Sullivan v. Johnson

• Decision Date: 14 March 1940
• Docket Number: 13901
• Citation: 7 S.E.2d 900,189 Ga. 778
• Parties: SULLIVAN v. JOHNSON.
• Court: Georgia Supreme Court

7 S.E.2d 900

189 Ga. 778

SULLIVAN v. JOHNSON.

13901

Supreme Court of Georgia

March 14, 1940

Syllabus by the Court.

1. In the instant suit for the writ of mandamus, in which the plaintiff sought to compel the superintendent of electrical affairs of the City of Atlanta to issue to him a permit for specified electrical construction, which permit the defendant refused because the plaintiff had not stood an examination for license as master electrician in pursuance of an ordinance of the city, the petition was not defective for the reason that the plaintiff did not first appeal from the order of the superintendent to the electric light committee under section 35 of the ordinance, it appearing that this section has no reference to refusal of permits based upon such ground.

2. According to the record, the plaintiff is an individual doing business as an electrical contractor. He applied to the defendant for a permit to do described electrical work in that capacity. The ordinance provides for examination of persons desiring to qualify as master electricians, and for issuance of license accordingly to persons who are successful in passing the examination. Section 51 provides as follows 'Every electrical contractor before performing any job of electrical installation, construction, or repair shall apply for and obtain a permit from the superintendent of electrical affairs authorizing him to do such work. No such permit shall be issued unless and until said electrical contractor is himself a licensed master electrician or has in his employ and in charge of all his electrical work one who is a licensed master electrician.' [Italics by the court.] By section 49 any person who successfully passed an examination in pursuance of any previous ordinance is entitled to a certificate as a master electrician, without further examination, on payment of the annnal license fee, provided the certificate is still in effect at the time he applies for a certificate as master electrician. The petition assailed the provisions of section 49 and other portions of the ordinance, relating to examination, upon the ground that the exemption provided by section 49, being based upon ordinances which had been held void for unconstitutional discrimmation rendered the other provisions as to examination invalid for like discrimination. Held, that in the circumstances the exemption provided by section 49 was unlawful, and operated to invalidate the other provisions of the ordinance, as contended.

3. Section 53 of the ordinance provided as follows: 'Each person holding a master electrician's certificate shall register with the superintendent of electrical affairs the person, firm, or corporation with whom he is connected, and shall not be employed by more than one person, firm, or corporation at the same time. No licensed master electrician shall permit the use of his name as an employee by an electrical contractor unless and until he is a bona fide employee of such electrical contractor. If any master electrician severs his connection with the electrical contractor by whom he is employed, he shall immediately notify the superintendent of electrical affairs in writing of same.' This section, and the portion of section 51 italicised in the preceding note, were alleged to be invalid for unreasonableness, and also because they violated the dueprocess clauses of the State and Federal constitutions. Held, that these provisions, so far as they require exclusive employment of a master electrician, are unreasonable and void as tending to monopoly; also as imposing an undue burden upon the plaintiff's right to engage in the business of electrical contractor.

4. Under the facts of the record, suit for the writ of mandamus was the appropriate remedy, and the court erred in refusing a mandamus absolute.

M. J Sullivan, doing business as Sullivan Electric Company, filed a petition against Dewey L. Johnson, superintendent of electrical affairs of the City of Atlanta, seeking for mandamus to compel the defendant to issue a permit applied for by the plaintiff to do specified electrical work in the City of Atlanta, and to issue other permits for which petitioner might apply in like instances. Attached to the petition was a copy of an ordinance of the city, adopted by the general council on June 5, and approved by the mayor on June 6, 1939, entitled 'An ordinance to regulate the supervision of electrical energy and the installation of electrical construction, equipment, and appliances in the City of Atlanta.' Various provisions of this ordinance were attacked as unconstitutional, for reasons stated in the petition, and hereinafter set forth. A mandamus nisi was issued. The defendant filed an answer or response, the legal purport of which was to admit most of the plaintiff's allegations of fact, but in which the conclusions of law as to the invalidity of the ordinance were categorically denied. The case came on for hearing on the question whether the mandamus should be made absolute. It was tried before the judge without a jury on the petition and the answer, and the following portion of an affidavit of the defendant Johnson, other portions being excluded: 'Deponent says that opportunity given him through a period of ten and one half years in observing electrical installations convince him that in order to determine the qualifications of a person who desires to engage in the business of master electrician it is necessary that some one conduct an examination. The city ordinance requires that each group engaged in the electrical construction industry by represented on the board; namely, master electrician, supply house, utility and journeyman electrician.' The petition alleged that the superintendent had refused to issue a permit because petitioner had not stood an examination and secured a master electrician's license as required by the ordinance, and the validity of the provisions as to such examination was the principal question for determination in the court below, as it is in this court. The judge held the ordinance valid, and denied a mandamus absolute, and the plaintiff excepted.

The petition contained the following allegations: The plaintiff has had more than ten years experience as an electrician, either as a contractor for electrical wiring or as an actual workman in this line of business. He has obtained from the clerk of the city council a license to do business as an electrical contractor, according to section 40 of the ordinance providing that any person desiring to engage in such business shall obtain a license and pay therefor a fee of $75 per annum. The license so obtained will not expire until June 30, 1940.

On July 17, 1939, the plaintiff applied to the defendant, as superintendent of electrical affairs, for a permit to instal described electrical wiring for a named person residing at a stated residence in the city, which application for permit was made on the form prescribed by the city for permits to do electrical work. The defendant refused to issue said permit, notwithstanding it was his duty to do so. He 'refused to issue said permit because petitioner had not stood an examination and secured a master electrician's license as provided in said ordinance.' 'Unless the defendant is compelled to perform his duty under said ordinance by issuing permits to petitioner upon application therefor, the petitioner will suffer irreparable damage as a result of the defendant's failure and refusal to perform his legal duty, in that petitioner cannot further pursue his work and occupation as an electrical contractor and make a livelihood for himself, so long as the defendant can arbitrarily deprive him of his right to complete his contracts for doing electrical work.'

Section 1 of the ordinance created the office of superintendent of electrical affairs. Section 2 described in general terms the duties of this officer. Sections 3 to 7, inclusive, dealt further with his duties and responsibilities. Sections 8 to 33 related mainly to the manner in which electrical installation, construction, and repair should be done, and prescribed requirements to be complied with by those engaging in such work. Section 11 provided that before the beginning of any such work an application for permit should be made to the superintendent of electrical affairs on forms furnished for that purpose, which application should contain an accurate and detailed account of the electrical work contemplated. Section 17 provided for inspection and approval under authority of the superintendent. Section 34 provided that the superintendent should have authority to condemn any electrical wiring, equipment, or appliances which in his opinion is unsafe to life or property. Section 35 was as follows: 'Appeal may be made from any order of the superintendent of electrical affairs to the electric-light committee, and the order of that committee shall be final in the matter.' Section 39 provided that the term 'electrical contractor' as used in the ordinance shall 'mean any person, firm, or corporation engaging in the business of electrical installation, construction, and repair.' Other sections were as follows:

41. 'The term 'journeyman electrician' as used herein shall mean any person actually doing the work of electrical installation, construction, and repair. No license shall be required of a journeyman electrician, but, except as hereinafter provided, he shall at all times be working under the supervision of a master electrician as hereinafter set out.'

42. 'The term 'master electrician' as used herein shall mean any person who shall have passed the examination hereinafter set out, and who shall have been issued a certificate by the superintendent of electrical affairs, all as hereinafter set out.

43. 'An...