Parrish v. Wright

• Decision Date: 16 March 1927
• Docket Number: (No. 2843.)
• Parties: PARRISH, Mayor, et al. v. WRIGHT et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

293 S.W. 659

PARRISH, Mayor, et al. v. WRIGHT et al.^*

(No. 2843.)

Court of Civil Appeals of Texas. Amarillo.

March 16, 1927.

Rehearing Denied April 6, 1927.

Appeal from District Court, Lubbock County; Clark M. Mullican, Judge.

Mandamus proceeding by J. E. Wright and others against Pink L. Parrish, Mayor, and others, wherein Owen McWhorter, County Attorney of Lubbock County, intervened. Judgment for plaintiffs, and intervener and defendants appeal. Affirmed.

Bean & Klett and Robt. H. Bean, all of Lubbock, for appellants.

Bledsoe & Crenshaw, of Lubbock, for appellees.

HALL, C. J.

This is an appeal by the city of Lubbock and its officials from a judgment requiring them to pass an ordinance providing for the creation of an examining and supervising board of plumbers, in accordance with Revised Statutes 1925, arts. 1076 to 1081, inclusive. The case was not tried upon an agreed statement as provided for by Revised Statutes 1925, art. 2177, nor is there a statement of facts in the record on appeal prepared under either Revised Statutes 1925, art. 2240 or art. 2244. The judgment of the court recites:

"And it appearing to the court that there are no issues of fact, and that it is agreed to by all parties that the facts as alleged in the pleadings of the plaintiffs and intervener are true, and that the only issue to be determined by the court is one of law arising from the pleadings of the parties, and raised and presented by the general demurrer of the defendants to the pleadings of the plaintiffs and intervener; and it appearing to the court, after hearing the pleadings of all parties and the argument of counsel, that the laws and facts are for the plaintiffs and intervener, it is therefore considered, ordered, adjudged," etc.

These recitals in the judgment show that no evidence at all was introduced, not even the pleadings. It is not a judgment entered upon confession or after sustaining a general demurrer. The court filed no separate findings of fact, and did not state any facts in the judgment. In the absence of an agreed case, or a statement of facts prepared and authenticated as required by the statutes, it would ordinarily be our duty to affirm the judgment, because the rule has heretofore been that, after a case reaches the appellate court, neither an agreed case nor a formal statement of facts could be corrected, altered, or amended by agreement of counsel, even when concurred in by the trial judge (Holliday v. Cromwell, 26 Tex. 188; Taylor v. Campbell, 59 Tex. 315; Whitaker v. Gee, 61 Tex. 217; Trinity & S. Railway v. Lane, 79 Tex. 643, 15 S. W. 477, 16 S. W. 18; McDowell v. Fowler, 80 Tex. 587, 16 S. W. 431; M., K. & T. Railway Co. v. Fisher [Tex. Civ. App.] 47 S. W. 284, writ of error denied; Williams v. Young, 41 Tex. Civ. App. 212, 90 S. W. 940, writ of error denied; Grace v. Walker, 95 Tex. 39, 64 S. W. 930, 65 S. W. 482; Carlton v. Krueger, 54 Tex. Civ. App. 48, 115 S. W. 619, 1178; Rodrigues v. Priest [Tex. Civ. App.] 126 S. W. 1187, writ of error denied; Chickasha Milling Co. v. Crutcher [Tex. Civ. App.] 141 S. W. 355; Norwood v. McMillan [Tex. Civ. App.] 278 S. W. 331); but the rule now is that the facts may be changed by agreement of counsel, without the trial judge's concurrence, even in a motion for rehearing filed in this court (Oilmen's Reciprocal Association v. Gilleland [Tex. Com. App.] 291 S. W. 197); so, under the authority of that case and district court rule No. 47, we will consider the issues presented.

A question of fundamental error is not presented when the court overrules the defendant's general demurrer to plaintiff's pleading, and then gives plaintiff a judgment upon an agreement in open court in accordance with the prayer of plaintiff's petition.

