City of Dallas v. McGuire
| Decision Date | 23 January 1942 |
| Docket Number | No. 13076.,13076. |
| Citation | 159 S.W.2d 958 |
| Parties | CITY OF DALLAS et al. v. McGUIRE. |
| Court | Texas Court of Appeals |
Appeal from District Court, Dallas County; Claude M. McCallum, Judge.
Action by L. L. McGuire against the City of Dallas and others for wages due plaintiff as a city fireman. Judgment for plaintiff, and defendant City appeals.
Reversed and rendered.
See, also, 151 S.W.2d 617.
H. P. Kucera, City Atty., and A. J. Thuss and Charles E. Long, Jr., Asst. City Attys., all of Dallas, for appellant.
L. L. McGuire, of Dallas, pro se.
Our opinion of date October 17, 1941, is hereby withdrawn and on rehearing, the following is substituted in lieu thereof:
Appellee's suit was for balance due in minimum wages and overtime hours as a city fireman, under terms of Art. 1583, P.C., as amended in 1937, Vernon's Ann. P.C. art. 1583. The period covered was from the effective date of the Act until July 16, 1939, when his services terminated. Plaintiff's judgment against the City was for $356.71 on both counts, the case having been taken from the jury at close of testimony; the court making aforesaid rendition on what it conceived to be controlling and undisputed facts.
From this judgment, the City has appealed and appellee has filed cross assignments to the effect that, under the evidence, his recovery should be in a larger amount.
The minimum wage and overtime benefits of the law (Secs. 6, 7, Art. 1583, P C.) are restricted to members of fire and police departments in cities of more than 75,000 population; and appellant, in propositions 6 to 9, inclusive, contends that appellee is not entitled to claim the additional compensation prescribed by above statute, absent proof that he was a fireman de jure during the 27 months in suit; or, concretely stated, that the trial court erred in allowing appellee the additional statutory salary and overtime, because of no evidence whatever showing (1) that the City of Dallas had passed an ordinance or resolution in compliance with Section 72 of the charter, creating the fire department and providing for the particular office, grade or position claimed to be held by appellee; and (2) that such service in the department had been further classified by ordinance as provided by Section 74 thereof. On the other hand, it is argued by appellee that he was simply an employe of the City; hence not required to prove the creation of an office by ordinance, or a legal induction thereto. The single question for our determination, therefore, is readily discernible from above opposite interpretations of the Dallas charter just stated, i. e.: Whether, under the terms of this instrument, a member of its fire department is an officer holding a public office, or is he merely an employe, rendering a contract service to the municipality?
In this connection, Section 72 of said charter provides, in part: Sections 74 and 80 provide: (Italics ours).
Except for appellee's testimony that, some months after entering the service, he received a card from the City Manager, notifying him of his appointment, this record is wholly devoid of any pleading or evidence showing a compliance with the foregoing provisions of the charter. While Section 72 provides generally that the Dallas Fire Department may be established "by ordinance or resolution," it is apparent that Section 74 is a limitation thereon, authorizing the City Council to proceed by ordinance only in designating the number of persons to be employed in its fire force, and concerning their classification. Section 80 further specifically requires that a fireman shall be issued a warrant of appointment, which shall be his commission. The word "appoint," it would seem, signifies the existence of an office; the "warrant of appointment" thereby becoming the official commission which appertains to the office of fireman.
It appears in fact that appellee was chosen from a list of eligibles, following Civil Service examination as required by the charter.
Who are officers and who are employes of a municipality are usually determinable by charter terms; and we are convinced that above provisions of appellants' charter plainly contemplate the creation by ordinance of a definite number of positions or places; the sum total of persons appointed thereto constituting its fire force, and thus, appointive officials of the City of Dallas. Appellee is here claiming additional emoluments of an office or position that has never been created by ordinance, and into which he has never been legally inducted. The City's contention, therefore, that plaintiff has not shown himself to be a fireman de jure, as a basis for the instant cause of action, must be sustained.
In McGuire v. City of Dallas, Tex.Civ. App., 151 S.W.2d 617, dismissed correct judgment, the same parties were involved also the same issue in principle. There, McGuire sought reinstatement in the Dallas Fire Department. The Waco Court affirmed a judgment against plaintiff, holding above Sections of the Dallas charter not to be self-executing; and that, before he or any member of the fire department could have been legally employed by the City of Dallas, it was necessary that its legislative body take affirmative action by the enactment of a proper ordiance. In City of Dallas v. McDonald, 130 Tex. 299, 103 S.W.2d 725, provisions of the local charter, less definite in terms relative to establishment of its police department, were construed. It was there held that petitioners who were...
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Fannin County v. Dobbs, 6280.
...County v. Winder, Tex.Civ. App., 140 S.W.2d 972. The following recent authorities we think are directly in point: City of Dallas v. McGuire, Tex.Civ. App., 159 S.W.2d 958; McGuire v. City of Dallas, 171 Tex. 170, 170 S.W.2d 722. This being true, appellee would be entitled to a monthly salar......