City of Belton v. Head

• Decision Date: 03 May 1911
• Parties: CITY OF BELTON v. HEAD.
• Court: Texas Court of Appeals

137 S.W. 417

CITY OF BELTON v. HEAD.

Court of Civil Appeals of Texas. Austin.

May 3, 1911.

Appeal from Bell County Court; W. S. Shipp, Judge.

Action by J. H. Head against the City of Belton. From a judgment for plaintiff, defendant appeals. Reversed.

John B. Durrett, for appellant. A. L. Curtis and Winbourn Pearce, for appellee.

RICE, J.

The city of Belton is a municipal corporation, duly incorporated as such under title 18 of the general laws of Texas (Rev. St. 1895) applying to cities having more than 1,000 and less than 10,000 inhabitants. The city council of said city, on the 9th of December, 1908, at a regular session, fixed the mayor's salary at $40 per month. On the 15th day of January next thereafter, said city council rescinded its said action of December 9th, and passed an order that the mayor should receive a salary of $60 per annum. At the ensuing regular election, held April 6, 1909, appellee was elected mayor of said city, and qualified as such April 14, 1909, since which time he has been acting as mayor of said city. The city council having refused to pay him the sum of $40 per month claimed by him as his salary under said first order, he brought this suit against the city on the 21st of July, 1910, for the sum of $600, claimed to be the full amount due him up to said time. Appellant denied liability, on the ground that it did not owe appellee the sum of $40 per month, because said first order had been rescinded as above stated, and his salary fixed at $60 per year by subsequent action of the city council. A jury being waived, the matters of law and fact were submitted to the court, who rendered judgment for appellee for the full sum of $600, from which judgment this appeal is prosecuted. So that the only question for our consideration is that presented by appellant's second assignment of error, urging that the court erred in holding that the city council of said city did not have the power at its January term, 1909, to repeal the order passed at the December, 1908, session, fixing the mayor's salary at $40 per month.

The statute governing this matter reads as follows: "The city council shall, on or before the first day of January next preceding each and every election after the first under this title, fix the salary and fees of office of the mayor to be elected at the next regular election, and shall at the same time establish the compensation or salary to be paid to the officers elected or appointed by the city council, and the compensation or salary so established shall not be changed during the term for which said officer shall be elected or appointed." It is laid down in Vol. 20 (2d Ed.) Am. & Eng. Ency. Law, p. 1215, that "the governing body of a municipal corporation has, as a general rule, the power, if vested rights are not thereby interfered with, to reconsider and rescind action previously taken." It is said in 28 Cyc. 383, discussing the subject of municipal corporations, that the "power to enact implies power also to repeal ordinances, unless the right is limited or abrogated by a higher law. All ordinances, too, are subject to repeal, except such as are contractual in their character." We think it follows from this rule that unless some vested right had accrued, or the statute itself precluded the enactment of the second ordinance repealing the first, that it must be held that the power to do so in the municipality existed. Appellee, however, contends that this statute requires the city council, on or before the 1st day of January, to fix by ordinance the salaries of the mayor and other officers, and that it cannot be done at any subsequent term, and, further, that, having fixed the same in obedience to said requirement, the city council is without power to repeal the same at any subsequent session. In discussing the time when salaries should be fixed by municipal corporations, it is said in 28 Cyc. 457, that "the rule is that the compensation must be established before the commencement of the term of office; and it is well settled that, in the absence of any prohibition or restriction, the compensation of a...