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shall be open for public inspection, and a list of certificates issued, with the names and business and residence addresses of the holders thereof. By section 16 (§ 31) a licensed land surveyor is given authority to take evidence under oath. By section 17 (§ 32) plats and certificates of a licensed surveyor shall be received as evidence in court. By section 18 (§ 33) it is provided that the board of examiners "shall issue permits to surveyors of other states to practice within the counties of this state affected by this act when they present credentials showing that they have been admitted to practice under registration or license laws of their own states." Smith-Hurd Rev. Stat. 1925, p. 2506.

Constitutional law-extent of police power.

It is urged by appellant that this act violates the constitutional provision against unreasonable discrimination and that it is void as not within the police power of the state. This act is in many respects similar, in effect, to the act concerning the licensing of public accountants, considered by this court in Frazer v. Shelton, 320 Ill. 253, 43 A.L.R. 1086, 150 N. E. 696, and there held invalid as not within the police power. That question arises here concerning the regulation of land surveyors. The police power The police power of the state is exercised for the furtherance of the public health, comfort, safety, or welfare, and, unless an act restricting the ordinary occupations of life can be shown to fall within the police power, such act is void. It is not to be doubted that such occupations as the practice of medicine and surgery and other treatment of human ills, and the profession of law by reason of its influence on the protection and safety of the rights of property and liberty, do affect the public welfare, as does the manner of construction of buildings affect the public safety. These occupations, therefore, may properly under the police power, be regulated. What then, is there in the occupation of land surveying that brings its regulation within the

safeguards of the police power? Under this statute county surveyors and employees of a city, county, the state, and the United States are exempt from the act. In other words, those having to do with surveying for the public are not required to be licensed. There is seen in the act, therefore, no element of public welfare as such pertains to the protection of the public business. It appears that the surveyors coming under the act are those whose practice is largely confined to private contract. While their plats, and certificates thereto, shall be received in evidence, and may be recorded in the county where the land affected lies, subject to statutory provisions relating to the approval, recording, and filing of plats of subdivisions and dedications, yet they are not to be taken as of more binding force than other evidence of land measurements, though § 7 of the statute relating to county surveyors (Smith-Hurd Rev. Stat. 1925, p. 2505, chap. 133) provides that the plats of a county surveyor shall be prima facie evidence of the correctness of the measurements there given. As a result of the operation of the statute in question, private individuals desiring a survey must select their surveyor from those licensed by the board, and, in the absence of an element of public safety or welfare, such is an unwarranted limitation on the right of contract and a void interference with private veyors to probusiness. As was cure certiâsaid by this court in Frazer v. Shelton, supra: "In order to say that private business must, in the interest of public welfare, employ one certified by the state, it must appear that the effect of an audit of that business is a matter of public welfare and not of private concern."

-requiring sur

cates.

If the effect of the work of a land surveyor is but a matter of private concern, the law regulating and licensing it as a business is an unwarranted regulation of private business and of the right to contract. While the Legislature in this state

(327 Ill. 387, 158 N. E. 703.)

has passed acts providing for the permanent survey of lands and the establishment of permanent lines and corners by a commission of surveyors, such acts have been in the interest of the public welfare, or were acts providing for the settlement of disputes, and have therefore been held valid. Hood v. Tharp, 228 Ill. 244, 81 N. E. 861. Such acts are not the regulation of private business.

Counsel for appellees urge that, since architecture and structural engineering have been held to be occupations that may be regulated and licensed, land surveying should likewise be so held. Architecture and structural engineering directly affect the public safety, in that the construction of houses in cities is

of substantial influence in affecting the danger from fire and other causes. We are unable to see wherein the determination of a corner as established by the government is a matter which comes within the police power of the state to regulate. For the reasons given in the case of Frazer v. Shelton, supra,

and cases there cited, we are constrained to hold that the act is invalid as not within the police power of the state.

It is also contended by appellees that equity has no jurisdiction, as appellant has a complete remedy at law, either by mandamus or certiorari proceedings. He alleges, however, in his bill that the board of land surveyors is about to proceed with a hearing against him, which it has no authority to hold if the Surveyors Act is unconstitutional. He Injunction is therefore proper- ment of unconly in a court of ute. equity equity seeking to enjoin the board from proceeding with an illegal act to his detriment.

against enforce

stitutional stat

The Superior Court of Cook county erred in sustaining the demurrer to the bill and dismissing the same for want of equity. The decree will therefore be reversed, and the cause remanded to that court, with directions to overrule the demurrer.

