State v. Smith

• Decision Date: 09 March 1906
• Parties: STATE ex rel. RICHEY v. SMITH, Sheriff of King County.
• Court: Washington Supreme Court

84 P. 851

42 Wash. 237

STATE ex rel. RICHEY v. SMITH, Sheriff of King County.

Supreme Court of Washington

March 9, 1906

Appeal from Superior Court, King County.

Habeas corpus, on relation of A. J. Richey, against L. C. Smith sheriff of King county, to secure relator's discharge from custody. From a judgment remanding relator, he appeals. Reversed.

E. H Flueck, for appellant.

Kenneth Mackintosh and John B. Hart, for respondent.

RUDKIN, J.

The appellant was convicted before one of the justices of the peace of King county of the crime of engaging in the business of plumbing as a journeyman plumber in violation of section 12 of the act of March 4, 1905 (Laws 1905, p. 130, c. 66) entitled 'An act to regulate plumbing in cities having a population of ten thousand inhabitants or over, providing for the licensing of persons to carry on the business and work of plumbing, creating a board of plumbing examiners, fixing the compensation of plumbing examiners, providing a penalty for the violation hereof and repealing all acts in conflict herewith,' without first having obtained a license so to do, as prescribed by the preceding section of said act, and was sentenced to pay a fine of $15 and costs of prosecution. He was committed to the custody of respondent as sheriff of King county, in execution of this sentence, and applied to the superior court for a writ of habeas corpus, on the ground that the restraint and imprisonment were illegal: (1) Because said act violates section 1 of article 14 of the amendments to the Constitution of the United States; (2) because said act violates sections 3 and 12 of article 1 of the Constitution of the state of Washington; and (3) because said act is an unlawful delegation of legislative power. The writ was refused, and from the order denying the writ this appeal is prosecuted.

The power of the Legislature to make all needful rules and regulations for the health, comfort, and well-being of society cannot be questioned, but there are certain limits beyond which the Legislature cannot go, without trenching upon liberty and property rights which are safeguarded by the state and federal Constitutions. As said by the court in Re Jacobs, 98 N.Y. 108, 50 Am. Rep. 636: 'The limit of the power cannot be accurately defined, and the courts have not been able or willing definitely to circumscribe it. But the power, however broad and extensive is not above the Constitution. * * * Generally it is for the Legislature to determine what laws and regulations are needed to protect the public health and secure the public comfort and safety, and while its measures are calculated, intended convenient, and appropriate to accomplish these ends, the exercise of its discretion is not subject to review by the courts. But they must have some relation to these ends. Under the mere guise of police regulations, personal rights and private property cannot be arbitrarily invaded.' And in Re Aubrey, 36 Wash. 308, 78 P. 900, 104 Am. St. Rep. 952, this court said: 'It may be stated, as a general principle of law, that it is the province of the Legislature to determine whether the conditions exist which warrant the exercise of this power; but the question, what are the subjects of its exercise, is clearly a judicial question. One may be deprived of his liberty, and his constitutional rights thereto may be violated, without the actual imprisonment or restraint of his person. 'Liberty' in its broad sense, as understood in this country, means the right, not only of freedom from actual servitude, imprisonment, or restraint, but the right of one to use his faculties in all lawful ways, to live and work when he will, to earn his livelihood in any lawful calling, and to pursue any lawful trade or avocation. All laws, therefore, which impair or trammel these rights--which limit him in his choice of a trade or profession--are infringements upon his fundamental rights of liberty, which are under constitutional protection.' Acts of similar import, but relating to different professions, trades, and occupations, have often been before this court. Thus in State v. Carey, 4 Wash. 424, 30 P. 729, an act regulating the practice of medicine and surgery was sustained. In State ex rel. Smith v. Dental Examiners, 31 Wash. 492, 72 P. 110, and in Re Thompson, 36 Wash. 377, 78 P. 899, a similar act regulating the practice of dentistry was upheld. In State v. Sharpless, 31 Wash. 191, 71 P. 737, 96 Am. St. Rep. 893, involving the validity of the act regulating the business of barbering, a similar ruling was made. But, in Re Aubrey, supra, an act regulating the business of horseshoeing was declared unconstitutional and without the police power of the state. Some of the acts considered in the above cases were manifestly needful and proper for the protection of the public health, others were on the border line.

Acts similar to the one now before us have been before the courts of last resort in a number of states. In Singer v State, 19 A. 1044, 8 L. R. A. 551, the Court of Appeals of Maryland held that an act regulating the business of plumbing was a valid police regulation. In State v. Gardner, 51 N.E. 136, 41 L. R. A. 689, 65. Am. St. Rep. 785, the Supreme Court of Ohio held that the business of plumbing was a proper subject for police regulation, but the Ohio act was declared unconstitutional because it discriminated between individuals, and firms and corporations. In State v. Benzenberg, 76 N.W. 345, the Supreme Court of Wisconsin made a similar ruling. In State v. Justus, 97 N.W. 124, the Supreme Court of Minnesota held that the business of plumbing was a proper subject for police regulation, but the Minnesota act was declared unconstitutional because its classification was arbitrary and unreasonable. In People v. Warden, etc., 144 N.Y. 529, 39 N.E. 686, 27 L. R. A. 718, a bare majority of the Court of Appeals upheld the validity of the plumbing act of that state. The only difference between the New York act and our own lies in the fact that the former applied to employing or master plumbers only, while the latter includes journeyman plumbers as well. No importance was attached to this omission or difference, however, in either the majority or dissenting opinion. Indeed, the objection could only go to the efficacy of the law, and not to its validity; for, if the subject can be regulated in its entirety, it can be regulated in part. The majority opinion concedes 'that the act skirts pretty closely that border line beyond which legislation ceases to be within the powers conferred by the people of the state, through the Constitution, upon its legislative body.' In his dissenting opinion, concurred in by two of the other justices, Mr. Justice Peckham said: 'It is said this is proper and right in order that the public may have some assurance that the master or employing plumber is not alone capable of following his trade as such, but that he has sufficient knowledge of the laws of health as applicable to plumbing to enable him scientifically to follow that trade as a master plumber. It is to be observed that the examination does not necessarily call for any such knowledge. The act can be complied with, so far as this examination is concerned, if the applicant has but the most ordinary knowledge of the laws of his trade and the proper way to follow it practically. It is true the board may demand much more than that, and much more than was ever necessary to practically pursue the trade. If such additional knowledge were exacted it would be in fact adding to the known and ordinary qualifications necessary to carry on the well-recognized trade of a plumber, those other and entirely different and much superior qualifications necessary in one who intended to conduct the professional business of a sanitary expert with regard to systems and general plans of plumbing. The Legislature has no power to impose such a condition upon one desiring to exercise such a trade. It has, as I believe, no power to prescribe that an individual who desires to follow the trade of a plumber shall be possessed of qualifications which do not naturally pertain to such a calling, and which are only possessed by persons qualified for the pursuit of a very different occupation, involving learning and skill of an uncommon order. The Legislature might probably provide for a sanitary inspection of plumbing work and thus secure a kind of work, as to its system and sufficiency, which might fairly be said to tend towards the protection of the health of the general public. But the trade of the practical plumber is not one of the learned professions, nor does such a tradesman hold himself out in any manner as an expert in the science of 'sanitation,' nor is any such knowledge expected of him, and this act, when practically enforced, may or may not exact it of him. This board has the very greatest and an entirely arbitrary discretion as to what qualifications it...