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People v. Johnson

OPINION FILED OCTOBER 17, 1977.

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,

v.

FRANCIS JOHNSON, APPELLEE.



Appeal from the Circuit Court of Kane County, the Hon. William D. Vanderwater, Judge, presiding.

MR. JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:

Defendant, Francis Johnson, was charged by criminal complaint with violating the Illinois Plumbing License Law (Ill. Rev. Stat. 1973, ch. 111 1/2, par. 116.36 et seq.) by installing plumbing pipe and fixtures without a plumber's license. He moved to dismiss the complaint on the ground that the provisions of the Act which have prevented him from taking the licensing examination are unconstitutional. The trial court agreed, and dismissed the complaint. The State appealed directly to this court pursuant to Rule 302(a)(1). 58 Ill.2d R. 302(a)(1).

Defendant has, as a general contractor, constructed numerous homes and apartment buildings in Kane County over the past 10 years. During his youth in South Dakota he acquired a knowledge of the plumbing trade from his father, and he used this knowledge to install the necessary plumbing in the buildings he constructed in Kane County. His work was inspected and approved repeatedly by various building inspectors, but he concedes that all the work was done without the license required by the Illinois Plumbing License Law. In 1974 he applied to the Department of Public Health to take the licensing examination. His application was rejected because he had not complied with certain statutory prerequisites for eligibility to take the examination, as provided by section 10 of the Act (Ill. Rev. Stat. 1973, ch. 111 1/2, par. 116.44):

"(2) The Director [of the Department of Public Health] shall promptly approve the application for examination if:

(d) the applicant has been engaged in plumbing as a registered plumber's apprentice for at least 5 years preceding the date of his application, or

(e) the applicant has submitted evidence that he has successfully completed an approved course of instruction in plumbing, sanitary engineering, or plumbing engineering in a trade school, college or university."

Section 8(8) of the Act (Ill. Rev. Stat. 1973, ch. 111 1/2, par. 116.42(8)) required the Director of Public Health to:

"Prescribe uniform and reasonable rules defining what constitutes an approved course of instruction in plumbing, sanitary engineering, or plumbing engineering in colleges, universities, or trade schools, and approve or disapprove the courses of instruction offered by such colleges, universities, or trade schools by reference to their compliance or noncompliance with such rules. Such rules shall be designed to assure that an approved course of instruction will adequately teach the design, planning, installation, replacement, extension, alteration and repair of plumbing. In prescribing such rules the Director may consult with the Chief Sanitary Engineer of the Department of Public Health, the Senior Professor of Sanitary Engineering of the University of Illinois, and with the Board."

On July 25, 1975, a criminal complaint was filed charging defendant with the offense of engaging in the plumbing trade without a license. Defendant moved to dismiss the complaint, arguing that the requirement of a 5-year apprenticeship or completion of an approved course of study is an arbitrary obstruction to the taking of the examination and bears no reasonable relation to the protection of public health. The trial court granted defendant's motion, and held unconstitutional the statutory prerequisites for the taking of the licensing examination. It is the validity of these provisions which we are herein called upon to decide.

Reasonable regulation of a business is within the State's police power when such regulation is in the interest of protecting public health or safety. (Nebbia v. New York (1934), 291 U.S. 502, 78 L.Ed. 940, 54 S.Ct. 505.) The licensing and regulation of the plumbing trade is clearly subject to the State's power to safeguard public health. (Douglas v. People ex rel. Ruddy (1907), 225 Ill. 536.) In regulating a trade, the means of regulation must have a definite relation to the end of protecting public health. (Scully v. Hallihan (1936), 365 Ill. 185, 191; People v. Weiner (1915), 271 Ill. 74, 78.) We must determine, therefore, whether the statutory provisions under which defendant was charged, together with the regulations implementing those provisions, bear a reasonable relationship to the purpose of protecting the public from the hazards of shoddy plumbing.

It is undeniable that practical experience, such as apprenticeship, as a supplement to the proficiency necessary to pass the licensing examination, is a reasonable requirement to assure competent plumbing. Not every apprenticeship provision, however, when viewed in light of the entire act in which it appears, can pass constitutional muster. In People v. Brown (1950), 407 Ill. 565, and again in Schroeder v. Binks (1953), 415 Ill. 192, earlier plumbing license laws were invalidated by this court because the critical provisions of those laws granted to master plumbers an unregulated monopoly upon entrance to the profession. No one could take the examination to become a licensed master plumber until he had spent a stated term in the employ or under the supervision of a master plumber. These masters, however, were not required to employ or supervise any prospective competitors if they did not wish to do so. Even if they did, they were not subject to any controls upon the nature, duration, or extent of instruction they afforded their charges. In Brown and Schroeder this court held that these prerequisites to licensing bore no reasonable relation to protection of the public health. We can say, therefore, that any apprenticeship provision, to be valid, (1) must not have the effect, when implemented, of conferring on members of the trade a monopolistic right to instruct, and (2) must be structured in such a way that the apprenticeship it requires is calculated to enhance the plumbing expertise of prospective licensees.

The law under which defendant was charged provides what might be termed an "educational alternative" to apprenticeship as a prerequisite for admission to the licensing examination. In lieu of apprenticeship an applicant may submit evidence that he has successfully completed an approved course of instruction in plumbing, sanitary engineering, or plumbing engineering in a trade school, college, or university. On its face, then, the present plumbing license law has attempted to cure the deficiency of monopoly control condemned in Brown and Schroeder. To determine, however, whether the objectionable effects of the earlier laws are actually avoided in the present law, we must ascertain if the educational alternative is meaningful and practical. If the prospect of educational preparation for the examination is merely illusory, then the current law, though valid on its face, cannot, in its application, be any more valid than those overturned in Brown and Schroeder. Such a determination cannot be made from the face of the statute alone.

As stated above, the Director of Public Health is instructed to implement the sparse language of the educational provision by defining what constitutes "an approved course of instruction," and to prescribe rules which insure that such instruction will adequately teach necessary plumbing skills. "Perhaps the first rule of construction as to administrative rules and regulations is that rules made in the exercise of a power delegated by statute should be construed together with the statute to make, if possible, an effectual piece of legislation in harmony with common sense and sound reason." (2 Am.Jur.2d Administrative Law ...


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