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The People v. Brown





WRIT OF ERROR to the County Court of Massac County; the Hon. CARL H. SMITH, Judge, presiding.


Rehearing denied January 15, 1951.

An amended information filed in the county court of Massac County contained the charge defendant in error Brown had engaged in the business of master plumber in Metropolis when he did not have a master plumber license as required by the Illinois Plumbing License Law. (Ill. Rev. Stat. 1949, chap. 111 1/2, pars. 95 to 116, incl.) Brown filed a motion to quash the information, alleging the Plumbing License Law to be unconstitutional for several reasons. The county court entered a judgment, declaring sections 2, 5 and 7 of the act violated articles II and III of the State constitution and the fourteenth amendment to the Federal constitution, and Brown was ordered discharged from custody. This court allowed the People a writ of error under section 17 of division XIII of the Criminal Code. Ill. Rev. Stat. 1949, chap. 38, par. 747.

Defendant concedes the State, in the lawful exercise of its police power, may regulate the trade or occupation of plumbing, but contends the act in question does not constitute a lawful exercise thereof. The legislature declared it to be "An Act in relation to the regulation of plumbing and licensing of Master Plumbers, Journeyman Plumbers and registration of Plumber's Apprentices, and for the protection of public health, and repeal of a certain Act therein named." The act under attack is the third one enacted by the legislature for the regulation of plumbers and the plumbing trade or occupation. The first was the Plumbing License Act of 1897 (Laws of 1897, p. 279); it was succeeded by the Plumbers Licensing, Supervision and Inspection Act of 1917, (Laws of 1917, p. 520,) which was repealed by the present act. The validity of the present act has never been attacked, wholly or in part, in this court, except as to whether it applied to the trade of drain layer. Scully v. Hallihan, 365 Ill. 185.

The People having assigned error on the judgment holding the listed sections of the act invalid, this court finds it necessary in determining that question of error to subject the whole of the act to a careful analysis, which in turn requires a somewhat detailed statement of, or quotations from, several of the sections thereof. Section IA defines "plumbing" as that word is used in the act. It is set forth in Scully v. Hallihan, 365 Ill. 185, 189,) except for the subsequent amendment (Laws of 1939, p. 836,) which declared "plumbing" as defined in the section was not applicable to property outside the corporate limits of a city, village or incorporated town and not subdivided into lots or blocks pursuant to law. Section 1B defines "Department" to mean the State Department of Registration and Education; similarly, section 1C defines "Board" to mean the State Board of Plumbing Examiners. Section 1D declares that "master plumber," when used in the act, means a person who has a license in effect, issued by the Department specifying he is a master plumber; section 1E likewise declares that a "journeyman plumber" is one who holds a similarly issued license specifying he is a journeyman plumber; and section 1F declares that a "plumber's apprentice" is one, other than a master or journeyman plumber, who has in effect a plumber's apprentice certificate of registration issued by the Department.

Section 2A positively declares no person shall engage in the business of master plumber, or as an employer of a journeyman plumber or plumber's apprentice, or shall enter into contracts or agreements for the installation, maintenance or repair of plumbing or perform any of the acts specified in the law for performance by a master plumber unless that person has in effect a master plumber license issued to him by the Department. Section 2B bars a person from working as a journeyman plumber unless he is licensed by the Department; and section 2C will not allow a person to be employed as a plumber's apprentice or enter into and continue such occupation unless he possesses the required certificate of the Department. Section 2G forbids a person to hold at the same time a license as a master plumber and one as a journeyman plumber, and no licensed journeyman plumber shall perform any of the acts or projects specified in the law for performance by a master plumber.

