City Council v. Fort Worth A. M. P. & H. Contractors

• Decision Date: 05 May 1928
• Docket Number: (No. 11992.)
• Citation: 8 S.W.2d 730
• Parties: CITY COUNCIL OF CITY OF FORT WORTH et al. v. FORT WORTH ASSOCIATED MASTER PLUMBERS & HEATING CONTRACTORS, Inc.
• Court: Texas Court of Appeals

8 S.W.2d 730

CITY COUNCIL OF CITY OF FORT WORTH et al. v. FORT WORTH ASSOCIATED MASTER PLUMBERS & HEATING CONTRACTORS, Inc.

(No. 11992.)

Court of Civil Appeals of Texas. Fort Worth.

May 5, 1928.

Rehearing Denied June 9, 1928.

Appeal from District Court, Tarrant County; Bruce Young, Judge.

Suit for mandatory injunction by the Fort Worth Associated Master Plumbers & Heating Contractors, Inc., and others against the City Council of the City of Fort Worth and others. From a judgment granting injunction, defendants appeal. Reversed and remanded.

R. E. Rouer and F. G. Coates, both of Fort Worth, for appellants.

Templeton & Templeton, of Fort Worth, for appellee.

BUCK, J.

The Fort Worth Associated Master Plumbers & Heating Contractors, Incorporated, and John R. Denning, T. H. Youngblood, and Joe Lahey, as plaintiffs, filed suit against the members of the city council of the city of Fort Worth on October 26, 1926, for a mandatory injunction. For cause of action, the plaintiffs pleaded that theretofore, on September 25, 1925, the city of Fort Worth caused to be published in pamphlet form a series of ordinances regulating the business of plumbing and gas fitting in said city and prescribing how such work should be carried on and prescribing the qualifications and requirements made of persons who should be permitted to prosecute such work in said city. Among the provisions of the ordinances regulating the conduct of the plumbing business in said city and which were and are in force in said city at the time the acts and omissions to act complained of, and at the time of the filing of the suit, ordinance 957 is referred to in the petition, in which ordinance a "master plumber" or employing plumber is defined as one who is expert in the knowledge of the strength, durability, and quality of the material and devices for perfect work in tanks, pipes, traps, fittings and fixtures, making taps and connections in such manner as will prevent the escaping of noxious vapors, gases, odors, etc., for the conveyance of gas, water, and sewerage, but one who does not hold himself out as intending to actually do the work of such installations, but proposes to make and carry out contracts for and to properly and carefully supervise the work of all such installations. A "journeyman" plumber means one whose principal work is manual; one skilled and experienced in the actual physical labor of installing tanks, pipes, traps, fittings and fixtures, making taps, and connections in such manner as will prevent the escaping if noxious vapors, gases, odors, etc.

It was further alleged: That in said ordinance there was created and established a board to be known as "the Examining and Supervising Board of Plumbers of the City of Fort Worth, Texas." That said board shall consist of five members, to wit, a member of the local board of health, or, in the absence of such board, the city physician, the city engineer, the city inspector of plumbing, a master plumber of not less than ten years' active and continuous experience as a plumber, and one journeyman plumber of not less than five years of such active and continuous experience. That among the duties of said board was the duty to submit to the board of commissioners of the city of Fort Worth, as the governing body was then called, its written suggestions and recommendations for the improvements of the plumbing ordinance of the city of Fort Worth. That said board was to issue a certificate of qualification, upon examination duly passed, as a master plumber or a journeyman plumber, which certificate or license authorized the pursuit of the business of a master plumber, or the pursuit of the occupation of a journeyman plumber, in the city of Fort Worth for a period of one year, and that there shall be a renewal on application by the holder at any time within 30 days prior to the expiration of said year, which renewal may be by indorsement of that fact on the original certificate, signed by the chairman and secretary of the examining board. Said certificates are personal only to the holder and are not in any manner transferable, and all such certificates are revocable for sufficient cause shown, on charges filed by the examining board, or by any member thereof, or by any person feeling himself aggrieved. Upon the filing of such written charges under oath, notice of hearing shall issue, and be had in the same manner as provided for in the removal of the members of the examining board, provided, however, that the hearing in the case of the certificate holder shall be before the examining board, and its finding shall be certified to the board of commissioners of the city of Fort Worth, together with recommendations, which, if adopted, shall be final.

