
    REQUIREMENTS FOR. STEAM ENGINEERS’ LICENSES.
    Circuit Court of Cuyahoga County.
    E. R. Theobald v. The State of Ohio; W. S. Judd v. The State of Ohio, and Frank Stupens v. The State of Ohio.
    Decided, January Term, 1908.
    
      Licenses as Applied to Occupations — Amended Law Requiring Examinations of Steam Engineers of Certain Classes not Unconstitutional —Examiners not Autocrats with Unlimited Discretion — Requirements as to Qualifications Sufficiently Definite — Quite as Much so as Those Applying to the Professions of Law, Medicine, or Teaching — Provisions as to Existing Licenses not Objectionable — Sections 4364-891 and 4S6Ji-98q.
    
    The present statutes relating to examination and licensing of steam engineers of certain classes is not in contravention of the state constitution, in that the chief examiner is clothed with legislative powers with reference to the qualifications that shall be required of those to whom licenses may be issued; or because of exemption of engineers holding licenses from examination during the remainder of the year the license had to run; or because in some quarters the law, contrary to its express provisions, has been construed to permit engineers holding licenses to obtain a renewal of their licenses without examination.
    Marvin, J.; Winch, J., and Henry, J., concur.
    Error to the court of common pleas.
   These cases all involve the same question and a decision of one disposes of all. Theobald was prosecuted before a justice of the peace, and each of the others in the police court of the city of Cleveland;- each was charged with having unlawfully operated and caused to be operated a stationary steam boiler and engine, in violation of the statutes of Ohio; each was found guilty and the judgment in each case was affirmed on error in the court of common pleas. Each did operate an engine and boiler in violation of the provisions of Section 4364-895, Revised Statutes, which reads:

“That it shall be unlawful for any person to operate a stationary steam boiler or engine in the state of Ohio, of more than thirty (30) horse-power, except boilers and engines under the jurisdiction of the United States, and locomotive boilers and engines, without having been duly licensed so to do as herein provided,” etc.

It is urged that the statute under which these convictions were had is in contravention of the provisions of the Constitution. Section 4364-98g, provides:

“Any person who desires to act as a steam engineer shall make application to the district examiner of steam engines for a license so to act, upon a blank furnished by the examiner, and shall successfully pass an- examination upon the following subjects: the construction and operation of steam boilers, steam engines and steam pumps, and also hydraulics, under such rules and regulations as may be adopted by the chief examiner, ivhieh rules and regulations, and standard of examination, shall be uniform throughout the state. If’ upon such examination, the applicant is found proficient in said subjects, a license shall be granted him to have charge- of and operate stationary steam boilers and engines of the horse power named in this act. Such license shall continue in force for one year from the date the same is issued, provided, however, the district examiner may, upon written charges, after notice and hearing, revoke the license of any person guilty of fraud in passing the examination, or who has become insane or who is addicted to the liquor or drug habit to such a degree as to render him unfit to discharge the duties of steam engineer.”

Prior to the enactment of the present statute, _ to-wit, on the 1st day of March, 1900, an act was passed by the General Assembly on this same subject. That act, like the present one, provided for examinations of those desiring to operate steam engines, and one of its provisions was (Section 6) :

“Any person who desires to act as a steam engineer, shall make application to any district examiner of steam engineers for a license so to act, upon a blank furnished by the examiner, and if, upon examination, the applicant is found trustworthy and competent, a license shall be granted him, to have charge of, or to operate any steam plant. Such license shall continue in force for one year, unless after proper hearing it is sooner revoked for intoxication or other sufficient cause, the said license to be renewed yearly.”

The act last spoken of was declared by the Supreme Court to be unconstitutional in the case of Harmon v. The State, 66 Ohio St. Rep., 249. In the opinion in that case it is pointed out that by the section last quoted the examiner is made the ex-clusive judge as to whether an applicant is trustworthy and competent. No standard is furnished by the General Assembly as to qualification, and no specifications as to wherein the applicant shall be trustworthy and competent, but all is left to the opinion, finding and caprice of the examiner. lie is an autocrat with unlimited discretion, without rules prescribing the qualifications of applicants for license, only so that he finds them trustworthy and competent.

The present act differs from the former in that it is provided by the present act that the Governor of the state with and by the advice and consent of the Senate, shall appoint one chief examiner of steam engineers, and said chief examiner, with the approval of the Governor, shall appoint eight district examiners.

The same provision is found in the old act in this regard, but in the present statute there is found what is not found in the old, that the rules and regulations under which examinations shall be held shall be uniform throughout the state, and that these rules and regulations shall be adopted by the chief examiner. Now it is said that practically the objections to the old statute exist as against the new.

The court said, in the ease referred to, that a district examiner could in fact make the law for his district, limited only by his will as to what shall constitute the standard of the qualification of engineers, and that this was granting legislative authority to this examiner.

Under the provisions of the present statute, as has already been shown, the rules and regulations for the examination are fixed by the chief examiner, and are to be uniform throughout the state, and that seems to us clearly to make him not a legislative but an administrative officer, with power only to execute the statutes enacted by the General Assembly.

It is said that no standard of qualifications is fixed, except that upon examination the applicant must be found proficient in the subjects upon which he is to be examined. In the former act no subjects for examination were mentioned. Here .the statute fixes just what subjects the applicant is to be examined in. How the Legislature could have more definitely fixed what the examiners shall do is not easy to understand. If a percentage of answers had been fixed or a percentage of qualifications had been fixed by the statute, it would still have been with the examiner to say what degree of qualification was indicated by any per cent, of marking. An inspection of the statutes in relation to the examination to be given to those desiring other employments' may not be found unprofitable.

