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HomeMy WebLinkAbout13845 ORD - 07/20/1977r �• That the foregoing ordinance as read fort first time and passed to its . second reading on this theday of-- / >.19�_> by the ON following vote: Jason Luby , + ' Eduardo de Ases David Diaz ` • � .i Ruth Gill ' S Bob Gulley Gabe Lozano, Sr. s . s- Edward L. Sample ,. •That the foregoing ordinance wad read for a second time and passed to its,. third reading on this the 3 day of�, 19_ by the `' " following vote: -„ r •R . r� Jason Luby 4 i Eduardo de Ases ` 13= ., David Diaz _ Ruth Gill , 1 Bob Gulley " Y ` V, 11'x` Gabe Lozano, Sr. Edward L. Sample ?�Thatthe foregong ordinan was read for the thirdttime and passed finally' , x, on this the _2oday of 19�, by the following vote:, e " Jason Lu Eduardo'de Ases ,` f David Diaz Ruth Gill ' k Bob Gulley T . Gabe Lozano, Sr. Edward L. Sample ,+ 0. PASSED AND APPROVED, this the ». day of '` .:> 19 7 . x.•u F F ATTEST: q City Secretary MAYOR •` THE CITY OF CORPUS CHRISTI,'TEXAS - WD�; OF 1977 ` r J: BRUCE AYCOCK, CITY TTORNEY .�• �' `. f ° " .� "Y'� - .' By - Assistant City torney� °�'. •�. ..A• �'" - ' �- - > . � � � � `T f' 'n• . � � * A t7lY t.Y M'. }fit - r . , +� r REGULAR COUNCIL MEETING JULY 27, 1977 During the Regular Council Meeting of July 27, 1977, following the veto of the attached Ordinance No. 13845 by Mayor Jason Luby, the Mayor's veto Was overrides on Motion by Council Member Bob Gulley, seconded by Mayor Pro Tem Eduardo E. de Ases, and passed by the following vote: de Ases, Diaz, Gulley, Lozano and Sample voting "Aye "; Luby and Gill voting "No ". r , , CITY OF CORPUS CHRISTI, TEXAS July 27, 1977 JASON L.UBY -+ • _ MAYOR t - Public t: ` City Council City Manager City Secretary Re: Under the Provision of Article II, Section 6, of the City Charter, I exercise my duty as Mayor of the City of Corpus Christi to veto Ordinance No. 13845, in reference to deletion of the uniformed classification of Fire Alarm Operator I and substituting the civilian classification of dispatcher. Ladies and Gentlemen: As mayor of the City of Corpus Christi, I hereby exercise my power to veto Ordi- nance No 13845, because to enact this ordinance would be in violation of Article IV, Section 36, Paragraph A through F of the City Charter. This ordinance would also violate Article 1269m Vernon's Civil Statutes Section 2, 12 and 27 (b) of the Policemen's and Firemen's Civil Service Law. Highlights of cases concerning simi- lar violations are attached for your reference and study. To enact this ordinance would also be in violation of the E.E.O.C. regulations as women have been hired in the past as dispatchers to do the same job that has been performed by the Alarm Operators, who presently are men. The women are being hired and paid at pay grade 20 ($788 -$877 per month) versus the Alarm Operators whose pay is $970 - $1,000 per month plus their longevity pay of $4.00 per month for each year of service. The women are performing the same identical duties that the male Alarm Operators are performing in the Alarm Office and are entitled to the same pay for these same duties under the E.E.O.C. regulations. Thus, with these facts before me, I have no choice but to exercise my power as mayor and veto Ordinance No. 13845 for the protection of all the employees and citizens concerned. y�uby, Mayor JL:jb F„ , s Art. IV, § 36 CORPUS CHRISTI CODE POLICE DEPARTMENT Position Minimum Salary Monthly Patrolman ( probationer ) ........................... $356.00 Patrolman (after probation) ....................... 374.00 Patrolman (after 12 months service) ............... 392.00 Detective .......... ............................... 403.00 Police sergeant... .... .............:................. 442.00 Police lieutenant ......... ......................... 484.00 Identification supervisor .......................... 484.00 Police captain ...... ............................... 533.00 Assistant police chief ............................. 587.00 Police chief ........ ............................... 780.00 EFFECTIVE AUGUST 1, 1962 FIRE DEPARTMENT Position Minimum Salary Monthly Fire fighter (probationer) .......................... $373.00 Fire fighter (after probation) ...................... 392.00 Fire fighter (after 12 months service) .............. 392.00 Driver ............. ............................... 423.00 Fire inspector ...... ............................... 423.00 Fire lieutenant ........... ......................... 443.00 Alarm operator .... ............................... 443.00 Fire captain ....... ............................... 484.00 Mechanic ........... ............................... 484.00 Master mechanic ... ............................... 569.00 Chief alarm operator .............................. 569.00 District chief ........ ............................... 569.00 Drill master ........ ............................... 569.00 Assistant chief ..... ............................... 615.00 Fire marshal ....... ............................... 615.00 Fire chief .......... ............................... 819.00 POLICE DEPARTMENT Position Minimum Salary Monthly Patrolman ( probationer ) ........................... $373.00 Patrolman (after probation) ........................ 392.00 Patrolman (after 12 months service) ............... 411.00 Detective .......... ............................... 423.00 Police sergeant ..... ............................... 464.00 44 CHARTER Art. IV, § 37 Position Minimum Salary Monthly Police lieutenant ... ............................... 508.00 Identification supervisor .......................... 508.00 Police captain ............ ......................... 569.00 Assistant police chief ............................. 611.00 Police chief ........ ............................... 819.00 (b) All persona in each classification shall be paid the same salary and in addition thereto shall be paid any longevity or service pay that he may be entitled to. (c) Provided further that the above enumerated job classifications in the fire and police departments of the City of Corpus Christi shall remain permanent and fixed as herein designated and under the title herein designated, provided that like or similar duties for each enumerated classification as was required by this charter, ordinance, rule or order or regulation of the City of Corpus Christi as of December 15, 1960, shall be regarded as the standard to determine each respective classification under this act. (d) Provided that the above shall be deemed a minimum salary scale and is not construed as in any wise placing any limitation upon the city council in increasing the compensa- tion or maldng whatever other adjustments in connection with qualifications or duties or any of said positions as they may deem expedient. (e) If any part or parts of this charter amendment shall be held unconstitutional, such unconstitutionality shall not affect the validity of the remaining parts of this charter amendment. (f) All provisions of the city charter, ordinances or parts Of ordinances in conflict herewith are hereby expressly repealed. (Amendment adopted July 15, 1961) Sec. 37. Right to suspend. The fire chief shall have the right to suspend any of the officers or employees who may be under his control and management, for incompetence, neglect of duty, immorality, drunkenness or failure to obey orders given by the proper 45 , �u ' R �i,'t=`.�•:, "r_ � - f GLASS v. SMITH Tos:, f4G Cite ns "1' 3, IP.2d a is t, Duty Iijeration for a loan. We do not pass upon County, 298 SAV.2d 243, and the mspnntl- d• the point of law involved, We do over- ents brought error. The Supreme Court, Cal - Aal de_ j pde plaiutiffS' contention that Atwood v, Vert, A. J., held that where subject matter of :Ontcnd -aj�' 1,7eberg, 135 F.2d 452, adjudicated the the propose[] ordinanre Initiated by citizens _ est on. " °' tl oil and gas leases to be a mortgage. The under "b"atnry pmvi3lons of city charter Itcd in f, only conclusion which the opinion and the %`a-4 legislative In character and had not It here bets of that case will warrant is that been withdrawn by general law or the city ldnirnt •` ~' Humble made the loan in exchange for rhartor tram the operative field of initla- docing � `'J'1 the oil and gas lcas�s, tiro, mnndamn9 world Issue to compel city agV'inls to perform their mint terial duty or d tllut ;;,•i' Having determined that plaintiffs plead enliing nua holding an election for nnnravm Ing Ai ��4_Y= j no cause of action, it is unnecessary for or the ordinance as required o the city • -W-2', ss to determine whether it was, or either charter. % %•- -'1 % i c°uld or should have been adjudicatel in Judgment of Court of Civil d rnW.1 + t5e Federal litigation. Plaintiffs' petition firmed. Appeals nf- ;Rfi,,n : ' ' is full and we do not believe that plain- Grltrn, Smedley, Gonconsl, and Nilson, ,L1., tiffs can add to it Accordingly, the judg dis,entnt. cent of the Court of Civil Appeals is re- 1. Municipal corporation, c71oa.2 'ut�nn ;ti `sedaand(fs rake notbi�ng s the t}irmed court the Fight of citizens, conferred by city Plaintiffs A if field o have initiative osed ire election called d g,,, ant• prejudice to plaintiffs' right to an and held on a proposed ordinance classify - Tr<, tcrounting for any money which may be Ing policemen and firemen, fixing their pay ae them as, royalty owners under the oil and designating holidays, could not be dc- istrrl and gas lease, Since plaintiffs prayed for fentc[I by refusal of city council, city man_ F °•I to accounting and that portion of the case aGcr and city clerk to perform purely min - pvals %as severed before appeal, the trial court isterial duties on ground that in their opin- cm1• mayprocced with that portion of the case, ion ordumnce would he invalid if adopted, _ idct t tut only for the purpose of an accounting, Vernon's Ann.Civ.St. art. 1269m; Ver- ur a Costs of appeal arc taxed against re- non's Ann•P.C, art. 1583 -2; Vernon's Ann. !icult - Ipondents (plaintiffs below), St.Collst. art. 3, § 56. ;tat, ority 2. Mnnilamua c574(2y - au.l %%•here city officials refused to call and hold election, in compliance with ini- I of tiatory provisions of city charter, on pro_ Lin- - _ -_ - - _ posed ordinance initiated by citizens c!as ; - (he f fYill: policemen and firemen, fixing their tlr G GLASS at al. v. SMITH at al. f Ptuy and designating holidays, on ground- - heJ N No. A -3171. I adopted would be void, - F �nr S Supreme Court of Texas, p coat elling y the ' 'Nov. 28, 1051. e _ _ . 1itt. - - - j ject matter of the proposed ordinance was In l _ l in character and had not been ,ire p proceeding by Taylor Glass, w against Steen Smith and others, t t'atory process is operative. Vernon, Ann. 1 t respondent city omclals to call au,l V Vernon's Ann.P.C. art. . .. ' •' I for opproval of ordinance 1 1583 -2; Vernon's Ann.St.Const. art. 3, § it• C Austin 5 56.. _- natbi 3 3. " 61r, Tez, 244 SOUTH WESTERN REPORTER, 2d SERIES arnnch Uf lhe1..city; and. -accordingly, life 11. Municipal Corporatlons r--101(2). 