Schroeder v. Binks

• Citation: 113 N.E.2d 169,415 Ill. 192
• Decision Date: 17 June 1953
• Docket Number: No. 32818,32818
• Parties: SCHROEDER et al. v. BINKS, Director of Registration and Education et al.
• Court: Illinois Supreme Court

Page 169

113 N.E.2d 169

415 Ill. 192

SCHROEDER et al. v. BINKS, Director of Registration and Education et al.

No. 32818.

Supreme Court of Illinois.

June 17, 1953.

Latham Castle, Atty. Gen. (John L. Davidson, Jr., Chicago, Mark O. Roberts, Lee W. Ensel, and Norman P. Jones, Springfield, of counsel), for appellants.

Vail, Mills & Armstrong, of Decatur, and Gillespie, Burke & Gillespie, of Springfield (Robert P. Vail, Thomas H. Armstrong, Decatur, and Hugh J. Dobbs, Springfield, of counsel), for appellees.

Johnston, Thompson, Raymond & Mayer, James A. Sprowl, and Wesley G. Hall, all of Chicago, for the Chicago Journeyman Plumbers Union, Amicus Curiae.

Cassidy, Sloan & Cassidy of Peoria, for the Illinois Master Plumbers Ass'n, Amicus Curiae.

SCHAEFER, Chief Justice.

This case involves the validity of the Illinois Plumbing License Law of 1951. Ill.Rev.Stat.1951, chap. 111 1/2, par. 116.1-116.35. Alleging the invalidity of the act, the plaintiffs, who are citizens and taxpayers engaged in the business of selling hardware, heating and plumbing equipment at retail, commenced this action in the circuit court of Sangamon County, seeking to enjoin the expenditure of public funds in its administration. Ill.Rev.Stat.1951, chap. 102, pars. 11-16. The defendants, who are State officers charged with the enforcement of the act, answered. After hearing evidence, the circuit court entered a decree finding the statute unconstitutional and enjoining its enforcement. The defendants have appealed directly to this court.

In People v. Brown, 407 Ill. 565, 95 N.E.2d 888, the Illinois Plumbing Law of 1935 was held unconstitutional. The act which is now before us was then adopted. The basic contention of the plaintiffs is that the present statute has failed to cure many of the defects which invalidated its predecessor. The defendants maintain that the new statute has eliminated the infirmities in the earlier act which were pointed out in the Brown case. In this case, as in the Brown case, the general power of the State to regulate plumbing and plumbers for the protection of the public health is not disputed. As in that case, the issue here is whether in the exercise of a power acknowledged to exist, constitutional limitations have been transgressed.

In broad outline the Illinois Plumbing License Law of 1951 defines 'plumbing,' prohibits any person from engaging in plumbing without a license, prescribes the conditions upon which licenses may be issued, and commits the administration of the act to the Department of Registration and Education. All installation, repair and maintenance of plumbing (except minor repairs on a person's home premises) is required to be performed by or under the supervision of a licensed master plumber. Ill.Rev.Stat.1951, chap. 111 1/2, par. 116.4. The act provides for licensed master plumbers, licensed journeymen plumbers and for plumber's apprentices. Except for 'grandfather' and reciprocity provisions, the licenses are to be issued upon examination. Eligibility to take the examinations depends upon a showing of compliance with stated prerequisites. Any person over sixteen years old may work as a plumber's apprentice, but he must work under the supervision of a master or journeyman. Ill.Rev.Stat.1951, chap. 111 1/2, par. 116.4. An applicant for the master's examination must show that he has been the holder of a journeyman's license in this State for one year, or that he has worked as a plumber in another State or in the military service for five years, or that he has a college degree in specified courses and one year of practical experience in plumbing. Ill.Rev.Stat.1951, chap. 111 1/2, par. 116.12. An applicant for the journeyman's examination must show that he has worked as an apprentice for five years, or that he has worked as a plumber in another State for two years or in military service for three years, or that he has taken specified courses in college or trade school for two years and has had one year of practical experience in plumbing. Ill.Rev.Stat.1951, chap. 111 1/2, par. 116.13.

