City of Houston v. Richter

• Decision Date: 08 May 1913
• Citation: 157 S.W. 189
• Parties: CITY OF HOUSTON v. RICHTER et al.
• Court: Texas Court of Appeals

Page 189

157 S.W. 189

CITY OF HOUSTON v. RICHTER et al.

Court of Civil Appeals of Texas. Galveston.

May 8, 1913.

Appeal from District Court, Harris County; Wm. Masterson, Judge.

Suit by George Richter and others, suing for themselves and others similarly interested, against the City of Houston. From an order granting a temporary injunction, defendant appeals. Affirmed.

J. E. Niday and T. L. Dunn, both of Houston, for appellant. Hutcheson & Hutcheson, of Houston, for appellees.

REESE, J.

On October 17, 1910, the city of Houston, operating under a special charter, adopted an ordinance with regard to plumbing in said city, the material portions of which are as follows: "No person shall do any job of plumbing or drain laying or make any connection with, or opening into, any public sewer, or lay any drain or do any plumbing, although regularly examined and licensed by the examining and supervising board of plumbers, unless he shall possess also the license of the city of Houston, issued by the city engineer, said license to operate for one year, which shall be issued only on the applicant complying with the terms and conditions hereinafter stated, and any person who shall do any job of plumbing or drain laying in the city of Houston without having procured the license of the city of Houston, issued by the city engineer as required herein, without having filed the bond hereinafter required, shall be guilty of an offense and upon conviction thereof in the corporation court shall be fined in any sum not less than ($5.00) five dollars nor more than ($50.00) fifty dollars for each offense, provided that each separate job of work that is done without a license shall constitute a separate offense. No license shall be issued for the city of Houston by the city engineer to any plumber, unless he shall first exhibit to the city engineer a lawful license in full force and effect issued by the examining and supervising board of plumbers of the city of Houston, nor until he has given a good and sufficient bond, satisfactory to the mayor of the city of Houston, as follows: Each master plumber shall give a bond in the sum of two thousand dollars ($2,000.00) and each journeyman plumber a bond in the sum of one thousand dollars ($1,000.00) and each drain layer shall give a bond in the sum of one thousand dollars ($1,000.00). Said bonds shall be conditioned upon the faithful performance and observance of all ordinances of the city of Houston pertaining to plumbing and drain laying, or excavations, and all rules, regulations and specifications established under said ordinance and conditioned further that said plumber or drain layer will indemnify and save harmless the city of Houston, and all other persons, against all accidents and damages caused by any negligence in protecting the work, or by any unskilled or unfaithful work done by themselves. Said bond shall be for the benefit of any person aggrieved or injured by reason of failure to properly observe the ordinances of the city in the execution of said work."

George Richter and 45 others, journeyman plumbers in the city of Houston, suing for themselves and all others similarly interested, instituted this action in the district court of Harris county, to enjoin the enforcement of the provisions of this ordinance in so far as it requires them, as journeyman plumbers, and other journeyman plumbers of the city of Houston, as a prerequisite to their exercising their calling in the city of Houston, to give the bonds and procure the license of the city engineer as provided in said ordinance, on the ground that such ordinance was in conflict with the provisions of the act of 1897, c. 163 (chapter 13, R. S.), as amended by chapter 90, Acts of the 30th Legislature (Acts of 1909, p. 162). Temporary injunction was prayed for to be made perpetual on final hearing. This application, which was sworn to by all of the plaintiffs, was presented to the district judge, who set the same down for hearing three days later, in the meantime issuing a temporary restraining order until the hearing. On the hearing the application for temporary injunction was granted. From this order the defendant appeals.

Motion to dismiss the appeal is made by appellees on the ground that the record was not filed in this court within 15 days after the entry of record of the order, as provided by statute. Motion is based on the following facts, which are shown by the record: The petition with the prayer for temporary injunction was presented to the district judge on May 18, 1912, whereupon he indorsed thereon the following order, which, with the petition, was filed the same day: "This petition for injunction having been presented to me on the 18th day of May, 1912, I hereby order that writ of injunction as prayed for herein issue forthwith, restraining the city of Houston, its agents and representatives, from the attempted enforcement of section 2-A and section 3 of the plumbing ordinance of said city and that it be cited to appear before this court on the 21st day of May, 1912, at 4 p. m., and show cause why this injunction should not be perpetuated."