197 initiative process is litnited•'to slegislativc Civil S,• ice Act dirrrllnt; th.,t C: i matters whether such limitali•irf ts'eapress- • civil service aonrrri+ +!on shall Provi,le : firvnu'n and 1-11c, in, ly Provided for in the dtartepytii not:�.n, . - el: ... Mention of all and that such clas+iflnatin I sh ;dl hr pr•. 4. Municipal Corporations Cr 10a.1 vided by ordinance of the, city Cr,unrC 711e field wherein right of CIIbIC115 Of only nvplires cornfili SSlon to let in aid r,: a city to initiate ordinances is operative city c01111eil in creation of cln++if.rations 1„ - may pe litiutcd by gcncral law. Vcntoris Lc cmbraccd classification —I—o ', i AnnAito lst. art. 11, § S. nou,'a and does ­t c,nfrr c <,- lustt•,. Pov+er , h 5. Munlclpnl Corporations 0^108-1 eommissmn n, create clautficati,.rn. Vr r Ann.Civ.St. art. 1260111, Jb H, IZ. Any rights conferred by or claimed nobs tinder provisions of a city charter, includ- 12• Mu0lplpat Calporallons 01011.1 't \ j Illg right LO all III111;I11Ye l'lcl'tlrlll, arC r Civil Servic4,'Act ilirediri'g thaK tho; 3 strhordinate to provisions of general law. civil service 'en mission shall provide; for • ( 11-mm's Ann.SLCou +t. art. 11, § 5. cln +Sificallhn.nf all fir- Ii and polies, m, t o. Municipal corporations C�n5 an,[ that such claslifieatlon shalt Le.prnws " The Legislature may withdraw a par- vidd by ordinance of the City cnuncil. rr, licalar subject from the field in which the not a limitation no the right of citizens of right of citiyens of a City to initiate no 4 city, antler ioitiatnrp prnJi`sif ns`nE city t ordinance is uperativc, charter, to initiate d,irdinance°'classirying e $ m lAticenien and firctnen, (rxfng the[rP -y and r' 7. Municipal Ccrporatlons C� 100d Iaigoating holidays,- V,:rnof,�,,'r�niS.Civ.. t -'� Prm•i. ions of a city charter niay \ \Illy tt. avt -, 1"G9nr.^ §§ fi.ti12. *n•+';�rAt -`ii y- •-�,y " . D draw from eitm-l's of the city flu• Im-er -- !� under ini[i:nive provigion, to initial, an 10. Municipal Corporallon; ordinance de ;ding with particldar subject. 184(2), 197 .' Statute prmi 1mg th.tt cll +sifications r a. Municipal Corporations C=10n.1 and salary seal, s 01,, dd 6- act up by all Ira Limitetiun by gvn••r:d la. or by city uuw :cip,d g ecnuncn[s w. h!iii: 31) tags after charter of field ice wh,ch is operative the ctfcc[ ire date of the act, does tint confer right of citi,cue to innate an nnl :n :u,ce exclusive power apon city coural to ehassi. under initiatory provisions of city charter fy firemen and policemen asd is not a may be either express or implied, but such lunitition on power of citrons of city, un- limitation will not lie implied unless Pro- der initiatory provisions of city charter, to I visions of gcncial 1— or of city charter initiate pros —ed olduuaice c11—fYing po- ( .,rc dear and couipelluig to that cad. lieemcn and firen,en, fixing their pay and - - desigo.,ting holiday's. Vcriwn s Ann.P.C. 9. Municipal corporations C710a.1 " art. 1:43 -2. Civil Service Act directing that classi. ficatiun M firemen and policemen s11:11 be 14. Municipal Corporations C-0 provided by ordinance of the city - cnuncfl A city charter is to be read as a whole does, not negate the right and Pavrcr of and its various provisions harmonized as- citizens-of city, und, r initiatory- pm.-s'.1 4 f.r as possible. of city' charter, to initiate'Prol,eiediordl- - o:ojec classifying policemen :nd lirtnilCn, 15. M11111011141 CorPorol�ons C710d.1 ice' =- fixing their flay and designating holidays. Initiatoryprovisiunspoi a-,ciq• charter, : Ver n n s f1nn,Civ.St, art. 126thn, 3 S. • ., giving the' citizens% 'light to iilitiatc ordi- ' ounces, should- be- Idmra!ly_ construed'fne ' - 10. Municipal corporations C�50' - Liver of tile: Pot a {,of'in itiativc reserved City, v oncil in the :ddrrmanic forri in, the of numicip.d government, and city commis- - i - - sion in conunis,um torn of government, 16. Municipal Corporatlons C-I00.1 are the primary rt'pnsituries of municipal - Proyisions_of city charter vesting in ilegislative powers. city council power to control deparuncntal • r'th, 'e?'.la. :. M•�� x:;` - „`ti Jehii�. E 952 Ter. 375 SOUTH WESTERN REPORTER, 2d SERIES Francis C. LOOS at at., Appollants, V. CITY OF HOUSTON, Texas, at al., Appelleos. I No. 14265. Court ur Civil Appeals of Texns. Iroustcat. Feb. 20, 2904. Rehearing Denled March 12, 1D04. Suit to enjoin city and its civil service commission to permit chief inspectors to take a scheduled promotional examination for fire marshal and to have an ordinance declared void. The District Court, Harris County, Byron Johnson, J., entered a take nothing judgment for the defendants, and the plaintiffs appealed. The Court of Civ- il Appeals, 11'ericin, J., held that city may not permit assistant arson investigators to take promotional examination and at same time keep chief inspectors, who are ill identically the same grade with the assist. ant anon investigators, from taking the same examination. Reversed and remanded with instruc- tions to grant injunction. ! a I. Municipal Corporations C ?los(q :4_, . City is subjeetto pruyisitins of irs char- }er in passing ordinance-.--*-----, • __ ,yd 7. Municipal Corporatlena C=IDB,IO 4 ' City charter provislot'lhae'any ordi. nance passed by dill- council on petition or adopted {by poputarxyota: shall; not be repealed 'oe amcnded 'exeept in response to- referendum •petition nr:cpopular vote Ones not-withdraw from city the power to pass a ¢lissification.,onlinancc changing 4 referendum ordinanee`with•`thc aidof the civil service commission• but woes prescribe manner of passing classification ci inancc! 3. Municipal Corparatlon C=10B.lo _ =- ' •° '1953 ordinance passed by city council not'in response to' referendum petition �a popular vote was invalid Ip so far a,' ' undertook to change classiiicatiolt of as: sistant arson investigators "rby. placing it, in higher grade.than that in which theyi were placed by`A959uAdinnnce vo�31 and approved by thrpeoplc: } 4. Municipal Corporations C-197 Chief inspectors who were in sa:n. grade with same basic salary as as%i5taa nrson investigators in fire department am! had right to same uniform increases in ya, had the right to take the same pranntitral examinations as assistant arson inve5hh, tors might be given. Vernon's Ann. (-,,. St. art. 1249m, § 14, subd. A. 5. Municipal Corporations 0217(3) Statute providing that no person shat; be eligible for promotion unless he hat served specified time in next lower position or other positions specified by city tit -C service commission permits commission to extend examination to third lower grace where necessary to make examination eoa- petitive. Vernon's Ann.Civ.St. art. 1269tr., §§ 9, 41, subds. A, D. 6. Municipal Corporations 0197 City may not permit assistant arsoc investigators to take promotional examina. tion and at same time keep chief inspector. who are in identically the same grade eitr the assistant arson investigators, from tal ing the same examination. Vernon's Ane Civ.St. art. 1269m, §§ 9, 14, subds. A, D. Hallett & Touchy, Hugo A. Touchy Houston, for appellants. Sewall Tlyer, Houston, for intervenon. Alcus Greer, D. A. Whigham, Gene Hollat and Bennett A. Cook. John lYildentha:, r_ homer T. L'- rajir., IJQU 01, WERLEIS, j­:- Appellants. Loos, Ruts,.!! L. I,fc:�atl.y_ Schomburg, ali mt•;;1,,,, partment of tht Cn, ,�::,.• as Chief Inspt.ctors, f d -- tt ' u City of Hon.::o -• a.-._ �e toa Civil Scr.:cc C•, - _•,,• temPorara• r..an ?at4ry i- , that they be perInittr_ :- •_, promotional tz:aacination for and also Stelking a . t. T- ^; rights to tat:_ INch pro:;,:, lion for Ftre liarsi-ai r - - a:cination be schcdulec : '. n, upon final hcar:n_ t ptrMart be granted enjoirir.; ri, rF, refusing to Mica tt:r t, •akt :Ion Ior prorlon btiag eerti i.v3 on the a : ^t Fire \farsf::: aecor�iag to t: the examination and is axt the rules end reg¢:arions of th. ice Commission, anal statutes or =P r; and ft:rther -a) ,c rin \o. 8531 of the City of ilou February 3 , 1953, be deciar• raid as well as al! subsecuer: 2nempting to create, ciassii, C Classes an_ positions it the Fare e3mrary to O- .:finance Tone 23. 1115D b, the City Cot C:ir of Hnsnr. , nd ynr_.9 on a: by nc, , rani- _. he Crt Altus Greer. Arsar. ?nves:iea •. Whigham an_ Gcne 7 - '.rsoa Ira•._s:igaracs cf 1 o M. intc --nee ;r, tr.:s • among o:hcr ra:nzsth :; - ai- r.: '.41:4': �M1 i .tFt�aa y �. -• - ,.r_x3�,7.4f ' I oval C. Miller and tiler 1•-x!iate, ou tied between InOhls rial rinity River Chmn- D.r!las, but wfthin ity- and County of nt District. On or the owners ded- zir lands 20 feet parkway purposes, Street. On' larch -cage was consum- -ravens, excepting 2 acres titereto- the City of Dallas iiz Saran. Subse- nts Dallas County the roadwav and 100 feet wide in not right of way. and Cravens con- ial Properties Cor- )32 the Co•:nty of rnperttcs Co :pora- .r:juin thL Alt!!crs ttin -, an po.tirnt :ro:n inter.-ring a bol!eva d and tilt- trrd thereof a ^njniring the ov:n- 'tc C—rt was that fcc-sm)p4: titIc to tlm r.auracnt ft-: in ti:c Count: :1n•1 Cora •,: atmn. 7 he the of \tiller c.App, 71 ".W.2d it . as deb :mined art t , tit de•hca- r :and street altos nth.- 50 f.,ot strips p: oval portion of lien iu the 5 „ell pt- :tir1115. A .i nlilt r,�, :tllnr'd to : brut :d,.tnriuneJ, jelh,q rot fur the hug the ,,,.I,c, ed by the Gntrt of OITY OF SAN ANTONIO v. WILEY Tex. 471 Cit. m 262 8.W.2d 4rl Civil Appeals, 15S S.\\ 2d n. The Su- preme Court granted a writ and revcised CITY OF SAN ANTONIO et at. the Court Of Civil Aplrc.l s, huldiug there v. IN I LEY et al. was no abanuonnu•pt :u a matter ur Lnv, No. 12440. 140 Tex. 242, I6G SAV.2d 922. Court of Cho Appeals of Texas. This suit was instituted by \ldler and S:un Aut -tu. others, rather a muuolt tuns filed in the old Oct. S, 1933. original suit, to utudify the pernl.0 :col in- Rehearing Dented Nov. 12, 1052. junction on the ground there had been a cle gc in cmnl!lions, uhnt is to s;q•, it had A, it by pnnu at coil— atsaclt w ure been determined by the Cmnmissioncrs' t'."t_t n nnnlcbmt enrpm ntim, to secure Court of Dallas County tine southel a 50 feet per, ton of Pnlleen'rnts nut 1'iremeni s Civil 9crlIce Art ogalnA unjustillable discharge. of the 200 foot strip was no longer used The i rd Dfstril•t court, Kezar County, Delos nor needed for road and Slicut Purposes Flurh, ,d., gain judguo•ut for phdntifr, and and had passed an order to that effect and defendant aptxadrd, Thr Court of Civil Ap- .