Ex Parte Smith

Citation231 Mo. 111,132 S.W. 607
PartiesEx parte SMITH.
Decision Date29 November 1910
CourtUnited States State Supreme Court of Missouri

St. Louis City Charter, art. 3, § 26, cl. 5 (Ann. St. 1906, p. 4812), gives the mayor and municipal assembly power to license, tax, and regulate various kinds of businesses specified, and to tax and regulate all other businesses, trades, avocations, or professions whatever; clause 6 provides that the municipal assembly shall have power to secure the general health of the inhabitants by any measure necessary and to regulate the carrying on of any business which may be dangerous or detrimental to the public health; and clause 14 gives the city power to pass all ordinances not inconsistent with the charter or the state laws as may be expedient in maintaining the peace, good government, health, and welfare of the city, its trades, commerce, and manufactures, and to enforce the same by fines and penalties. Held, that the city has power by ordinance to license plumbers, and to require applicants for the license to pass an examination and to exact a license fee of $1 per year.

6. LICENSES (§ 6)—LICENSING OCCUPATIONS —VALIDITY OF ORDINANCE.

Such an ordinance not being intended as a revenue measure, the license not being a tax, Rev. St. 1899, § 6256 (Ann. St. 1906, p. 3129), providing that no municipality shall impose a license tax upon any business, avocation, or calling unless it is specially named as taxable in the charter or such power is conferred by statute, does not apply thereto.

7. CONSTITUTIONAL LAW (§ 230)—EQUAL PROTECTION OF LAWS—DUE PROCESS OF LAW.

The ordinance applying alike to every person, whether master or employing plumber or journeyman plumber, and operating equally upon all who come within its provision, is not violative of Const. U. S. Amend. 14, providing that no state shall pass any law denying to persons the equal protection of the laws nor deprive any person of life, liberty, or property without due process of law.

Habeas corpus by Robert C. Smith against one Dawson. Petitioner remanded to custody.

L. A. Steber, for petitioner. L. E. Walther. A. H. Roudebush, and Chas. P. Williams, for respondent.

GANTT, P. J.

The petitioner was fined $10 in the police court of St. Louis, and imprisoned in the St. Louis City workhouse for carrying on the business of a plumber without having been licensed as required by an ordinance of said city numbered 23,007.

The specific charge was for a violation of sections 5 and 10 of the said ordinance. Section 5 provides that upon satisfactory proof of the qualifications and fitness of the applicant for a plumbing license, a board of examiners of plumbers shall issue to him a certificate, which shall entitle him to engage in or work at the business of plumbing for a period of one year. And no person shall be entitled to obtain from said board a certificate of qualification as master or employing plumber or a journeyman plumber except as in the ordinance provided, who shall not first have passed a satisfactory examination before said board as to his knowledge, experience, and skill in practical plumbing, house draining, and plumbing ventilation, And section 10 provides a penalty of not less than $10 nor more than $100 for any person who shall engage in the business of plumbing in said city without having been duly licensed as required by the ordinance.

The petitioner claims that this ordinance is founded for its authority on the plumbing act of the Legislature approved March 27th (Laws 1903, pp. 82-84 [Ann. St. 1906, §§ 6456— 1 to 6456—13]), and that said act is an unconstitutional law because it was local and special and in violation of section 53, art. 4, of the Constitution of Missouri (Ann. St. 1906, p. 197); and because the said act was in violation of petitioner's constitutional right to life, liberty, and property. He also maintains that the ordinance is outside of the charter and statutory powers of the city of St. Louis, and is unreasonable, and therefore void.

On the other hand, the city insists that the ordinance is a perfect valid exercise of charter powers of the city of St. Louis, and that the business of plumbing is the proper subject of police regulation. Clauses of the charter of the city of St. Louis applicable to this discussion are clause 5 of section 26 of article 3 of the charter (Ann. St. 1906, p. 4812), which gives the mayor and the municipal assembly the power to license, tax, and regulate various kinds of business. This clause after specifying the various kinds of business further provides the power to license, tax, and regulate all other business, trades, avocations, or professions whatever. And clause 6 of the said section provides that the municipal assembly shall have power to secure the general health of the inhabitants by any measure necessary, and to regulate the carrying on of any business which may be dangerous or detrimental to the public health. And clause 14 of said section 26 of article 3 gives the city power "to pass all ordinances not inconsistent with this charter or the laws of the state as may be expedient in maintaining the peace, good government, health, and welfare of the city, its trades, commerce and manufactures, and to enforce the same by fines and penalties not exceeding five hundred dollars."

1. As already said the petitioner insists that the ordinance is founded upon the plumbing act of March 27, 1903, and that act is void because it is not a general law but is local and special, as it can only be made to apply to cities having fifty thousand or more inhabitants. The title of this act declares it to be a law "to require the registration of all plumbers in all cities of this state having a population of more than fifty thousand inhabitants, and to provide for a board of examiners of plumbers therein," etc. Thus on its face, it applied to all cities in this state of the population mentioned, but section 13 of the act provides: "The provisions of this act shall be inoperative until adopted by proper ordinance by the city or town to which it relates." In a word, in effect it is a local option statute which can only become a law when a particular city makes it operative therein. Until a city of the class mentioned adopts it, it is a dead law, and it is only when the city by proper ordinance does adopt it that the act itself and its penalties as state enactments for the first time come into life and being. In a word, this act was not a complete law when it left the hands of the Legislature. It depended upon the action of every city of the population mentioned therein whether it became a law within such city or not. "Local option laws have often been held to be constitutional in this state where the laws themselves were complete enactments when they left the Legislature, and did not depend upon any outside authority to make them...

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