State ex rel. City of Bismarck v. Dist. Court in & for Burleigh Cnty.

• Decision Date: 03 February 1934
• Citation: 64 N.D. 399,253 N.W. 744
• Parties: STATE ex rel. CITY OF BISMARCK et al. v. DISTRICT COURT IN AND FOR BURLEIGH COUNTY et al.
• Court: North Dakota Supreme Court

64 N.D. 399

253 N.W. 744

STATE ex rel.CITY OF BISMARCK et al.

v.DISTRICT COURT IN AND FOR BURLEIGH COUNTY et al.

Supreme Court of North Dakota.

Cr. 106.

Feb. 3, 1934.

Syllabus by the Court.

1. A final order discharging the petitioner in a habeas corpus proceeding is not reviewable by appeal or on writ of error.

2. A final order discharging the petitioner in a habeas corpus proceeding may be reviewed through the exercise of the power of superintending control reposed in the Supreme Court by section 86 of the Constitution.

3. Under the police power the state in the interest of public health may license and regulate plumbers and the business of plumbing.

4. A city ordinance regulating the business of plumbing and licensing plumbers, enacted pursuant to statutory authority, is not unconstitutional and void because (1) an applicant for a license is required to establish his competency by examination unless the applicant at the time of the taking effect of the ordinance was a licensed master plumber in the city continuously engaged in business as such for a period of four years prior to the making of his application; (2) only one member of the examining board of three is required to be a licensed plumber; (3) applicants for licenses as master plumbers must furnish a surety bond conditioned that, if licensed as a master plumber, the principal will indemnify and save the city harmless from any loss, claim, suit, or damage which the city may suffer or sustain through his fault or neglect, or that of his employees or agents, will comply with all regulations of the city concerning plumbing, and will restore to the condition in which found any paving, street, sidewalk, water pipe, sewer, or other property disturbed by him in and about his employment in the plumbing business.

Proceeding by the State, on the relation of the City of Bismarck and another, against the District Court in and for Burleigh County in the Fourth Judicial District, Hon. Fred Jansonius, Judge thereof, and another, to review an order discharging R. C. Forsythe, petitioner, on habeas corpus.

Writ granted.

Hyland & Foster, of Bismarck, for the application.

Scott Cameron, of Bismarck, opposed.

NUESSLE, Judge.

Forsythe entered a plea of guilty to a charge of violating an ordinance of the city of Bismarck regulating plumbing. He was given a jail sentence and committed thereunder. Thereupon he petitioned the district court of Burleigh county for a writ of habeas corpus, claiming the ordinance to be unconstitutional and void. The district court issued the writ, and he was discharged.

[1] The city of Bismarck, insisting that the ordinance in question is constitutional and valid, seeks a review of the action of the district court. To that end the city has applied to this court for such relief as may be appropriate. Forsythe, resisting, challenges the propriety of the city's attempted review of the district court's action. His contention in that respect is that there is no pathway that leads to a review of proceedings upon habeas corpus; that in such case the disposition of the district court, whether it be denominated an order or a judgment, is final and cannot be reviewed in this court. Counsel for the city, on the other hand, insist that such a review may be had, but confess doubt as to the manner in which it may be obtained. Because of this doubt they have presented to this court simultaneously an attempted appeal from the action of the district court, a writ of error directed to the same end, an application for an original writ of certiorari, and further invoke the exercise of the court's power of superintending control. These several matters were set down for argument at the same time. Counsel for Forsythe appeared and requested that they be considered together and that one brief and argument be submitted to cover all of them. This request was granted and the questions arising will be examined in the light of this presentation.

