Replogle v. City of Little Rock

• Decision Date: 10 November 1924
• Docket Number: (No. 226.)
• Parties: REPLOGLE v. CITY OF LITTLE ROCK et al.
• Court: Arkansas Supreme Court

Page 353

267 S.W. 353

REPLOGLE v. CITY OF LITTLE ROCK et al.

(No. 226.)

Supreme Court of Arkansas.

November 10, 1924.

On Rehearing January 12, 1925.

Rehearing Denied January 19, 1925.

Appeal from Pulaski Chancery Court; Verne McMillan, Special Chancellor.

Suit by G. W. Replogle, for himself and others similarly situated, against the City of Little Rock and others. From judgment of dismissal, plaintiff appeals. Reversed and remanded, with directions.

Gus Fulk and Martin K. Fulk, both of Little Rock, for appellant.

Boyd Cypert and Carmichael & Hendricks, all of Little Rock, for appellees.

WOOD, J.

Sections 7624 to 7637, inclusive, of Crawford & Moses' Digest, contain the provisions of Act No. 285, approved May 26, 1911, of the Acts of the General Assembly of 1911, regulating plumbing in cities of the first and second classes. Act No. 285, p. 276, Acts of 1911. The act provides that there shall be in every city of the first and second classes in this state a board of examiners of plumbers, consisting of four members, two of whom shall be master plumbers and two journeyman plumbers, to be appointed by the mayor and approved by the council. No person shall be a member of this board, unless he has served a regular apprenticeship, and worked as a practical journeyman for a period of five years or more. The board is given power to examine all applicants as to their knowledge of plumbing, house drainage, and plumbing ventilation, and if satisfied of the competency of the applicant, the board shall issue to each applicant a certificate authorizing them to work at the business of plumbing. The board is authorized to formulate rules regulating the work of plumbing and drainage, such regulations to include materials and workmanship, and the manner of executing the work connected with plumbing and drainage. The board from time to time may alter such rules. It is made unlawful for any person to work in the capacity of a journeyman plumber or to install plumbing fixtures or materials, unless he shall at first obtain a certificate of competency, and any person violating any of the provisions of the act, and any of the rules or regulations established under the authority therein designated, shall be guilty of a misdemeanor, and on conviction thereof shall be fined not less than $5, nor more than $50 for each and every violation of the act, and in addition have his certificate revoked by the board of examiners.

The city council of the city of Little Rock, a city of the first class, passed ordinances pursuant to the act, creating a board of examiners of plumbers, and prescribing its powers and duties. The jurisdiction of the board of examiners was to be coextensive with the corporation limits, and one mile beyond, for all purposes except quarantine purposes, and for quarantine purposes in case of epidemic, five miles beyond such limits. One of the duties of the board was to examine applicants for plumbers' certificates as to their knowledge of plumbing, plumbing ventilation, and house drainage, both practically and theoretically, and, if satisfied as to the competency of such applicants, to issue to them certificates to do plumbing. The board was to receive as compensation for their services 50 per cent. of all the examination fees, and each applicant was required to pay the sum of $5 before an examination could be had. The ordinances authorized the board of examiners to formulate a code of rules regulating plumbing and drainage, and to amend or alter such rules from time to time. The ordinances created the office of chief plumbing inspector prescribing his qualifications, duties, and compensation. He was to preside at all meetings of the board of examiners, assist in the formation of rules and regulations, and inspect all plumbing and drainage, and secure the proper performance of the work, and, in case he found the same satisfactory, to issue a certificate upon the payment of certain fees for inspection, as prescribed by the schedule set forth in the ordinances.

It was provided that the plumbing department should be under the supervision of the board of health. Among other things, the ordinances provided that any person working at the business of plumbing, or installing or placing any plumbing fixtures or material, without having first received a certificate from the board of examiners, shall be deemed guilty of a misdemeanor and fined a sum not less than $5, nor more than $50.

G. W. Replogle, for himself and others similarly situated, instituted an action in the chancery court, setting up that they were plumbers, and had practiced their vocation in the city of Little Rock and vicinity for many years; that they desired to pursue their vocation without the certificate required under the rules established by the board of examiners under the act and ordinances above set forth. They alleged that they instituted this action against the city of Little Rock, and the chief inspector of plumbing; that, for various reasons, the act and ordinances passed in pursuance thereof were unconstitutional, and they prayed that the city of Little Rock and the chief inspector of plumbing be enjoined from enforcing the same.

