Ex parte Davis

• Decision Date: 06 July 1926
• Citation: 118 Or. 693,247 P. 809
• Parties: EX PARTE DAVIS.
• Court: Oregon Supreme Court

247 P. 809

118 Or. 693

EX PARTE DAVIS.

Supreme Court of Oregon

July 6, 1926

In Bank.

Habeas corpus by A. J. Davis against L. V. Jenkins, Chief of Police. Petitioner discharged.

W. Y. Masters, of Portland, for petitioner.

Frank S. Grant, James R. Bain, and R. A. Imlay, all of Portland for defendant, L. V. Jenkins, Chief of Police.

Lewis Lewis & Finnigan, of Portland, on the brief, amicus curiæ.

BURNETT J.

Claiming to be unlawfully restrained of his liberty by the chief of police of the city of Portland, the petitioner sued out a writ of habeas corpus in this court under the authority of article 7, § 2b, of the Constitution of Oregon, authorizing the Supreme Court, in its discretion, to take original jurisdiction, among others, in habeas corpus proceedings. The return to the writ recites that the city of Portland is a municipal corporation; that the defendant, L. V. Jenkins, is its duly appointed, qualified, and acting chief of police, keeper of the city prison, and custodian of all persons incarcerated therein. The return goes on further to recite by title the existence of a certain ordinance relating to master plumbers. As we may under authority of In re Davenport, 114 Or. 650, 236 P. 758, we condense from a full copy of the ordinance set forth in defendant's brief as follows:

Section 1 defines the term "master plumber" to be any person, firm, or corporation who engages in the business, in the city of Portland, of furnishing labor and material or labor only in the placing, installation, or construction of pipes, fittings, fixtures, or other things in any building or elsewhere, for conducting water or sewage, either by contract, subcontract, day work, or otherwise. The same section says that it shall not apply to any person who works at the trade of plumbing as journeyman, if such person is employed by a licensed and bonded master plumber.

Section 2 of the ordinance authorizes an owner to perform work in or about his own building, or a member of his family may do the work, without being subject to the provisions of the ordinance, provided that, on examination before the chief inspector of plumbing, he shows that he is qualified to do the work.

Section 3 requires any one engaged in the business of master plumber to execute a bond in favor of the city conditioned: (1) That in the construction, installation, alteration, and repair of plumbing or drainage work, the principal will comply with all ordinances of the city, and that any person injured by a failure so to comply with such ordinances may have a right of action on said bond in his own name within one year after the completion of such work, limiting the liability of the surety to the sum of $2,500; (2) that, in the performance of such work, all reasonable care and skill should be taken to prevent a waste of city water, with liability limited to $500; and (3) that, when it becomes necessary to disturb pavement, the principal shall replace the same in as good condition as it was before, subject to liability not exceeding $1,000.

Section 4 is here set down in full as it appears in the ordinance and in the return to the writ:

"Sec. 4. No other Person to Use License. No person, firm or corporation licensed and bonded under the provisions hereof shall authorize or permit any other person firm or corporation to engage in or carry on any plumbing business or work under such license and bond in the name of such licensed master plumber or otherwise, except journeyman plumbers who are employed by such master plumber."

The fifth and final section of the ordinance requires any one applying for a license, or any owner doing any plumbing work, to agree to comply with all ordinances of the city regulating plumbing, water, and sewage, and with the provisions of the building and housing codes relating to plumbing.

It will be noted that there is no penalty provided in this ordinance for a violation thereof. By its terms, the only result of any shortcoming in operating under it would be to give rise to a cause of action on the undertaking. The return goes on to state that on December 3, 1925, a complaint was filed in the municipal court against the petitioner, charging him with a violation of section 4 of the ordinance last above quoted, in that he did:

"* * * On November 18, 1925, in the city of Portland aforesaid, willfully and unlawfully permit another person, to wit, one R. J. Conroy, to carry on plumbing work in a building at 342 Yamhill street, Portland, Or., under the license and bond and in the name of the defendant; defendant being a licensed master plumber and said R. J. Conroy not being a journeyman plumber employed by the defendant."

It is said that the petitioner was arrested, that he filed a demurrer to the complaint, which was overruled; that he was convicted and sentenced before one of the judges of the municipal court to pay a fine of $50, or in lieu thereof to serve 25 days in the city jail; that, on appeal to the circuit court of the state of Oregon for Multnomah county the demurrer was again overruled, and the petitioner, being found guilty by the court as charged in the complaint, was sentenced to pay a fine in the sum of $25, or in lieu thereof to serve 12 1/2 days in the city jail. Concluding the return, the defendant says that a commitment was duly issued out of the circuit court for Multnomah county, remanding the petitioner to the custody of the defendant to serve said sentence of...