1906). THE STATE OF WASHINGTON, on the Relation of A. J. Richey,
Plaintiff,
vs.
L. C. SMITH, Sheriff of King County, Respondent
No. 5967
SUPREME COURT OF WASHINGTON
42 Wash. 237, 84 P. 851
March 9, 1906, Decided
Application filed in the supreme court November 21, 1905, for a
writ of habeas corpus, to release from custody a plumber,
convicted before a justice of the peace of engaging in the
business of plumbing without having obtained a license.
CONSTITUTIONAL LAW -- CIVIL RIGHTS -- LICENSING OF PLUMBERS. Laws
1905, p. 126, regulating the business of plumbing and requiring
plumbers to secure a license from an examining board cannot be
sustained as a health regulation, and infringes the state and
Federal constitutions by depriving them of the pursuit of
happiness and liberty to pursue their chosen calling.
E. H. Flueck, for relator.
Kenneth Mackintosh and John B. Hart, for respondent.
RUDKIN, J. MOUNT, C.J., DUNBAR, FULLERTON, HADLEY, and CROW, JJ.,
concur. RUDKIN
{*240} 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. 126, 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 this 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. {*241} The case
is now before us on the application and return to the show cause
order heretofore granted.
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 In re Jacobs, 98 N.Y. 98,
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 In re Aubrey, 36 Wash. 308, 78 P. 900, 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."
{*242} 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. Board of Dental Examiners, 31 Wash. 492,
72 P. 110, and in 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, involving the
validity of the act regulating the business of barbering, a
similar ruling was made. But, in 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, 72 Md.
464, 19 Atl. 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, 58 Ohio St.
599, 51 N.E. 136, 65 Am. St. 785, 41 L.R.A. 689, 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 ex rel. Winkler v.
Benzenberg, 101 Wis. 172, 76 N.W. 345, the supreme court of
Wisconsin made a similar ruling. In State ex rel. Chapel v.
Justus, 90 Minn. 474, 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 ex rel. Nechamcus v. Warden of City
Prison, 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 {*243}
act and our own lies in the fact that the former applied to
employing or master plumbers only, while the latter includes
journeymen 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 {*244}
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 will exact from the applicant. It may make an
examination which none but an expert in sanitary knowledge could
pass, or it may make the examination entirely perfunctory.
Judging from the other features of the act, it will depend upon
considerations which are foreign to any question of health as to
what kind of examination will be made.
"If the broader and more severe examination is held, or the
greater qualification is insisted on, the imposition of such a
condition in the case of a workman upon his natural right to work
at his ordinary trade renders the act under which such a
condition can be imposed unconstitutional. Whether in all cases
the condition would be insisted on is immaterial. It is the power
to insist upon it under the law which makes the law itself void.
"And yet, if the more severe examination is not made, and the
superior qualification exacted, the act is absolutely worthless
as a health measure. If it is intended as an act simply to secure
the ordinary capacity necessary for the prosecution of the trade
of a plumber, it is useless and vexatious, and not a health
regulation in any form. If it exact more, it is an improper
addition to the qualifications of a simple tradesman. This act
permits the greater exaction to be made.
"It seems to me very absurd to treat this statute as one which in
any possible manner affects, or which was really intended to
affect, the public health. And when it is seen that the work of
the master plumber may be performed by journeymen who have been
subjected to no official examination, and whose work need not be
examined by any one, not even by the master plumber himself, the
radical failure of the act to really protect the public health is
quite apparent. Sewer gas is dangerous, but exactly how to treat
the matter of plumbing in order to run the least danger
therefrom, is a {*245} subject for professional learning and
skill, except as to the narrow part of the tradesman-plumber,
which is to see to it that his pipes do not leak, and that they
do not permit the escape of gas. This part is mechanical and
easily understood, and is the part which the tradesman performs,
and the system, the proper arrangement thereof, and such kindred
questions, are for the determination of a more scientific and a
more learned body of men.