Section 3A authorizes a licensed master plumber to be a plumbing contractor, and additionally, to engage in all, some, or either of the businesses of planning, engineering, superintending, installing, maintaining and repairing plumbing in all its branches. He is authorized to employ journeyman plumbers and plumbers' apprentices, and other persons necessary for the proper conduct of the business of plumbing. Section 3B allows a licensed journeyman plumber to engage in his calling only as an employee of a licensed master plumber, partnership, firm or corporation authorized to engage in plumbing by the provisions of the act. A journeyman plumber as such employee is allowed to install, maintain and repair plumbing in all of its branches only under the general supervision of a licensed master plumber. Section 3C allows a registered and certified plumber's apprentice to engage in the employment of learning the plumbing trade, but he may only engage and continue in the plumbing trade as an employee of a licensed master plumber, partnership, firm or corporation authorized to engage in the plumbing business. Such employment of learning the trade must be under the direct personal supervision of a licensed master plumber, or a licensed journeyman plumber who is in the employ of a licensed master plumber. The apprentice is specifically forbidden to engage in any activity pertaining to plumbing which the act has specifically reserved for master plumbers and journeyman plumbers.

Section 5A lists the duties imposed upon the Director in implementing the act. He appoints the members of the Board, and in doing so he must obey the mandate of section 4 which fixes the number of Board members at three. One must be a master plumber possessing a master plumber license which has been in effect for at least two years; one must be a journeyman plumber possessing a license for that trade which has been in effect for two years; the third member appointed is not required to meet any bill of specifications. The section furthermore directs that in the filling of the positions held by the master plumber and the journeyman plumber the Director, "* * * shall give due consideration to the recommendations of the Illinois Master Plumbers Association * * * and the Illinois Association of Journeyman Plumbers and Steamfitters * * *," as such recommendations are conveyed to him in writing by the respective secretaries of the associations. Section 5 also requires the Director to make avail of the aid and recommendations of the Board, (a) in preparing the forms for application for examinations for journeyman plumber and master plumber. He is not required to call in such aid in the preparation of the license certificates, and certificates of registration for apprentices, (b) in prescribing the rules and regulations for the conduct of the examinations of applicants for licenses, and in preparing the subject matter of such examinations; (c) in prescribing the rules and regulations for hearings to revoke or reinstate licenses; (d) in prescribing the standards as to what shall constitute a recognized college or university, and in determining the conformance to such standards.

Section 4 creates the Board and subsections B and C of section 3 (inadvertently incorporated in section 3 instead of section 4 when the act was engrossed) specifies the duties imposed on the Board, and the pay of the members. Section 3B requires the Board to aid and co-operate with the Director when he is performing the duties imposed upon him by section 5. Further, the Board is to act as a committee for the purpose of making written reports and recommendations to the Director, and also to perform such other duties for the purpose of carrying out the provisions of the act as are from time to time prescribed by the Director.

Section 6 covers the subject of making application for the license of master plumber, journeyman plumber, and for certificate of registration of plumber's apprentice. Subsection A thereof makes the filing of an application for issuance of a master plumber license impossible unless, (1) it is accompanied by a $100 fee; (2) the applicant is a citizen of the United States; (3) is accompanied by the affidavits of applicant's employer or former employer (who must be licensed master plumbers,) or other satisfactory evidence showing the applicant has been actually engaged as a licensed journeyman plumber for at least five years; or has been graduated from a recognized college or university in either of the courses of plumbing, sanitary engineering, mechanical engineering, civil engineering or architectural engineering, and has also been employed by a licensed master plumber for at least two years as a licensed journeyman plumber; or has been a student in a recognized college or university pursuing any of the above enumerated courses of study for at least three years, and has been thereafter employed as a licensed journeyman plumber by a master plumber for at least three years. In subsection B the conditions precedent in regard to filing an application for a journeyman plumber license and taking the examination therefor are generally similar to those just stated except for the size of the fee. The affidavit accompanying the application must establish the applicant has been "occupied" as a plumber's apprentice for at least five years, or has pursued any of the prior mentioned courses of study in a recognized college or university for three years and has also served two years as a registered plumber's apprentice. Subsection C requires as conditions precedent to the filing of an application for a certificate of registration as a plumber's apprentice and for being registered, that the applicant must be at least sixteen years old, and the application be accompanied by the affidavit of a licensed master plumber stating the applicant is to be immediately employed by affiant master plumber upon issuance of the certificate of registration.