A further provision is made in the ordinance for master plumbers to carry an indemnity bond in the sum of $5,000 for the use and benefit of the city of Fort Worth, conditioned for the faithful performance of the duties of a master plumber. It is further provided in said ordinance that:

"Any license issued to any master plumber hereunder may be revoked by the board of commissioners of the city of Fort Worth, at any time, upon charges filed against said licensee by the board of commissioners, on its own motion, or by any member thereof, or by any person showing himself to be interested, provided, however, that charges under oath shall be prepared and filed, against the licensee, with the city secretary, who shall present the same to the board of commissioners of the city of Fort Worth, whereupon said board shall fix the time and place for the hearing of said charges, and the licensee shall be furnished with a copy thereof and given an opportunity for a full hearing thereon.

"If, on hearing, the board of commissioners of the city of Fort Worth shall be of the opinion that said license shall be revoked, they shall so order, and thereupon a proper adjustment shall be made with the said licensee as to the bond and the license fee paid to the city of Fort Worth, as hereinbefore provided."

It was further alleged: That on July 8, 1927, the Master Plumbers' Association of Fort Worth, acting under the provisions of the ordinance heretofore mentioned, filed under oath two charges, one against R. J. Cunningham and another against John S. Fogarty, charging them respectively with repeated violations of said ordinances. That on July 19, 1927, said charges were duly presented to said city council for its action thereon, and on the same day said city council referred the charges to the examining board of plumbers for trial, to be held July 27, 1927. That said charges thus referred to were heard and considered by said examining board, and they made their report of their findings and recommendations thereon to the city council as follows:

"In accordance with your instructions issued at your regular meeting July 18, 1927, the examining and supervising board of plumbers of the city of Fort Worth, Texas, has held a hearing of the charges brought by John R. Denning against R. J. Cunningham and John S. Fogarty alleging that said R. J. Cunningham and John S. Fogarty have violated the city plumbing ordinance.

"The examining and supervising board of plumbers, after hearing the evidence and giving due consideration to same, on vote the majority of the members of the board find the said R. J. Cunningham and John S. Fogarty guilty of transferring their license in violation of section 8, Ordinance No. 958.

"Therefore, we, the examining and supervising board of plumbers, respectfully recommend that the license of the said R. J. Cunningham and John S. Fogarty be revoked and canceled. Respectfully, Examining and Supervising Board of Plumbers, by [Signed] D. L. Lewis, Chairman."

That said report having been thus filed with said city council, same was on the 27th day of September, 1927, by its order of that date, referred to the city's legal department, presumably for its legal advice thereon. Thereafter said report having been reported back to said council by its legal department, it disposed of said report by its order of that date by ordering the charges to be received and filed. By said latter order, it is alleged that said council intended and meant to pigeonhole and postpone indefinitely any and all further consideration of said report without any further action thereon, and said city council then and there declined and refused to further consider said report and declined and refused to hear evidence in support of said charges against R. J. Cunningham and John S. Fogarty, or to pass on or determine same in any way. That such action so taken by said city council is final in so far as said council is concerned. Plaintiffs further alleged that they had reason to believe and do believe and charge the facts to be that said Cunningham and Fogarty are each respectively guilty of the charges so made against them and that they are still violating the ordinances of said city in the manner stated in said complaints; that they formed a partnership under the name of "Consumers' Supply Company," and said company is still continuing to carry on its business as a master plumber without obtaining any license so to do and in open and flagrant disregard of said ordinances and of the statutes of the state; that said city council, by its refusal to take action against said Cunningham and Fogarty and against said Consumers' Supply Company to enforce the provisions of said city ordinances, have permitted, and are permitting, said parties to pursue in said city the occupation of master plumbers in violation of said statutes. As a result of such nonaction by said city council and of such violation of said ordinances and of the statutes by Cunningham and Fogarty and the Consumers' Supply Company, the plaintiffs and those of their craft whose interests they are representing are being materially and vitally injured in their business, and their revenues derived from the pursuit of their occupation...