Caven v. Coleman

• Decision Date: 03 April 1907
• Parties: CAVEN et al. v. COLEMAN.
• Court: Texas Supreme Court

101 S.W. 199

CAVEN et al. v. COLEMAN.

Supreme Court of Texas.

April 3, 1907.

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

Action by W. P. Coleman against T. S. Caven and others. From a judgment of the Court of Civil Appeals (96 S. W. 774), affirming a judgment for plaintiff, defendants bring error. Reversed and rendered.

T. P. Young, for plaintiff in error. W. C. Lane, for defendant in error.

WILLIAMS, J.

The defendant in error brought this action in the district court of Harrison county to compel the plaintiffs in error, the mayor and aldermen of the city of Marshall, to create an "examining and supervising board of plumbers," as provided by the act of August 20, 1897 (Laws 25th Leg. p. 236). The respondents answered, in substance, that they were not required to take such action, for the reason that there were not and had never been in Marshall any such offices as city engineer and a local board of health, the statute in question requiring that the examining board should be composed partly of the city engineer and a member of the board of health, and that if they had any power to create such offices it was entirely discretionary with them. The plaintiff thereupon prayed that the respondents be required also to create and fill the offices of city engineer and board of health, and then to appoint the examining and supervising board, and this relief was given by the judgment of the district court, which was affirmed by the Court of Civil Appeals.

The question presented is entirely one of law arising upon the statute referred to and the charter of the city. The statute of 1897 provides that every city having underground sewers (which is admitted to be the case in Marshall) shall pass ordinances, among other things, "creating a board for the examination of plumbers to be known as the "Examining and Supervising Board of Plumbers." Said board shall consist of the following five persons: A member of the local board of health, the city engineer, the chief plumbing inspector, or a master plumber, * * * and a journeyman plumber. * * *" The mayor and the local board of health shall make said appointment, and shall regulate the length of term each member shall serve. The special charter of Marshall, enacted in 1903, provides for certain named offices for the city, not including a city engineer or board of health, and that "the council shall have the power to establish any office that may, in its opinion, be necessary or expedient for the city's business or government." When the act of 1897 was passed, many, probably most, of the larger cities in the state had among their officers city engineers and boards of health, and the statute presumably was enacted with knowledge of that condition, and upon the assumption that those offices would be found in existence in cities to which its provisions were to apply. This appears from the requirement that a member of the board of health and the city engineer should partly compose the board of examiners, and the further provision that the appointment of the examiners should be made by the mayor and the board of health. The power of appointment is not given to the...