Summary
In Sullivan v. Johnson, 189 Ga. 778 (7 S.E.2d 900), this court reversed the judgment of the trial court refusing a mandamus absolute, which had been sought to compel the superintendent of electrical affairs of Atlanta to grant a permit to do certain electrical work. An attack was there made on a city ordinance under which the defendant acted.
Summary of this case from Short v. City of CorneliaOpinion
13091.
MARCH 14, 1940.
Petition for mandamus. Before Judge Dorsey. Fulton superior court. August 16, 1939.
William G. McRae, for plaintiff.
J. C. Savage, C. S. Winn, J. C. Murphy, and Edwin L. Sterne, for defendant.
1. In the instant suit for the writ of mandamus, in which the plaintiff sought to compel the superintendent of electrical affairs of the City of Atlanta to issue to him a permit for specified electrical construction, which permit the defendant refused because the plaintiff had not stood an examination for license as master electrician in pursuance of an ordinance of the city, the petition was not defective for the reason that the plaintiff did not first appeal from the order of the superintendent to the electric light committee under section 35 of the ordinance, it appearing that this section has no reference to refusal of permits based upon such ground.
2. According to the record, the plaintiff is an individual doing business as an electrical contractor. He applied to the defendant for a permit to do described electrical work in that capacity. The ordinance provides for examination of persons desiring to qualify as master electricians, and for issuance of license accordingly to persons who are successful in passing the examination. Section 51 provides as follows: "Every electrical contractor before performing any job of electrical installation, construction, or repair shall apply for and obtain a permit from the superintendent of electrical affairs authorizing him to do such work. No such permit shall be issued unless and until said electrical contractor is himself a licensed master electrician or has in his employ and in charge of all his electrical work one who is a licensed master electrician." [Italics by the court.] By section 49 any person who successfully passed an examination in pursuance of any previous ordinance is entitled to a certificate as a master electrician, without further examination, on payment of the annual license fee, provided the certificate is still in effect at the time he applies for a certificate as master electrician. The petition assailed the provisions of section 49 and other portions of the ordinance, relating to examination, upon the ground that the exemption provided by section 49, being based upon ordinances which had been held void for unconstitutional discrimination, rendered the other provisions as to examination invalid for like discrimination. Held, that in the circumstances the exemption provided by section 49 was unlawful, and operated to invalidate the other provisions of the ordinance, as contended.
3. Section 53 of the ordinance provided as follows: "Each person holding a master electrician's certificate shall register with the superintendent of electrical affairs the person, firm, or corporation with whom he is connected, and shall not be employed by more than one person, firm, or corporation at the same time. No licensed master electrician shall permit the use of his name as an employee by an electrical contractor unless and until he is a bona fide employee of such electrical contractor. If any master electrician severs his connection with the electrical contractor by whom he is employed, he shall immediately notify the superintendent of electrical affairs in writing of same." This section, and the portion of section 51 italicized in the preceding note, were alleged to be invalid for unreasonableness, and also because they violated the due-process clauses of the State and Federal constitutions. Held, that these provisions, so far as they require exclusive employment of a master electrician, are unreasonable and void as tending to monopoly; also as imposing an undue burden upon the plaintiff's right to engage in the business of electrical contractor.
4. Under the facts of the record, suit for the writ of mandamus was the appropriate remedy, and the court erred in refusing a mandamus absolute.
No. 13091. MARCH 14, 1940.
