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Pascal P. Paddock, Inc. v. Glennon

JANUARY 9, 1964.




Appeal from the Circuit Court of Piatt County; the Hon. BIRCH E. MORGAN, Judge, presiding. Reversed.


Rehearing denied March 2, 1964.

Defendants have appealed from a decree entered against them in a Mechanic's Lien foreclosure proceeding brought by plaintiff.

Defendants, Robert and Martha Glennon, husband and wife, own certain real estate leased to Bement Holiday Swim Club, a Corporation, of which Robert was president. Plaintiff and defendant corporation entered into a contract for the construction of a swimming pool and bathhouse on the Glennon property. The price stipulated in the contract was $71,443.60, which included a number of nonlienable items. Payments amounting to $11,125 were paid to the contractor, leaving an unpaid balance of $60,760, which amount the court found due the plaintiff.

The principal ground upon which defendants base their appeal is that the major portion of the construction work undertaken by plaintiff consisted of plumbing which was performed by persons who were not licensed plumbers contrary to the Illinois Plumbers License Law; and that there can be no recovery for work done by such non-licensed plumbers.

Section 116.38 of the Plumbing License Law (c 111 1/2 Ill Rev Stats 1959) provides in part as follows:

"Sec. 3. (1) All planning and designing of plumbing systems and all plumbing shall be performed only by plumbers licensed pursuant to the provisions of this Act hereinafter called "licensed plumbers" . . .

The public policy underlying the enactment of the Plumbing License Law is stated in section 116.36 thereof in this language:

"Consistent with its duty to safeguard the health of the people of this State, the General Assembly therefore declares that individuals who plan, install, alter, extend, repair and maintain plumbing systems should be individuals of proved skill. To insure such skill and thereby protect the public health, this Act is declared to be essential to the public interest."

Section 116.63 of the Act provides penalties by way of fine or imprisonment for violation of any provision of the Act. It is also recited in said section that it is a public nuisance for any person to perform the work of plumbing without having in effect the license required by said Act.

The record here discloses that James Cotner, who was assistant secretary-treasurer of the plaintiff corporation, was a licensed plumber; that construction of the pool started April 25, 1961, and was completed about July 15, 1961; that while the pool was under construction, Cotner visited the site no more than four or five times; that all of the work on the pool was done by persons who were not licensed plumbers. It appears to be clear that aside from the infrequent visits of Cotner to the construction site, no licensed plumbers were present on the construction site, nor participated in any of the plumbing work done on the pool.

Although in some situations the courts of this state have held noncompliance with licensing laws not to be a bar to a contractor's right to recover, the general rule is that where the statute prohibits an unlicensed person from engaging in certain work, the statute is held to be regulatory and enacted under the police power of the state rather than a revenue measure, and a contract by an unlicensed person to do such work is void and unenforceable. In Wright v. Baird, 249 Ill. App. 90, an unlicensed plumbing firm sought to recover for labor and materials furnished under a contract with a landowner. It was there contended that because the Plumbing License Act did not provide that contracts in violation thereof were void, the Act was merely a revenue measure and did not affect the enforceability of contracts. This court rejected such an argument, and had this to say:

"Appellant contends that appellees cannot recover for any work done or material furnished in the line of plumbing without having complied with the act of the general assembly regulating plumbers, passed June 29, 1917, and that is one of the principal questions in the case. Appellees contend that the act is a measure merely to procure revenue and in no manner affects the validity of the contract expressed or implied. The title of the act (Cahill's St ch 109a) is: `An Act to provide for the licensing of plumbers, and to provide for the supervision and inspection of plumbing and providing penalties for the violation thereof.' The act provides: `Any person now or hereafter engaging in or working at the business of plumbing . . . shall first receive a certificate thereof in accordance with the provisions of this Act.' Section two, Cahill's St ch 109a, Paragraph 2, provides: `Any person desiring to engage in or work at the business of plumbing either as a master plumber or employing plumber or as a journeyman plumber, shall make application to a board of examiners . . . and be compelled to pass such examination as to his qualifications as said board with the approval of the Department of Registration and Education may direct.' . . . The act further provides that any person violating any provision of the act shall be guilty of a misdemeanor and penalties are provided therefor.

"It seems plain from the reading of the statute that the measure is broader than a mere act to procure revenue, and that its purport is to conserve the health of the citizens of the State, ...

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