� abandoned and released 1p the o” ncrs pr,i1,, .1: v. it. Nowell. J., held that the so- sueh southern 50 feet. Dallas Cumny, and ctal w•nrlwr came within puutcetlon of the Industrial Properties Corporation, each ant- net. srvercd the nation, and Tower Properties, Affirmed. Inc., and L S. Stinuuons, owners of por' I M1tbnlclpal Corpnretlons �?I &I(I)- f= tions of the original Miller tract, inter- venal. The matter was tried to the Court Whetelialfce department iocidsvorkcr_ and judgnu•nt catered fencing the relief was appointed fty.6re attd.polfdc", , Is- •:i sought. sioncr more iltawsix jnontl13- ,before' ciiy'si adoptiotf'of •Policemen's aiidLL Fremen's 1 It ,,.rs detenninrd in the prior litigation � o •a the \tiller acreage w•as sold with respect Civil Service Act and dreivsa)ary for sew•, to tin dedication of the right of wav 2W ice as a tnemiee "of,`tliaF i�iceµdepaittneht7t ` she held -dc jure oliice, of poticctllan indz foot strip through the properly as at exten- sion of Cadie Street, and that the pur- t)as aulontati illy'it's l erno rprotccCiv;I of civil service, status. Vernon s Atin.Civa chasers and their sub,equeut vendecs ac- St. art. 1269., §§ 2, 12, IGa, quired a properly right appurtenant to their - .rr Property in the cascmcut for road and street 2, municipal Corporations x180(1)= a =_• :;, -pti Purposes which could not be hd,cu away by Polictinens'aud Pirenlcti's Civil ServJl the owners of the fec nor summicred by ice Act teas enacted- to provide for•alfdl public authority. It snips nut to be dis- protect the rights of persons serving in' put,d turd the pnaperly a so sold orig- the police department at tiro time it became in:diy'by the !\tillers with rc.pcct to the effective by its adoption by the city, Merl dediceliou mule prior to the sale. Iu these non's Ann.CivtSt. art. 1203-, §§ 2. 12, Will circuustances (lie private rights of the 24, - -• - • - J 7 ;•, � ablating owners in the right of way case- 3. lclpal Aiti Corporallons C=185(l) meat and the right to use lit: whole of it Abolition of police social ,worker 's+ and to have it maintained cannot he dis- Position would not effect het, dischnrgei tunccd by the owners of the fee nor sur- from police: department under' the-, pro- - n:ndcred to llucir prejudice by Dallas visions of the Yulicemen's•hnil Firetnen'd County ur nthrr pnb,tc authority. Dallas Civil Service Act. Vcrnun's_'Anu.Civ.SG. Cotton \fills v. Industrial CnmpAny, Tex. art. Cmn.App., 290 S.W. 503 and the cases there — J tiled; Hovers v. llachir, Tex.Civ.App., 191 '4.yunlctpal Corpnratlons - 47195(5) S.W. 758 and the eases there cited, to Letter Iron fire and police connlis- which might be added many more, and the sioncr purporting to discharge police le- trial Court's judgment is correct. Appel- partutcnt social worker by abolishing her Innis' points are accordingly overruled :old position was ineffective, where authority the judgment is aflinned, for abolition of positions was vested ill 10:: Tex• 274 SOUTH WESTERN REPORTER, 2d SERIFS strict li;thility to those injuries to cattle held that plaintiffs were mnnb+re of police Spears .• Lel achich are intentionally, wilfully or wall. department whether called officers or em- i'� appellees. ,only inflicted. The question of liability Ployces, and that they were eutiticd to for non- wilful injuries is not, however, minimum wages provided by statute, ' the primary question presented here. The ARCIIF.i', r.b: trial judge refused to find that the lessee Judgment a0irnied. r W,15 ' • of negligence. As a general i• Municipat corporations This is a cno.o wherein e=leo 1 title the question of negligence is one for p - (1 ' r` -;' tile the trier of facts. It is so in this case. Where -- switchboard operators.` line- 4 m a t� `y'" menq Airs• (_,,r,l The fact that appellant's hall died as a re- man, clerks, and - mechanic -had been cm- � L. Kirkpatne!:, , R. Stribling stilt of drinl,ing unwholesome oily sub- Ployed by city of San Anton ia -poliec de- ;� ' a stances discharged upon the ground as a partment more than;si)c; trlonths,.before t 't and Amalie oli, - " fins pass result of appcllec's reworking operations j pas ge of riremen`§gand Policemen's ment; Mrs. Ruby (lid not serve to establish negligence as a Civil Service Act, they rvcre "members of .N ords department; police de a matter of law. Neither can it properly be P p rtment and entitl`ed to Benefits • clerk in recor,Is said that the trial court's refusal to find of act. Vernon's AfImCi'v.SL arGr•1269mp� - and Robert A, q negligence was against the overwhelming Vernon's_Ann:P,C, art. 1583�=�+= " "'""•'=° city repair she Ps, preponderance of the evidence. The o m- P' mint " \Yartla t hind *and,defi. 'p policemen and to r o e'r'ju ion of the Supreme Court in Warren Pc- for other judirinl cnoatcuctlune`end . defi• pay as patrolmen, nitionauf "Afmnhnre ": -� •'• �'"_ troleum Corporation V. Martin, Tex., 271 ? � m pay. The case r S.W.2d 410, above mentioned, and the 4 Municipal OorpoNratib_na on stipulations. 1' is that the rs. usl authorities therein cited, control the i +sac .2• a7180(I),aa4 � fY 1269m, Vernon's and render further discussion unnecessary. Statute. providrttg foe civil'service for Rule 452, Texas Rules of Civil Procedure. firemen - an(I policeptcn _in °gt�oSro( Dyer+ '• Penal Code Art. 1 10,00a The judgment appealed from is a8irined. Poi %;anon is cornprchcpsive civi� . a , i; F art. 1583, did not it and active police service law ado •jts jntentLtjscto" cover i; of, These eases all in- everyone in Police dcpnrtniegtsioERCities the above two adopting act.- Vernon's Ann.C'v.St. art, t 1269m. ' "�?`S'. ° •,' acts; determine all of t• -" ="'' �; y court sustained plait ' t 3. Municipal Corporations C510G(5, bry tentions, granting ti \ `:`+ mum pay of patrolm Switchboard operators, 'lineman, me• tt the benefit of every CITY OF SAN ANTONIO of al., Appellants, clinic, :mel clerks who had been enipluyed given to patrolmen by city of San Autumn police department v' :� men, since plaintiff , mare than si.e mouth, before final passage Mrs' Mrs. (� and gave them judgt Oordfo HAHN at al.. Appefices. of Bt remen's and Policemen's Civil Serv- 1; "• in pay that they hav No. 10264. ice Act and were declared by court to be that patrolmen have members of police department %veto en- Court of Civil Appeals of Teens. Austin, titled to minimum wages The appeal is few provided by scat- Dee. 8, 1054. ute for members of such police department 4e menu which are id and would be permitted to recover differ- Rehearing Dental Jr.. 6, ID.'. ,' ctcc behveen salaries they received and �� the appellees and the exception of nun Proceeding brought by persutrs cm- salaries received by patrolmen for same # "The court err, Ployed by police deP:u•tntent of city of San Period, including all pay 'raises received `b" Mary Hart Saum Antonio as switchboard operators, hocillah' by Patrolmen. Vernon's Arut.Civ.St. art. classification unde clerks, and mechanic, seeking to be ch issi• 1269111; Vernon's Ann-P.C. art. 1583• Service Law, Art. - fled as policemen and to receive same rate "The court cure of pay, including all increases, as pannlmea. Alnry Mart Saunde The 73 Judicial District Court, 1lcxar Ralph W. Itrile, Conner City Atty., Car- � benefits of the Poli County, Delos Pinch, J., entered judgment Ins C. Cadena, present City Atty., C. J. Law, Article 1553, for plaintifN, and defendants appealed. Alalthews, Flank D. Alasters, Asst. City The Court of Civil Appeals, Archer, C, J., Attys., San Antonio for ap iellvns Point No. 17 is the holding that the app, 1 , .f ,. • i . � 4e ld SERIES p the premises leased if one 1 three floors. The trial court :pled this explanation and did t Semmes was representing ,eluding provision (c) in the satisfactory explanation was why provisions (a) and (b) , and we must presume and e trial court, that he was act - terest of Sarnosa in adding visions. ee was acting in its own in. • ing in the lease the 90 -day -rovision, insofar as clauses are concerned. This 90 -day :ovision was a very important he lease. It provided that in ,ellee decided to exercise it, , payment would be returned e should have three months Y of the premises. ' :her presume that if appellee g to act as the agent of ap- it was an unfaithful agent, self - interest, or that in ex- .n Zandt lease it was acting Burleson Y. Earnest, Tex. -5AV2d 869. If appellee acts in executing the Van Zandt ion constitutes an acceptance offer to surrender the ]lased appellee cannot recover for .f the lease. and any authorities directly the following support in a hat we have said: Barret v- : Cic.App., 140 S.W.Zd 9321 -v, Muth, Tex.Civ.App•, 4 ','ph v. Deiley, 293 Pa. 90, A.L.R. 763; Annotations, l:onsignorc y. Koondel, _ - N.Y.S. 453; In rc Gold- Misc. 607, 2r,6 N.Y.S. •., 103 Cal.App. 154, 281 !tion :d Bank v. Curry, 1'2'1 1116, 11O A.L.R. 360; 109 13, p. 1292. f:','.t.-I on July 1, 1952 and ,.•: not let to Mrs. Vaa CITY OF SAN ANTONIO v. CASTILLO Tex. 691 Cite as 293 9.w.2e Got Zandt until Dec. 1, 1952. Appellants would be responsible for the rent they had con- tracted to pay during the time the premises were vacant, a period of file months. This :could amount to SSW rent and $SO at- tomey's fees. The judgment of the trial court will be reformed so that the total amount of the recovery will be $,M0 rather than $1,474.87, and as thus amended it will be affirmed. NORVELL, Justice (dissenting). The trial judge made full and complete findings of fact which are not challenged by points of error on this appeal. III my opinion these findings fully support the J udgment rendered and I would affirm the judgment of the trial court. As against the trial court's findings and conclusions which culminated in a holding that there was no surrender of the Tower - Flack lease, it is urged that the Insertion of a ninety -day cancellation clause in the subsequent Van Zandt lease resulted in a surrender. of the prior lease as a matter of law. eA surrender of a lease by operation of htv results from acts which imply mutual consent independent of the expressed inten. non of the parties that their acts shall have that effect; it is by way of estoppel." 32 Am.Jur. 766, Landlord & Tenant, § 905, EstOPPOI is a doctrine of chancery and hence controlled by equitable principles. The appcllomts in this case breached the rental agreement. By so doing they placed the burden upon appellee to recoup the loss thus occasioned as best it could in ac- cordance with the provisions of the con- tract• While the exercise of the ninety - day option in the Van Zandt lease and a sale of th premises emises might result in an ac- ceptance of a surrender of the Tower - Flack (case, it seems that the mere presence °f such a clause in the subsaptcnt Iense should not have that effect if equitable Principles be applied. After all, the land. lord in this case is not the party in default. It was confronted with the threat of eco- nomic loss occasioned by a broken lease con- tract and should be permitted to take rea- sonable steps to protect itself. The can- cellation clause employed here was not unreasonable under the circumstances. Its insertion in the lease did not constitute an act of bad faint. In fact it is not shown to what extent, if any, the presence of this clause in the lease lessened the value of the Van Zandt lease to the tenant. Surrender is, after all, fundamentally a doctrine of mutual consent and we should be wary of giving legal effect to acts which are clearly against the intention of at least one of the contracting parties. I have found no authority holding that a cancellation clause in a second lease op- erates as a surrender of a prior lease as a matter of law and would not so hold in this case. Fr C 11 CITY OF SAN ANTONIO at al., Appellants, V.r Atllano S. CASTILLO and Ernest P. Kneupper, Appellees. ^t :x Nos. 13052, 13053. Court or Civil Appeals or Texas. San Antonio. Sept. L, 1950. Itehearing Dented Oct. 3, 19.10. Action by city employees for restora- tion to their positions and recovery of accrued back pay and other.bencfits. Judg- ment for plaintiffs ill the 45th District Court, Bexar County, Delos Finch, J„ and the defendants appealed. The Court of Civil Appeals, W. 0. Dturr.uy, C. J., 692 Tex. 293 SOUTH WESTERN REPORTER, 2d SERIES CI7 hehl that in view of the admissions of B. Judgment 0181(2) making test eases .nt of the city and affidavits, the triad court did In a sununo,r �+ eases and desired r: .t pl not err in finding alma there was no ermine Y Ju,lgmrnt pmcmding' further action unti! r::•,..