Section 7A, insofar as is pertinent to the present inquiry, requires all the examinations to be conducted by the Department with the aid and co-operation of the Board. Section 7B orders the Director to allow or deny applications for master plumber and journeyman plumber licenses upon the recommendation of the Board respecting each applicant, the licenses being issued by and in the name of the Department. Sections 11, 12, 13, 14, 15 and 16 pertain to the revocation of licenses of master plumber and journeyman plumber, and the certificates of registration of plumber's apprentice. Grounds for revocation are stated and provision is made for the initiation, conduct and termination of a proceeding for revocation. Section 12 requires the Board, acting under the supervision of the Department, to conduct a hearing on the charges specified in the complaint for revocation of a license or certificate of registration. Section 15 requires the Board, upon the conclusion of a hearing, to present to the Director a written report of its findings and recommendations. The Director shall then order the license or certificate of registration be revoked, or that the complaint be dismissed, in accordance with the recommendations of the Board. Rehearings are provided for, and the Board is the sole determiner whether a rehearing shall be granted. Section 17 provides a revoked license or certificate may be restored by the Department after there has been a hearing before the Board on the matter and it has recommended such be done. The Department cannot exercise any discretion but must comply with the recommendation of the Board.

Section 1 of article II of the State constitution declares all men have certain inherent and inalienable rights, three of them being the right to life, the right to liberty and the right to pursue happiness. Section 2 of the same article declares none of three named rights, plus the right of property, shall be taken from a person except by due process of law, i.e., the law of the land. A person's business, profession, trade, occupation, labor, and the avails from each constitute "property" envisioned in the two sections. The right to follow any of those activities is "liberty" as also envisioned therein. Those rights guaranteed by the constitution are not unqualified rights to be exercised regardless of harm to others at all times or places. There must be a yielding, partially or wholly, thereof for the common good of society when the State so commands through the rightful use of its inherent police power to secure either the public health, morals, safety, comfort or common welfare.

That power is great and reaches far, but its use is hedged with restrictions. The fact the legislature has invoked the police power for regulatory purposes directed against an activity such as a trade, etc., is not conclusive that the power was lawfully exercised. Whether it was lawfully used in a given instance is a judicial problem belonging exclusively to the courts. (Banghart v. Walsh, 339 Ill. 132.) The restraint imposed upon a legitimate activity by an exercise of the police power for regulatory purposes must be a reasonable one, be for the protection of the public health, morals, safety, comfort or common welfare, and also be reasonably adapted to attain the objective intended. (McDougall v. Lueder, 389 Ill. 141; Scully v. Hallihan, 365 Ill. 185; People v. Weiner, 271 Ill. 74.) Statutes enacted under that power must be construed, if possible, so as to avoid infringing any of those basic rights. (Meadowmoor Dairies, Inc. v. Milk Wagon Drivers' Union, 371 Ill. 377.) The legislature cannot enact a lawful statute by invoking the police power on the pretense of protecting public interests when the actual objective of the statute constitutes an arbitrary interference with private business, or imposes unusual and unnecessary restrictions upon lawful occupations; if such statute does not tend to preserve the public health, safety or welfare, it is void as an invasion of individual property rights. People v. Carolene Products Co. 345 Ill. 166.

Obstacles are interposed by the act to a person freely and of his own choice engaging in the occupation of master plumber, the trade of journeyman plumber, and the activity of learning the trade by apprenticeship. One cannot be a licensed master plumber unless he has prior thereto been a licensed journeyman plumber, and before that a certified registered plumber's apprentice. No matter how well qualified a person may be by instruction and training, he can never of his own free will and choice become a certified registered plumber's apprentice, a journeyman plumber or master plumber, unless a licensed master plumber so wills. The act does not load a licensed master plumber with the obligation of employing a person who desires to enter into an apprenticeship. The refusal to employ one as an apprentice need not be based upon any valid reason. It may be an arbitrary refusal, it may be a refusal predicated upon an understanding between master plumbers to limit the number of apprentices learning the trade, and it may be upon one, or some, of the facts of race, color or creed. The act does not allow a person to learn the trade of journeyman plumber by acquiring the necessary instruction and training in any way, other than as an apprentice to a licensed master plumber. Just the refusal to employ will effectually bar the way to an apprenticeship. The licensed master plumber is in full and absolute control of the situation, a private citizen exercising a power under the protection of the State which the State cannot lawfully exercise, i.e., the arbitrary denial to a citizen of his inherent and inalienable right to ...

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