Petition for rehearing denied December 7. 1927.

ANNOTATION.

Constitutionality of statute regulating land surveyors or civil engineers. [Constitutional Law, §§ 551, 734.]

In but two cases other than the re- al as not falling within the police ported case does the constitutionality of a statute regulating land surveyors or civil engineers seem to have been before the courts.

The statute involved in the reported case (DOE v. JONES, ante, 303) provided in effect that no land surveyor or engineer should be permitted to practise the profession of land surveying unless he had first complied with all the requirements laid down by the board of examiners of land surveyors, which board the statute created. Furthermore, the statute specially excluded or exempted all county surveyors and employees of a city, county, the state, and the United States, the statute thus being an act applicable only to surveyors engaged in the private business of surveying. The court holds the statute to be unconstitution

power of the state, which power can be exercised only for the furtherance of the public health, comfort, safety, or welfare. It is held that the surveyors embraced within the act were only those whose practice was confined largely to private practice; that no elements of public safety or welfare were involved; and that such an act constituted an unwarranted limitation on the right of contract and a void interference with private busi

ness.

In Com. ex rel. Woodruff v. Humphrey (1927) 288 Pa. 280, 136 Atl. 213, the statute involved was entitled "An Act to Regulate the Practice of the Profession of Engineering and of Land Surveying; Creating a State Board for the Registration of Professional Engineers and Land Surveyors;

Defining Its Powers and Duties; Imposing Certain Duties upon the Commonwealth and Political Subdivisions Thereof in Connection with Public Work; and Providing Penalties." Treating the act as providing only for the licensing of professional engineers, the court held that it was within the public power of the state, saying: "Of course, under what circumstances the safety and welfare of the community require the protection afforded by a professional registration act is primarily for the legislature to decide, and, when that body concludes that engineers who have to do with the construction of our great bridges, reservoirs, and buildings, together with other structures which touch the daily life of all the people, must have their qualifications certified by the state, we can hardly say that such an act is, prima facie, an abuse of the police. power; for a mistake made by an engineer in figuring the strain and stress capacity of the various members that enter into many latter-day constructions might lead to such a loss of life as would amount to a public calamity, or, in the field of electrical engineering, the wrong location of wires and machinery might result in untold injuries, and, again, the unskilled performance of the duties of a mining engineer might not only lead to the loss of human life, but also to much strife between adjoining owners and to litigation in the courts." The act, however, provided that all persons engaged in, or offering to practise, the profession of engineering, should be required to register, except certain persons expressly exempted from registration. One of these exemptions was in favor of "officers and employees of a corporation engaged in interstate commerce, as defined in the act of Congress, entitled 'An Act to Regulate Commerce,' approved February 4, 1887." The court, in holding this clause unconstitutional, said: "What reasonable grounds can there be for permitting officers and employees of corporations engaged in interstate commerce to practice the profession of engineering in Pennsylvania without registration, while requiring all officers and engineers of corporations not

engaged in interstate commerce to be registered? It will be observed that this does not say that these officers and engineers are exempt merely while engaged in interstate commerce work; on the contrary, they are wholly exempt from registration, and may freely practise the profession of engineering in our state. Moreover, when we come to examine the act of Congress referred to in the exemption, we find that it does not cover all corporations engaged in interstate commerce, but only certain classes of them. Thus, in order to ascertain what the law of Pennsylvania is, we should be obliged to go to an act of Congress and read it into our own statute." This clause being invalid as creating an unjustifiable classification, the act was declared unconstitutional.

In McLendon v. State (1912) 179 Ala. 54, 60 So. 392, Ann. Cas. 1915C, 691, an Alabama statute was involved which provided that "any person engaged in the practice of law, medicine, osteopathy, dentistry, and veterinary surgery, and any optician, architect, actuary, public accountant, civil engineer, mechanical engineer, or electrical engineer, having a place of business and charging for his services, shall pay an annual license for the state only $5; provided ex-Confederate soldiers who are entitled to practise any of these professions in Alabama shall not be required to pay this tax. Provided, further, that no person shall be required to pay this tax until after he has practised his profession for one year." That part of the statute which was attacked as unconstitutional was the section providing for the exemption from the provision of the act of all ex-Confederate soldiers. The court held this clause to be violative of the 14th Amendment to the Constitution of the United States, because it granted special privilege to one class of persons (Confederate soldiers) and denied it to another class (Union soldiers and veterans of other wars), without any just basis for the discrimination or classification. On this ground the entire statute was held to be unconstitutional. J. R. B.