• g R the question is 0,ther or not there is a fact issue as to inches of the pl.intiffs genuine issue of (alts and not how that Bided, trial court d.. na,t in seeking reinstatement and in rendering issue should be decided. that there was no I,,".tinc summary judgment for the plaintiffs, lathes of the empl,,--s 7. Judgment C5181(2) statement for unrcasra:;dd• Judgment affirmed rendering summary twig IF there n disputed issue of fact plaintiffs. _ as to whether plaintiffs were guilty of II' MuNaiPil aarPnratigni CbIB4(D .:.^"�a Inches resulting in injury to the city, sum. - - „_,t, T,:,_y,, +c•„r"v? 12. Municipal Corporations "iverii lloth:efn(Iloyed ma ry judgments should be set aside. Wlrere.;plaintiffs in the. pgjiq¢ department at thr.- -time the An employee in the pt .t 8. Judgment 0+178 did not abandon his righh tute"was adopted and had.hei n for more thaw six months prior therofo;'thryr.wera , l Purpose of a motion for summary to his position by amcpti with the city in the parks C meriibci•`a ,bf -th'e'--4i epaftuiiegt;b➢ °reasan"of judgment is to pierce the pleadings and get there was nothing inconsh the-'statutc. - Veriioii's='`Anit.Civ.St: ail;' down to the question as to whether there I269m; § 2¢ r�" a= `*%b::i:! :y.�- ,„$;4:;;f',,.iasw is a genuine fact issue to be determined I jobs 'and where the trial "' by the finder of facts. the city for all sums it I" plaintiff as a park emplo- 2. Municipal Corporations e:-218(II), 220(8) 9. Equity 072(1) The defense of lacfies is available to a city when sued by discharged employees Mere dchy t itself does not show to secure reinstatement and accrued back tactics and it must be i unreasonable de. Carlos C. Cappell t. pay. Vernon's Ann.Civ.St. art, 1269m, § 24, lay which has worked injury to another Antonio, for appellant person. % 'd Adrian A. Spears, San � VMunlclpal Corparatlonit- 1?218(8) _w '/y ' " = . ,,I,f . ,a •c, �,.. •.. -,.... ;- T,_ '� pollee. 18. Judgment (7185.3(2) y, 4isc1,argedityy .emloyee does noY in S unntary judgment proceeding t- wish•%to acquicsceAiR his discharge 'he av(tere plaintiffs sough[ reinstatement as W. O. AIURRAY, Chief 1 should promptly sec- .- rAhcarigg ; Letora city employees and accrued back pay based civil service,comipisston and iE fc(usid upon admissions of the city, and affidavits This is an appeal by C relief by it,Cthen ins"titute� suit. Jernon9 Antonio, a municipal corp, of persons lending to show that city and Antl.Civ.St. art. 1269m, § 2.4. "•� ^�-" � Firemen's and Policemen' civil service commission were making test Commission of the same 4. Municipal Corporations Fa218(11), 220(8) eases out of other employees and desired summary judgments, one • alma pl.uintnYs take no further action until Atilano S. Castillo and the Laches may be asserted by city when those cases avere decided, city had a duty of Ernest P. Kneupper, sued by `discharged employee 'for rein- to curie forward with something more than other things, ordered both - statement and accrued back pay prior to its mere pleading to show that it had been as memhers of the San the running of a period of limitations. injured by the delay of plaintiffs seeking Department and ran cd to Vernon's Ann.Civ.S[. arts. - 1269ni, 5529. reinstatement and had been induced by such P g of accrued back pay and of delay to change, his position for the worse S. Judgment 0185(2) or had hcen injured in some other manner. When the decisions in £ In summary judgment proceeding by of San Antonio v. Wiley, aI municipal employees employed in police 11. Judgment (7181(27) S.W.2d 471, and City of department for reinstatement after wrong- In action by city employee for rein- Hahn, Tex.Civ.App., 274 ful discharge and accrued back pay, bur- statement and accrued back pay where considered, it is apparent den was upon the plaintiffs to show the plaintiffs filed a motion for summary and Fneupper were not le want of a genuine fact issue as to lathes judgment based upon admissions of city and are entitled to be re and unreasonable delay. Vernon's Amt. and affidavits tending to show that the recover accrued back pay Civ.St. arts. 1269m, 5529, city and civil service commission were fits, unless they have been Tex.Dec. ^- 93 - ?9t SJC.s -d- GO$ T— 308 SOUTH WESTERN REPORTER, 2d SERIES junction it destroyed the status quo in so far is defendant's cattle were concerned. In the iu,laut case, lhrre is no mandalory pt—Wou with respect to — pelliug any mule front the (and in question. Moreover, at the tinut of the trial nod the order of temporary injunction there were only 7 head of cattle belonging to the appellants or any of them in the west enclosure to wbich the injunction applied. As slated by appellees in their brief, if such par.lgrapit of if,e decree could be said to be mandatory in character, it would be it typical situation where the doctrine of "de minintis lion carat Icy" should apply. There is certainly nothing in the order granting the injune. tion which will prevent the appcll.uns froth fencing fn their own lots and glazing as many cattle thereon as they ttant to graze. (6] Moreover, the court makes nn men- tion in Perry v. Strinefcllow of Attiele 1331a, Vernon's Ann.lbnnl Codc of the State of T—ti, Annot.ttcd, which b.,, n•f- crence to pasturing mar• c:nllr nr other livestock on a tract owned or lcard by a person in a general cnclmurc than the tract or teras ow aed or 1011-,1 by bun a•uttld rea- snnahly pasure. Section ? -a of tit, Aiti- eic enacted in Inds give,, in ad,litinn to all other relief anal •n•niedics I— vidrnl f "r in said scectou, the ntiht to apply inr an iu- junction ill the proper court ag..ul >t ally person or pereons t iolating :eq ni Ihr pro - lisinns of the Act. Under the tlecision, in this State, we feel it is t .,.try for it., appellees to rely upon Art. l3 ;!a and that thty are enIu!td to the relief s night I:y them regarnlle,s of whtther such Article i, applicable in the instant case. Appellants' nts' Points S and tf Irive been sat f. ficicntly eorcrcd in tits 4ixusamn of the other points of error assigned by npptl(.tnts, and the same, tngt.ther with all their other CITY OF SAN ANTONIO at of., Ap(tallanls, V. Vlrolnla HANDLEY, n Fomo Sota, of al., Appellaos. CITY OF SAN ANTONIO, AppOlant, V. Borthn ft. JONES, a Foma Sole, at al., Appofloea. Nos. 17244, 17268. Court of Civil Appr,Ax of 'pernv. Non Autoulo. Oct. 2, 1157. hehm,rlug Dented Dec. 18, 1067. Actimts by Police Department employees against city and other,. from two summary judgmt•nts rendered by the Sp—i-d 37th 14stnct and 73rd District C-o-t,, 11—ar County, F, 4,•ue C. \Vilfiants, J., the city .oaf utin•n appealed. The Court Of Creel : \ppt :a,, I'upr, J., held, inter alia, that w•hvrt: urdr;aueej which classified pr'tec nllictrs were never intended to clas,i iy all employee, widen t•utirc Yolicc Department, and city cia -ifhrd —ne amd f.ubd to cl -srfy -dlwr positions, when city f.nit,l to cbn,ify, the Civil Service Act it,cli classified the tither persons in the department, in prnttlnn, they occupied and at ,al.tries they drew, but not otherwise, and hence P•di- D'- paronrnt ruatrons, med.: es, cit -rieod workers, sw-itchbnard uptraturs and punter, wcrc nut entitled to 1,1,e pay at rut,• drawn by patrolman but were entitled to ulininnun pa }.at rate fixed by st.,tutc. Af iri —1 -in part and reformed in part points, are overruled. ` }. hlun (dtPat_Caip'eltntlon°6Li'8p(j'S The judgment of the triad court tern• = rP�Iier!?rpartnt�nt•rtntrons mcajranice`a poraril}• enjoining the Griffiths is ahinncd. NcriaaLSworkarsr- ;¢witehhgirJ- <»`ogeratrirs,.� but as to the nppcllants J. S. Trahan and and portersywc'tc eoitred by: Civil• S�fs'icg3 Jimmy Trahan it is reversed mul the hem- Act }which. Ioeiuttaspfcrms �'metrtd- of porary injunction is dissolved, r.: Nllee:t Dej�ar[ment. ojfiecp gnt(y�!ast j CITY OF tine,", "t,fhcers and ctnpl. . Ann Civ.St. art. 1267m, t.. 2. blunlelpnt Cnrtnrnllons tY.n(I 1'obcc fn p.,rt cot eleric:d wnfl.er,, switch L•, ,,1 , and portcrs did not Iosc Civii -. I..: by rerun of r' orgnniz.dioa •: r u —twin employees w,.rc t-.,•,fe 1'uhh¢ Works lycpartrn,.nt a:. I ,,i: transferred to Personnel L• whicc transfers in Or) %% tq r.;mngc place, or terms of culploymtnt, ployt:es continued fl-rir work Imo "day to day sup,.n ision" of the P paruncut. Crnnni s Ann.Civ.: 12,44n, §§ I et m•q., 2, 12. f 3. Statutes G'+I81(Ij The Court of Civil Appeals effect to Legislative intent. 5�9. Itlunlclpnl Carparallons 0-180(7) _(I Police I)r•p,runent employees Iovr. their Ckil Service status ai and while ca•e was pending on a pa -szgc ,f .unrndntcut to Civil Set ur -ch n w.,y as to ehmina wpin•,,•s from clas- ificatinn as p, sj here :unendrnrnt was pmspeetivc ' retroactive in purpose as appear the title. Vernon's Ann.Civ.St. or §§ 2, 1_2. 5. h1unlelpat Corporatlans 0-186(5) Where ordinances which peace officers were never inte classify all empluyecs within enti: Deparunent, and city classified s failed to classify other positions, v failed to cbtssify the Civil Scr ihcif classified the other person department, in positions they oceu at salaries they drew, but not c and hence Police Department mechanics, clerical workers, swi openttors and porters were not er base pay at rate drawn by patro: were entitled to minuntun pay at r by statute. Vernon's Ann.Civ 30s SJY 2,1-39 OITY OF BAN ANTONIO tr. HANDLEY cua „y aos x. w.,a itos Tox. G09 [inns °a "aeon a - emp(oycc� .r- Vcriat�{a. 1269m, y,�5 1 ct seq., 2, 12, 14, sold. C, 2•1i Adp.CtFSt art8�?69rfj j.et_ — r.•1574� Vernun's Ann.P.C. art. 1553 -2, i .2. Municipal Corporations c�i80p) = - _ f 01t M1retiottm for Rehearing. Police clerical , workers, ntsewnti'tmchaLtrnuairtts, - <m�echpics, '' milm.lpal Corpontlons C -18GO) operators i and porters did not lose Civil SeryicEl st2"tus { Police Department employ,,, rlid not by reason of rcorga`niztititiq- platl ;F114R. ),} lose their tights to benefits of 111inimnr, cert'aiit= cmp(oyces„ were, - tran'sfert'ec):''Itjb,Salary Act because they u•cre transferred puhlic Works DeparimchE.�gd'othcr §;were °tta Department of Public Works in transfgise o,' l�Ctsomtc alleged bona ride reor wimntion, where no emu.- E..