Writ thereupon issued in the usual form restraining the defendant as prayed for "until the further orders of this court," and the defendant was required to appear before said district court on the following Tuesday, May 21, 1912, at an hour named, "to then and there show cause why this injunction should not be perpetuated." The defendant filed answer, and the matter came on for a hearing on said date, when the following order was made and duly entered of record the same day: "Be it remembered that on, to wit, the 21st day of May, 1912, parties complainant and the defendant having appeared before me, in obedience to the order entered in this cause by me on the 18th day of May, 1912, to show cause why the temporary restraining order heretofore granted should not be continued in force, and an injunction granted as prayed, and having heard and fully considered the matters on said day, being of the opinion that plaintiffs are equitably entitled to the injunction as prayed by them, it is here now by the court so considered, and ordered, adjudged, and decreed that the defendant be and it is hereby enjoined from the attempted enforcement of section 2-A and section 3 of the plumbing ordinance of the city of Houston, and that upon the plaintiffs herein giving bond in the sum of $300, the clerk of this court issue a writ of injunction directed to the defendant, its agents and attorneys, commanding them to desist from in any manner enforcing or attempting to enforce the provisions of section 2-A and section 3 of the plumbing ordinance of the city of Houston, said injunction to continue in full force until final hearing of this cause; all costs of this hearing to be borne by defendant, to which the defendant, city of Houston, in open court excepts and gives notice of appeal to the Court of Civil Appeals, First Supreme Judicial District, at Galveston."

The record was filed in this court June 3d, more than 15 days after the entry of record of the first order above referred to, but less than 15 days after the entry of the second. The language of the first order affords some basis for appellees' motion to dismiss, but when we consider all the proceedings it seems to us clear that what the judge intended was to set the application for temporary injunction down for a hearing on the 21st and in the meantime to restrain the defendant until such hearing was had. The judge seemed to be aware of, and to recognize, the difference between the temporary injunction prayed for, the office of which when granted was to restrain the parties until a final disposition of the case, and the temporary restraining order to restrain them only until the hearing of the application for temporary injunction. It is simply a case of misuse of terms, which a little care would have prevented. The motion is overruled. Caswell v. Fundenberger, 47 Tex. Civ. App. 456, 105 S. W. 1017; Berger v. De Loach, 52 Tex. Civ. App. 242, 113 S. W. 557.

The case was heard on the sworn bill and the answer of defendant, which contains a general denial, and was sworn to. The assignments of error do not assail the truth of any of the allegations of the bill, but present only questions of law arising thereupon.

The petition alleges that the plaintiffs are all journeyman plumbers of the city of Houston and are and have been engaged in prosecution of the said calling in said city. The provisions of the act of the Legislature referred to herein are substantially set out and it is averred that plaintiffs, and each of them, have complied with each and every condition of said law to entitle them to prosecute the said business of journeyman plumbers in said city of Houston. The enactment of the ordinance hereinbefore set out is alleged, and it is averred that the city of Houston and its agents and representatives have in the past attempted, and are now attempting, and will in the future continue to attempt, to prevent plaintiffs from carrying on their lawful occupation as licensed journeyman plumbers and are threatening to arrest and prosecute plaintiffs and each of them, and punish them by fine, as provided in said ordinance, unless plaintiffs comply with the provisions of said ordinance requiring them, in addition to the requirements of the said statute, to give the bonds provided in said ordinance and to procure a license from the city engineer which can only be granted after said bond has been given. It is further averred that complainants, and each of them, are threatened with arrest and punishment if they enter any premises for the purpose of pursuing their calling; that one of their number has been arrested, fined, and committed to prison for violation of said provisions of the ordinance, from which...