State v. Clarke Plumbing & Heating, Inc., 35802

• Decision Date: 26 December 1952
• Docket Number: No. 35802,35802
• Parties: STATE v. CLARKE PLUMBING & HEATING, Inc.
• Court: Minnesota Supreme Court

Page 667

56 N.W.2d 667

238 Minn. 192

STATE v. CLARKE PLUMBING & HEATING, Inc.

No. 35802.

Supreme Court of Minnesota.

Dec. 26, 1952.

Syllabus by the Court

1. In a prosecution for the violation of an ordinance, the mere fact that defendant is licensed to practice the trade with which the ordinance is concerned will not prevent him from defending the action on the ground that the ordinance is unreasonable or unconstitutional.

2. Where a statute requires that plans for heating installations must be prepared by a 'Registered Professional Engineer' in cases where the cost involved exceeds $10,000; and an ordinance requires that such plans must be so prepared in cases where the area involved exceeds 100,000 cubic feet; Held that insofar as the ordinance makes such preparation necessary where the statute does not, the ordinance is reasonable and constitutional in view of the probability of greater accuracy and uniformity when so prepared.

3. The classification established by a permit ordinance, requiring preparation of plans by a 'Registered Professional Engineer' in the case of heating installations over 100,000 cubic feet, is a reasonable classification in view of probable greater complexity and danger in the larger installations.

L. W. Crawhall, Minneapolis, for appellant.

John Bonner, City Attorney, Leo P. McHale, Assistant, and Raymond H. Hegna, Assistant, Minneapolis, for respondent.

LORING, Chief Justice.

This is a prosecution for the violation of an ordinance of the city of Minneapolis brought in the municipal court of that city. Defendant is a corporation engaged in the business of installing heating and plumbing equipment and is licensed by the city of Minneapolis to install heating systems as required by an ordinance passed October 25, 1935. ¹ Another ordinance, passed June 28, 1935, requires a separate permit for each installation of heating equipment where the space to be heated exceeds 100,000 cubic feet. ² Only licensed installers can obtain a permit. Pursuant to the terms of this latter ordinance, defendant applied for a permit for a certain heating installation involving space in excess of 100,000 cubic feet and submitted the plans for this installation to the city building inspector. The plans admittedly conformed to all requirements of the permit ordinance, except that they were not 'prepared and signed by a 'Registered Professional Engineer' duly qualified by registration as required by (state law).' On the sole basis of this deficiency, the building inspector refused to issue the permit. Defendant, nevertheless, proceeded with the installation and this prosecution followed.

There was no dispute as to the facts. The sole defense offered by defendant was that certain provisions of the permit ordinance are unreasonable and unconstitutional. The prosecution contended that, by accepting a license, defendant was bound by the provisions of the permit ordinance and could not raise the question of their reasonableness or constitutionality. This appeal is from the judgment of the lower court, finding defendant guilty of violating the ordinance.

1. A municipal corporation is a governmental subdivision of limited powers, which, generally, are contained in the city charter or other enabling legislation. Enactments of the governing body of a city must not only be within this delegated authority but also must not conflict with the federal or state Constitution or the state law. State ex rel. Lachtman v. Houghton, 134 Minn. 226, 158 N.W. 1017, L.R.A.1917F, 1050; Monaghan v. Armatage, 218 Minn. 108, 15 N.W.2d 241, appeal dismissed 323 U.S. 681, 65 S.Ct. 436, 89 L.Ed. 552; Lovell v. City of Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949. Furthermore, where the authority of the city to enact any given regulation or ordinance is, by its terms, General, any ordinance passed pursuant thereto must be a Reasonable exercise of that power, or it will be pronounced invalid. State v. Houston, 210 Minn. 379, 298 N.W. 358; Village of Golden Valley v. Minneapolis N. & S. Ry., 170 Minn. 356, 212 N.W. 585; and see authorities collected in dissent to Anderson v. City of St. Paul,226 Minn. 186, 205, 32 N.W.2d 538, 548. It, therefore, has always been a good defense to a prosecution for the violation of an ordinance to assert that, by its very terms, the ordinance is unreasonable or unconstitutional on its face. See State v. Lindquist, 171 Minn. 334, 214 N.W. 260. Such is the position of defendant in the case at bar. ³ However, it is the position of the prosecution here that defendant in this case is estopped or otherwise prohibited from asserting the invalidity of the ordinance because he is licensed to practice the trade with which the ordinance is concerned. The answer to this contention is simply that this action, whatever the true nature of it may be, ⁴ definitely involves the possibility of defendant being deprived of liberty or property. ⁵ It is, therefore, quite proper to defend the action on the grounds that the substantial or constitutional rights of defendant have been infringed by the enforcement of the ordinance. See State v. Wilson, 212 Minn. 380, 382, 3 N.W.2d 677, 678, and cases cited therein. There may be certain situations in which a person is prevented by his conduct from asserting the invalidity of a law, ⁶ but, in a prosecution for the violation of a city ordinance, the mere fact that defendant is licensed to practice the trade with which the ordinance is concerned will not prevent him from defending the action on the grounds that the ordinance is unreasonable or unconstitutional. A similar contention was presented to the United States Supreme Court in W. W. Cargill Co. v. State of Minnesota, 180 U.S. 452, 468, 21 S.Ct. 423, 429, 45 L.Ed. 619, 626, and, in upholding the right of the state of Minnesota to license grain elevators, the court said:

'The defendant, however, insists that some of the provisions of the statute are in violation of the Constitution of the United States, and if it obtained the required license, it would be held to have accepted all of its provisions, and (in the same words of the statute) 'thereby to have agreed to comply with the same.' § 1. The answer to this suggestion is that the Acceptance of a license, in whatever form, will not impose upon the licensee an obligation to respect or to comply with any provisions of the statute or with any regulations prescribed by the state railroad & warehouse commission that are repugnant to the Constitution of the United States. A license will give the defendant full authority to carry on its business in accordance with the valid laws of the state and the valid rules and regulations prescribed by the commission. If the commission refused to grant a license, or if it sought to revoke one granted, because the applicant in the one case, or the licensee in the other, refused to comply with statutory provisions or with rules or regulations inconsistent with the Constitution of the United States, the rights of the applicant or the licensee could be protected and enforced by appropriate judicial proceedings.' (Italics supplied.)

See, also, United States v. Smith, 1 Cir., 39 F.2d 851, 856; United States v. McMurtry, D.C., 48 F.2d 258, 261. ⁷

This court has indicated similar limitations:

'* * * The rights and liberty of the citizen are all held in subordination * * * to such Reasonable regulations and restrictions as the Legislature may from time to time prescribe. (Citing cases.)' (Italics supplied.) State v. Hovorka, 100 Minn. 249, 252, 110 N.W. 870, 871, 8 L.R.A.,N.S., 1272, 10 Ann.Cas. 398. Quoted with approval in Abeln v. City of Shakopee, 224 Minn. 262, 28 N.W.2d 642.

See, also, Minneapolis St. Ry. Co. v. City of Minneapolis, 229 Minn. 502, 40 N.W.2d 353, appeal dismissed, 339 U.S. 907, 70 S.Ct. 574, 94 L.Ed. 1335; Lee v. Delmont, 228 Minn. 101, 36 N.W.2d 530.

2. Since the question of reasonableness, as well as constitutionality, is a question of law for the court, we will pass on the question of the validity of the ordinance. Evison v. Chicago St. P. M. & O. Ry. Co., 45 Minn. 370, 48 N.W. 6, 11 L.R.A. 434. Defendant does not question the authority of the city council to pass an ordinance which requires a permit for the installation of heating equipment; ⁸ nor does he question the requirement that he submit plans. He does contend that it is unreasonable and unconstitutional to require that--

'* * * All such plans * * * except for single family or two family dwellings or * * * wherein the space to be heated, * * * does not exceed 100,000 cubic feet, shall be prepared and signed by a 'Registered Professional Engineer' duly qualified by registration as required by (state statute) and by no other person or persons.' Minneapolis City Charter and Ordinances (Perm. ed.) 3:1--102.

Defendant's principal argument is that, since the ordinance is very complete in detailed mechanical requirements and specifications of installation and construction, it is unreasonable to further specify that a 'Registered Professional Engineer' is the only person who can prepare and sign the plans. Defendant maintains that, if the plans meet all these standards, as determined by the city building inspector's office, nothing more can be accomplished by this additional requirement.

What both appellant and respondent fail to mention is the state requirements in such matters. M.S.A. § 326.02, subd. 1, reads:

'* * * It shall be unlawful for any person to practice, * * * professional engineering, * * * unless such person is qualified by registration * * *.' § 326.53, subd. 1(1), makes violation a gross misdemeanor.

Section 326.02, subd. 3, defines who shall be deemed to be practicing professional engineering: ⁹

'Any person shall be deemed to be practicing professional engineering * * * who shall furnish any technical professional service, such as planning, design or supervision of construction for the purpose of assuring compliance with specifications...