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