State v. Mitchell
| Decision Date | 06 March 1940 |
| Docket Number | 73. |
| Citation | 7 S.E.2d 567,217 N.C. 244 |
| Parties | STATE v. MITCHELL. |
| Court | North Carolina Supreme Court |
William A. Sullivan, of Asheville, for defendant, appellant.
Harry McMullan, Atty. Gen., for the State.
Brooks McLendon & Holderness, of Greensboro, amicus curiae.
The defendant presents the following question for determination "Is a journeyman plumber, duly licensed under the ordinances of a municipality, who furnishes no materials supplies, or fixtures, but merely works at his trade as a plumber for an hourly wage, engaged in carrying on the business of plumbing and heating contracting, within the provisions of chapter 52 of the Public Laws of 1931, as amended by chapter 224, Public Laws 1939?" He likewise challenges the constitutionality of the law under which he stands indicted for that it is contrary to the provisions of the Fourteenth Amendment to the Constitution of the United States and of Art. 1, §§ 1, 7, 17 and 31 of the Constitution of North Carolina.
If the answer to the first question presented is "no", the constitutionality of the Act becomes immaterial and requires no discussion.
The original act creating the "State Board of Examiners of Plumbing and Heating Contractors", ch. 52, P.L.1931, did not undertake to define "Plumbing And Heating Contracting Business"; nor did it prescribe the standard of efficiency to be required of an applicant for license by the Board of Examiners. The amendment which is material in consideration of the question presented on this appeal, ch. 224, P.L.1939, undertakes to remedy these defects in the original act.
The purpose of the Act as declared in the caption is the same: "Relating To The Licensing Of Plumbing And Heating Contractors." For the purpose of the Act "plumbing shall be deemed and held to include the plumbing system of a building consisting of water supply distributing pipes, the fixtures and fixture traps, soil, waste and vent pipes, all with their devices, appurtenances and connections, and all within, adjacent to or connected with the building, however shall not include the repair or installation of water supply pipe from the street to plumbing fixtures not connected with the sewerage or ventilating systems or to the repair or replacement of outside water faucets." Section 3. Heating "shall be deemed and held to include all heating systems of a building requiring the use of high or low pressure steam, vapor, hot water, warm or conditioned air, and all piping, ducts, connections or mechanical equipment appurtenant thereto within, adjacent to or connected with the building."
In considering the licensing of an applicant the board is required to give an examination "designed to ascertain the technical and practical knowledge of the applicant concerning the analysis of plans and specifications, estimating costs, construction, fundamentals of design and installation, sanitation, fire hazards, and related subjects." All applicants who, upon such examination, are found by the board "to be qualified to engage in and carry on the business of either plumbing or heating contracting, or both, as defined in this Act, shall be entitled to and shall receive a license to do so."
Section 6 of the amendatory act then provides that: "Any person, firm or corporation who shall engage in or offer to engage in, or carry on the business of either plumbing or heating contracting *** as defined in Section six of this Act, without first having been licensed to engage in such business, or businesses, as required by the provisions of this Act *** shall be guilty of a misdemeanor."
"Plumbing" is defined in terms of the "plumbing system" of a building. The clause "consisting of", etc., immediately following is an adjective phrase which qualifies and defines "plumbing system" and not "plumbing." The adjective phrase merely lists the numerous items and integral parts of such a system. Contrary to the implications of the argument advanced by the State the modifying phrase does not extend the meaning of the words "system" and "systems" but merely clarifies the idea-content of such words by giving an inventory of the units in each case constituting such a "system". By the terms of the Act itself the Act extends only to those contractors who contract to install or restore entire plumbing systems and heating systems for buildings or to make substantial alterations thereof. This seems to be the meaning and clear intent of the language.
That this was the legislative intent is emphasized by other language in the Act.
The meaning of the term "contractor" is not defined by the Act and, accordingly, we must give to it the normal and ordinary meaning assigned to the word. Although the term "contractor", in a strict sense, may be applied to anyone entering upon a contract, it is commonly reserved to designate one who for a fixed price undertakes to procure the performance of work on a large scale, or the furnishing of goods in large quantities for the public or a company, or individual. McCarthy v. Second Parish, 71 Me. 318, 36 Am.Rep. 320; Brown v. German-American Trust Co., 174 Pa. 443, 34 A. 335; Koppe & Steinichen v. Rylander, 29 Ga.App. 41, 114 S.E. 81, 83.
As the performance of work "on a large scale" is one of the essential elements of the meaning of the word "contracts", a definition of the term tends to show that the act was intended to apply to persons who for a fixed price undertake to provide plumbing and heating systems for entire buildings.
The caption declares the purpose of the Act to be the licensing and regulation of plumbing and heating contractors. Plumbing is made to relate to the plumbing system. The examination is designed to ascertain the technical and practical knowledge on the part of one who engages in the business of installing plumbing systems. As there are no provisions for the issuance of a limited license to engage in the plumbing contracting business only (while there is such a provision as to the heating contracting business), the applicant seeking a license to engage in the plumbing business must have technical and practical knowledge both of plumbing systems and of heating systems. The licensed contractors when associated with a non-licensed contractor or when employing assistants, is required to execute contracts, exercise general supervision over the work done and be responsible for compliance with all of the provisions of the Act. He is required to possess technical and practical knowledge concerning analysis of plans and specifications, estimating costs, construction, fundamentals of design and installation, sanitation, fire hazards and relating subjects.
These are qualifications, terms and conditions which we would naturally expect to be required of one who is in the contracting business, installing and making substantial alterations in plumbing systems. While, on the other hand, they are stipulations which when applied to an ordinary journeyman plumber who simply replaces a fixture in a plumbing system already installed would seem to be arbitrary and unreasonable. The analysis of plans and specifications, the estimation of costs, the fundamentals of design and installation and the like are scarcely matters essential to the familiar and effective use of the pipe wrench and "plumber's friend." When we summon the overalled plumber to repair a bursted pipe or to replace a defective fixture or to adjust a leaking faucet, we neither demand or expect that he be an authority on engineering, costs accounting, architecture, sanitation or fire prevention.
It is a matter of common knowledge that the plumbing system is "ruffed in" in accord with plans and specifications while the building is being constructed. The water supply distributing pipes and the soil, waste and vent pipes together with their devices, appurtenances and connections are already provided. The attachment of fixtures is merely incidental and does not and cannot interfere with the general plan of the system. It merely has to be attached to the wall and connected to the water supply pipe and the outlet pipe which are...
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