M. J. Sullivan, doing business as Sullivan Electric Company, filed a petition against Dewey L. Johnson, superintendent of electrical affairs of the City of Atlanta, seeking for mandamus to compel the defendant to issue a permit applied for by the plaintiff to do specified electrical work in the City of Atlanta, and to issue other permits for which petitioner might apply in like instances. Attached to the petition was a copy of an ordinance of the city, adopted by the general council on June 5, and approved by the mayor on June 6, 1939, entitled "An ordinance to regulate the supervision of electrical energy and the installation of electrical construction, equipment, and appliances in the City of Atlanta." Various provisions of this ordinance were attacked as unconstitutional, for reasons stated in the petition, and hereinafter set forth. A mandamus nisi was issued. The defendant filed an answer or response, the legal purport of which was to admit most of the plaintiff's allegations of fact, but in which the conclusions of law as to the invalidity of the ordinance were categorically denied. The case came on for hearing on the question whether the mandamus should be made absolute. It was tried before the judge without a jury on the petition and the answer, and the following portion of an affidavit of the defendant Johnson, other portions being excluded: "Deponent says that opportunity given him through a period of ten and one-half years in observing electrical installations convince him that in order to determine the qualifications of a person who desires to engage in the business of master electrician it is necessary that some one conduct an examination. The city ordinance requires that each group engaged in the electrical construction industry be represented on the board; namely, master electrician, supply house, utility and journeyman electrician." The petition alleged that the superintendent had refused to issue a permit because petitioner had not stood an examination and secured a master electrician's license as required by the ordinance, and the validity of the provisions as to such examination was the principal question for determination in the court below, as it is in this court. The judge held the ordinance valid, and denied a mandamus absolute, and the plaintiff excepted.
The petition contained the following allegations: The plaintiff has had more than ten years experience as an electrician, either as a contractor for electrical wiring or as an actual workman in this line of business. He has obtained from the clerk of the city council a license to do business as an electrical contractor, according to section 40 of the ordinance providing that any person desiring to engage in such business shall obtain a license and pay therefor a fee of $75 per annum. The license so obtained will not expire until June 30, 1940. On July 17, 1939, the plaintiff applied to the defendant, as superintendent of electrical affairs, for a permit to install described electrical wiring for a named person residing at a stated residence in the city, which application for permit was made on the form prescribed by the city for permits to do electrical work. The defendant refused to issue said permit, notwithstanding it was his duty to do so. He "refused to issue said permit because petitioner had not stood an examination and secured a master electrician's license as provided in said ordinance." "Unless the defendant is compelled to perform his duty under said ordinance by issuing permits to petitioner upon application therefor, the petitioner will suffer irreparable damage as a result of the defendant's failure and refusal to perform his legal duty, in that petitioner can not further pursue his work and occupation as an electrical contractor and make a livelihood for himself, so long as the defendant can arbitrarily deprive him of his right to complete his contracts for doing electrical work."
Section 1 of the ordinance created the office of superintendent of electrical affairs. Section 2 described in general terms the duties of this officer. Sections 3 to 7, inclusive, dealt further with his duties and responsibilities. Sections 8 to 33 related mainly to the manner in which electrical installation, construction, and repair should be done, and prescribed requirements to be complied with by those engaging in such work. Section 11 provided that before the beginning of any such work an application for permit should be made to the superintendent of electrical affairs on forms furnished for that purpose, which application should contain an accurate and detailed account of the electrical work contemplated. Section 17 provided for inspection and approval under authority of the superintendent. Section 34 provided that the superintendent should have authority to condemn any electrical wiring, equipment, or appliances which in his opinion is unsafe to life or property. Section 35 was as follows: "Appeal may be made from any order of the superintendent of electrical affairs to the electric light committee, and the order of that committee shall be final in the matter. Section 39 provided that the term "electrical contractor" as used in the ordinance shall "mean any person, firm or corporation engaging in the business of electrical installation, construction, and repair." Other sections were as follows:
41. "The term 'journeyman electrician' as used herein shall mean any person actually doing the work of electrical installation, construction, and repair. No license shall be required of a journeyman electrician, but, except as hereinafter provided, he shall at all times be working under the supervision of a master electrician as hereinafter set out."
42. "The term 'master electrician' as used herein shall mean any person who shall have passed the examination hereinafter set out, and who shall have been issued a certificate by the superintendent of electrical affairs, all as hereinafter set out."
