty (30) days following his application. Said board shall examine each applicant as to his knowledge of plumbing, house drainage and plumbing ventilation, and if satisfied of the competency of such applicant, shall thereupon issue a Journeyman Plumber's Certificate of Competency to such applicant, authorizing him to engage in plumbing as an artisan, and to place, replace, install, construct or reconstruct, pipes, fittings, fixtures, or other materials connected with the business of plumbing, in any building, or elsewhere, intended for the conducting of fluids, water or sewage.

'Temporary working permit may be issued by the plumbing inspector until such time as the examining board meets and completes examinations. The board shall keep and preserve a record of all persons examined by them and to whom such Certificate of Competency has been issued.'

Section 50 provides that all applicants for a certificate shall have had three years' experience as a helper or apprentice or must be a graduate of a recognized trade school which gives at least a two years course. Section 53 contains the usual declaration of separability, and consequently the question of the validity of section 50 is not involved in this proceeding, since even if it be eliminated a complete and workable act remains.

In substance therefore this ordinance prohibits engaging in the trade or occupation of a journeyman plumber by any one who has not first established before the examining board that he is competent to follow the trade. There is not here involved any question of arbitrary or capricious action on the part of the board, nor is it claimed that the ordinance attempts to vest in the examining board arbitrary powers.

The Richey Case, supra, was decided more than twenty-four years ago when legislation of this character was in its infancy but it has never in terms been overruled. The opinion in that case opens with a recognition of the power of the Legislature to enact all needful rules and regulations for the preservation of the health, comfort, and well-being of society. It reviews our previous cases which are anywise in point, reviews decisions from other jurisdictions, quotes extensively from a dissenting opinion in a New York case ( People v. Warden, 144 N.Y. 529, 39 N.E. 686, 27 L. R. A. 781), and from two other cases in the United States Supreme Court ( Lochner v. N. Y., 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937, 3 Ann. Cas. 1133; Butchers' Union Co. v. Crescent City Co., 111 U.S. 746, 4 S.Ct. 652, 28 L.Ed. 585), and then delivers the holding of the court in the following language: 'We cannot close our eyes to the fact that legislation of this kind is on the increase. Like begets like, and every legislative session brings forth some new act in the interest of some new trade or occupation. The doctor, the lawyer, the druggist, the dentist, the barber, the horseshoer, and the plumber have already received favorable consideration at the hands of our Legislature, and the end is not yet, for the nurse and the undertaker are knocking at the door. It will not do to say that any occupation which may remotely affect the public health is subject to this kind of legislation and control. Our health, our comfort, and our well-being are materially affected by all of our surroundings--by the houses we live in, the clothes we wear, and the food we eat. The safety of the traveling public depends in no small degree on the skill and capacity of the section crews that build and repair our railroads, yet are we on this account to add the architect, the carpenter, the tailor, the shoemaker, those who produce and prepare our food, and all the rest to the ever-growing list? If, so, it will be but a short time before a man cannot engage in honest toil to earn his daily...