Section 559, Revised Statutes, provides for the examination of those desiring to practice law in Ohio, and reads:

“When a person applies to said court (the Supreme Court) ■ for admission to the bar, he shall be examined by the court or two of the judges touching his fitness and qualifications, and if on such examination the court or judges are satisfied that he is of good moral character and has' a competent knowledge of the law and sufficient general learning, an oath of office shall be administered to him,” etc.

The Supreme Court is permitted to fix and has fixed rules for the educational requirements of those who may be admitted to the examination, but so far as we know it has never been said that this was granting legislative authority to the court.

It is provided in reference to physicians by Section 4403, Revised Statutes, that a board of examiners shall be appointed and that this board shall formulate rules to govern its action.

In Section 4403c it is provided in reference to physicians that:

"All examinations shall be conducted under the rules formulated by the board. Each applicant shall be examined in anatomy, physiology, pathology, chemistry, materia medica, and therapeutics, the principles and practice of medicine, surgery, obstetrics, and such other subjects as the board may require. The applicant shall be examined in the materia medica and therapeutics and the principles and practice of medicine, of the school of medicine in which he desires to practice, by the member or members of the board representing such school.

"If an 'applicant passes an examination satisfactory to the board, and has paid the fee as hereinafter provided, it shall issue its certificate to that effect,” etc. Notwithstanding these provisions it has nowhere been suggested, so far as we know that legislative authority was deligated to the board of examining-physicians.

The provisions of the law in reference to the examination of teachers for our public schools (Section 4070, Revised Statutes) are that the board of examiners shall make all needful rules and regulations for the proper discharge of' its duties and the conduct of its work, subject to statutory provisions and the approval of the state commissioner of common schools.

Section 4071a provides that the questions for all county teachers examinations throughout the state shall be prepared and printed under the direction of the state commissioner of common schools. We have never heard it suggested that this was delegating legislative powers to the commissioner of schools. And, under Section 4074, it is provided that the teachers in elementary schools shall be examined on the subjects of orthography, 'arithmetic, reading, writing, English grammar and composition, geography, history of the United States, including civil government, physiology, including narcotics, literature, and that the applicant possesses an adequate knowledge of the theory and practice of teaching. •

There is nothing suggested in any of these statutes to the several provisions of which attention has been called that undertakes to fix a standard in any other way than to say that the applicant must show sufficient knowledge upon the several subjects of examination.

Surely there is no good reason why one desiring to operate a steam engine should have a standard of qualification fixed more definitely than one who desires .to teach school, or practice medicine or law. The statute under consideration is not subject to the criticism in this regard that the statute considered in the case of Harmon v. State, supra, was subject to.

It is said however that Section 10 of the act how being considered, which is Section 4364-89u of the Revised Statutes, is clearly in contravention of the Constitution. That section reads in part:

“Provided that all persons holding license issued to them under the act of the General Assembly of the state of Ohio, passed March 1, 1900, shall not be required to submit to a further examination during the period covered by such license first issued. But such former license shall evidence the qualifications of such person to operate the kind of steam plant, and for the period as therein designated, unless such license is sooner revoked f.or cause.”

Attention is called to Section 7 of the act now under consideration, being Section 4364-89r, Revised Statutes, which reads:

“Any person to whom a license is issued under the provisions of this act shall upon application at the expiration of one year from the date thereof be entitled to a renewal thereof for one year, unless the district examiner of his district for the cause or causes set out in Section 6 of this act, upon notice and hearing, should réfiise such renewal. ’ ’

Now as to Section 10 (4364-89?t), it may be said, first, that even though this section were held to be unconstitutional, the persons provided for in this section are simply those who at the time the present statute went into effect were holding licenses issued under the former act, and since no such license could extend beyond one year from the time of its issuing, it can not be supposed that this small period of tjme for which some were permitted to operate engines after the present act became operative, was an inducing cause for the enactment of the provisions in respect to the examination of those who desired to become engineers. Further than that this act, extending the privilege to those who were already licensed under the former act for the short time they would be permitted to operate, is of too small consequence for the courts to say that it is in contravention of the Constitution.

In any event this has long ceased to be a practical question, for the present statute went into operation on the 1st of May, 1902, and all those permitted upder the provisions of Section 10 to operate engines have long since lost that privilege. It will be noticed by Section 7, hereinbefore quoted, that it is only those who have obtained a license under the present act, who are entitled to a renewal, without further examination. Those spoken of in Section 10 of the present act are not entitled to such renewal . It is those who have obtained a license under the present act who may have a renewal.

It is said in argument that the general construction which has been given to this statute by engineers and examiners is that those who were permitted by this Section 10 to continue their occupation until the expiration of the time for which their several licenses were issued, were entitled to have such licenses renewed Without examination. Whoever has given it this construction has done so in violation of a provision of law expressed in language as plain as any language can well make it, and it behooves all engineers to take notice now that they were not entitled to a renewal of their licenses granted under the former act, and it behooves the examiners to take notice that they are not -authorized to issue any such renewals. The language of the statute, is so plain that ‘ ‘ a wayfaring man though a fool need not err therein.”

Ford, Snyder & Tilden, for plaintiffs, in error.

Gage & Wilbur, for defendant in error.

The judgment of the court of common pleas in each of these several cases is affirmed.  