No. 14725
IN THE SUPREME COURT OF THE STATE OF MONTANA
BILLINGS ASSOCIATED PLUMBING, HEATING
AND COOLING CONTRACTORS, et al.,
Plaintiffs and Appellants,
STATE BOARD OF PLUMBERS,
Defendant and Respondent.
Appeal from: District Court of the Thirteenth Judicial District,
Honorable C. B. Sande, Judge presiding.
Counsel of Record:
For Appellants:
Calvin A. Calton argued, Billings, Montana
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana
Denny Moreen argued, Assistant Attorney General, Helena,
Montana
Submitted: September 17, 1979
Decided: NOV 1 4 1979
Filed :
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Mr. Chief Justice Frank I. Haswell delivered the Opinion of the
Court.
Plaintiff appeals from a judgment on the pleadings in
favor of defendant in the District Court of Yellowstone County.
Plaintiff is an informal association of plumbing con-
tractors in the Billings, Montana, area. It filed an action for
declaratory judgment seeking to have state statutes establish-
ing a statewide permit system for plumbers declared unconstitu-
tional. The Billings Association claimed the state inspection
and permit system was substantially a duplication of an existing
local system in the Billings area; that it subjected Billings
plumbers to two fees; and that the dual regulatory system denied
Billings plumbers equal protection of the law and due process.
The District Court restrained the State Board from collecting in-
spection and permit fees during the pendency of the action.
During the course of the action the 1977 Legislature
enacted a statute providing that no state permit was required in
an area where a city code was in effect covering plumbing install-
ations and providing inspection procedures. Section 50-60-506(3),
MCA .
The State Board counterclaimed seeking a mandatory injunc-
tion to compel Billings plumbers to obtain permits and pay fees
for plumbing installations prior to the effective date of the 1977
Act. The District Court granted the State Board judgment on the
the pleadings. The Billings Association appeals,
Plaintiff assigns the following issues for review in this
appeal :
(1) Is the dual regulatory system for plumbers as it
existed prior to the 1977 legislation an unconstitutional denial
of equal protection and due process?
(2) Is there a material issue of fact precluding judg-
ment on the pleadings?
(3) Is injunctive relief a proper remedy?
By way of background to the present controversy, the
City of Billings had enacted and placed in operation, as part of
its municipal building code, inspection procedures covering plumb-
ing installations pursuant to the authority contained in section
50-60-301 et seq., MCA. The 1975 Legislature enacted an amend-
ment to the existing state law providing a statewide inspection
and permit system for plumbing installations to be administered
by the State Board of Plumbers. Section 1, Ch. 466, Laws of
Montana 1975, codified in section 50-60-505, MCA. This amendment
became effective on July 1, 1975. Under this legislation, per-
mit fees were to be paid by plumbing contractors and placed in a
revenue fund earmarked to cover costs of administration, inspec-
tion and enforcement of the State Plumbing Code. The state system
substantially duplicated the existing Billings system. The effect
was tb subject Billings plumbers to two permits and two fees, one
payable to the city and the other payable to the state.
This situation was remedied by the 1977 Montana Legislature's
enactment of a statute providing that no state permit was required
in an area where a municipal code covering plumbing installations
and providing inspection procedures was in effect as heretofore
indicated.
The present action, insofar as it seeks collection of
state fees, is limited to plumbing installations in the Billings
area between July 1, 1975, and July 1, 1977.
The first issue in this appeal is the constitutionality
of the state statutes providing for state inspections of plumb-
ing installations and state fees therefor. The Billings Association
contends that the state statutes create double regulation of Billings
plumbers which is an invalid exercise of police power, denies
them equal protection of the law, and violates due process require-
ments. The State Board of Plumbers argues the converse.
The state regulatory system is aimed at the protection
of the health and welfare of the people of this state. Section
50-60-501, MCA. It constitutes an exercise of the state's
police power. Billings Properties, Inc. v. Yellowstone County
(1964), 144 Mont. 25, 394 P.2d 182, It is not contended nor
argued that either the Billings regulatory system or the state
regulatory system standing alone is constitutionally defective.
It is the coexistence of the two regulatory systems that is the
focus of the constitutional attack.
Dual regulation of an activity by a municipality and the
state is not prohibited as long as the municipal regulation does
not conflict with the state regulation. 62 CJS Municipal Corpor-
ations, Sec, 143, pp. 286-293.