"The examination provided for by this act, if conducted for the
sole purpose of discovering the qualifications of an applicant in
regard to those matters which pertain and are germane to the real
and practical trade of a plumber, will not have the slightest
tendency to discover whether he has also the requisite knowledge
to enable him to act as a sanitary expert.
"Taking the act as a whole, it would seem quite apparent that its
purpose is to enable the employing plumbers to create a sort of
guild or body among themselves, into which none is to be
permitted to enter excepting as he may pass an examination, the
requisites of which are not stated, and where his success or
failure is to be determined by a board of which some of their own
number are members. In order to be at liberty to exercise his
trade as a master plumber he must pass this examination and
become a member of this favored body. It is difficult for me to
see the least resemblance to a health regulation in all this.
"I think the act is vicious in its purpose and that it tends
directly to the creation and fostering of a monopoly.
"It seems to me most unfortunate that this court should, by a
strained construction of the act as a health law, give its
sanction to this kind of pernicious legislation. We shut our eyes
to the evident purpose of the statute, and by means of maxims
well enough in their way, but sadly out of place here, impute a
purpose to the legislature which it plainly did not have, and
which, if it did have, it has failed to carry out, even conceding
that the purpose could be legitimately effected by other means.
This measure detracts from the liberty of the citizen acting as a
tradesman in his efforts to support himself and his family by the
honest practice of a useful trade, and I think no court ought to
sanction such legislation unless it tends much more plainly than
does this act towards the preservation of the health and comfort
of the public."
{*246} We have quoted at length from this dissent because a
Federal question is involved, and because the views of the
learned justice are in accord with our own, and in our opinion
are shared by a majority of the supreme court of the United
States of which he is now a member. In People v. Lochner, 177
N.Y. 145, 69 N.E. 373, an act forbidding the employment of bakers
in biscuit, bread or cake bakeries, or in confectionery
establishments for more than sixty hours in any one week, came
before the court for consideration. A bare majority of the court
again sustained the act, the two justices, who concurred in the
above dissent of Mr. Justice Peckham, dissenting. The case came
before the supreme court of the United States on writ of error,
and the act was declared unconstitutional and the judgment
reversed, Mr. Justice Peckham delivering the opinion of the
court. In the course of his opinion the learned Justice said:
"There must be more than the mere fact of the possible existence
of some small amount of unhealthiness to warrant legislative
interference with liberty. It is unfortunately true that labor,
even in any department may possibly carry with it the seeds of
unhealthiness. But are we all, on that account, at the mercy of
legislative majorities? A printer, a tinsmith, a locksmith, a
carpenter, a cabinetmaker, a dry goods clerk, a bank's, a
lawyer's or a physician's clerk, or a clerk in almost any kind of
business, would all come under the power of the legislature, on
this assumption. No trade, no occupation, no mode of earning
one's living, could escape this all-pervading power, and the acts
of the legislature in limiting the hours of labor in all
employments would be valid, although such limitation might
seriously cripple the ability of the laborer to support himself
and his family."
Again,
"It is impossible for us to shut our eyes to the fact that many
of the laws of this character, while passed under what is claimed
to be the police power for the purpose of protecting the public
health or welfare, are in reality, passed from other motives. We
are justified in saying so when, from the character of the law
and the subject upon which it legislates, it {*247} is apparent
that the public health or welfare bears but the most remote
relation to the law. The purpose of a statute must be determined
from the natural and legal effect of the language employed; and
whether it is or is not repugnant to the Constitution of the
United States must be determined from the natural effect of such
statutes when put into operation, and not from their proclaimed
purpose. . . . The court looks beyond the mere letter of the law
in such cases." Lochner v. New York, 198 U.S. 45, 25 Sup. Ct.
531, 49 L. Ed. 937.
In his concurring opinion in Butchers' Union etc. Co. v. Crescent
City Live-Stock etc. Co., 111 U.S. 746, 4 Sup. Ct. 652, 28 L. Ed.
