Mitchell v. Dixon, 13190.

• Decision Date: 03 April 1942
• Docket Number: No. 13190.,13190.
• Citation: 161 S.W.2d 527
• Parties: MITCHELL et al. v. DIXON et al.
• Court: Texas Court of Appeals

Page 527

161 S.W.2d 527

MITCHELL et al. v. DIXON et al.

No. 13190.

Court of Civil Appeals of Texas. Dallas.

April 3, 1942.

Rehearing Denied May 1, 1942.

Appeal from District Court, Collin County; Tom Suggs, Judge.

Mandamus by E. B. Dixon and others to compel the City of McKinney and W. B. Mitchell, and others, constituting its governing body, to appoint a board for the examination of plumbers. From a decree for relators, defendants appeal.

Affirmed.

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

Mort W. Muse, of McKinney, for appellees.

LOONEY, Justice.

This is a mandamus suit. E. B. Dixon, E. R. Dowlen and E. L. Vickery, relators, sought a writ of mandamus to compel the City of McKinney and its governing body, respondents herein, to appoint a board for the examination of plumbers, in obedience to the mandatory provisions of Articles 1076-1081, R.C.S., and/or of an ordinance of said City, adopted on August 17, 1937. Respondents' demurrers to relators' petition having been overruled, the cause was submitted on the pleadings and agreed facts, resulting in a decree commanding respondents to appoint a board for the examination of plumbers, to consist of the city health officer, city plumbing inspector, a master plumber and a journeyman plumber, in harmony with the provisions of the ordinance adopted by the City; to which respondents excepted, gave notice of, and perfected this appeal.

The material facts are these: The relators are plumbers, who, at the institution of these proceedings, were, and for several years had been, resident citizens of McKinney, pursuing the business of plumbing for a livelihood. McKinney is a homerule city of more than 5,000 inhabitants, having an underground sewer system. Although the ordinance adopted is more lengthy and detailed than the statute on the subject (Arts. 1076-1081), yet, in all material respects, they are harmonious, with one exception; that is, while the statute (Art. 1078) provides that, "The said board shall consist of the following five persons: A member of the local board of health, if there be such a board of health, and if not, then the city physician or the city health officer, 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", the ordinance provides for a board of four members same personnel as mentioned in the statute, except the city engineer is omitted; however, the City of McKinney had no engineer and its charter made no provision for the appointment of one. Although importuned to do so, the governing body of the City had theretofore refused, and continued the refusal, to appoint a board of four for the examination of master and journey-men plumbers applying for plumber's license, and to perform the other duties devolved upon such board by the ordinance, although the City had a duly qualified and acting health officer, a duly qualified and acting inspector of plumbing, and a number of resident citizens who were master and journeymen plumbers, eligible for appointment and service as members of such board.

Res...