Plaintiffs have attacked the validity of the act upon many grounds. In the view we take of the case, however, it is necessary only to determine whether or not the basic objections to the 1935 act which were pointed out in People v. Brown, 407 Ill. 565, 95 N.E.2d 888, have been eliminated. The 1935 act was invalid because it imposed upon the plumbing business a rigid economic pattern, with fixed categories of employers and employees which were unrelated to considerations of public health, and because it gave the class of master plumbers an arbitrary control over access to the plumbing business. That act required that journeymen and apprentice plumbers be employees of master plumbers. The present act eliminates the requirement of employment by master plumbers, and substitutes for it a requirement of supervision by master plumbers of all plumbing work done by journeymen or apprentices. It is argued on the one hand that this change has effected a complete cure, and on the other that the change is a euphemism which has left unaltered the underlying vice of the former statute.

Concerning this aspect of the 1935 act this court said in People v. Brown, 407 Ill. at pages 574-575, 95 N.E.2d at page 894: 'When the apprentice attains the status of licensed journeyman plumber, he cannot ply his trade freely and in the manner of his choice. He is denied the right to work for himself. From this it appears the legislature was of the opinion that though a licensed journeyman plumber is qualified to follow his trade, as that trade is defined in the act, he is not qualified to judge to merits or demerits of his own work and, therefore, must always work under the general supervision of a licensed master plumber. The act cannot be circumvented by a licensed journeyman plumber following his trade independently under a licensed master plumber he hires to generally supervise his work. That would constitute a reversal of the roles of employer and employee which the act does not countenance. * * * The above facts, as do other facts, establish that a licensed master plumber must always be at hand to exercise general supervision over the work of the licensed journeyman plumber. The possession of the exclusive and unregulated right bestowed by the act to either pass, or condemn, the work of the licensed journeyman plumber places the licensed master plumber in complete control of the latter in respect to his work, so long as he plys his trade within the geographical limits prescribed by the act.'

In our opinion, the pertinence of these observations has not been altered by the substitution of the present requirement of 'supervision' by a master plumber for the former requirement of 'employment' by a master plumber. Realistically viewed, the economic effect is the same. No duty to supervise is imposed upon the master plumber. He may supervise, or he may not, as he sees fit. And the possibility that his unregulated supervision will be available to a competing journeyman upon economically feasible terms is too remote to be acceptable. The net effect of the act is that the journeyman's status as an employee and the master plumber's status as an employer, remain as firmly fixed as they were in the Brown case.

Common knowledge and experience suggest no connecting link between considerations of public health and the requirement of the act that all plumbing work-of whatever kind or degree of complexity-which is done by a licensed journeyman plumber must be done under the supervision of a master plumber. Nor does the record supply the deficiency.

Herold E. Babbitt, professor of sanitary engineering at the University of Illinois since 1913, testified that mechanically and manually there is no difference in the requisite skill of the master and journeyman plumber; that in the trade and in his experience the prime difference bwtween journeymen and master plumbers is that the master plumber is the boss man who risks his capital and the journeyman is the employee. Harry B. Greisbach, a public school teacher at the Washburne Trade School in Chicago, testified that the term 'journeyman plumber' referred to a plumber employed by a 'master plumber.' Phillip A. Mahoney, a licensed journeyman plumber, testified that he was employed by W. T. Mahoney & Sons, a corporation engaged in the plumbing business; that his brother, George, was the only master plumber in the firm; that he, Phillip, was engaged in the capacity of superintendent of plumbing installation of all work on the firm's contracts; that he had forty journeymen under his supervision; that it was his duty to select the men for jobs and to see that all plans, specifications, and ordinances were complied with; that to some extent he had designed and planned plumbing layouts 'under the coordination' of his brother. Ray Smythe, who is engaged in the plumbing business in Missouri and operated a plumbing school in that State and wrote the Kansas City Plumbing Code in 1924 as well as the revision in 1947 and assisted in writing the Denver and Colorado Codes, testified that there is no real distinction between a journeyman and a master plumber, except that the master plumber is in the business of selling material and plumbing contracts and collecting money on these sales, and that if he is successful in collecting...