Replogle v. Little Rock

• Decision Date: 10 November 1924
• Docket Number: 226
• Parties: REPLOGLE v. LITTLE ROCK
• Court: Arkansas Supreme Court

267 S.W. 353

166 Ark. 617

REPLOGLE v. LITTLE ROCK

No. 226

Supreme Court of Arkansas

November 10, 1924

Appeal from Pulaski Chancery Court; Verne McMillen, special Chancellor; reversed.

Motion for rehearing overruled.

Gus Fulk and Martin K. Fulk, for appellant.

1. The statute regulating plumbing is void, as being offensive to the Fourteenth. Amendment to the Constitition of the United States. It does not necessarily follow that, if the matter of plumbing affects the public health, it constitutes a proper subject for the exercise of the police power. There is here a reason sufficient to prohibit the exercise of that power viz., the inalienable right of a citizen under the Fourteenth Amendment. The act in question provides for a board which may make its own rules and regulations, and, under such rules and regulation, it is possible, in the discretion of the board to make the examination as rigid as is imaginable --may even require an applicant to exhibit expert knowledge; in short require of him not only to be a plumber, but also a sanitary expert. The Legislature cannot delegate to a board a greater authority than possessed by itself. Cooley on Torts, 277; 1 Tiedeman on Federal Control of Persons & Property, 236; 74 N.Y. 515; 111 U.S. 746, 4 S.Ct. 652; 42 Wash. 237, 84 P. 815 5 L. R. A. (N. S.) 674; 144 N.Y. 529, dissenting opinion of Mr. Justice PECKHAM, 27 L. R. A. 718; 39 N.E. 686; 198 U.S. 45, 49 L. ed. 937, 25 S.Ct. 539.

2. A Statute which punishes as a misdemeanor the violation of rules to be made by a board of examiners is an unlawful delegation of authority, and is too broad, indefinite and uncertain to be sustained. 144 U.S. 677; 116 F. 650; Id. 654; 146 F. 306; 170 F. 205; 45 Ark. 158, 164; 138 Ark. 137.

3. A municipality has no extraterritorial jurisdiction, and cannot confer such jurisdiction upon a municipal board. The ordinance provides that "said board of examiners * * * shall have jurisdiction coextensive with the corporate limits and the board of health," yet another ordinance of the city provides that the jurisdiction of the board of health shall extend for one mile beyond the city limits for all purposes except quarantine purposes, and for the latter purpose, in case of epidemics, five miles beyond the city limits. 130 Ark. 334.

Boyd Cypert and Carmichael & Hendricks, for appellee.

The ordinances as passed were authorized by the statute, act 285, Acts 1911, C. & M. Digest, §§ 7624-7637, and the rules provided by the board must be adopted by the city council before they are effective, and that has been done in this case. It is not a rule of the board, but an ordinance we are considering. In testing the validity of the statute, all doubts must be resolved in favor of the legislative enactment. 85 Ark. 470; 204 U.S. 311; 88 Ark. 354, 5th syllabus; 127 Ark. 38. The decided cases are clearly against appellant's contention that the act is unconstitutional, save only the case of State v. Smith, 42 Wash. 237, upon which appellant relies. Many other State have passed upon the validity of such acts, and in every instance their constitutionality has been sustained. 225 Ill. 536; 80 N.E. 341; 8 L. R. A. (N. S.) 1118; 72 Md. 464, 8 L. R. A. 551; 144 N.Y. 529, 27 L. R. A. 718; 58 O. St. 599, 41 L. R. A. 689; 211 Pa. 561; 101 Wis. 172; 96 S.W. 774; 90 Minn. 474. Certainly legislation controlling plumbers is more clearly within the police power than similar legislation pertaining to public accountants, yet such legislation has been sustained. 27 A. L. R. 1528. And similar legislation pertaining to barbers. 20 A. L. R. 1109. And other professions in this State. 88 Ark. 352; 85 Ark. 396; Id. 464; 52 Ark. 228; 77 Ark. 506, 59 Ark. 513; 95 Ark. 514. Appellants, in contending that they cannot be punished for violating a rule or regulation of the board, overlook the fact that the statute provides that all such rules and regulations must be adopted by the city council before becoming effective. C. & M. Dig., § 7629. Even if the ordinance giving to the board jurisdiction "coextensive with the corporation limits and the board of health," and the ordinance defining the jurisdiction of the latter be held as extraterritorial, the former would be void only as to persons living between the city limits and a mile beyond,--and there has been no effort to show that appellants have been arrested for practicing plumbing beyond the city limits.

WOOD J. MCCULLOCH, C. J., and SMITH, J., dissenting.

OPINION

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 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, fifty 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; Amdt. 5, Const. of U. S.; Amdt. 14, § 1, Const. of U.S. Any statute, or...