State ex rel. Sheldon v. City of Wheeling

• Decision Date: 07 November 1961
• Docket Number: No. 12113,12113
• Citation: 122 S.E.2d 427,146 W.Va. 691
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. Victor W. SHELDON et al. v. CITY OF WHEELING et al.

Page 427

122 S.E.2d 427

146 W.Va. 691

STATE ex rel. Victor W. SHELDON et al. v. CITY OF WHEELING et al.

No. 12113.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 6, 1961.

Decided Nov. 7, 1961.

Syllabus by the Court

The Council of the City of Wheeling is not authorized by its special charter, Chapter 141, Acts of the Legislature, 1935, either in express terms or by necessary implication, or by general statute, to enact an ordinance requiring the licensing of persons engaged in the trade or occupation of plumbing.

Thomas B. Miller, Schmidt, Laas & Schrader, Wheeling, for relators.

Jeremy C. McCamic, Asst. City Sol., Wheeling, for respondents.

GIVEN, Judge.

In this original proceeding in mandamus the State, at the relation of Victor W. Sheldon, Lawrence C. McWhorter and Frederick G. Andreas, plaintiffs, pray that a peremptory writ issue requiring the City of Wheeling, B. J. Killeen, Licensing Officer of the City of Wheeling, John Bremer, A. J. Sonnefeld and William McGannon, members of the Board of Examiners of Plumbers of the City of Wheeling, defendants, to grant the plaintiffs a license to engage in the trade or occupation of plumbing in that city. An answer was filed by defendants denying allegations of the petition which, in effect, alleged that the pertinent ordinance of the city purported to constitute authority for the licensing of plumbers was void, and that the action of the defendants in refusing such license, and the manner of holding an examination for plumbers' licenses, constituted arbitrary and capricious action on the part of defendants. Depositions taken by the parties were before the Court, briefs were filed, and oral arguments presented.

The city ordinance in question was enacted in 1946, and the pertinent provision thereof reads: 'License required. It shall be unlawful for any person to engage in or work at the plumbing trade or occupation, or to install or repair any plumbing system or plumbing fixtures within the City of Wheeling without first obtaining from the licensing officer of said City a Master or journeyman plumber's license.'

Procedure is set up by the ordinance for the holding of examinations and licensing of plumbers, and the ordinance declares it to constitute a criminal offense for any person to violate the ordinance by doing plumbing within the city without a license, and penalties of fines and imprisonment are provided for such violations, and apparently petitioners were threatened or had reason to believe threats were made to have them criminally prosecuted if they undertook to engage in plumbing work in the city.

The plaintiffs were given examinations, pursuant to the procedure provided by the ordinance, and failed to pass the examination, but claim that the requiring of an examination, and the manner of conducting the examination by the defendants, constituted arbitrary and capricious action on the part of the defendants. The facts contended to constitute arbitrary and capricious action relate primarily, at least, to the practice of defendants in granting without examination such licenses to individuals who complete certain schooling at a school supported and operated by a so-called 'Joint Apprenticeship Committee', composed of three members of the local plumbers union and three members of the local master plumbers association, while requiring others to subject themselves to examinations.

Plaintiffs also contend that though the city is found to have been granted power to enact such a licensing ordinance, the ordinance here involved is invalid for the reason that no sufficient standards are provided as to the manner of its application or enforcement.

It appears not to be seriously contended that the charter of the city contains no express or implied authority for the enactment of the ordinance provision here involved. Apparently the charter, Chapter 141 of the 1935 Acts of the Legislature, Section 2 thereof, was relied on for the granting of such power, but that section has been declared ineffective as a grant of such power. State ex rel. Tucker v. City of Wheeling, 128 W.Va. 47, 35 S.E.2d 681; Law v. Phillips, 136 W.Va. 761, 780, 68 S.E.2d 452, 463, 33 A.L.R.2d 95. Actual reliance for such power of the municipality apparently rests on certain provisions relating to general powers granted municipalities found in Code, 8-4-10, as amended, such as the power 'to prevent injury or annoyance to the public or individuals from anything dangerous, offensive or unwholesome', or the power 'to protect the persons and property of the inhabitants'. The controlling question,...