The suit was filed by appellee Wright and three other plumbers residing in the city of Lubbock, the plaintiffs alleging, in substance, in their petition, that in April, 1925, the city of Lubbock passed an ordinance as provided by Revised Statutes, arts. 1076, 1077, and 1078, and thereafter created an examining and supervising board, which functioned for several months, and until January 1, 1926, at which time the city passed another ordinance providing that thereafter no person firm, or corporation should be required to obtain a license before engaging in the business of plumbing in said city, and by said ordinance abolished the examining and supervising board. Plaintiffs alleged that they are resident citizens of Lubbock, and are journeymen and master plumbers; that, as resident citizens of said city, they are interested in the proper execution of its laws by those legally charged with the duty of enacting and enforcing such laws; that the city was chartered December 27, 1917, under the provisions of section 5, art. 11, of the state Constitution, and under the provisions of articles 1165 to 1182, inclusive, of Revised Statutes 1925, and as such has the power and authority to pass ordinances regulating and protecting the public health and welfare; that it is a city of more than 5,000 inhabitants, and maintains a system of underground sewers and cesspools which were required to be connected with the buildings in said city; that the business of plumbing is related to the health and welfare of the city, and that under the law plumbers are required to be either journeymen or master plumbers and experienced in such work; that articles 1076 to 1081, inclusive, require such cities and the defendants to pass ordinances regulating the matter of drainage and to create an examining and supervising board to examine and pass upon the qualifications of persons engaged in the business of plumbing, and that no license could issue to any person to pursue such business until after he had successfully passed an examination before said board; that the Penal Code 1925, art. 122, provides that any one pursuing the business of plumbing without a license shall be guilty of a misdemeanor and punished by a fine not less than $25 nor more than $200; that the Legislature has prescribed who shall constitute such examining board, and that the city has a city physician, a board of health, a city engineer, and a city inspector of plumbing who could be appointed as members thereof; that there are not less than ten master plumbers and more than twenty journeymen plumbers residing in said city, including the plaintiffs, who were willing to serve upon said examining board without compensation; that, as a result of the action of the city of Lubbock in repealing the first ordinance and in refusing to comply with the provisions of the statutes requiring the creation of an examining board, plaintiffs and other plumbers in said city were forced to either abandon their business or to violate the penal laws of the state by working at their occupations, thereby subjecting themselves to a criminal prosecution under said article of the Penal Code; that their occupations are thereby destroyed, and they are not permitted to pursue their business and calling in said city. It is further alleged that they had petitioned the mayor and commissioners of said city to establish said board, and that their petition had been rejected and denied.

The prayer of the petition is, in substance, that the court issue a mandamus requiring the defendants to pass such an ordinance or ordinances as will put into effect the provisions of the statute above referred to.

Before the hearing, the state of Texas, by Owen McWhorter, county attorney of Lubbock county, acting under the direction of the Attorney General, intervened, adopting the allegations of the plaintiffs' petition in so far as they were applicable to the state of Texas, and further alleged that the state was interested in the due observance of, and compliance with, its laws by the city of Lubbock, and their uniform application throughout the state; that other cities coming within the provisions of articles 1076 to 1081, inclusive, were complying with the provisions thereof; that said city in its governmental functions was subject to the control and legislation of the Legislature of the state, and that the intervener had an interest in the due observance of the laws passed by the Legislature for the government and control of said city, and all other cities of like kind; that the business of plumbing vitally affected the public health and welfare. The prayer of the intervener was substantially that of the plaintiffs.

The defendants pleaded, first, in abatement of the right of the original plaintiffs to maintain the suit, demurred generally to the petition and to the plea of intervention, denied the right of the county attorney to maintain the suit, and answered by general demurrers and general denials.

Upon a hearing, the court granted the petition of the plaintiffs and the intervener praying for a peremptory writ of mandamus commanding the appellants to enact an ordinance creating a board in accordance with the provisions of the statutes, and to further enact an ordinance requiring all plumbers to be examined and obtain a license before pursuing the business of plumbing in said city, and providing that the board should keep a register, as required by law, and that the licenses to be issued by it should be good for only one year and not transferable. It was further decreed that the ordinance should provide for the payment of such fee as the law required, and otherwise comply with the provisions of the statutes in the enforcement thereof.

Under the first and second propositions urged by the city, it is contended that neither the plaintiffs nor the intervener had the legal right to apply for a writ of mandamus requiring the city to enact the ordinances. The plaintiffs, being plumbers, alleged that they were citizens pursuing their occupation within the city limits; that they owned property in the city of Lubbock, and, because the ordinances had not been enacted and provision made for licensing them as the law contemplates, they...