McDonald v. State, 6 Div. 369.

• Decision Date: 07 January 1947
• Docket Number: 6 Div. 369.
• Citation: 32 Ala.App. 606,28 So.2d 805
• Court: Alabama Court of Appeals
• Parties: McDONALD v. STATE.

28 So.2d 805

32 Ala.App. 606

McDONALD v. STATE.

6 Div. 369.

Alabama Court of Appeals

January 7, 1947

Rehearing Denied Jan. 21, 1947.

Edw N. Hamill and Wm. Conway, both of Birmingham, for appellant.

Wm N. McQueen, Atty. Gen., and MacDonald Gallion, Asst. Atty. Gen., for the State.

Gibson & Hewitt, of Birmingham, for Jefferson County Plumbing & Heating Dealers Ass'n, amicus curiae.

HARWOOD Judge.

The defendant below (appellant here) was convicted in the Jefferson County Court of Misdemeanors for the offense of engaging in plumbing without first procuring a license, in violation of Section 119, Title 62, Code of Alabama, 1940.

He appealed to the Circuit Court of Jefferson County, and was again, by the court trying the case without a jury, found guilty.

In the circuit court the case was submitted on an agreed statement of facts as follows:

'That there is and was during the month of August, 1946, a dwelling house described as No. 3804, Montevallo Road, in the City or town of Mountain Brook, in Jefferson County, Alabama; that there was during the whole of the month of August, 1946, situated in a public alley near said dwelling house above referred to a sewer main belonging to the City of Mountain Brook; that on August 10th, 1946, the defendant, R. L. McDonald, constructed a waste pipe to carry domestic sewage from a point six feet from the outside wall of said dwelling house to a waste pipe running from the said dwelling house to said point six feet from the outside wall of said dwelling house; and further connected said waste pipe to the sewer main in the alley. In other words, the defendant constructed a waste pipe running from a point six feet from the outside wall of said dwelling house to the sewer main in the alley, and connected the waste pipe so constructed by the defendant to the waste pipe running from said dwelling house at a point six feet from the outside wall therefrom at one end and connected the waste pipe constructed by the defendant to the sewer main in the alley at the other end.

'The defendant contracted to construct and connect said waste pipe with J. W. Wilson, owner of said dwelling house, and the defendant actually did the work of constructing and connecting said waste pipe. The total length of the waste pipe constructed by the defendant was ninety feet, with eighty-two feet of the pipe running across land which J. W. Wilson owned to the edge of the alley, and the remaining eight feet of the pipe ran into and across the alley to the point of connection with the sewer main.

'The waste pipe constructed and connected by the defendant was not done by him as agent for, or otherwise in behalf of any public utility or municipality.

'The defendant has never acquired a license as master plumber or as journeyman plumber, of the kind that is required of a master plumber or journeyman plumber by the provisions of sub-division 2, or article 17 (Sections 116 to 128, inclusive) of Title 62 of the 1940 Code of Alabama.'

The sole issue in this case is whether the acts of the appellant constituted 'plumbing' as defined in Section 119, Title 62, supra, applicable only to Jefferson, Mobile, and Montgomery Counties, and which Section in part reads:

'The word 'plumbing' within the meaning and for the purpose of this subdivision shall be held to mean and include: All piping, fixtures, appliances and appurtenances in connection with the drainage, ventilation of the same or water supply system within a building, residence or structure to a point from three to five feet outside of the same. The construction and connection of any drain or waste pipe carrying domestic sewerage from a point within three feet to five feet of the outside walls of any building, residence or structure with the sewer service or other disposal terminal, and the alteration of any such system drain or waste pipe, except the construction of sewer mains and branches by public utilities or municipalities where the responsibility is their's or assumed by them. * * *' (Italics ours).

Only the italicized portion of the above act is applicable to the facts of this case. The appellant contends that since the connection made by him to the house sewerage line was six feet from the house, and not within three to five feet, as specified in the act, the act is not applicable to him.

As it appears in the original act (see General Acts, Alabama, 1935, p. 998) that portion of the above section set out above, and which is not underlined, was set out as paragraph (a), while the underlined section was set out as paragraph (b). Hereinafter, for convenience we will refer to the underlined portion above set out as paragraph (b) of the section.

We think it obvious from a reading of the above section that it was the intent of the legislature in attempting to define 'plumbing' in the above section to cover what we will for convenience call 'house' plumbing, that is plumbing in a building, and 'outside' plumbing, or that plumbing out of a building connecting with the main disposal line. It is common knowledge that different types of...