"Where there is room for concurrent jurisdiction,
there is no objection to the state and a munici-
pality legislating upon the same subject, so long
as the municipal ordinance does not conflict with
the state law." State v. Cook (1929), 84 Mont.
478, 485, 276 P. 958, 961.
Here the state permitted local regulation. Section 50-60-201
et seq., MCA. This manifested a legislative intent that plumbing
jurisdiction and regulation be concurrent between the city and
state. There is no contention that the two regulatory systems
are conflicting or irreconcilable. Moreover, if the two systems
did conflict, the local system, not the state system, must yield.
City of Bozeman v. Merrill (1927), 81 Mont. 19, 261 P. 876.
The right to carry on a lawful business is a property
right; due process requires that it not be unreasonably or un-
necessarily restricted, U.S. Const., Amend. XIV, 81; 1972 Mont.
Const. Art. 11, S17. The state regulatory system of plumbers
is a valid exercise of police power over a lawful business. See
State v. Abstracters Board of Examiners (1935), 99 Mont. 564, 45
P.2d 668, and Freeman v. Board of Adjustment (1934), 97 Mont. 342,
34 P.2d 534.
Equal protection of the laws requires that all persons
be treated alike under like circumstances. U. S. Const., Amend.
XIV, 81; 1972 Mont. Const., Art. 11, S4; Montana and ~ i t l e s s ' n
~
v. First American Title (1975), 167 Mont. 471, 539 P.2d 711.
Classification of persons is allowed as long as it has a permis-
sible purpose and the classifying statute has a reasonable rela-
tionship to that purpose. McGowan v. Maryland (1961), 366 U.S.
420, 81 S.Ct. 1101, 6 L Ed 2d 393; Lindsley v. Natural Carbonic
Gas Co. (1911), 220 U.S. 61, 31 S.Ct. 337, 55 L.Ed. 369, see also
United States v Reiser (D.C. Mont. 1975), 394 F.Supp. 1060, 1063,
.
rev'd on other grounds (9th Cir. 1976), 532 F.2d 673.
Here concurrent regulation by the city and state was per-
missible. All plumbers subject to both the Billings ordinance
and the state statute were treated alike. To the extent that dual
regulatory system established a classification between Billings
area plumbers and those in the rest of the state, the classifica-
tion was reasonable and bore a rational relationship to the pur-
pose of protecting public health. Any system of dual regulation
by different governmental entities necessarily subjects some
persons to different treatment than others but this is not the
test of equal protection.
Accordingly, we hold that the state legislation establish-
ing a dual regulatory system was constitutional.
The Billings Association next contends that an issue of
fact exists which precludes entry of a judgment on the pleadings.
The Association alleged the Board could not have conducted inspec-
tions of every plumbing installation during the period from July
1, 1975 to suiy 1, 1977.
Assuming the inability of the Board to inspect every in-
stallation, judgment on the pleadings was nonetheless properly
entered. The act provides:
"~ll plumbing and drainage systems may be inspected
by the department of administration or its authorized
representative to insure compliance with the require-
ments of the state plumbing code." Section 50-60-510,
MCA. (Emphasis added.)
Inspection was not intended to be mandatory as evidenced by use
of the word "may" rather than "shall" or "must". Enforcement was
intended to be selective and the Board's alleged inability to
inspect does not preclude judgment on the pleadings.
Turning to the last issue, we hold that injunctive relief
is improper in this case. The injury complained of was noncom-
pliance with a state permit requirement from 1975-1977. Injunc-
tive relief cannot remedy a past wrong. Dutton v. Rocky Mountain
Phosphate, Inc. (1969), 152 Mont. 352, 362, 450 P.2d 672, 677;
Bouma v. Bynum Irrigation District (1961), 139 Mont. 360, 364,
364 P.2d 47, 49; 42 Am Jur 2d Injunctions S 4 , pp. 730-731.
We do not find a continuing nuisance which would, if it
existed, be subject to remedy by injunction. A continuing nuis-
ance contemplates some sort of future harm unless the offending
act is enjoined. Here all the harm occurred from 1975-1977. Where
the entire injury is in the past, an injunction cannot issue.
The injunctive relief is vacated. The remainder of the
judgment on the pleadings is affirmed.
Chief Justice
We concur: