Ross v. City of Kansas City, 47266

• Decision Date: 09 November 1959
• Docket Number: No. 47266,No. 1,47266,1
• Citation: 328 S.W.2d 610
• Parties: Max B. ROSS et al., Appellants, v. CITY OF KANSAS CITY, Missouri, a Municipal Corporation, Respondent
• Court: Missouri Supreme Court

Page 610

328 S.W.2d 610

Max B. ROSS et al., Appellants, v. CITY OF KANSAS CITY, Missouri, a Municipal Corporation, Respondent.

No. 47266.

Supreme Court of Missouri, Division No. 1.

Nov. 9, 1959.

W. R. Hedrick, William H. Costello, Kansas City, for appellants.

Richard H. Koenigsdorf, City Counselor, Guy W. Rice, Associate City Counselor, Kansas City, for respondent.

HYDE, Presiding Judge.

Action by persons engaged in business of installing, repairing and replacing warm air furnaces to declare unconstitutional an ordinance amending the Building Code of Kansas City, to provide for regulating the warm air heating business, and to permanently enjoin its enforcement. The court dismissed plaintiffs' petition with prejudice, in accordance with the prayer of defendant's answer, and plaintiffs have appealed. Defendant has filed a motion to dismiss this appeal, on the ground of noncompliance with Rule 1.08, Supreme Court Rules, 42 V.A.M.S., but we have decided to determine the case on the merits and this motion is overruled.

The challenged ordinance, amending Sections 5401-5405 of the Building Code, provides that every person, partnership or corporation, desiring to engage in the warm air heating business must designate some person as their authorized representative, who shall make application to the Board of Warm Air Heating Examiners, and at a time designated by that board shall undergo an examination to determine his knowledge and skill in the design and installation of warm air heating units and of the warm air heating code of Kansas City, Missouri. It provides that the applicant must pay an examination fee of $10 and a license fee of $50; and that the license shall issue for one year and may be renewed annually for a fee of $50. (Sec. 5401(3); all section references are to the Kansas City Building Code.) It also provides that any one desiring to engage in the trade of installing, erecting, altering, repairing, servicing or resetting a warm air heating unit shall make application to the aforesaid Board and pay an examination fee of $10, and undergo an examination to determine his knowledge and skill in the installation, erection, alteration, repairing, servicing and resetting of furnaces; and upon successful passing of the examination shall be issued a journeyman's license which must be renewed annually for a fee of $10. Sec. 5401(4).

Plaintiffs claim the ordinance violates the due process clause of our constitution (Sec. 10, art. I), V.A.M.S. because they say it 'vests in the Board of Warm Air Heating Examiners the arbitrary power to control a lawful business without prescribing uniform rules or standards by which said power is to be exercised' and leaves the issuance of licenses to the uncontrolled discretion of the Board. They argue that Sec. 4706A, providing for the Board, and Sec. 5401, providing for examinations, provide no rules and fix no minimum grade for qualification; citing Fairmont Investment Co. v. Woermann, 357 Mo 625, 210 S.W.2d 26; State ex rel. Triangle Fuel Co. v. Caulfield, 355 Mo. 330, 196 S.W.2d 296; and City of St. Louis v. Polar Wave Ice & Fuel Co., 317 Mo. 907, 296 S.W. 993, 54 A.L.R. 1082. Plaintiffs point out that some provisions of the Building Code do not provide for issuing licenses when the applicant makes a grade of not less than 70%; namely, master plumbers, Sec. 4801(3); journeyman plumbers and gas fitters, Sec. 4801(7); master pipe fitters, Sec. 4903; journeyman pipe fitters, Sec. 4905; refrigeration contractors, Sec. 5003; and master electricians, Sec. 5105. However, we note that no minimum passing grade is specified for applicants for engineers' and firemen's licenses for operating boilers and steam powered generating equipment, Sec. 4915.

License taxes, as an exercise of of the police power, contravene the guaranty of due process of law 'only where they are so unreasonable and extravagant in their nature and purpose that the property and personal rights of the citizen are unnecessarily and arbitrarily interfered with or destroyed.' 33 Am.Jur. 342, Sec. 20; Williams v. City of Richmond, 177 Va. 477, 14 S.E.2d 287, 134 A.L.R. 833; Annotation, 134 A.L.R. 841. There is nothing before us in this case except the Building Code itself, as plaintiffs offered no evidence to show that the examination and license charges were unreasonable or that the warm air heating business was not subject to regulation in the interest of public health, safety and welfare; nor is there anything to show what passing grade the Board requires. Sec. 4706A requires the Board to be composed of the chief warm air heating inspector, one licensed warm air heating contractor and one licensed warm air heating journeyman, who must have had at least five years' experience in the business. Their duties 'consist of giving examinations and determining facts in connection with the licensing of warm air heating contractors and journeymen.' Sec. 5401(3), as amended, requires a contractor applicant to 'undergo an examination to determine his knowledge and skill in design and installation of warm air heating units and his knowledge of the warm air heating code of Kansas City.' (As hereinabove noted subsection 4 makes similar requirements as to journeymen.) We do not think due process is violated or that licensing is left to the uncontrolled discretion of a Board, which is composed of persons with experience in the business, required to license on the basis of giving examinations to determine applicants' knowledge and skill in this designated work. This does give standards even though it is not stated what minimum grade shall be required in such an examination. See State Board of Technical Registration v. Bauer, 84 Ariz. 237, 326 P.2d 358; State ex rel. Ludlow v. Guffey, Mo.Sup., 306 S.W.2d 552, 558. Of course, it is obvious that the grade attained in any examination may depend largely on the questions asked, which must be reasonable (53 C.J.S. Licenses Sec. 34, p. 625), and the method of grading used. See State ex rel. Sill v. Examining Board of Master Electricians of City of Shreveport, 14 La.App. 17, 129 So. 427. Surely it is not essential to validity for such an ordinance to go into detail about the questions to be asked, or the method of grading to be used. Therefore, while grade required must be reasonable, we cannot hold it offends due process to let the Board fix it if it applies to all applicants.

As stated by McQuillin Municipal Corporations, 3rd Ed., Vol. 9, Sec. 26.65: 'The fixing of requirements for certain licenses or permits has in some instances been delegated to administrative bodies or officials and the delegation sustained as valid where a standard is established and where the requirements administratively imposed must be governed by that standard. * * * Nor, it has been ruled, is it essential to the validity of an ordinance that it prescribe all the conditions upon which a license or permit shall be granted or refused. * * * An official or board may be empowered and required to investigate and determine whether or not an applicant has complied with prerequisites and conditions to the issuance of a license, and upon the basis of such determination to issue or deny the license or permit. * * * Likewise, ordinances requiring certain knowledge, skill or information by licensees or permittees, and empowering designated boards or officials to determine whether or not applicants possess such knowledge, skill or information, have been sustained. * * * An ordinance may vest authority in a board of examiners to determine the qualifications of...