�£.._ ,••- I;;'i,DcpaiYHtap' g; WhC�L.,transjess 71q tio-yviy 1. in new or dillurent employees were hired fly laae,zor"r;atts,o£'' city became of renrgauization and work P r _ cot a cnt,,.•a r ��'TTTIII ployec's:,c9pttaaer[ their: work. of soch em 1 t4_da ,: 1�;.,. l?!ldeirfli iect I' nyecs continued smote ;,s it dill Yd @!1 rvl on'r ant c•, 'ec.` -I]'� before. Vernon's Amt.P,C, art. 1553 -2. ( 'rtmen�I ;��q'z'tulCiv.S[ir'a1`' 1..c9m v ••. N° ,q, "_a:�•W� 7. Municipal Corporations 100(6) a. Statutes C P m nlice Deparunent employees were not rt o ` precluded by laches from mocking benefits The Court of Civil{Appeals hill give of M)"'It r, Salary Act where lachcs was effect to Legislative intent, not rtisrd by pleadings. Vernon's Ann. art. 158.3 -2; Rul's of ( :ivil Proiedtlre, 6iRt y�8�?)dnv�BOid) ga� rule 9•1. 1 r Carlos C. Cadrn:,. City Ally., A. IV. Worthy. Jr., As t. City Ally., San Aninnin, for aplelLuns. Adrian A. Spears, Frmiklin S. . III Antonin, for appellees. .�Z49Ilq i POI'li, J°mtice — City of San :Intmtio appealed from turo L M1lunlclpal Corporations ,=106(5) do snnlmarY judgntcuts, here cnn,nlidaa,l, l Where :> ordinances which winch 11,1,1 dolt fifty-one pinintiA'., classified eace ofIIecrs trere never intended to cn,rdoyvc, in the PuLcc 1�, p.rctu,Vnt. worn nu•n.Len lassi fy all employees within entire Police ni the Fir. n,vu'. and 1'ul:r•,n,•,,'s �epartmcnt, and city clamsirtcd some and lern C'iul Svnice ),tent and Ihat all of l:;t•ri 1 afl If :lied to classify other pasitiats, u'hcm were ,nhticil to receive Ill• of a city Red to classify the Civil Service Act rnininuua pav or,linanc,; which covered the +elf classified the other peace u0iurs in the drparuncnt• The Cite persons in tLc partment, in positions they occupied urgem that* tic cutl,iny,•es arc not Entitled .md salaries they drew, but not otheravise, I hence te, a classification in the Civil Service System. Ilowel-er, Police Department matrons, chanies, clerical workers, if they are so clas,iticd, the City then urges that they are d:usihed Witcltboard 1rators and porters were not at the jobs they perform and should receive nd receive entitled to e Pay at rate drawn by the minunum pay final by N110 11d e patrolman but 'e entitled to minimum Pay a[ ntr. fixed Of the mininunn Pay fixcJ by ordinance for statute. Vernon's Ann.Civ.St. art, ry•nmu in other and diflerent elasm,fca- [ions, a08 S IV 2d -3s iz '11' '9 .S. 3r 0; art 4 Ij y to 0 CITY OF SAN ANTONIO v. WHITTEN Tex. 119 Cite a. alas. W.2d Ila CITY OF SAN 2MUnlalpal Corporations et�63(f)'-'• • -_ ANTONIO at al., Petitioners, " i' " The city council's il's controt over Wageil is not'subject tO judicial ediiii0l, or c�rrcc�' V. tion unless tjfG 51inimum, Waga,'Act, isvF-t Jesse F. WHITTEN at al., Respondents, olated or. the; statutory s!atutory Provisioq that. all No. A-7645, th.sea'in the--3afther classificatioii Arill bal paid the &line �rci�o Supreme Court of Terrms, July 20, 11160. Boi;'s AnnAC_41k--f5&3-2 Rehearing Denied Oct. 6, loco. S. Municipal Corporations c:.186(5) City of San Antonio ordinance which Suit by employees of the City of San operated to transfer persons occupying po- Antonio police department for writ of man- sitirnis in the police department and draw. dumus requiring the city and Police chief ing salaries ranging from $210 to $300 a to reinstate them in the Positions they had month to administrative personnel pool of held prior to the effective date of ordinance the city which reduced their salaries to changing their positions. A judgment of $220 per month was not invalid where the the 57th District Court, Bexar County, city did not violate any state - adopted wage jValter Loughbridge, J., was affirmed by policy and its council acted within the scope the Court of Civil Appeals, 330 SAU'd of k9al power delegated to it by the Legis. 210, and the city Petitioned for writ of er- lature, or. The Supreme Court, Norvell, J., held bt city ordinance which operated to trans. fer persons occupying positions in the r3o. Carl., C. Caderia, City Ally., Ch.rIc, L. lire department and drawing salaries rang. Smith. Asst. City Airy., Sin Antonio, for jag from $240 to $300 a month to ad in , i - petitioners. native personnel Pool of the city which re- duced their salaries to $220 per month was Adrian A. Spears, San Antonio, for re- not invalid where the city did not violate spondents. any state-adopted wage policy and its coun. al acted within the scope of legal power, NORVLLL, justice. delegated to it by the Legislature. - This case involves the validity of an ordi. Judgments of the trial court and Court mince of the City of Sin Antonio adopted of Civil Appeals reversed and remanded March 19, 1955 which fixed the monthly to the District Court for further proceed- salary of respondents at the statutory mini - cgs. mum of ;"-0 per month from and after March 15, 1958. Tile respondents, ni­lve I. Municipal Corporations 1-+60 in number, recovered summary judgments for varying amounts in accordance with di f. Except as controlled by higher legis- feten6CS b0twCen a pay schedule in force htiVe authority, the Power Of a Municipal prior to August 22, 1957 and the minimum council is plenary, provided by the 1958 . ordinance.' The Court I- BY ordnance dated August 22. 1057, the City Council of the City of 8;.n rde-] to the statutory rejelmom _in. Antonio provided that all members of Pe-atinn of $220 par month, and the base mige of such the Police Department holding civil le pAr.ml, jym, lived at that Amount. A pparently this rvice position. other than tim,4e act orili. nonce is tile. ripplivuhle to cut in Section One of the orilin•inee (ul'It rewonuInure but mved not be notived - titoy ive- I-. Paricir Iffic.e.) ebuuW be .,,it. T­101c. 337-3389.w.2,j_j3 actually paid at the rate 1. 1—. prior 0; art 4 Ij y to 0 C CITY OF SAN ANTDN10 :i v. Ernest P. KNEUPPER of No. A -76; Supreme Court r s July 20. 19 Rehearing Denied C Mandamus suit to cc r San Antonio and its ch;ei state plaintiffs in their po, lice department. A judge District Court, Bexar Co. 3Villiams, J., uas affirmed Civil Appeals, 330 So,2d 2 petitions for a writ of erro: Court, NOrvell, J., held tha. ing that positions in the p, of maintenance carpenter parking meter division were longer necessary but whit} face that its purpose was tt ployees who had civil servic complying with the Civil S, which failed to show tha- complish either a substant municipal service or a real e eramental operations was v, ordinance setting the salarie Of the police department ex, eers at the minimum rate i statute was not void Judgment of the Court o; and District Court reversed manded to the District Cole Proceedings. Griffin, J., dissented. 1, Municipal Corporations Cs51 Ordinance of the City of stating that positions in the 1 ment of maintenance carper. lector, parking meter divisio: ;shed as no longer necessar showed on its face that its pu get rid of employees who had aaa s.w.2d_4ti ,i +; r.�F ��i. _ ,; „ .t'Iy: ,,t yt 1;., . r•: `'', ' ��'.. ''� ` "1'It �.� -:Fr }., �e tt.: °.ka-• 1 •,T,i•I: -sY'� �� i .. .y ki'�, :'_= '-y�._�'s,` �; 120 Tax. 338 SOUTH WESTERN REPORTER, 2d SERIES of Civil Appeals has affirmed. 330 S.W.2d [1 -31 The problem in thin case is one 210. The opinion in San Antonio v. Ifand- relating to wages. Except :Is contro0ed by ley, Tex.Civ.App., 308 S.W.2t1 6(sa, wr. ref., higher lvgkl.iIivc authority, the pout, of sets out in sonic detail the history of re- the municipal council is plenary. Here die spondents difficulties with the City of San City has neither violated nor evaded any Antonio and renders a lengthy account of state adopted wage policy.' Its council the controversy unnecessary here. ' has simply acted within tile scope of the legal powers delegated to it by the l.cgis. We start with the proposition that re- lature. In cases of this kind a court's in- spondents are all classified employees of qufry into the good faith of a municipal the Police Department of the City of San action is to determine whether or not a Antonio and entitled to the rights and priv. state legislative policy is being violated or ileges of the Civil Service Act, Article circumvented. While it is against state 1269m, Vernon's Ann.Tex.Stats., and the ' policy as expressed by Article 158.3 -2 of the protection of the Minimum Wage Act re- Penal Code to pay less than the minimum luting to Firemen and Policemen, Article standard, it is not contrary to the statute to 1583 -2, Vernon's Ann.Penal Code. By pay the minimum required by law. %Ve do serving six months in their respective jobs, not regard the action of the City Council respondents held classified civil service posi- as destroying a civil service classification tions, See, Article 1269m, § 12, print to the although the wages for the particular work 1957 amendment thereto by Acts 55th Leg., were reduced. A question of demotion is eh. 391, p. 1171. City of San Antonio v, not involved. The City Council's control Handley, supra. Up to March 15, 1958 re- over wages is not subject to judicial control spondents were paid at a higher rate than or correction unless the minimum wage act the statutory minimum. After that they is violated or the statutory provision that were compensated at the minimum permit- all thnse in the scone classification shall be ted by state law. paid the s :one wage is Circumvented - tielc 1269111, § S. i ,,; This Codrt has Itcld'�that;dne haldirjg ;, ` classiGif- position cannot be dc'_ of his Although the trial court overruled the rig hts+undertthe�'civi�a' 'ie laid by`a mala" City's notion for summary judgment, that fide attempt tti g(iolisf4 the pnion held by; action is not urged as error here. Not be. � im�,k We pointed out.' ti epagtment byY "h' ing in position to render summary judgment the ' '•" - ^ "" "' Slgtt,I,{egislateire ceuk�yn ot'be repdered' for the City, y, the cause will Lc remanded to ti ineffectiveorFir;u_r0laitiaJ tiymunreipal ac the trial court. - tioq abolishingelais #`.t4. eygj ser"biee posi -7 The judgments of the trial court and the lions imardetrtm get pd`of•'.ynwanted c Court of Civil Appeals are reversed and the ployees and io'rno otherpaipese:.- City nPJ cause remanded to the District Court for y1 San Antonjo': W11 ac+r;' -338 $,WZ further proceedings consistent with this 153: • i:: o•i..';w's opinion. _ "",".'3`.,c'i;'e''�"` to August 22, 1967 until the effective redaetinn in tiny would be tantmmnunt to date of the blareh 1953 ordinancu. the ul htinn or an ofi,. or pn.:rino and total bu in law mgnnlcd as such. That @. Perhaps under an extreme factual situ• sinmtlon however in not presented by adon, It could be said that a drastic the present record. C CITY OF SAN ANTDN10 :i v. Ernest P. KNEUPPER of No. A -76; Supreme Court r s July 20. 19 Rehearing Denied C Mandamus suit to cc r San Antonio and its ch;ei state plaintiffs in their po, lice department. A judge District Court, Bexar Co. 3Villiams, J., uas affirmed Civil Appeals, 330 So,2d 2 petitions for a writ of erro: Court, NOrvell, J., held tha. ing that positions in the p, of maintenance carpenter parking meter division were longer necessary but whit} face that its purpose was tt ployees who had civil servic complying with the Civil S, which failed to show tha- complish either a substant municipal service or a real e eramental operations was v, ordinance setting the salarie Of the police department ex, eers at the minimum rate i statute was not void Judgment of the Court o; and District Court reversed manded to the District Cole Proceedings. Griffin, J., dissented. 