43. "An electrical examining board shall be appointed by the superintendent of electrical affairs, subject to approval of the electric-light committee. Said electrical examining board shall consist of two master electricians, one representative of an electrical-supply jobber, one journeyman electrician, and one graduate electrical engineer of a public utility company. Said board to serve until their successors are named, and approved by the electric-light committee. Maintenance of such electrical examining board shall not involve the City of Atlanta in any expense or liability."
44. "Whenever any person shall make application to the superintendent of electrical affairs for a certificate as a master electrician, the superintendent of electrical affairs shall notify the electrical examining board, and it shall then be the duty of said board to give said applicant a written examination. Said examination shall be given to test the knowledge of said applicant as to matters pertaining to electricity, and particularly as to matters pertaining to electrical installation, construction, and repair, so that by said examination the said board may pass upon the ability of such applicant to supervise the actual work of electrical installation, construction, and repair with due regard to the safety of the public."
45. "Each person desiring to qualify as a master electrician under the terms of this ordinance shall, before taking examination, pay the city tax-collector the sum of $10. This sum shall be passed to the credit of the department of electricity, and it is hereby specially apportioned to be paid to the electrical examining board in equal sums, as a fee or salary for the work done by said board in holding said examination."
46. "Examinations for master electricians' license shall be held the third week in April and October of each year, unless an emergency arises necessitating a special examination. All applications for examination must be filed in the office of the superintendent of electrical affairs not later than the first Monday of the calendar month in which examinations are to be held. Each applicant shall have not less than five days written notice of exact date examination is to be held."
47. "The passing grade for the examination hereinabove referred to shall be 70%; and if the applicant makes such passing grade or over on his examination, it shall be the duty of said board to so notify the superintendent of electrical affairs, who shall thereupon issue to said applicant a certificate as a master electrician. If the applicant should fail to make said passing grade, it shall be the duty of said board to so notify the superintendent of electrical affairs."
48. "If the applicant fails to make the passing grade given him by said board, said applicant may appeal to the superintendent of electrical affairs, who shall regrade said examination, and such regrading shall be final. If said applicant makes a grade of 70% or over on said examination on said regrading, then said applicant shall be entitled to, and the superintendent of electrical affairs shall issue to him, a certificate as a master electrician."
49. "Any person who has heretofore taken and passed the examination given by the electrical examining board under prior ordinances, and who now holds a certificate by virtue thereof, shall not be required to take a further examination, but shall be entitled to a certificate as a master electrician upon payment of the annual license fee as hereinafter set out, provided that his present certificate is still in effect at the time he applies for a certificate as a master electrician."
50. "The license fee for a certificate as a master electrician shall be $2 for the year or any part thereof. . ."
51. "Every electrical contractor, before performing any work or doing any job of electrical installation, construction, or repair, shall apply for and obtain a permit from the superintendent of electrical affairs authorizing him to do such work. No such permit shall be issued unless and until said electrical contractor is himself a licensed master electrician or has in his employ and in charge of all his electrical work one who is a licensed master electrician."
53. "Every person holding a master electrician's certificate shall register with the superintendent of electrical affairs the person, firm, or corporation with whom he is connected, and shall not be employed by more than one person, firm, or corporation at the same time. No licensed master electrician shall permit the use of his name as an employee by an electrical contractor unless and until he is a bona fide employee of such electrical contractor. If any master electrician severs his connection with the electrical contractor by whom he is employed, he shall immediately notify the superintendent of electrical affairs in writing of same."
The plaintiff alleged that the foregoing sections 35, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 53, and the portion of section 51 reading as follows: "No permit shall be issued unless and until said electrical contractor is himself a licensed master electrician or has in his employ and in charge of all his electrical work one who is a licensed master electrician," were unconstitutional and void, in that as applied to him they violated the due-process and equal-protection clauses of the State and Federal constitutions, and also that various portions of the ordinance were unreasonable for reasons stated. The judge held in effect that section 35 of the ordinance, providing for appeal from orders of the superintendent to the electric-light committee, had reference only to matters set forth in preceding sections of the ordinance, and did not apply to the matter of examination in which the plaintiff is interested, and that the other provisions of the ordinance were materially different from those involved in previous decisions in which such ordinances relating to the same or similar subjects had been held invalid in whole or in part. He concluded that the ordinance was not unreasonable or invalid for any of the reasons urged, all of which are again urged by the assignments of error in this court.
