
    The State of Ohio v. Gardner.
    
      Plumbing business — Natural right to labor — Legislative Í7iterference — ■Laws relating to public health — Must operate equally — Ln-validity of part of Act of April SI, 1896 — Constitutional law.
    
    1. The right to labor and enjoy the rewards thereof is a natural right which may not be unreasonably interfered with by legislation. Where, however, the pursuit concerns, in a direct manner, the public health and welfare, and is of such a character as to require a special course of study or training, or experience, to qualify one to pursue such occupation with safety to the public interests, it is within the competency of the general assembly to enact reasonable regulations to protect the public against evils which may result from incapacity and ignorance.
    2. The business of plumbing is one which is so nearly related to the public health that it may, with propriety, be regulated by law, and reasonable regulations, tending to protect the public against the dangers of careless and inefficient work, and appropriate to that end, do not infringe any constitutional right of the citizen pursuing such calling.
    3. But it is essential to the validity of an act undertaking to regulate the business, that it shall, in its requirements, operate equally.
    4. That part of the act of April 21, 1896, entitled ‘ ‘ An act to promote the public health and regulate the sanitary construction of house-drainage and plumbing,” which requires any plumber, whether master, or employing plumber, or journeyman, before engaging in the business, to undergo an examination as to fitness, and obtain a license, but permits all members of a firm to pursue the business where one only has procured such license, and all members of a corporation to pursue it where the manager only has procured such license, does not operate equally upon all of a class pursuing the calling under like circumstances, and is invalid.
    (Decided June 21, 1898.)
    
      Exceptions by the prosecuting attorney to the decision of the Court of Common Pleas of Summit county.
    May 27, 1897, John M. Gardner was convicted, before the mayor of Akron, Summit county, of a violation of the act of April 21, 1896, entitled “An act to promote the public health and regulate the sanitary construction of house-drainage and plumbing” (92 Ohio Laws, 263), and sentenced to pay fine and costs.
    It was shown by the agreed statement of facts that for two years Gardner had been a master plumber, and that for ten years prior thereto had been a journeyman; that he was skilled and competent ; that all that time he worked at the trade and was still working; that on May 7, 1897, he was engaged in that business at Akron, as an individual; that he was not a member of any firm or copartnership, or corporation; that on that day he put in a certain sink,- sewer and water connection in Akron, and that at the time he had not procured a license therefor from the board of health of said city.
    Exceptions having been taken by Gardner to the sentence and judgment of the mayor, the same were presented to the court of common pleas of Summit county, the Hon. Jacob A. Kohler presiding, at the October term, 1897, and, on consideration, that court reversed the judgment of the mayor, holding the act on which the charge was founded to be unconstitutional, and discharged the defendant. To this ruling the prosecuting attorney duly excepted, and, on leave, filed his bill of exceptions in this court for its decision upon the points presented, and to establish the law in any similar case.
    
      R. M. Wanamaker, prosecuting attorney, for the State.
    The sole contention between the parties hereto is as to the constitutionality of said act.
    The presumption is always in favor of the constitutionality of a statute. If any doubt exists, the benefit of the doubt is to be given to the law. Sykes v. Columbus, 55 Miss., 143; Com. v. Butter, 99 Pa. St., 535; Wilkins v. State, 113 Ind., 514; Central Iowa R. R. Co. v. Wright County, 67 Iowa, 199; State v. Moore, 104 N. C., 714 ; Pfeiffer v. Peck, 6 Oranch, U. S., 128.
    The object and spirit of the statute is clearly within the police power of the state. The police power manifestly extends to the protection of lives, limbs, health, comfort and quiet of all persons and the protection of all property within the state. By this general police power of the state, persons and property are subjected to allkinds of restraints and burdens, in order to secure the general comfort, health and prosperity of the state. Thorpe v. Rut-land and Burlington R. R. Co., 27 Vt., 140; Commonwealth v. Alger, 7 Cush., 53; Cooley’s Const. Lim., 704 et seq ; The People v. Warden of City Prison, 144 N. Y., 529; Singer v. State, 72 Md., 464; 19 A. Ry., 1044.
    That the act is within the limits of the police power of the state is manifest. First: From the purpose of the act, to-wit: “To promote the public health and regulate the sanitary construction of drainage and plumbing.”
    Second: From its operation and effect, to-wit: To “cut off incompetent and irresponsible plumbers, and to give the public assurance of better workmanship in matters intimately affecting the public health.
    