1, Municipal Corporations Cs51 Ordinance of the City of stating that positions in the 1 ment of maintenance carper. lector, parking meter divisio: ;shed as no longer necessar showed on its face that its pu get rid of employees who had aaa s.w.2d_4ti ,i +; r.�F ��i. _ ,; „ .t'Iy: ,,t yt 1;., . r•: `'', ' ��'.. ''� ` "1'It �.� -:Fr }., �e tt.: °.ka-• 1 •,T,i•I: -sY'� �� i .. .y ki'�, :'_= '-y�._�'s,` �; CITY OF SAN ANTONIO V. KNEUPPEB, Tes. 121 Clto ea aa3 s w.2d L ^t status "with out c6mplying "with the Civil' CITY OF SAN ANTONIO of al., Petitioners, Service Law and which failed to show that V. it would accomplish either a substantially Ernest P. I(NEUPPER et al., Respondents. improved rmuticipal service -or n real econ- No. A -7670. omy_ln governmental operations was void. ' Vcrnjojl{y Ann.Civ.St..ar0.1269m�— ,...��a;; Supreme Court of Ti sxas, ` July 20 11.9A 2. Municipal Corporations 05186(5) Ordinance of the city of San Antonio Debearing Denied Oct. 5, 1000. setting salaries of all employees of the po- - lice department except peace officers at the iafandamus suit to compel the City of minimmm rate allowed by the statute was San Antonio and its chief of police to rein - not void• state plaintiffs in their positions in the po- lice department. A judgment of the 45th ' District Court, Dexar County, Eugene C. Carlos C. Cadena, City Atty., Charles L. R'illiams, j., was affirmed by the Court of Smith, Asst. City Airy., San Antonio, fot Civil Appeals, 330 So 2d 205, and the city petitioners, petitions for a writ of error. The Supreme Court, Norvell, J., held that ordinance stat- Adrian Spears, San Antonio, for re- (eg that positions in the police department spondents. of maintenance carpenter and collector, parking meter division were abolished as no NOP.VELL, justice. longer necessary but which showed on its face that its purpose was get rid of This is a companion case to City of San is ployees who had civil service status without out Antonio v. 11'allace, Tcx.Sup., 338 S.W.2d complying Mill the Civil Service Law and 151, which failed• to show that it would ac. complish either a substantially improved [I] The City Council of the City of San municipal service or a real economy in gov- Antonio sought to abolish respondent emmental operations ryas void but that an Kncupper's position as a Maintenance Carpenter of the Police Department and ordinance setting the salaries of employees of the police,,dgartment except peace Off. respnlltlent Castillo's position as Collector, parking Meter Division of the Police Dc- statute was riot void. partment, by an ordinance dated bray 6, 1957. The trial court and the Court of Civil judgment of the Court of Civil Appeals Appeals held that this ordinance had not and District Court reversed and cause re- been adopted in good faith and hence did sanded to the District Court for further not operate to destroy respondents' rights as proceedings, holders of classified positions under the State Civil Service law. Article 1269m, Griffin, J., dissented. Vernon's Ann,Tex.Stats., 330 S.W.2d 205. I. Mpnlelpal corporations ( =180(3) After a review of the record, we are of the ] �Oidinznce' f`the EitTaf Sag7Antdnio opinion that these holdings must be sus- tained for I tatin ljsikpo in 'olfccdepart: the reasons set forth in our opin- g @(bons the ion in City of San Antonio v. Wallace, 338 ment'bf'iriainteaancc= 0arp nter;� :,col' S.1 \! 2d 153, Maintenance carpentry on pia. Iettnnpair ing:meter;dfvi�io�n w�e_abgf lice department buildings and installations f fished as- puctangee 'tiecessa3'y,,bgUwhich continues. The same is tux as to collec- thawed oil ityifaee that it was to se was •tions from parking meters. As was the case Set rid of erpployee5 who in Wallace, the record does not support the ass S.w•ad —esf �,7•�;�•� ,i a ^�o� {•j.,.�i I t_7 fT7 f—' �y T7 its i i,i CITY OF SAN ANTONIO v. WALLACE Tax. 153 Cit.u. 338 S.W.2,1 IM paper Hangers of America are similar in Bence that plan under which classified posi- ectlil to the colistitutional provisions c"11- tionl4 —pectilig co,,todial services for city ,,crated in International Printing Press- buildi'llli, were abolished and such service. ,lien v. Smith. They clearly indicate that were performed fly ;in independent con- 1,3inters Local Union No. 318 is an agent tractor was more eflicicut or economical, of the Brotherhood, and that the exercise of City by ordinance Could not abolish classi- disciplinary power by the Local Union is ' tied positions, within its scope of authority. The judgment of the Court of Civil Ap Affirmed. peals insofar as it reversed the judgment Griffin, J., dissented. of the trial court sustaining respondents' lwr4t f< plea in abatement to petitioners' cause of Municipal action for damages is affirmed, and the Corporations C-63(l) judgment of the Court of Civil Appeals 'dity,c,i affirming the judgment of the trial court as 4odat , 3 , ai - iwthirigi sustaining respondents' plea in niatenlent to it cannot petitioners' cause of action •for reinstate- to its garxi faith, (notl va"' f ieasqjts or p4d ent and remission of lines and lecumulat m - Po'c', but Where, statc-imposed civil scryle ed dues is reversed. fl* � Vetera�uc- referencle 14ws gro � Vil tl -arc,twrA letn'slative alc;ipni�'tozvor - Judgment of the Court of Civil Appeals sider, tljat,-is;.rfla. state I,Mctmana,2nd,thC 7 is affirnied in part and reversed in part; city nrd;na'ticL-,aiul courts i- �:- I and the came is remanded to the trial court. stateipolicy,most rnnsider I nicipa action' seek dj Ing to aboIi:,It�claIisIfi'j 'Act-adulitiad nis Service 'state•rlegWa T7 by lure: - Vcrnan's,, ,Rim .St, I O in cars C569. I I N CITY OF SAN ANTONIO et al., Petlijo lteril, T flurc of c- ;ffico'and civil service liwsl V. or prct�nldcd Curtis WALLACE et at., Resl.ndtiiih. ab No. A-M5. 3. Municipal Corporations C=63(l) Supreme Court of Texas. Action of city legislative body ahalish- July 13, IGUO. ing civil service po4itinns 111,1y be j1plicial- IY •-xanlillcd in light of its surrounding cir- cumstances, the .e Mandamus proceeding by flarener cm- prior and subsequent ar- tialls of such legislative bay and the pun ployce attacking validity of city ordinance lie policy represented by ci%il service I._ attempting to abolish certain classified posi- in order to determine good faith of the tions. The 73rd District Court, Bexar questioned action. County, Eugene C. Williams, J., granted inandamus ordering reinstatement and city .4qMunicipal Corporations C=63(1, 2) aPpealed. The San Antonio Court of C I Civil 4r, Issue of Appeals of the Fourth Supreme judicial. body, iff-bull-M-ind chiRsifle4 pas"timis District, 330 S.W.2d 212, affirmed and city MV+ der state Civil service brought error. The Supreme Court, No Nor- ques-! tj �Iof a buse,of-dijeriki U of qt�a oil or-ar Tell, J., held that where there was no itrat ry, ev action OU'part PrIbe,19unicip'll gorerfljnj�' 338 S.W.2d—lou e -.� : is • _ , i .' ., . � .:, 1.' , u rl'.•..9• -s - ` ;-?'P s;'i•- - .t : ?f. ;. .s. ti. :,.fir; •y"e. ;.. T:'.iJ �' _ '`r.l] � ,•C';U' Y.: -•'l., ° ; ".r = :' � ' •f' -ui it - L_ ,. L' %.�.:t;i�j Ter. 338 SOUTH WESTERN REPORTER. 2d SERIES ,1 l 8dard, and jza nts n question of-law• for iki :nod Luitb`aiid`haice oi.lndamliw`prnjl� p•ric•! nl tin ran•,^ ' the ud �ds• deCisiotl """= '-''- ""$`°'•"•""ter -"`;'f erly i,sucd idslitriuj,•` mpinyei3ylrr�theti �• i dassifictl pu�itinisM \rcrt:.lits FYtu6Civ,St? 6. M1tandmnus a1117(9) urt. 1269nn null x'12. : : ", — .,= the '.6d'ts ti ifr,!r,.- I - v.,N.x.•,'G tnt,rl ^r file j Where judgment granting mandamus 1, WaS t!elln.[C J r,,,-; restoring rewpondents to chtssirl,d civil Al,ir� - v, fix• :.li_y srrrirr pasitiuna Coal invalidating nuouril'A • +r Gu law C. ( : ;.,I u.I, (City Ally, i An- V /.ZS .r✓•, rr. « f., ' urdio.ulre 01111i,im,g such positions was tonn,, far prtiti detail Etc Itg-+ •+. erp ' rendered upon motiuu for sunnuary fudg- Adri,m ti n•aru, San Auhntu, for rr, San Aatomo with meat, Supt cam Court would dulenniuc [rmn I 1'�»ul- and held that the f I examination of affidavits, admissions and cols. eri in that depositions ml file whether or not city cnun- cu,: c,sc l here) r!:r! 4 cil it, :Iholishin• d:ISwifir,i actions had 6 pt NOIt \'Ri.t, 11Htie'e. eats rat 1 p,,S!L •inn by as ate ! abu. a1 the discretion vested in It by law, for the Tu!:cc Utpartmt The prlltiooer's n4t!nn reheari,u: !n rje-partmert which : ' 8. Evidence C.�67( :) IIIiv cause K•aw thlly Crlll,iderfrl after soh- Firemen's and 1'n!i' Although there is a presumption fa- mission and oral argument in the conurctr•11 Act Ly mean; causes of City of San Antonio v, f:nrop. of t voting regularity of official aets, such pre- Tex.Sup., 338 S.W.2d 121, City der ' sttuygion Could not Gt• eetrudrd to civil per, of San Antonin v, Tex.Sup, .iCY S. - attack,ethe feed service case involvin • action of nuutici ul- 6 1 ty'l if San N &1 11'1, and City of San Autnnu, v- (;ter, viousty the work the ity in abolishing classified positions re- is 3.18 S.r 121. Such ie,l xndents, i. e., th specting custodial scrices and having such ovi.rro on is uvtrndcri. Our origut.d opinion m this in this for }n[ildiags, would services performed by independent toll- others. The city tractor, _ call, is huucecr wnhdnwn and the. col• Sen'icing Company ( lowing SIIa Sn ltllErd therefor: IO - tractor to perform : r 7. Municipal Corporatlans x718(9) The e:r,e it snlvee the validity of an ordi• ` 1' \ \'here city abolished civil ­ice prof- naurr or lhr 4ny of San Antonio which The stave facts a: sions made under Ru y !inns Kith respect to persons performing attnopts «, ahohdt cerC,in el.nsifird pesi. Civil procedure, and = certain custodial services and suhsrqucutly tions held by rolnndfnti under the Fire- had the same services performed by inde• liter's anti VOIlectncu', - ivil Service Act. personnel a Y pendent contractors, and ahnli5hing ordi• Article I_2G`hu, 1'frnmis Ann:Ccx.Stats. the -San A Ant, • r-r n.nree stood unsupported either by retina- The trial court in effect held that Elie ques. in i s own and t e own d not tent the city did not ti.., plca.hng or es idener, disehargrd s.m• lees tionr4 unlumnce was not adoptnl in good son tnts 1 t 1 attacking Elie abolishment of their p °)• 6 faith but for the purpose of dr nun the p P' P •• g , positions were not required to hear burden � resivtndents of their rights under the Civil respondents lid respan ^.dents was to was of adducing evidence negativing suppnsi- Service law. Upon notion inr summary govermnental operati tion that ordinance %%as valid economy judgment• nnndauuts was granted ordering irigs. e custodial th. E ca[ 1°gs- In tine motion measure. the reln,t Itro —it of r-j —dents in the mu- meta it was simply -�` ninpal service. The Court of C Il Appeals tioas io:aerly held b} e: Mandamu -x+77 t (iI - : �x aftirmal. See City a( San Antonio v. i ahoL*h*ed by o-IMUnlalpal Carparatlonr (74100 --;ti ,`;J'.