Bickle v. City of Panhandle, 3678.

• Decision Date: 04 November 1931
• Docket Number: No. 3678.,3678.
• Citation: 43 S.W.2d 640
• Parties: BICKLE v. CITY OF PANHANDLE.
• Court: Texas Court of Appeals

43 S.W.2d 640

BICKLE v. CITY OF PANHANDLE.

No. 3678.

Court of Civil Appeals of Texas. Amarillo.

November 4, 1931.

Rehearing Denied December 2, 1931.

Appeal from District Court, Carson County; E. J. Pickens, Judge.

Action by Bud Bickle against the City of Panhandle. To review a judgment for defendant, plaintiff appeals.

Affirmed.

See, also, 31 S.W.(2d) 843.

James Spiller, of Panhandle, for appellant.

H. H. Smith, of Panhandle, for appellee.

JACKSON, J.

This suit was instituted in the district court of Carson county, Tex., by the appellant, Bud Bickle, to recover against appellee, the city of Panhandle, a balance of $2,800 claimed by appellant for services as city marshal of said city for the years 1929 and 1930.

Appellant alleges:

That in March, 1926, he entered into a contract with the city by the terms of which he was employed as city marshal at a salary of $150 per month, and in pursuance to said contract he was appointed, entered upon the duties of the office, performed the services of marshal of said city, and was paid a salary of $150 per month according to the contract. That in April, 1927, at the regular election for city officers, he was elected to the office of city marshal for a term of two years, and his salary at $150 per month was continued and paid.

That, before he announced as a candidate for the office at the April election in 1929, it was understood and agreed between him and appellee that the salary, if he was elected, would continue at $150 per month.

In the alternative, the appellant pleads that, if he is mistaken as to the effect of the contract and his legal right to recover under the statute regulating and fixing the salary of city marshal, in any event he performed the services as marshal from and after his election in April, 1929, to January, 1931. That the city accepted his services as such officer, and is liable to pay compensation on an implied contract for the reasonable value thereof, which he says is $200 per month, aggregating the sum of $4,000, upon which he credits one payment of $100, and the balance he seeks to recover on his plea of quantum meruit.

This is the second appeal in this litigation, and, with the exception that in this case plaintiff seeks to recover on a quantum meruit, the same parties and the same subject-matter are involved, all of which was determined in an opinion by this court in the former appeal reported in 31 S.W.(2d) 843, 845.

In this suit appellee urged a general demurrer to appellant's petition, which was sustained by the court, judgment rendered against plaintiff, and he prosecutes this appeal.

The opinion in the former appeal holds:

"On the 12th day of February, 1929, Ordinance No. 58, fixing the salaries of certain city officers to be elected at the April election, was passed by the city council. It provides that the city marshal shall receive the fees of office as provided by the ordinance creating the office of marshal, but that he shall be paid no salary. It is true this ordinance was not passed on or before the 1st day of January preceding the election, but it is held that article 1010 is not mandatory in so far as it requires salaries to be fixed on or before January 1st preceding the election, and that, if an ordinance is passed after January 1st, but prior to the general election at which the officers are elected,...