Marcet v. Board of Plumbers Examination and Registration of Ala.

• Decision Date: 06 March 1947
• Docket Number: 3 Div. 467.
• Citation: 249 Ala. 48,29 So.2d 333
• Parties: MARCET v. BOARD OF PLUMBERS EXAMINATION AND REGISTRATION OF ALABAMA et al.
• Court: Alabama Supreme Court

29 So.2d 333

249 Ala. 48

MARCET v. BOARD OF PLUMBERS EXAMINATION AND REGISTRATION OF ALABAMA et al.

3 Div. 467.

Supreme Court of Alabama

March 6, 1947

Vincent F. Kilborn, of Mobile, for appellant.

Walter J. Knabe, of Montgomery, for appellees.

SIMPSON Justice.

The appellant applied for a license as 'master plumber' under the governing provisions of the Code, applicable to Mobile County. Before a license may be issued the applicant must stand and pass an examination before the Board of Plumbers Examination and Registration of Alabama. Art. 17 Sub. 2, Tit. 62,§§ 116-128, Code 1940.

The Board 'is hereby authorized and empowered to make such reasonable rules * * * as shall be necessary to govern its proceedings to effectuate the provisions' of the act (§ 118) and, pursuant to this authority, adopted the following rule: 'Should the applicant fail upon said examination or fail to take said examination, no additional application will be accepted and no other examination will be given him within twelve months from the date of said examination. No temporary permits may be issued to any applicant failing in his examination, or failing to take the examination when notified'

Appellant failed his first examination and, in less than the stated period of twelve months, filed another application for a second examination, which the Board denied. This suit is to force the Board to receive his application and give him this second examination.

Decision is narrowed to the single question of whether the rule is appropriate and reasonable to effectuate the provisions of the act or whether it is arbitrary and unreasonably invades the right of appellant to pursue a lawful business. 42 Am.Jur. 429, § 100.

We have already said that plumbing is related to the public health and welfare and that statutory regulation of it by requirement of examination and licensing of plumbers may be left to the State's police power. State ex rel Shirley v. Lutz, 226 Ala. 497(4), 147 So. 429. See 41 Am.Jur. 661 et seq. and 12 C. J. 1274, § 1075, 16 C.J.S. Constitutional Law, § 669, for general discussion and authorities.

To implement the proper exercise of that police power, the act may delegate to the agency created the duty and authority to adopt such reasonable rules and regulations within the standards fixed, and not inconsistent with law, to effectually administer the act's provisions, subject, of course, to the implied constitutional limitation that such agency must not legislate. State v. Friedkin, 244 Ala. 494(15), 14 So.2d 363; Parke v. Bradley, 204 Ala. 455, 86 So. 28; Lehmann v. State Board of Public Accountancy et al., 208 Ala. 185, 94 So. 94; West v. State, 30 Ala.App. 318(6), 6 So.2d 434; Lovett v. State, 30 Ala.App. 334(1), 6 So.2d 437; 16 C.J.S., Constitutional Law, § 138, pp. 352, 372.

And within the constitutional limitation that the legislature may not delegate its power to make law, it may vest a considerable measure of discretionary authority in the officers or agencies charged with administering its enactments. 12 C.J. § 329, pp. 844, 845, 16 C.J.S., Constitutional Law, § 138; Railroad Commission of Alabama v. Alabama Great Southern R. Co. et al., 185 Ala. 354, 64 So. 13, 13 L.R.A.1915D, 98; State ex rel. Crumpton et al. v. Montgomery, 177 Ala. 212, 59 So. 294. This principle is also illustrated in Opp Cotton Mills v. Adm'r of Wage and Hour Div., 312 U.S. 126, 61 S.Ct. 524, 85 L.Ed. 624.

Only when this discretion has been arbitrarily exercised resulting in injustice or unfairness, do the courts intervene to strike down a rule promulgated by the proper agency designed to give appropriate effect to the provisions of the act involved. We find no precedent and have been cited to none which could sustain a judicial condemnation of the rule under consideration. There is no evidence that it is unreasonable or inappropriate for the enforcement of the act...