      If the court should find that the provision of section 2, above cited, was in itself unconstitutional, we do not believe that this is sufficient to warrant a holding of unconstitutionally as to the remainder of the act, for it is an old established principle in the construction of statutes that “Where part of the statute is unconstitutional, but the remainder is valid, the parts will be separated, if possible, and that which is constitutional will be sustained. ” “The constitutional and the unconstitutional provisions may even be contained in the same section, yet be perfectly distinct and separable so that the first stand though the last fall. ’ ’ Presser v. Illnois, 116 U. S., 252; 6 Sup. Ct., 580 ; Mobile and O. B. Co. v. State, 29 Ala., 573 ; State v. Exnioious, 33 La., 253; People v.Kenny, 96 N. Y., 294 ; Som. v. Hitohings, 5 Gray, Mass., 482; Black’s Constitutional Law, second edition, pages 64 and 65; Cooley’s Constitutional Limitations, sixth edition, 197 and 209.
    
      Musser <& Kohler, co7itra.
    
    The statute is repugnant to the first section of the bill of rights, which declares, that among the inalienable rights of the individuals are “Those of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and seeking and obtaining happiness.” This court has construed this section to embrace “The right of man to be free in the enjoyment of the faculties with which he has been endowed by his Creator, subject only to such restraints as are necessary for the common welfare.” Palmer v. Tingle, 55 Ohio St., 423.
    The statute is also repugnant to the fourteenth amendment to the constitution of the United States, which provides, “Nor shall any state deprive any person of life, liberty, or property, without due process of law.” 1 Blackstone’s Commentaries, 124.
    It is undeniably within the province of the legislature to impose conditions upon those who shall thereafter enter a particular calling; but it does not follow that these conditions may be thrown upon those whose rights to engage in such calling have been previously fixed.
    Upon the subject of legislation which hinders the individual in the conduct of an industrial pursuit. State v. Goodwill, 25 Am. S. Rep., 866; People v. Marx, 99 N. Y., 386; Berdolf v. O'Reill/y, 74 N. Y., 515; Matter of Application of Jacobs, 98 N. Y., 114; Butchers' Union Go. v. Crescent Oity Go., Ill U. S., 746.
    In whatever light we may regard other statutes for the regulation of trades or professions, it at least will not be disputed that every such statute now in force in this state has had regard for experience and the skill which experience presupposes, and has guarded to a great extent against disturbing those vested rights of property which men have in their own trades and occupations. Section 4404, regulating the practice of denistry and section 4303c of the act to regulate the practice of medicine.
    That the statute under consideration unjustly discriminates is incontrovertible. It deprives the plumber who is alone in business from the enjoyment of natural rights which another who is a member of a firm or who is connected with a corporation may freely enjoy. Section 2 of the act. State v. Hinman, 65 N. H., 103; State v. Pennoyer, 65 N. H., 113; Tick Wo v. JTopMns, 118 U. S., 220; 
      Ex Parte Westerfield, 55 Cal., 550; Matter of the Application of Peter Jacobs, 98 N. Y., 114.
   Spear, O. J.

The first section of the act in question requires that every person, firm, or corporation, engaged in the business of plumbing, either as master or employing plumber or journeyman, shall first secure a license. The second section requires that any person desiring to engage In or work at the business of plumber shall apply to the president of the board of health, or other officer having jurisdiction in the locality where he intends to engage in, or work at, such business, and be examined as to his qualifications. But “in case of a firm, or corporation, the examination and licensing of any one member of such firm, or the manager of such corporation, shall satisfy the requirements of this act.” Section three provides that in every city, and in each town having a system of water supply or sewerage, there shall be a board of examiners consisting of the president of the board of health, the inspector of buildings, if any there be, and three practical plumbers. In localities where the required number of plumbers cannot be secured, such vacancy can be filled by the appointment of reputable physicians. The members shall be appointed by the board of health, and if there be no such board, then by the health officer. If there be no inspector of buildings then a practical plumber shall be added. Section four directs as to time, etc., of examinations, and that “the board shall examine said applicants as to their practical knowledge of plumbing, house-draining and plumbing ventilation, and if satisfied of the competency of the applicant, shall verify to the board of health.” The board is then to issue a license. The fee for a master or employing plumber is to be five dollars and a journeyman one dollar, to be renewed annually. Section five provides for tbe appointment by the board of health of one or more inspectors of plumbing, who shall be practical plumbers, their term of office, their compensation and their duties. The sixth section requires the board of health to prescribe rules and regulations for the construction, alteration and inspection of plumbing and sewerage placed in or in connection with any buildings, subject to approval by ordinance of the council, and the board shall further provide that no plumbing work shall be done, except in case of repairs or leaks without a permit. Section seven prescribes punishment, of a fine from five to fifty dollars, for any violation, and that the license may be revoked for incompetency, etc., after hearing before the board subject to appeal to the state board of health. All money derived from examinations shall go to the board of health. .