-;w -, rim' Wallace. 330 5.11'2- 21_' ulticit rr,lcrs to ordinar. had engaged an inde t . ? ., :1 .: ' r,Whera City of San Antonio v. Kneupper, Tex.Civ. thepelnv •no eyltence thai the ' App, 330 S.11.2d 2Ui, decided the same peria:m sit custodial: hiring'of'at}•lWqp}!eo dpt) cant rac or toper. tai fieadgs -:ten Buildin• - form euifodiat servlaer"'-, evioiisiy"+ perform • c Cott- >Bsilding. - i4tQ_ 1'3'rt "r_ Ed by-eity employ_cci. Lq lasslfied =positions Tisch of the respon�lents held eiasained tifl:a :his record It ` which weir attem tell 467lit• 6o1!sherl�b- P 9 Y P l.Icrs aw custrxltal workers in the Police peals ccrch:ded that t y. city ordinance was�mare�efTiei_nfar= ecmtum• Department of the City of tiara Antonio ,-s•. - 7,,:. jean than the pe�focinance• oi' ctisfntdfaf under the provisions of Article Ql,(hu, ; 1_, ' tc ^rtcd to dischar, S °n.•:- - •..� . -, services by sue h "clas'sifcEL'- employees Vernon's s Ann.Tec Stats. in that they t5 ere while continuing the „ac• �rez> = - -t lion of eity'i7•emetitig a dlnanee- wis'-'not - _.., .:j-- _ pcnn,tlyd to sen•c in such posttiuns for a l D!ed in the P„!ice : trac`rg v iih Elie Bui -.� : is • _ , i .' ., . � .:, 1.' , u rl'.•..9• -s - ` ;-?'P s;'i•- - .t : ?f. ;. .s. ti. :,.fir; •y"e. ;.. T:'.iJ �' _ '`r.l] � ,•C';U' Y.: -•'l., ° ; ".r = :' � ' •f' -ui it - L_ ,. L' %.�.:t;i�j -� , t(� ; - - -- - -- - -- - - - - - -. - sass -'- - - -- - - -- --- - - - - -- - - - • -- -- — -- - - - - -- - - - - -- r• 502 Tex. 452 SOUTH WESTERN REPORTER, 2d SERIES department did nnl, of itself, est:{bhslt that Erastus J. CLACK, Appellant, provision of Civil Service Law requiring ' v that all thnse in the same classification be paid the same wage had been circumventtrl CITY OF SAN ANTONIO, and Firemen's and Policemen's Civil Service Com- or that faihure to grant custodial worker, ' mission, Appellees. garage attendant, such raises had effect of demotion without compliance with act. No, 14939. Venfan's Aun.Civ.St. art% 1269m, 15ft3-2. Court or CIvII Apptenls of Texas, S im Antonio. --�- March 18. 1970. Earle Cuhh, Jr., San Antonin, for appel- Rehearing tlenlet l April 8, 70:0, ]ant. _ Howard C. Walker, Crawford It. Reeder San Antonin, for appellees. Action against city and firemen's and policemen's civil service commission by cus- todial employee of police department to re- BARROW, Chief Justice. cover damages consisting of unpaid salary ' and unpaid raises allegedly due worker he- Appellant, Era,tus J. ('lack, appeals from cause of defendant's refusal to grant him a take - nothing judgment entered after a department -wide pay raises.' The 166th Dic- non -jury trial in his suit against appellees, trict Court, Bexar County, Peter Michael City of San Antonin and Fircincti s amt I'o. Curry, J., rendered judgment in favor of do- liccmeu's Cit it Service Contmi+.ino of said fondant and plaintiff appealed. The Court City, to recover damages conA%tiug of un- of Civil Appeals, Ilarru%v. C. J., held that Paid salary and unpaul ra suiting to excluding castodi :d workers from pay rai+e+ him b­ ,use of allrgvd .h +criminadnn by granted police officer in city - police de- refilling to gr.uut hull deparimt•ntal -wide partment did not, of itself, establish that pay ral.es. provision of Civil Service Law requiring that all those in the same cbtssificatiopl Le Thi•(•= n�it.prrvents= ano[herphasFCti`f -thee t paid the same +iage had been circumce'tNed extengiv Ilhgat tlV'hr^ou�hL:�ilnurs- lap =tfie 3 - • or that failure to grant custodial worker. rductSnc on- ttte- (- rtrro- reanelu�n'that garage attendant, such raises had effct•t of I0Cn1L5rY?ticlhc NolteC'DCpa %tme{li °.In(•hfd -^ demotion without compliance with act. inp th t;ddil•la�i ircemenR perso_nnet/ .,,, >•_, wrrr�ndut(ett- iti�the prnvicinn3"7(If" the Affirmed. Pyluemen an L J ifemen'sa :foil iSenicG , : \ttgaday[ed.�:py_thr- Eiftietti^ IYcgr<Iature, 1. Municipal Corporations 0180(1), 186(5) article !136otn, See City if San Anhnio v. Wiley, .52 SAV.2d \anlaw enfoiiementspmpluyeciuf city a . ,., `•1 ;1- 1Tee,Civ.Aph—I9:2, writ ref'd pulice+de'partment+fiuld dassttl positions rY �.�r ' n. r. e.) ; City of San Antonio v, Ilahn, 274 ! I "' , !'Y� and canno °Ebe de rdyllC"u£thttrri • tY11111ICr , •, i 1,1� "?d 162 I fe'r.( I \'..i i — : \It +tin 1754. Civ'{�L•_Seh•ICeJ,Act i �, itv o= eurcttmven state- tared reFd n. r. c.): Ciq• of San Antonic, v. ' - ('astiliu, 39.i ti. \1 "'d �permd G'�i - 5r-�i>: -� ,.____- _�._____.J,,,ce9,•q, ITcx.Civ -App. `°mootthat.allthoie ir�'tfi�simrclay3iryucauriti "�- `;lu :kn,ouin 1956, writ ref'd n. r. e.); : 3'be' ai o .s sami:�vagi!f* r-- t a P ,,thrsamcige.._�nnr.'s''i \nn.Cf City of San :\ntmliu v, Handley, Jlki S.W. -, St. arts r 2d (Ins, (Tex.Civ-App. —sin Antonio 10.7, t 2. Municipal Corporations C- writ, rei'd); laity of >«tt Antonio v. ,180(2),186(5) Whitten. 161 Tex. ISn, 333 SAV.24 119 ,. Excluding custodial workers from pay (19(01 : City of San Antonin v. Kueuppeq raises granted police officers in city police 161 Tex. 153, 338 SAt :31 121 (1960); City r• CLACK v. CITY OF SAN ANTONIO Tea. 503 t;itens i.Y: t R. W. AX! of San .Antonio v. Wallace. 161 Tes. dl, 338 of such action, a number of other employees S.R'.3d 153 (196(1). were suhstanlialh reduced in pay and they challenged the validity of such action as Clack was cmployed as a custodial work- bring tit attempt to circumvent the Civil cr in the San Antonio Police Department Service Act. In denying such challenge the when the Civil Service Act was adopted Court said: "The City Council's control and uas involicd in some of the above liti -, over wages is not subject to judicial control g-atiun. As a result of such litigation he or correction unless the minimum wage act was found to hold a classified place as a is violated or the statutory provision that all custodial worker ill the Police Department those in the same classification shall be and included in the provisions of such Act. paid the same stage is circumvented. Art. Clack commenced work in the Police De- 1269m, § S." fit a footnote, the Court ob- partment as a laborer nn August 1, 1919, scrod: "Perhaps tinder an extreme factual at a salary of $120AR) per month. lie was situation, it could be said that a drastic raised to $15210 per month un July 1. 1951 : reduction in pay would Ire tantamount to to $160.011 per month on :April 1, W-52; to the abolition of an office or position and $170.111) per month on March 16, 1955; to could be in law regarded as such." $ li9.IN1 per month on Januay 1, 1956; and to $11M.00 per month nn October 1, 1957. On March 16, 1958, he along with the other urn -law enforcement ruipluyccs of the Poo— Department, was placed on the pay- roll at the minimum statutory wage of $212191 per month. Svc City of San An- tonio v. Whitten, supra, Art. 15S.I -2, Vernon's Ann. Penal Code: His salary has remained at* this base wnge. although he has received ,longevity increments of $?171 per year and now earns a total pay of $2560). Mack alleged that the cost of living has steadily increased since 1958 and that the City h.ts granted regular increases in salary to all civil service employees with the ex- ception of those in%ohed in the alcove liti- gation who are identified as "court appoint - ell ettlployce5" lie alleged that the failure to grant him departmental -wide pay raises which were granted to offset the increase in the cult -of- living has had the effect of a demotion without a compliance with the provisions of the Act. A somewhat similar question was present- ed in the City of San Antonio v. Whitten, supra, wherein the Court considered the tadidity of the ordinance which fixed the monthly salary of the "court appointed em- ployees" at the btatntory minimum of $220: INI per month. Although Clack actually rceciscd a .11.)Maotial lay raise ns a resutt te. o­ sst— swm " [11 Clack is, classified ae a - .6switall Corker, Garage - Attendant :'_•There' is o' silch classificatiod as "court appointed employee" although the record demonstrates that despite the passage of almost twenty years since City's unsuccessful attempts to exclude the non -law• enforcement employees of the Police Department from the Civil Service Act, the Personnel Director and _ Chief of Police still refer to such em- ployees as "court appointed -employees." Such identification and reference is wholly unwarranted under the Act and the result of the litigation challenging such Act. The= - :4 Courts have repeatedly held that such em- 4 ployccs hold classified positions and cannot he deprived of their rights under the Civil• Service Act. '-The City will not be pert milted to- circumvent the statutory require- ment that all those in the same classifiea' tion shall he paid the same wage. " [2] We have no evidence in the meager record before its to show that Clack has been treated any different than any other employee in his classification. No effort was made at the trial to show that any other employee in Clack's classification re- ecived a pay raise, or now receives a larger salary. To the contrary, the City Personnel Director testified that all employees in a given pay classification receise the same salary. The record is undisputed, however, n_ls..is`•p...it7! 1 ;":autc"'=srOr. . -r.,m' i 1, 'f-04* C 504 Tex. 452 SOUTH WESTERN REPORTER, 2d SERIES thatlav, enforcement n-10'ers of the puliCe tion for SUITIMUCY judgment and V'Ct'"' at" it pay department have received frequent pealed. The Court of Civil Appeals, ' raises. I'lle (,hicf -of Police testified that 11reslar. J., held that where defendants se- this teas necessary in order to keep the cured finding by trial Court that there was police ranks near the authorized level of no genuine issue as to any material fact strength because of the keen competition and plaiiitiff did not challenge such ' ch ftnd- for police officers by other large Texas Ing by his appeal, Court of Civil Appeal% cities. On the other hand, he said the pay . was not at liberty to review finding and of Clack is competitively adequate for his would sustain judgment. type work and such position can he filled Affirmed at this rate of pay. We cannot say that 1116 evidence shows as a matter of law that the Civil Service Appeal and Error C7719(8) Lav, has been circumvented by the City's Where defendant, secured finding by action in excluding the custodial workers trial court that there was on genuine issue from pay raises granted the police officers as to any material fact and plaintiff did not - in such department. Nor does the record challenge such finding by his appeal, Court demonstrate such nit extreme factual Siton- of Civil Appeals was not It liberty to re- tion as to be tantamount to an abolition of view finding and would sustain summary Clack's position. judgment. Rules of Civil Procedure. rule The -Judgmentis-affirmLd'A 166-A(c). CADENA. J.. not participating. lien A. 1-'ndli.h" and D. Clark I lughes, EA Paso, for appellant. Hardie, Grambling, Sims & Galatzan, A. Grandiling-, EI Ilaso, for appellees. John OPINION PRE.SLAR. Justice. MALOOLY BROTHERS, INC., Appellant, Appellant, Malooly Brothers, Inc., filed v. this suit -against the appellees, Frank Napier Frank NAPIER and Herman Siegel, and Merman Siegel, alleging that appellant Appell.