1. We do not deem it necessary to pass upon every question presented by the assignments of error in this case. The plaintiff, as an electrical engineer, applied to the defendant for a permit to do specified electrical work. The permit was refused because the defendant had not stood an examination for license as master electrician, as required by an ordinance of the city, and such ground of refusal seems to be the only matter in which the plaintiff is now concerned. Accordingly, only those provisions of the ordinance relating to examination are proper matters for consideration in this case. The judge held that section 35, providing for appeal from an order of the superintendent to the electric-light committee, has reference only to matters covered by preceding portions of the ordinance, and does not apply to the matter of examination as dealt with in subsequent sections. This conclusion seems to be correct, at least so far as the question of examination is concerned. This is true for the reason that section 48 provides for a different kind of appeal in case of examination, and appears to be exhaustive as related to that subject. It is provided by this section that if the applicant fails to make a passing grade of 70% on examination given to him by the examining board, he may appeal to the superintendent, who shall regrade the examination, and such regrading shall be final. If section 35 should be applied to refusal of a permit upon the ground that no examination has been taken, the plaintiff would be concluded here for his failure to prosecute an appeal in accordance with this section, unless the section be invalid as contended. Compare City Council of Augusta v. Loftis, 156 Ga. 77 ( 118 S.E. 666); Loftis Plumbing Heating Co. v. Quarles, 188 Ga. 404 ( 3 S.E.2d 725). The section is attacked upon the ground that it would authorize the electric-light committee to exercise an unbridled or arbitrary discretion. Whether it might be subject to this criticism, or should be held valid as contemplating only an impartial conclusion based upon considerations pertinent to the order from which appeal is taken ( Cutsinger v. Atlanta, 142 Ga. 555 (2), 83 S.E. 263, L.R.A. 1915B, 1097, Ann. Cas. 1916C, 280), we are satisfied that the stated provision for appeal is not applicable, as in this case, to refusal of a permit on the ground that the petitioner had not stood an examination.
2. Section 49 of the ordinance provided as follows: "Any person who has heretofore taken and passed the examination given by the electrical examining board under prior ordinances, and who now holds a certificate by virtue thereof, shall not be required to take a further examination, but shall be entitled to a certificate as a master electrician upon payment of the annual license fee as hereinafter set out, provided that his present certificate is still in effect at the time he applies for a certificate as a master electrician." The plaintiff assailed this section upon the ground that it denies to him equal protection of the law, in violation of the 14th amendment, in that it permits the granting of certificates to persons who may have passed examinations under previous ordinances and who hold certificates thereunder, "notwithstanding the fact that all the prior ordinances of the City of Atlanta providing for an examination as a condition precedent to the granting of a certificate as an electrical contractor were declared and held to be unconstitutional, unreasonable, null and void as being discriminatory against this petitioner, and the granting of a preference to such persons as were allowed a favorite status under such prior ordinances over petitioner in the ordinance which is herein challenged is an unfair, unconstitutional, and unreasonable discrimination against petitioner, and denies your petitioner the equal protection of the laws." We do not here take judicial cognizance of the previous ordinances, or of former adjudications regarding them. These were matters for proof. Ellis v. First National Bank of Atlanta, 182 Ga. 641 (2) ( 186 S.E. 813); Laurens County Board of Education v. Stanley, 187 Ga. 389, 391 ( 200 S.E. 294). But if the allegations as to such former adjudications are true, and they appear to have been taken as true upon the trial, section 49 would necessarily constitute an unlawful exemption from sections 44, 45, 46, 47, 48, and 51, relating to examination as condition precedent to license as master electrician, and would render these latter sections themselves discriminatory and invalid, as contended. An ordinance which has been duly adjudicated to be unconstitutional should thenceforth be treated as wholly void and inoperative for any purpose. Green v. Hutchinson, 128 Ga. 379 (2) ( 57 S.E. 353); Southeastern Greyhound Lines Inc. v. Atlanta, 177 Ga. 181, 184 ( 170 S.E. 43); Fuller v. Yetter, 40 Ga. App. 58 (2), 60 ( 148 S.E. 751).