Applying to the case the general presumption that the acts of the general assembly are to be held valid unless the contrary clearly appears, the natural order of inquiry leads to a consideration of the objections urged against this act. Two are deemed worthy of special notice. First: That the statute deprives of liberty and property without due process of law, and that it unreasonably interferes with the natural right of the individual to labor and enjoy the fruits thereof. Second : That the statute discriminates against the individual in favor of firms and corporations, and thus imposes unequal burdens upon persons of the same class.

1. Does the act unreasonably interfere with the right to labor ? That the right to labor and enjoy its fruits is a natural right which may not be unreasonably interfered with, is, we presume, not denied by anyone. But it is equally well settled that it is one of the rights which may, under same circumstances, be subject to reasonable regulation. This principle finds examples in our laws termed Sunday laws, in those acts which regulate apprenticeships, the employment of children in factories and in theatrical and other exhibitions, and in a number of other instances which will readily occur. The acts referred to fall within the exercise of the police power of the state, that power, conceded to reside in the people’s representatives, which is rightfully exercised by the regulation of the use of private property, or so restraining personal action, as to secure, or tend to the comfort, health or 'protection of the community. Further examples of its exercise are found in the laws which require study and examination before one is permitted to pratice law, or medicine, or engage in the occupation of a, dentist or a pharmacist. If, then, the regulation of the business of plumbing, and the performance of the work of a plumber, may naturally be expected to promote the health of a community, or relieve of dangers- to health which otherwise might follow its careless exercise, and the legislation be appropriate to accomplish the object sought, it cannot, be said that such regulation interferes with a natural right or unreasonably prevents its exercise.

We are aware that an opinion prevails in some quarters, and has found expression in judicial utterances, that the pursuit of plumbing is a mere trade which may be easily mastered by anyone possessed of ordinary intelligence ; that the plumber is not,, nor is he expected to be, an expert in the science of sanitation, and hence his work cannot have such relation to the public health as to justify its regulation.

True it is that the business of the plumber is not ranked with the learned professions, and that much of his work is mechanical merely, calling for the exercise of deftness of the hands rather than the possession of scientific knowledge. Yeta certain degree of training and experience is absolutely necessary to render one intelligent as to the ground work of his calling as well as competent and skillful in its exercise. He is required to put into our dwellings and public buildings tanks, pipes, traps, fittings and fixtures for the conveyance of gas, water and sewage, which require, among- other essentials, the keeping out and protection against gases which are destructive of health and not infrequently of life itself. That it is of the highest importance that the drainage and sewerage of our public buildings and private tenements should be as skillfully planned and executed as the modern standard of science admits, would seem not to be open to question. And surely it is reasonable to suppose that one who has been educated to understand the scientific principle necessarily involved in work of this character, and to comprehend the reasons and teachings of experience upon which it is based, and the evil results which may follow neglect to observe it, will be more likely to provide the needful safeguards than one who is ignorant upon the subject. It is conceded by those who doubt the power as well as the propriety of regulation of the work itself, that the legislature has power to provide' for a careful sanitary inspection of plumbing work, and in this way secure a result, as to its system and sufficiency, which will tend toward the protection of the health of the general public. But it is difficult to perceive a reason for tbe exercise of the power last referred to which does not as well apply to the other, for if it be wise to devise means by which a good result may be obtained by careful inspection, it would seem clear that methods which are calculated to reduce the hazards of careless inspection would tend in the same direction. And, defects revealed by inspection would, it would seem be more likely to be remedied if the hands which should be called upon to do the work of correction, were guided by minds trained in the science of the business as well as skilled in the mere manipulation of the tools. The question really is, does the requirement of examination as to the fitness, reasonably tend to accomplish the object, is it appropriate to that end; not, necessarily does it fully accomplish it, nor does it make further care in the same direction unnecessary. We think it does so tend and is appropriate to the purpose, and that, therefore, the act does not unreasonably interfere with the right to labor. It is not here contended that the same high qualifications as to scientific acquirement should be required of the journeyman, one whose principal work is manual, as is required of the master plumber, the one who makes the plans and specifications for the work, and passes judgment upon the strength, durability and quality of the material and the devices for perfect work; nor, does that seem to be the import of the act, especially when it is noted that the fee for license charged is in the one case one dollar, and in the other five. If the examination be sufficiently searching to show that the journeyman understands the principles governing his trade, and is sufficiently skillful to be able to produce good results, that would seem to satisfy the scope of this act.