The allegations of the complaint as to the invalidity of the statute were denied in the answer, and the cause was heard upon the pleadings, the evidence adduced, and the act and ordinances passed in pursuance thereof. The court held that the act and ordinances were valid, and entered a decree dismissing the complaint for want of equity, from which decree is this appeal.

Under our state and federal Constitutions all men have the inalienable right to acquire, possess, and protect property, and to pursue their own happiness, and of these sacred rights no man can be deprived without due process of law. Article 2, § 2, Constitution of Arkansas, 1874; article 5, Const. U. S.; article 14, § 1, Const. U. S.

Any statute, or municipal ordinance enacted pursuant thereto, which challenges the right of any person to engage in the legitimate and honest occupation of plumbing without restraint or regulation must find its justification in the fact that such a statute or ordinance is necessary to promote the general welfare. No individual can be deprived of the right to pursue his happiness in his own way and to engage in honest toil in any avocation and in any manner he sees proper in order to make a living for himself and those who may be dependent upon him, so long as he does not use such right in a manner to injure others. So long as the individual does not transcend this bound, his conduct is not subject to police regulation. Police power can only be exercised to suppress, restrain, or regulate the liberty of individual action when such action is injurious to the public welfare.

When statutes, and municipal ordinances pursuant thereto, have been enacted purporting to protect the health and welfare of a community, all doubts as to the constitutionality of such legislation must be resolved in its favor. Such deference and consideration must be given by the courts to the Legislature — a co-ordinate department of the government — as not to unduly interfere with its supreme legislative power, and never to interfere with such power, unless it appears that the exercise is clearly outside the scope of the organic law, which is over all departments of the government, and which all are bound to observe as fundamental in the protection of the liberty, happiness, and general welfare of the community. Williams v. State, 85 Ark. 470, 108 S. W. 838, 122 Am. St. Rep. 47, 26 L. R. A. (N. S.) 482; Dreyfus v. Boone, 88 Ark. 358, 114 S. W. 718; Pierce Oil Co. v. Hope, 127 Ark. 38, 191 S. W. 405, Ann. Cas. 1918E, 143; Bakon v. Walker, 204 U. S. 311, 27 S. Ct. 289, 51 L. Ed. 499. But when such enactments are challenged as an invasion of the rights and liberties of the individual guaranteed by the fundamental law, then it becomes the duty of the courts to lay these enactments alongside the Constitution, and determine whether the exercise of the police power in the suppression or regulation of ordinary occupations, trades, or callings is really necessary for the public good.

Judge Cooley says:

"It is an important part of civil liberty to have the right to follow all lawful employment." Cooley on Torts, 277.

Mr. Tiedeman says:

"No man's liberty is safe if the Legislature can deny him the right to engage in a harmless calling." 1 Tiedeman on State and Federal Control of Persons and Property, 236.

Mr. Justice Bradley, speaking for the United States Supreme Court in Butchers, etc., Co. v. Crescent City Co., 111 U. S. 746, 4 S. Ct. 652, 28 L. Ed. 585, says:

"The right to follow any of the common occupations of life is an inalienable right. * * * The right to follow any of the ordinary callings of life is one of the privileges of a citizen of the United States."

These general observations are indeed but an announcement of axiomatic rules of law under our co-ordinate department system of government, and but the declaration of the personal rights, guaranteed by our state and federal Constitutions, which are recognized generally by the courts of this country. Courts of last resort, however, differ widely as to whether legislation of a similar or kindred nature to that under review is an infringement of the above rights. A majority of the courts that have had under consideration similar statutes have sustained them as a proper exercise of the police power. Douglas v. People, 225 Ill. 536, 80 N. E. 341, 8 L. R. A. (N. S.) 1116, 116 Am. St. Rep. 162; Singer v. State, 72 Md. 464, 19 A. 1044, 8 L. R. A. 551; People v. Warden, 144 N. Y. 529, 39 N. E. 686, 27 L. R. A. 718; State v. Gardner, 58 Ohio St. 599, 51 N. E. 136, 41 L. R. A. 689, 65 Am. St. Rep. 785; Beltz v. Pittsburg, 211 Pa. 561, 61 A. 78; State ex rel. Winkler v. Benzenberg, 101 Wis. 172, 76 N. W. 345; Caven v. Coleman (Tex. Civ. App.) 96 S. W. 774; State ex rel. Chapel v. Justus, 90 Minn....