State ex rel. Winkler v. Benzenberg

• Decision Date: 20 September 1898
• Citation: 101 Wis. 172,76 N.W. 345
• Parties: STATE EX REL. WINKLER v. BENZENBERG ET AL., COMMISSIONERS OF PUBLIC WORKS.
• Court: Wisconsin Supreme Court

101 Wis. 172

76 N.W. 345

STATE EX REL. WINKLER

v.BENZENBERG ET AL., COMMISSIONERS OF PUBLIC WORKS.

Supreme Court of Wisconsin.

Sept. 20, 1898.

Appeal from superior court, Milwaukee county; George E. Sutherland, Judge.

Mandamus, on the relation of Jacob Winkler, against George H. Benzenberg and others, commissioners of public works of the city of Milwaukee. Judgment for relator. Defendants appeal. Affirmed.Carl Runge and Moritz Wittig, Jr., for appellants.

Quarles, Spence & Quarles, for respondent.

WINSLOW, J.

The question involved in this case is as to the constitutionality of chapter 338 of the Laws of Wisconsin for 1897, entitled “An act relative to the licensing of plumbers and the supervision of the business of plumbing,” which chapter now appears as sections 959-53 to 959-59 of the Wisconsin Statutes for 1898. The relator was a competent plumber, of more than 20 years experience in the city of Milwaukee, and applied to the board of public works of said city for the renewal of his license as a plumber in said city, which was necessary, under the ordinances of the city, in order that he might carry on his business. This license was refused, not on the ground of incompetency, but simply because the relator had not been examined and procured a license such as is required by the act in question. Thereupon the relator brought this action of mandamus to compel the board of public works to grant him a license. A motion to quash the alternative writ was made and denied, and, the defendants declining to answer, final judgment was entered, directing a peremptory writ to issue, from which judgment this appeal was taken.

The provisions of chapter 338 aforesaid are, in substance, as follows: Section 1 provides that no person, firm, or corporation engaged in the business of plumbing, in cities of the first, second, or third class, should thereafter engage in such business, either as master plumber or journeyman plumber, unless such person, firm, or corporation first receives a license therefor as provided by the act. Section 2 provides that any person engaged in the business of plumbing, either as master plumber or as journeyman plumber, should apply to the board of public works, where such board exists, or to the board of health, and should thereafter be examined by the board of examiners provided for by the act, as to his qualifications for such business, and, “in the case of a firm or corporation, the examining or licensing of any one member of the firm or the manager of the corporation shall satisfy the requirements of this act.” Section 3 provides that, in every city of the first, second, or third class, having a system of water supply or sewerage, a board of examiners of plumbers should be appointed in the manner provided in the section, one of which board, at least, should be a practical plumber. Section 4 provides for the organization of the board, and requires the board to examine all applicants for license “as to their practical knowledge of plumbing, house drainage, and plumbing ventilation,” and, if satisfied of their competency, shall certify the same to the board of public works, and issue a license to the applicant, authorizing him to engage in the business of plumbing, as master plumber, or employing plumber, or as a journeyman plumber. The remaining sections of the act provide for the appointment of inspectors of plumbing, and for the establishment of rules and regulations as to plumbing work, and also provide a fine for the violation of the act.

The constitutionality of this law is attacked on two grounds, viz.: (1) Because it is unreasonable, in that it requires a mere journeyman plumber to be an expert in the science of sanitation; and (2) because it discriminates between persons of the same calling.

1. Such a law as the one before us can only be justified on the ground that it is a reasonable exercise of the police power, which power, as said by this court in State v. Burdge, 95 Wis. 390, on page 398, 70 N. W. 347, on page 349, is “that inherent...