McDonald v. Schofield
McDonald v. Schofield
Opinion of the Court
The order under review is one sustaining the general demurrer and three special demurrers to a petition seeking to require, by writ of mandamus absolute, the defendant, in his official capacity as Chief Plumbing Inspector of the City of Atlanta, to- register the plaintiff as a plumbing contractor.
■The petition is in two counts. Count 1 as originally brought alleged: Under the ordinances of the City of Atlanta, before one could engage in the business of a contracting plumber in the city,
Count 2 seeks the same relief as count 1, but attacks various ordinances of the city which regulate the licensing of plumbers as being violative of certain provisions of the Constitution. This count does not allege that a demand had been made upon the defendant to register the plaintiff and a refusal by the defendant to register him.
Count 1 of the petition as originally brought alleged that, in March, 1958, the city of Atlanta annexed certain territory, a part of Fulton County, and that at that time the plaintiff held a license from the Plumbing Board of Fulton County “as a contracting plumber and as a journeyman plumber and was doing work in Fulton County, Georgia, when said territory was an
The statute (Ga. L. 1951, p. 3005) provides that, when the corporate limits of the city of Atlanta “are extended so' as to include therein businesses, professions, and trades” previously licensed by the county, they shall have the same dignity as if they had been issued by the city, and it would not be necessary for a plumber who is then eng'aged and licensed to engage in the business of a plumber to- secure a new license from the city.
The words “therein” and “engaged” in the statute show that it was the intent of the legislature that, where the city limits were extended to include territory in which a plumber was “engaged” in his trade “therein” at the time of annexation, such plumber holding a county license could engage in his trade within the total territorial limits of the city with obtaining a city license, but did not intend to allow a plumber holding a county license to follow his trade in the city because his county license had given him the right to engage in the business as a plumber in the area annexed to the city. We do not agree with the contention of the plaintiff that the act of 1951 does not require a plumber licensed by the county to be engaged as a plumber in the area at the time of its annexation, but means that, if he had the right to engage in his trade in the area, he would have the right to require the city to recognize his license to carry on his trade in the city as a whole. This contention, if carried to its logical conclusion, would mean that, if the city annexed a small area consisting only of vacant land, and no business professions or trade were located
Since the plaintiff’s right to require the defendant to register him as a contracting plumber is based solely on the 1951 act, and since we have ruled above that he cannot claim any right to register under this act, it follows that the court did not err in sustaining the general demurrer to count 1 of the petition.
One of the essentials to a petition for a writ of mandamus seeking to compel a public official to perform a duty alleged to be due the plaintiff as a matter of right is that it be alleged that a demand has been made upon the defendant officer and that he has refused the demand. Leonard v. House, 15 Ga. 473; Ficklen v. Mayor &c. of Washington, 141 Ga. 441 (81 S. E. 123); Dunn v. Campbell, 146 Ga. 226 (91 S. E. 84). Count 2 is wholly silent as to whether there was a demand and refusal. For this reason alone, it was not error to sustain the general demurrer as to this count.
The court did not err in sustaining the general demurrer and dismissing the petition.
Judgment affirmed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.