THRIFT HARDWARE & SUPPLY CO.
CITY OF PHOENIX et al
Reversed and remanded with direction.
Terrance A. Carson and Morris L. Gerst, Phoenix, for appellant.
Jack Choisser and George M. Sterling, Phoenix, for appellees.
De Concini, Justice. La Prade, C. J., and Udall, Stanford and Phelps, JJ., concur.
De Concini, Justice.
[71 Ariz. 23] Thrift Hardware Company, appellant, hereinafter referred to as plaintiff, brought an action against the City of Phoenix and its plumbing inspector to enjoin the enforcement of certain portions of the city plumbing ordinance, which it deemed detrimental to its interests. The appellee, hereinafter referred to as the City, by and through its
plumbing inspector refused the installation of certain plumbing fixtures sold by plaintiff because they were in violation of the city plumbing ordinance.
The plaintiff is engaged in the selling of plumbing fixtures manufactured by others and two plumbing fixtures, namely, concrete laundry trays and concrete water closet tanks, manufactured by itself. The fixtures that plaintiff sells and which it does not manufacture are of two kinds: new, known to the trade as "A grade", and new, but imperfect plumbing fixtures, known to the trade as "B Grade"; the latter sells at a discount from the price of "A" grade fixtures of about 40 to 50 per cent. It is with these "B Grade" fixtures that we are first concerned. The plaintiff alleged generally in its complaint that the plumbing ordinance was unconstitutional for a number of reasons and that the enforcement thereof of portions that might be constitutional were enforced in an arbitrary and discriminatory manner, that such practices amounted to monopolistic tendencies and oppressive burdens against it, and not in the interest of the public health.
Plaintiff's assignment of error No. 1, that the judgment is contrary to law, is based on specific reasons and several propositions of law. Plaintiff contends that the city plumbing Ordinance is unconstitutional in several parts for as many reasons (a) Sec. 2843 of said ordinance is ambiguous, arbitrary and discriminatory, (b) Sec. 2832 is indefinite, not related to public health, arbitrary and discriminatory and conflicts with state regulations on fraud, (c) the city's prohibition of concrete water tanks is arbitrary and discriminatory, and (d) that testimony of defendant's witnesses, who were not competent as experts, should have been stricken.
Plaintiff's assignment of errors 2, 3, 4, 5 and 6 need not be considered in disposing of this appeal.
Assignment of error No. 7 was that the court refused to grant an injunction against the city in the enforcement of subhead (k) Sec. 2835.
(a) The pertinent portion of Sec. 2843 of the Phoenix Plumbing Ordinance complained of is as follows: "Service Discontinued During Defective Plumbing: -- Whenever the Plumbing Inspector shall discover that any of the provisions of this Ordinance are being violated by any person, firm or corporation by means of defective or broken plumbing fixtures * * * all water furnished by the City of Phoenix [71 Ariz. 24] and used by said ...