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Constitutional law, § 693 - police power - forbidding night moving. 1. Forbidding one to go onto the premises of another in the night, without right, to assist in moving therefrom a tenant without the proprietor's permission, is not an unreasonable exercise of the police power. [See annotation on this question beginning on page 311.]

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APPEAL by defendant from a judgment of the Judicial District Court for the Parish of Caddo (Mills, J.) convicting him of going on the premises of a citizen of the state in the nighttime, and moving a tenant without consent of the proprietor, in alleged violation of statute. The facts are stated in the opinion of the court. Messrs. Lewell C. Butler and Lester Wilson for appellant.

Messrs. Percy Saint, Attorney General, E. R. Schowalter, Assistant Attorney General, and Aubrey M. Pyburn for the State.

O'Niell, Ch. J., delivered the opinion of the court:

The appellant was convicted of the offense of going on the premises of a citizen of the state, in the nighttime, without his consent, and moving or assisting in moving therefrom a tenant and his property or effects, and was condemned to pay a fine of $310 or be imprisoned 90 days. The offense was a violation of the Act No. 38 of 1926, p. 52, which makes it unlawful to go on the premises or plantation of a citizen of this state, in the nighttime

Affirmed.

or between sunset and sunrise, without his consent, and to move or assist in moving therefrom any laborer or tenant. The act declares that it does not apply to what is done in the discharge of a civil or military order. The penalty for a violation of the act is a fine not less than $50 or more than $1,000, or imprisonment in the parish jail for a term not less than ten days or more than six months, or both fine and imprisonment within those limits, at the discretion of the judge.

The defendant pleaded that the statute was violative of the guaranty in the second section of article 4 of the Constitution of the United States that the citizens of each state shall be entitled to all privileges and immunities of citizens in the several

states, and was violative also of the provision in the 14th Amendment that no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, and violative of the due process clause and the equal protection clause of the 14th Amendment.

The demurrer or motion to quash the bill of information was submitted on a statement of facts, and was overruled, and a bill of exceptions was reserved to the ruling, after which the case was tried and subImitted on the same statement of facts, viz.: The defendant was engaged in the transfer business, was licensed to carry on the business, and had a large investment in trucks. On the occasion referred to in the bill of information he went upon the plantation of one T. D. Connell, a citizen of Louisiana, in the nighttime and without Connell's consent, and moved from the plantation to the state of Arkansas a tenant of Connell and the tenant's property or effects. The defendant was employed by Connell's tenant to do the hauling, and was not discharging any civil or military order. Some of the plantations in that vicinity were owned by citizens of Louisiana and some by persons not citizens of Louisiana. For several months previous to the occasion complained of the defendant was engaged in hauling persons and their property and effects, in the ordinary course of his business, and regardless of whether any of the persons moved were laborers or tenants on premises owned by a citizen of Louisiana or by a citizen of another state.

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his property or effects. The purpose of the statute, manifestly, is to preserve the right of every landlord or employer of farm labor to be informed of the removal from his premises of any personal property or effects. Without a statute on the subject it would be unconventional in the rural districts, to say the least, for an outsider to take the liberty of going upon the premises of another in the nighttime to cart away personal property or effects, without the landowner's consent. The statute does not discriminate with regard to those who may or may not commit the act. It forbids all alike. The discrimination is in what is forbidden. It is not forbidden-by this particular statute-to trespass upon the land of one who is not a citizen of the state, by going upon his premises in the nighttime without his consent. Perhaps the legislature used the word "citizen" not in its technical or political sense but as meaning a resident of the state, and perhaps the legislature thought the law would be too harsh if it forbade those engaged in the transfer business to go upon premises belonging to a nonresidenteven in the nighttime without first obtaining his consent. The discrimination, therefore, is not arbitrary or beyond

crimination in

favor of citizens.

all possible reason. equal privileges and imThe defendant has munities-disno cause to complain that the legislature did not go further, in enacting the law, and forbid a similar act of trespass upon the premises of a citizen of another state. If he had the right to complain of such discrimination, we would hold that the statute does not deprive the citizens of other states, owning land in this state, of any privilege or immunity guaranteed to the landowners who are citizens of this state. The privileges and immunities referred to in the second section of article 4 of the Constitution of the United States are

leges and im-what privimunities pro

tected.

only those fundamental rights which

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