In the case of Carruth v. Taylor, 8 N. D. 166, 77 N. W. 617, this court held that no appeal lay from a final order of the district court remanding a prisoner in habeas corpus proceedings. This court has uniformly adhered to the rule there enunciated. See State ex rel. v. Beaverstad, 12 N. D. 527, 97 N. W. 548;In re Simonson, 54 N. D. 164, 209 N. W. 211. It is argued that, though this be the accepted rule in those cases where a writ has been denied, there is nevertheless a right of appeal on the part of the state where the writ is issued and the applicant discharged. A careful consideration of the reasoning of the court in Carruth v. Taylor, supra, where the matter was very fully argued out, and in the several later cases reaffirming the rule laid down in the Carruth Case, impels the conclusion that no right of appeal exists in the one case that does not in the other. And, since there has been no legislative dissent from the rule thus laid down in the Carruth Case in all the years intervening since its pronouncement in 1898, we shall not depart from it. We hold then in the instant case that there is no right of review by way of appeal. We hold further that, applying the reasoning of the several cases above referred to, no review is possible by way of writ of error. In this connection, see, also, the following cases cited in the Carruth Case: People v. Fairman, 59 Mich. 568, 26 N. W. 769; Ex parte Jilz, 64 Mo. 205, 27 Am. Rep. 218. The district court in the habeas corpus proceeding was unquestionably acting within its jurisdiction, so there can be no review of its action therein by certiorari under the provisions of section 8445, C. L. 1913, as amended by Laws 1919, c. 76. See Baker v. Lenhart, 50 N. D. 30, 195 N. W. 16. Accordingly, if there be a review in this case, it must be through the exercise of the power of superintending control reposed in this court by section 86 of the Constitution and of which the Legislature took cognizance when it enacted section 7339, C. L. 1913.

The exercise of the power of superintending control has been invoked on various occasions heretofore when it was deemed necessary and proper by this court to issue an appropriate original writ in order to afford relief that could not reasonably be obtained in any other manner. See State ex rel. Lemke v. District Court, 49 N. D. 27, 186 N. W. 381, and State ex rel. Shafer v. District Court, 49 N. D. 1127, 194 N. W. 745, wherein the authorities are exhaustively reviewed; State v. First State Bank of Jud, 52 N. D. 231, 202 N. W. 391;State ex rel. v. Lowe, District Judge, 54 N. D. 637, 210 N. W. 501;State ex rel. Friend v. District Court, 55 N. D. 641, 215 N. W. 87. The power of superintending control “enables and requires it (the supreme court), in a proper case, to control the course of litigation in district courts, so as to prevent injustice in cases where there is no appeal, or the remedy by appeal is inadequate.” State ex rel. Lemke v. District Court, supra. And this power “to exercise superintending control over inferior courts, is not affected by the fact that the district court was acting within its jurisdiction.” State ex rel. Shafer v. District Court, supra. Consonant with the reasoning of these cases, we hold that, if it shall appear to this court that the district court erred in discharging Forsythe on habeas corpus, such action may be reviewed by and through a supervisory writ issued under the power of superintending control conferred by section 86 of the Constitution.

Subsection 27 of section 3818, C. L. 1913, provides that the board of city commissioners shall have power “to license, tax and regulate plumbers and the business of plumbing and to provide the manner in which the plumbing shall be done, and for the inspection thereof, and the manner in which the connections thereof with the sewers and the water mains of the city may be made.” Pursuant to the provisions of this section, the city of Bismarck enacted Ordinance No. 442, known as the Plumbing Code, providing for the licensing, taxation, and regulation of plumbers and the business of plumbing. This ordinance, among other things, provides:

“No person shall engage in the occupation of installing or repairing the pipes, fixtures or other apparatus constituting the plumbing system of any building within the said City of Bismarck without first procuring a license so to do; either as a master plumber or a journeyman plumber, in accordance with the provisions of this code.

An applicant for license as a journeyman plumber must have had three years experience as a helper or an apprentice, or be a graduate of a recognized trade school which gives at least a two years' plumbing course. An applicant for such license who has attended a recognized trade school, but who is not a graduate thereof, will be given full credit for the work done by him as a part of the required three years' experience as a plumber's helper or apprentice.

An applicant for license as a master plumber must have reached the age of twenty-one years, and must have had at least one year's experience as a journeyman plumber, and must show by examination his fitness for the business of a master plumber.

For the purpose of determining the competency of applicants to engage in or work at the business of plumbing in the city, there is hereby created a board of examiners consisting of the superintendent of the waterworks system of the city, the city engineer and a licensed plumber appointed by the board of city commissioners. The superintendent of the waterworks system shall serve ex officio as chairman of the board. The term of office of the appointive member shall be two years, commencing on the first Monday in May of even numbered years. Two members of the board shall have power to act and a majority vote of the board shall determine all matters coming before it.

All applications for license shall be made in writing to the city auditor of the city upon a written form prescribed by the auditor, and shall be...