Mitchell v. Dixon, 2448-7999.

• Decision Date: 10 February 1943
• Docket Number: No. 2448-7999.,2448-7999.
• Citation: 168 S.W.2d 654
• Parties: MITCHELL et al. v. DIXON et al.
• Court: Texas Supreme Court

168 S.W.2d 654

MITCHELL et al. v. DIXON et al.

No. 2448-7999.

Commission of Appeals of Texas, Section A.

February 10, 1943.

Rehearing Denied March 10, 1943.

Error to Court of Civil Appeals of Fifth Supreme Judicial District.

Mandamus proceeding by E. B. Dixon and others to compel W. B. Mitchell, Mayor, and the other members of the governing body of the City of McKinney to appoint the constituent members of a board for the examination of plumbers. Judgment for plaintiffs was affirmed by the Court of Civil Appeals, 161 S.W.2d 527, and defendants bring error.

Judgment of Court of Civil Appeals and judgment of district court reversed and rendered.

H. C. Miller, City Atty., and John D. Reese, both of McKinney, for appellants.

Mort W. Muse, of McKinney, for appellees.

HARVEY, Commissioner.

This is a suit for mandamus, brought in the district court of Collin County by E. B. Dixon, E. R. Dowlin and E. L. Vickery, as plaintiffs, against W. B. Mitchell, Mayor, and the other members of the governing body of the City of McKinney, as defendants to compel them to appoint the constituent members of a board for the examination of plumbers, in accordance with the requirements of Article 1078 of the Revised Statutes of 1925. The case was tried, and the trial court entered judgment granting the mandamus commanding the appointment of a board constituted of four persons. The Court of Civil Appeals affirmed the trial court's judgment, 161 S. W.2d 527. The petition of the defendants, W. B. Mitchell et al., for the writ of error, has been granted and the case is now before us for review.

The material facts are substantially as follows:

McKinney is a home rule city of more than 5,000 inhabitants, and is duly organized and operating as such. The city has a system of underground sewers, but has no board for the examination of plumbers. It has a city health officer and a city inspector of plumbing, but has no city engineer. Each of several persons who reside in the city is a master plumber of not less than ten years' active and continuous experience as a plumber, and each of several other residents of the city is a journeyman-plumber of not less than five years of such active and continuous experience. The defendants, the petitioners here, have for several years designedly failed to set up for operation a board for the examination of plumbers. Each of the plaintiffs (respondents here) is an inhabitant of said city, and is a plumber engaged in working at the plumbing business in the city. In August, 1937, a city ordinance was passed which, according to its terms, created a board for the examination of plumbers. In relation to the character of the constituents of the board, the language of the ordinance is essentially the same as that of Article 1078 of the Revised Statutes except that the term "city engineer" is omitted. This ordinance, soon after its passage, ceased to be observed. There is not now, and for several years has not been, a city board for the examination of plumbers.

Article 1076 of the Revised Statutes of 1925 provides: "Every city in this State, however organized,...