— retained the appelices in their capacity as No. 6093. Certified Public Accountants to perform certain duties for them: that an employee Court of Civil Appeals of Texas, embezzled from them, and defendant -ap- El Paso. were negligent in not discovering Feb. 25, 1970. pellees suchembezzlement. The trial court sustain- Rehearing Denied April 1, 1970. ed the defendants' motion for summary judgment and overruled motion for new trial. We are of the opinion that the trial Action by embezzlement victim against court correctly disposed of the case. its accountants, in which it wah alleged that accountants were negligent in not discover- Appellant assigns two points of error- ing embezzlement by victim's employee. The that the trial court erred in granting the District Court, El Paso County, I-lans r- motion for summary judgment fused on (1), Brockmoller, J., sustained defendants' mo- the defendants' plea of limitations, and (2). I SERIES . CITY OF WICHITA FALLS v. HARRIS Tex. 653 'd to dismiss the appeal on Cue. 532 S.W.2d 653 , to court had no jurisdiction because the appellant did not give notice of overruled, Rule 386, T.R.C.P. Since no no- ant did not give notice appeal. tic o[ appeal was required to perfect the of :ourt of Civil Appeals held Final judgment was rendered on January appeal, appellees motion to dismiss the ap- ely amended motion for new 24, 1975.. On January 31, appellant filed 5 peal is denied. uled by operation of law no motion for new trial, and an amended mo. d was required. tion for new trial was timely filed on Feb' aied ruary 20. The amended motion for new oRErnuxeERnsny trial was overruled by operation of law on April 7. An appeal bond was filed on April Error *=396 16, and the record was filed with the clerk of this Court on June 4, 1975. lion for new trial or amend. ' .new trial is overruled by Rule 363, T.R.C.P., provides that an ap- CITY OF WICHITA FALLS, Appellant, w no notice of appeal is peal is perfected when notice of appeal is v appeal is perfected by the given and the bond or affidavit in lieu peal bond within the time thereof is filed, both of such steps being Jerry W. HARRIS et al., Appellees. s furnishes adequate notice required to vest jurisdiction in the appellate No. 17662. appeal. Rules of Civil pro. Court. Rule 353, T.R.C.P., sets out the 3, 363, methods in which the notice of appeal may Court of Civil Appeals of Texas, pP be given or filed, providing that it must be Fort Worth. .rror X396 done within ten days after the final judg- Dec. 19, 1975. ;l bond was filed within 30 meat or order overruling the motion for Rehearing Denied Jan. 23, 1976. aded motion for new trial i new trial. ad by operation of law and There is, however, an exception to these in Court of Civil Appeals general rules. When a motion for new trial Eight members of city fire department .fter the motion had* been (or amended motion for new trial) is over- brought suit against city seeking judgment )peal was not subject to ruled by operation of law, no notice of voiding appointment of fire training spe- nd that the appellate court appeal is necessary. The appeal is perfect- cialist, requiring the firemen's and police - on because appellant did ad by the filing of the appeal bond within men's civil service commission to perform f appeal; notice of appeal the time required. This, the courts have its statutory inspection duties, and setting t to perfect the appeal. held, furnishes adequate notice of appel- aside the disciplinary suspension of one rocedure, rules 353, 363. lant's intention to appeal. Houston Life plaintiff. The District Court, Wichita Ins. Co. v. Dabbs, 125 Tex. 100, 81 S.W.2d County, Stanley Kirk, J., ordered the civil Jr., Long & Whitehead, 42 (Com. of Appeals 1935); Combined service commission to make the required American Ins. Co. v. Aforgan, 207 S.W.2d inspections, voided the suspension order and ), Crain & Sheppard, Cue- 701 (Tex.Civ.App.— Dallas 1947, no writ); voided appointment by the fire chief of the Combined American Ins. Co. v. Morgan, 214 fire training specialist, and the city appeal - in, Law Office of 0. F. S.W.2d 145 (Tex.Civ.App.—E1 Paso 1948, no ad. The Court of Civil Appeals, Spurlock, )r appellee. writ); Chekanski v. Texas & New Orleans J., held that action of city in creating and Railroad Company, 306 S.W.2d 935 (Tex. filling the noncivil service position describ- r' PI \ION Civ.App.— Houston 1957, writ reed n. r. 10; ed as "fire training specialist" to take the McKinney v. Tromly, 386 S.W.2d 564 (Tex. place of the fire training officer position {� Civ.App. —Tyler 1964, writ ref'd n. r, e.); was void, that the person holding the posi- is - Williams v. Hill, 392 S.W.241 759 (Tex.Civ. tion of fire training specialist was a "fire - an :q,peal from a judg- rrlir 1965, no writ). App.—Dallas man" within the intent of the Civil Service -t :n5.arding plaintiffs ace br m tats from the de- In this case, the appeal bond was properly Act, and that even if ruling of civil service company. Appellee has filed within 30 days after the amended mo- commission upholding such action was rea- klniss the appeal on the tion for new trial had been overruled by sonably supported by substantial evidence, 'ourt LA, no jurisdiction operation of law. The record was filed here trial court could declare the city's action within 60 days after the motion had been void, that the civil service commission had t 654 Tex. 532 SOUTH WESTERN REPORTER, 2d SERIES I the mandatory duty to annually inspect all institutions, departments, offices, places, positions and employments affected by the Civil Service Act, that suspension of fire fighter for 23 calendar days was an "indefi- nite suspension" within the Civil Service Act, that he was entitled to a hearing be- fore the civil service commission and an appeal on that decision to the court, and that statutory authorization for suspension of a fire fighter for engaging in conduct prejudicial to good order was not unconsti- tutionally vague. Affirmed. civil service commission ruling upholding the action of the city was reasonably sup- ported by substantial evidence, trial court was not precluded from declaring the action of the city void. Vernon's Ann.Civ,St, art. 1269m. 4. Municipal Corporations 0216(1) City civil service commission is not au- thorized to construe a statute or an ordi- nance, nor is it authorized to decide a ques- tion which is purely one of law. 5. Municipal Corporations 0216(l) U d ti f f' n s and of . n er see on o memo p ice- men's Civil Service Act providing that the LvAlueieipsl- 8orporations civil service commission "may make investi- gations concerning, and report upon all 4v Actioiv of city in eliiti hati ng civic ee l.,•,. matters touching, the enforcement and ef- ice position +�f fire raining office'- and iii I and filling •position feet of the provisions of this Act, and the _ .creating none(vi1 eery -iee "_ rules and regulations prescribed hereunder; - descidhed _es "_fire= Er`aininBtspecinlist t, shall inspect all institutions, departments, take,the•placo of the, firejtr�igipg officer offices, places, positions and employments i-1: as unauthorized; where the twP 'positions affected by this Act at least once every were virtually identicitl'and when year," the legislature, by the use of the there was no evidence t at the pity did no h word "shall," Intended that the duty to have within its fire department a person inspect annually would be mandatory. Ver- capable of.filling the position of fire- train, non's Ann Civ.St. art. 1269m, § 5a. ing officer, despite city's contention that i :could not fill the civil servicaQosition.' =Yerf t 6. Municipal Corporations 0=216(1) non's Ann.Civ,St. art. 1269tp, §§ 2, 9 -I1, 141; If Civil Service Act does not provide t tubd.- C, for an appeal from an order of the commis - 2'Municipal Corporations 197 -��='' sion, then the administrative action of the r - `s`;= :'t Person. holding yYire,�tfaining,sI commission is final and the courts have no .. , 1hf ist" poeitiori, which. was a; ponclvil pervice jurisdiction to hear an appeal unless the position ceeated.by'ciiy iil ter elimination'of._ administrative action complained of violates action complained silnilar'civij service of `lfire train- a constitutional provision. ing� officer" was ,a,P'fireman�'iwithin the 7. Municipal Corporations 0198(3, 4) intent of the firemen's and polireien's Civil Section of firemen's and policemen's Service' AcC`t`iVernon's AnmCiv.St; erC i Civil Service Act authorizing the fire chief 1269m. e'Lr;• 3 N`r'p ;y k'� ? to suspend any officer or employee under See publication Words and Phrases his jurisdiction or supervision for discipli- for other judicial constructions and definitions. nary purposes for periods not to exceed 15 days does not give a fire fighter so suspend - 3. Municipal Corporations 0194 ed the right to a hearing before the civil Validity of action of city in creating service commission or an appeal in the noncivil service position of fire training spe- courts, even though the civil service com- cialist after eliminating similar civil service,, mission had the power to set aside the order position of fire training officer was a qt es -z of suspension. Vernon's Ann.Civ.St. art. tion of law and not of fact, so that even if, 1269m, § 20. jkh:7 -6 -77; 1st *' AN ORDINANCE AMENDING THE BUDGET FOR FY 1976 -77, ADOPTED BY ORDINANCE NO. 13309, BY AMENDING THE FIRE DEPARTMENT BUDGET FOR ACTIVITY 3343 (COMMUNICATIONS) SO AS TO DELETE THE UNIFORMED CLASSIFICATION OF FIRE ALARM OPERATOR I AND SUBSTITUTING IN LIEU THEREOF THE CIVILIAN CLASSIFICATION OF DISPATCHER (SALARY GRADE 20), AND TO PROVIDE THAT AS THE FINAL VACANCY IN FIRE ALARM OPERATOR OCCURS THAT THE FIRE ALARM OPERATOR CLASSIFI- CATdON BE DELETED AND IN LIEU THEREOF THAT CIVILIAN CLASSIFICATION OF DISPATCHER BE SUBSTITUTED THEREFOR. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CORPUS CHRISTI, TEXAS: SECTION 1. That the Budget for the City of Corpus Christi, Fiscal Year 1976 -77, adopted by Ordinance No. 13309, be and the same is y : hereby amended by amending the Fire Department Budget for Activity 3343 (Communications) so as,to delete the uniformed classification of Fire Alarm Operator I and substituting in lieu thereof the civilian classifica- tion of Dispatcher (Salary Grade 20). As the final vacancy in Fire Alarm Operator occurs, the classification shall be deleted, and in lieu thereof, • s . the civilian classification of Dispatcher shall be substituted therefor. This section shall govern the classification of Dispatchers within the Fire Department, anything in the City's compensation and classification plan nothwithstanding. + •4 t J . y` MICROFILMED 13845: JUL 0 7190