
    Stearns v. Tew et al.
    (Supreme Court—Erie Special Term,
    January, 1894.)
    A person to be selected as an inspector of plumbing under the provisions of chapter 603, Laws of 1893, must be something more than an employing plumber; he must be a practical plumber; one who has had such experience in the business as qualifies him to be an inspector, and before entering upon the discharge of his duties he must obtain a certificate of competency from the examining board.
    In an action by a taxpayer to prevent payment of compensation to an inspector of plumbing on the ground that his appointment was illegal, where the defendant claimed that he was an actual resident of the city and a practical plumber, and had submitted to examination by the-examining board and received "a certificate as a master plumber, and thereafter received a certificate as inspector, while members of the-examining board make affidavit that he only applied for an employing plumber’s certificate,- and that no certificate other than an employing plumber’s was - ever granted prior to the action, held, that a temporary injunction restraining him from receiving payment was not improperly granted, and would not be disturbed.
    Motion on behalf of the defendant Tew to dissolve a temporary injunction granted in this action restraining the defendant Tew from receiving his pay for service performed as plumbing inspector of the city of Jamestown.
    
      A. C. Pickard, for plaintiff.
    
      Frank W. Stevens, for defendant Tew.
   Ward, J.

This is an action commenced about the twentieth, of ¡November last by Tranlc M. Stearns, taxpayer and citizen of the city of Jamestown, against the defendants to prevent the common council from paying, and the defendant Tew from receiving, compensation as plumber inspector of the city of Jamestown, appointed pursuant to chapter 602 of the Laws-of 1892, for the reason that the appointment of the said Tew was illegal and void, and he had no right to the said office or to perform the duties thereof.

A temporary injunction was obtained, which the defendant Tew now moves to dissolve. He alleges that he, at the time-of liis appointment, was a citizen and actual resident of the city of Jamestown, such appointment having been made the tenth of Hovember last by the hoard of health of the said city, and that he is a practical plumber within the intention and meaning of section 1 of the aforesaid chapter 602; that he had submitted to a regular examination by the examining and supervising board of plumbers and plumbing of the said city for certificate as a master plumber ; that he passed such examination and received from such board a certificate as such master plumber, and now holds the same; that thereafter the said board granted to deponent a certificate as inspector of plumbing in the said city, which he now holds; that tliis certificate as master plumber was granted prior to his appointment as inspector of plumbing. These certificates are not set ferth in the moving papers in Tubo verba, and I am not, therefore, able to see whether they complied with the statute. The plaintiff’s replying affidavits give a statement of two of this examining board, and they depose without qualification that the defendant Tew applied for an employing plumber’s certificate only, and as agent only, and was not, and never has been, granted a master plumber’s certificate by the said board, but that they granted him a certificate, a copy of which is attached to their affidavit, and is as follows: “ The examining and supervising board of plumbers and plumbing- of the city of Jamestown, H. Y., has examined Mr. Harvey W. Tew, Ho. 112 East Third street, Jamestown, H. Y., and the board hereby certify that he is competent to act as employing plumber.”

These gentlemen further depose that no other certificate other than this was granted prior to the commencement of this action to the defendant Tew; that after the commencement of the action three- of the five members of the board executed a certificate to Tew as an inspector of plumbing for the city of Jamestown. The papers do not disclose the terms of this certificate, and I am, therefore, unable to discover whether it complies with the statute.

By chapter 602 of the Laws of 1892 the legislature authorized the appointment in the city of Jamestown and other cities, by the mayors thereof, of a board for the examination of plumbers of such cities, to be known as- the examining and supervising board of plumbers and plumbing; ” the board should consist of five persons ; this board was appointed for the city of Jamestown. Among the duties devolving upon said board was “ to examine all persons desiring or intending to engage in the trade, business or calling of plumbing as employing plumbers in the city * * "x" with the power of examining all persons applying for certificates of competency as such employing or master plumbers or as inspectors of plumbing; to determine their fitness and qualifications for conducting the business of master plumbers or to actas inspectors of plumbing, and to issue certificates of competency to all such persons who shall have submitted to and passed a satisfactory examination before such board and \shall be by it determined to be qualified for conducting the business as employing or master plumbers or competent to act as inspectors of plumbing.” § 4, subd. 2.

By section 7 of this act the board of health of the city were authorized to appoint an inspector or inspectors of plumbing, but such inspectors “ shall be practical plumbers, not engaged directly or indirectly in the business of plumbing during the period of their appointment, and they shall be citizens and actual residents of ■ the city in which they are appointed, and before entering upon the discharge of their duties as such inspectors each shall be repaired to obtain a certificate of competency from said examining board."

A mass of affidavits were presented upon the motion upon the question as to whether the defendant was a practical plumber. Affidavits from the members of- the board of health disclose that they regarded him as such, and considered that question at the time of his appointment.

The fair construction of this statute, having in view its purposes and objects, would lead to the conclusion that the plumber to be selected must be something more than that of a mere employer of other plumbers. He must, in the' language of the statute, be a practical plumber, that is, he must have had such experience in the business of plumbing as qualifies him to be an inspector in this important work, and the statute forbids the inspector from entering upon the discharge of his duties until he has obtained a certificate of competency from said examining board. So, while the board of health may appoint an inspector, he must be a practical plumber; he must reside in the city and be a c^izen thereof. Unless these conditions obtain, the board of health get no jurisdiction to make the appointment, and if not, an action can be maintained in behalf of a citizen and taxpayer of the city, under section 1925 of the Code of Civil Procedure, preventing waste or injury to the funds of the city. While it appears that the defendant Tew obtained a certificate after the commencement of this action as inspector of plumbing, it does not appear whether it was a certificate of competency as inspector from the examining board.

The defendant would not be entitled to any compensation as inspector until he had received such certificate, as he could not enter upon the discharge of the duties of his- office without it.

I shall not assume to dispose of the question of fact raised by the affidavits and papers upon this motion as to whether the defendant Tew was a practical plumber; that is a question to be tried in this action.

From all the papers I am not satisfied that this injunction was improperly granted, or that the board of health obtained jurisdiction to make this appointment, or that the defendant Tew has received the proper certificate entitling him to enter upon the discharge of the duties of his office.

The motion must, therefore, be denied, but as the questions are new and difficult, it will be without costs, and without prejudice to the defendant Tew, if he should be so advised, to renew this motion upon the same papers and such additional papers as may relieve the matter, if he can, from the difficulties in the defendant’s way that have been indicated.

Let an order be entered accordingly.  