This conclusion finds support in the case of the People v. Warden City Prison, 144 N. Y., 529 ; and is distinctly sustained in Singer v. The State, 72 Md., 464, where it is held that an act which provides that no person shall engage in the business of plumbing unless such person shall have received from the state board of commissioners of practical plumbing a certificate as to his competency and qualification, and providing a penalty for violation, does not violate in any sense, the constitutional rights of the workman, but is but the ordinary exercise of the police power of the State. See, also, Soon Hing v. Crowley, 113 U. S., 703; Mugler v. Kansas, 123 U. S., 623; Powell v. Pennsylvania, 127 U. S., 678, Railway Company v. Beckwith, 129 U. S., 26; and Dent v. West Virginia, do., 114.

2. But a graver objection inheres in the claim that the act imposes unequal burdens upon those of the same class. It will be recalled that the first section requires that all who engage in the business of plumbing, whether master or employing plumber or journeyman, shall first secure a license, .and that section two provides that in case of a firm, or corporation, the examination and licensing of any one member of such firm, or the manager of the corporation, shall satisfy the requirements of the act. That is, a journeyman, for whomever he works, must have a license, and an employing plumber, if not a member of a firm or a corporation, may not pursue the calling with, out a license. But a master or employing plumber if he be a member of a, firm another member of which has procured a license, is exempt, although he may be one who has, as a journeyman, applied for a license and failed for incompetency. So, too in case of a corporation, if the manager is licensed, other members of the corporation may work without a license, without reference to their competency.

Our bill of rights prohibits the granting of privileges to one which are denied to others of the same class, and the imposition of restrictions or burdens upon certain citizens from which others of the same class are exempt, and section 26 of article 2, of the constitution requires that all laws of a general nature shall have a uniform operation throughout the State. A statute, therefore, which imposes special restrictions or burdens, or grants special privileges to persons engaged in the same business under the same circumstances, cannot be sustained, because it is in contravention of the equal right which all are entitled to in the enforcement of laws and in the enjoyment of liberty, and in the enjoyment of an equal right in the acquisition and possession of property, and so is not of uniform operation.

The constitutional objection to this statute is that it operates unequally in that it imposes the burden of an examination and license fee upon certain persons, and exempts others of the same class, pursuing- the same business in the same way.

It is contended that the act permits firms and corporations to employ such journeymen as they may choose, whether they be licensed or not, but we are not impressed that it will bear this construction. It is further suggested that the act does not prohibit the doing of plumbing work wholly by apprentices. If it is open to this construction, an additional reason is thus afforded for holding it invalid, but the spirit of the act would not, we think, permit this.

Objection is made to the composition of the examining board on the ground that one who has been appointed a member of the board, although possibly inexperienced and incompetent, may, without any test whatever, continue his occupation. We deem it enough to say as to this, that the act does not so provide. It would be possible, of course, that one appointed on the board might meet with greater favor from his fellows in his examination than another, but this possibility would not render the act itself invalid. It also might seem, at first blush, that the appointment of a board to examine others as to fitness and qualifications, the members of which may not have themselves been examined as to their qualifications, is a trifle incongruous. It is possible that the law in this respect might be improved. Yet there must be a start somewhere along the line, and the objection goes to the efficiency of the service rather than to the power of the legislature to authorize the method.

Believing that the act does discriminate unjustly between persons in the same calling, we agree with the conclusion of the learned judge of the court of common pleas, and, for the reasons stated, the exceptions are

Overruled.  