585, Mr. Justice Bradley said:
"The right to follow any of the common occupations of life is an
inalienable right; it was formulated as such under the phrase
'pursuit of happiness' in the Declaration of Independence, which
commenced with the fundamental proposition that 'all men are
created equal, that they are endowed by their Creator with
certain inalienable rights; that among these are life, liberty
and the pursuit of happiness.' This right is a large ingredient
in the civil liberty of the citizen."
Again,
"I hold that the liberty of pursuit -- the right to follow any of
the ordinary callings of life -- is one of the privileges of a
citizen of the United States."
And again,
"But if it does not abridge the privileges and immunities of a
citizen of the United States to prohibit him from pursuing his
chosen calling, and giving to others the exclusive right of
pursuing it -- it certainly does deprive him (to a certain
extent) of his liberty; for it takes from him the freedom of
adopting and following the pursuit which he prefers; which, as
already intimated, is a material part of the liberty of the
citizen."
It is true these remarks were made in regard to questions of
monopoly -- questions not entirely foreign to this case -- but
they well describe the rights which are covered by the word
"liberty" as contained in the Fourteenth Amendment.
{*248} We cannot close our eyes to the fact that legislation of
this kind is on the increase. Like begets like, and every
legislative session brings forth some new act in the interest of
some new trade or occupation. The doctor, the lawyer, the
druggist, the dentist, the barber, the horseshoer, and the
plumber have already received favorable consideration at the
hands of our legislature, and the end is not yet, for the nurse
and the undertaker are knocking at the door. It will not do to
say that any occupation which may remotely affect the public
health is subject to this kind of regulation and control. Our
health, our comfort, and our well-being are materially affected
by all of our surroundings -- by the houses we live in, the
clothes we wear, and the food we eat. The safety of the traveling
public depends in no small degree on the skill and capacity of
the section crews that build and repair our railroads; yet are we
on this account to add the architect, the carpenter, the tailor,
the shoemaker, those who produce and prepare our food, and all
the rest, to the ever growing list? If so, it will be but a
short time before a man cannot engage in honest toil to earn his
daily bread, without first purchasing a license or permit from
some board or commission. The public health is entitled to
consideration at the hands of the legislative department of the
government, but it must be remembered that liberty does not
occupy a secondary place in our fundamental law. Under some of
the acts to which we have referred members of the board of health
form part of the examining board, but our act has not even this
saving grace. By its terms two master plumbers and one journeyman
plumber are constituted the guardians of the public health and
welfare. We are not permitted to inquire into the motive of the
legislature, and yet, why should a court blindly declare that the
public health is involved, when all the rest of mankind know full
well that the control of the plumbing business by the board and
its licensees is the sole end in view. We are satisfied that the
act has no such relation to the public health as will sustain it
as a police or sanitary {*249} measure, and that its interference
with the liberty of the citizen brings it in direct conflict with
the constitution of the United States.
The prisoner is entitled to his discharge, and it is so ordered.
DISPOSITION
Granted.
CONCURRENCE
ROOT
ROOT, J. (concurring) --
To the foregoing may be added this thought: The liberty and
natural rights of a citizen -- such as his privilege to engage in
a lawful vocation for a livelihood -- can be denied him by the
legislature only where such deprivation is necessary to
accomplish a given result essential to the welfare of the public.
If that result can be attained in a practicable manner without
interference with such liberty and rights, there is an absence of
that necessity which is an essential and prerequisite to the
validity of such a statute.
In the case at bar, the only justification urged in behalf of the
statute is that good plumbing is necessary to the health of
people in cities having over ten thousand inhabitants. Avowedly,
it is sought to insure good plumbing by means of this statute. It
is self-evident that the same or a better result can be obtained
by means of statutes or ordinances requiring good plumbing, and
insuring it by means of adequate inspection. Such a statute or
ordinance would not interfere with the liberty or natural rights
of any person, and would safeguard the health of the public as
fully as, or more so than, the statute now in question. It
therefore follows that the liberty and natural rights of the
individual are infringed by this statute unnecessarily and,
consequently, unconstitutionally.
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