3. The provisions as to examination apply only to those desiring a certificate as master electrician, but the manner in which these provisions operate upon the plaintiff is shown by section 51, which reads as follows: "Every electrical contractor before performing any work or doing any job of electrical installation, construction or repair shall apply for and obtain a permit from the superintendent of electrical affairs, authorizing him to do such work. No such permit shall be issued unless and until said electrical contractor is himself a licensed master electrician or has in his employ and in charge of all his electrical work one who is a licensed master electrician." It is thus seen that any one desiring a permit to do electrical work as a contractor must himself hold a license as master electrician, or have in his employment and in charge of all of his electrical work one who is a master electrician. More than this, it is provided in section 53: "Each person holding a master electrician's certificate shall register with the superintendent of electrical affairs the person, firm, or corporation with whom he is connected, and shall not be employed by more than one person, firm, or corporation at the same time. No licensed master electrician shall permit the use of his name as an employee by an electrical contractor, unless and until he is a bona fide employee of such electrical contractor. If any master electrician severs his connection with the electrical contractor by whom he is employed he shall immediately notify the superintendent of electrical affairs in writing of same." The plaintiff alleged that these, among other provisions, unreasonably interfere with his right to labor and earn a livelihood, and that they discriminate against individuals like the plaintiff in favor of firms and corporations, both as to the manner and amount of taxation and in regard to examination, imposing unequal burdens upon persons of the same class, and violating both the equal-protection and due-process clauses of the State and Federal constitutions. The petition further alleged in effect that the ordinance does not promote the public interest, but tends to monopoly, and that it deprives the plaintiff of his inalienable right to work at his trade as an electrical contractor. We are of the opinion that the provisions of sections 51 and 53, as challenged, are invalid for unreasonableness, as applied to the plaintiff, who it appears performs by himself such electrical work as may be entrusted to him. He is not a member of a firm, or connected with a corporation; and no matter what contract, whether great or small, he may be able to obtain, he can not meet the requirements of the city ordinance unless he has in his employment and in charge of all his electrical work one who is a licensed master electrician, the plaintiff himself not having stood examination and obtained a license.
As was stated in City of Tucson v. Stewart, 45 Ariz. 36 ( 40 P.2d 72, 96 A.L.R. 1493): "Plaintiff and those others in his situation must employ a licensed supervising electrician to superintend every electrical contract they may secure. It is not shown what the yearly income of these small contractors is, or what wage the licensed supervising electrician receives, but it is most probable the small contractor would have nothing left for his labor and trouble after paying a supervising electrician." Regulations similar to those here involved were considered in that case, in respect of which the court said: "Under the ordinance every holder of a certificate of registration is authorized to contract electrical wiring and installation; but whether it be a person, firm, or corporation, the wiring and installation must be under the supervision of a supervising electrician, designated as such in each application for a permit to do construction, and such supervising electrician must be either the holder of a certificate of registration or in the employment of a holder. It is thus seen that no person may be a supervising electrician unless licensed, and to that extent all registered contractors are in the same category, whether such contractors be persons, firms or corporations. But does this fact dispense with the discrimination intended to be avoided? Where the contractor is an individual doing all his work, or practically all of it, it of necessity requires him to be a licensed electrician; but if the contractor is a firm or corporation, it may operate on a license to a member or employee of the firm, or an officer or employee of the corporation. In other words, in the case of a firm or corporation, if