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 14 1979 

Filed : ,.. , 5.29- . . iL= !-4 
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 contractors in the Billings, Montana, area. It filed an action for 

declaratory judgment seeking to have state statutes establishing a statewide permit system for plumbers declared unconstitutional. 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 inspection 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 installations and providing inspection procedures. Section 50-60-506(3), 

MCA . 

The State Board counterclaimed seeking a mandatory injunction 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 judgment 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 plumbing installations pursuant to the authority contained in section 

50-60-301 et seq., MCA. The 1975 Legislature enacted an amendment 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, permit fees were to be paid by plumbing contractors and placed in a 

revenue fund earmarked to cover costs of administration, inspection 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 plumbing 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 requirements. 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 Corporations, Sec, 143, pp. 286-293. 

"Where there is room for concurrent jurisdiction, 

there is no objection to the state and a municipality 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 unnecessarily 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 ~itle ~ss'n 

v. First American Title (1975), 167 Mont. 471, 539 P.2d 711. 

Classification of persons is allowed as long as it has a permissible purpose and the classifying statute has a reasonable relationship 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 permissible. 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 classification was reasonable and bore a rational relationship to the purpose 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 establishing 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 inspections of every plumbing installation during the period from July 

1, 1975 to suiy 1, 1977. 

Assuming the inability of the Board to inspect every installation, 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 requirements 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 noncompliance with a state permit requirement from 1975-1977. Injunctive 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 S4, pp. 730-731. 

We do not find a continuing nuisance which would, if it 

existed, be subject to remedy by injunction. A continuing nuisance 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: