Roach v. City of Durham
| Decision Date | 26 April 1933 |
| Docket Number | 334. |
| Citation | 169 S.E. 149,204 N.C. 587 |
| Parties | ROACH v. CITY OF DURHAM et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Durham County; Barnhill, Judge.
Suit by L. C. Roach, trading and doing business under the firm name of City Plumbing & Heating Company, against City of Durham and others. Judgment of dismissal, and plaintiff appeals.
Affirmed.
This is a suit for a mandatory injunction to compel the defendants to issue the plaintiff a license to enter into or carry on the business of plumbing in the city of Durham.
At the session of 1931 the General Assembly passed an act to license persons engaging in the plumbing and heating contracting business. Pub. Laws 1931, c. 52.
Under an ordinance of the city a person engaged in the business of plumbing is required to secure a permit from the city inspector. On September 27, 1932, the plaintiff applied for a permit, and the inspector under direction of the city council refused to issue it for the reason that the plaintiff had not complied with the act of 1931, supra, and had not procured a license after examination by the state board.
The plaintiff then brought this suit, and Judge Barnhill found the facts and rendered the following judgment:
The city of Durham is a municipal corporation having a population in excess of 5,000 that the plaintiff is a citizen and resident of the city of Durham and has been engaged in the plumbing business in said city for several years and was so engaged prior to February 27, 1931, the date on which chapter 52 of the Public Laws of 1931 became effective. The plaintiff has never been licensed by the state board of examiners of plumbing and heating contractors, as required by chapter 52 of the Public Laws of 1931. On September 27, 1932, he made application to the defendant city of Durham, through its plumbing and heating inspector, for a permit to install certain plumbing in a building in the city of Durham; the defendant city, acting through the said plumbing and heating inspector, declined to issue said permit for the reason that the plaintiff had not complied with chapter 52 of the Public Laws of 1931.
Upon the foregoing findings of fact the court is of the opinion that chapter 52 of the Public Laws of 1931 is constitutional and for that reason the court is of the opinion that the plaintiff is not entitled to a mandatory injunction, and this action is dismissed and the plaintiff will pay the cost to be taxed by the clerk.
The plaintiff excepted and appealed to the Supreme Court.
Brawley & Gantt, of Durham, for plaintiff.
S. C Chambers, of Durham, for City of Durham.
McLendon & Hedrick, of Durham, for State Board of Examiners.
At the session of 1931 the General Assembly enacted a series of statutes entitled "An Act to Create a State Board of Examiners of Plumbing and Heating Contractors, and to License Persons Engaging in the Plumbing and Heating Contracting Business." Pub. Laws 1931, c. 52.
The act provides that the board shall consist of five members to be selected as therein provided, shall have a common seal, shall formulate rules to govern its actions, shall keep a record of its proceedings and a register of all applicants for examination, and on or before the 1st day of March of each year shall submit to the Governor a report of its activities for the preceding year and file a copy of its report with the Secretary of State.
Section 6 is as follows: "All persons, firms or corporations desiring to enter into or carry on the Plumbing and/or Heating Contracting business, shall first apply to the Board for examination and license, at least thirty days prior to engaging in said business, said application to be accompanied by certified check in the sum of fifty dollars; Provided that the requirements of this section shall not apply to persons engaged in the Plumbing and/or Heating business, in towns or cities having a population of not more than thirty-five hundred." (Durham has a population of more than 50,000.)
Licenses may be issued, renewed, revoked, and reissued; but any person, firm, or corporation carrying on the business of plumbing or heating without a license shall be guilty of a misdemeanor. A corporation or partnership may engage in the business provided one or more persons connected with the corporation or partnership is registered and licensed as the act requires. License fees must be paid in advance, and out of this fund shall be paid the compensation and expenses of the members of the board, the salaries of its employees, and other expenses; but upon payment of the necessary expenses of the board and the retention by it of 25 per centum of the remainder collected, the residue, if any, shall be paid to the state treasurer. The fee of those doing business in towns of less than five thousand inhabitants is twenty-five instead of fifty dollars.
The plaintiff contests the validity of this act on the ground that it was enacted in violation of the organic law both of the state and of the United States, and rests his argument on these two propositions: (1) The act is not within the police power of the state; (2) it creates an unreasonable, unjust, and arbitrary classification of persons engaging in the designated business.
The first proposition raises the question whether the tax imposed by the act is a privilege tax, or a revenue measure. If it is designed primarily to raise revenue, it is not within the scope of the police power. State v. Bean, 91 N.C. 554. In the determination of this question we should give the statute such a construction as will carry out the purpose and intention of the Legislature with the least interference with the rights of the plaintiff. Black on Interpretation of Laws, 482; Manly v. Abernathy, 167 N.C. 220, 83 S.E. 343.
Construing chapter 52 in its entirety, we are unable to discover a legislative intent to raise revenue by the levy of a tax. By reference to section 13 it will be seen that all license fees shall be held as a fund for the use of the state board of examiners. This fund is reserved for the payment of all expenses incurred by the board under the terms of the act and only the residue, if any, is to be paid into the treasury of the state. It is obvious, in our opinion, that the pervading intent is to provide for the maintenance of the board and not to impose a tax as a part of the general revenue of the state and...
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