the work is supervised by a member of the firm or by an officer of the corporation, only such supervisor must be licensed. There is no restriction on unlicensed partners or unlicensed officers or employees, however numerous, doing work in the performance of the contract. Or, if none of the partners is qualified to obtain a license, the firm may employ a licensed electrician to supervise the work, while the unlicensed partners do the actual construction under his supervision. All the officers and employees of a corporation, when the latter employs a licensed electrician to supervise the work, may likewise do the actual construction. In the case of the individual contractor, there are no partners or officers, as in partnerships or corporations, to become qualified electricians by his securing a supervising electrician's license. His working force is not enlarged thereby." We do not quite follow the reasoning of the Arizona court so far as it relates to discrimination, since the ordinance there, as here, would seem to operate alike upon all persons engaged in electrical work; that is to say, whether the contractor be an individual, a firm, or a corporation, the requirements are the same as to supervision and who shall do it. What was said in that case, however, tends to show that the present ordinance is at least unreasonable, in that it imposes an undue burden upon the plaintiff and others in like situation, by requiring every such contractor not only to have his work performed under the supervision of a licensed master electrician, but to keep in his employment one such electrician, who shall be employed exclusively by him.
Note, in this connection, the provisions of section 53, to the effect that each person holding a master's certificate shall register the person, firm, or corporation with whom or with which he is connected, and shall not be employed by more than one person, firm, or corporation at the same time. Under this section, no person may engage in the business of electrical contractor unless he shall first gather unto himself a master electrician, for his own exclusive service and employment, regardless of the expense, and of the volume of business which may be done by him. We find no fault with the provision that all installation, construction, or repair shall be supervised by a master electrician, that is, by one who has passed an examination as to his knowledge and proficiency in such matters; but it does seem to us that supervision could be fairly and sufficiently enforced without requiring every contractor to keep in his regular and exclusive employment a licensed master electrician. Such an employee might become a luxury instead of a necessity, and what if there should not be a sufficient number that each contractor might have one? The requirement obviously tends to monopoly in favor of the larger firms and corporations and master electricians, to the hurt, if not the annihilation, of small contractors, with no reasonable basis for such requirement, as a general welfare measure. Monopolies are denounced by the constitution and laws of this State; and although the petition does not allege that the ordinance in question is unconstitutional upon this ground, the allegations as to such may be considered on the question of reasonableness. We can not escape the conclusion that the ordinance is unreasonable and void as placing an undue burden upon the plaintiff's right to engage in the business of electrical contractor. In this view, it is unnecessary to declare whether it violates the constitutional principle of due process. In support of the conclusion reached, see Henry v. Campbell, 133 Ga. 882 ( 67 S.E. 390, 27 L.R.A. (N.S.) 283, 18 Ann. Cas. 178); Gregory v. Quarles, 172 Ga. 45 ( 157 S.E. 306); Southeastern Electric Co. v. Atlanta, 179 Ga. 514 ( 176 S.E. 400); Dewell v. Quarles, 180 Ga. 864 ( 181 S.E. 159); Richardson v. Coker, 188 Ga. 170 ( 3 S.E.2d 636); State ex rel. Winkler v. Benzenberg, 101 Wis. 172 ( 76 N.W. 345); Vicksburg v. Mullane, 106 Miss. 199 ( 63 So. 412, 50 L.R.A. (N.S.) 421); Tucson v. Stewart, supra; Aaroe v. Crosby, 48 Cal.App. 422 ( 192 P. 97). Contrast Caven v. Coleman (Tex.), 96 S.W. 774, Milwaukee v. Rissling, 184 Wis. 517 ( 199 N.W. 61).
4. The plaintiff did not allege that the entire ordinance was void, nor did he challenge the provisions relating to permit, except in reference to examination. According to Richardson v. Coker, supra, suit for the writ of mandamus was the proper remedy, and under the facts of the record the judge erred in refusing a mandamus absolute.
Judgment reversed. All the Justices concur.