Ex Parte Grey (1909) · DecisionDepot

Ex Parte Grey

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Court of Appeal Aug 20, 1909 No. Crim. No. 186.Published

Before: Cooper

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Holding. The court held that a municipal ordinance attempting to delegate the power to appoint a board of plumbing examiners to a board of police and fire commissioners is void because it conflicts with a general state law requiring boards of health to regulate and license plumbers.

Issues

Whether a city ordinance delegating the appointment of a board of plumbing examiners to a board of police and fire commissioners is valid.
Whether the ordinance conflicts with the general state law requiring boards of health to license plumbers.

Disposition. prisoner discharged

Quotations verified verbatim against the opinion

“The ordinance of the city of San Jose attempting to delegate to the board of police and fire commissioners the power to appoint a board of plumbing examiners to examine and issue licenses to plumbers is in conflict with the general law, and hence void.”

“It follows that the prisoner must be discharged, and it is so ordered.”

Synopsis

PETITION for discharge upon writ of habeas corpus, from imprisonment under an ordinance of the city of San Jose.

The facts are stated in the opinion of the court.

COOPER, P. J.

The petitioner is imprisoned under a complaint charging him with unlawfully practicing the trade of plumbing in the city of San Jose, in the county of Santa Clara, without first having obtained a certificate from the board of plumbing examiners authorizing him so to do, he being a journeyman plumber, contrary to the provisions of an ordinance of said city in relation to plumbing and drainage, a copy of which ordinance is set forth in the petition. ■

It is claimed that the ordinance, in so far as it provides for the appointment of a board of plumbing examiners, and the issuance of a certificate by them, and the fixing of a

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penalty for the violation of its terms in this regard, is in conflict with the general laws of the state, and therefore void. This is the only question in the case which we deem it necessary to decide.

The ordinance provides as follows: “It shall be unlawful for any master plumber or journeyman plumber to practice his trade in the city of San Jose without first obtaining a certificate from the Board of Plumbing Examiners. To obtain such certificate it shall be necessary for each plumber to pass a satisfactory examination before the said Board of Plumbing Examiners, showing his knowledge and ability to do work as a master plumber or journeyman plumber in accordance with the latest and most approved method of sanitary plumbing. Said Board of Plumbing Examiners shall consist of the plumbing inspector and six other members, to be appointed by the Board of Police and Fire Commissioners, to be submitted. They shall all be practical plumbers, three to be journeymen and three to be employers, and each of the members of said board to pass .an examination under the supervision of the Board of Police and Fire Commissioners. No person shall be eligible to an appointment on the Board of Plumbing Examiners until he shall have first passed a satisfactory examination the same as provided in this section for obtaining a certificate for practicing plumbing.”

It will be seen that under the said ordinance the board of plumbing examiners shall consist of the plumbing inspector, and six other members to be appointed by the board of police and fire commissioners. This is the board of plumbing examiners authorized by the ordinance to give the certificate, and the failure to obtain such certificate is the omission which it is claimed constitutes a crime, and for which the prisoner is held in custody.

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police and fire commissioners or to anyone else. It is elementary that the common council of a municipal corporation in whom certain specific powers are vested by the charter cannot delegate the trust so vested in such common council to other parties not named in the charter; and it is not necessary to cite authorities to sustain such proposition. The board of police and fire commissioners consists of five members appointed by the mayor. The charter expressly gives said board of police and fire commissioners certain powers, but we look in vain for any authority given said board to appoint a board of plumbing examiners. The powers of such board relate to the police and fire departments, the maintenance of law and order, the protection of the buildings in said city from fire; the superintending of the laying and erection of electric telegraph and telephone wires; the maintenance of fire alarm and police telegraph and telephone stations and apparatus, and other similar matters. There is not a word in the charter in any way granting to the board of police and fire commissioners any authority as to the construction of buildings, the plumbing thereof, or as to any other purely sanitary matters. The charter provides for a board of health, to consist of five members, who shall each be a duly licensed physician. It states: “The Board of Health shall exercise a general supervision over the health of the city, with full power to use all measures necessary to promote the cleanliness and sanitary conditions thereof; to prevent the introduction into the city of malignant or infectious diseases, and to remove or otherwise dispose of any person or animal attacked by any such disease, and to adopt in reference to such person or animal any restrictions, regulations or measures deemed advisable. Said board shall adopt and enforce such forms and regulations as in their judgment will secure reliable vital and mortuary statistics; shall have the supervision of all persons engaged or appointed to carry out any of the powers conferred on said board.”

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Synopsis

COOPER, P. J.

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