City of Houston v. Estes

• Decision Date: 05 March 1904
• Citation: 79 S.W. 848
• Parties: CITY OF HOUSTON v. ESTES.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

79 S.W. 848

CITY OF HOUSTON v. ESTES.^*

Court of Civil Appeals of Texas.

March 5, 1904.

Appeal from District Court, Harris County; W. P. Hambein, Judge.

Action by J. A. Estes against the city of Houston. Judgment for plaintiff. Defendant appeals. Affirmed.

T. H. Stone, for appellant. Wilson & Jackson and Lock McDaniel, for appellee.

GILL, J.

This was an action brought by the plaintiff, J. A. Estes, to recover of the city of Houston his salary as policeman. A trial before the court without a jury resulted in a judgment for the plaintiff for $1,979.98. The city has appealed.

For cause of action, the plaintiff alleged, in substance, that on April 20, 1898, he was duly appointed and qualified as a regular policeman of said city, and served as such until August 11, 1898, when, without fault on his part, the city marshal undertook to discharge him, and thereafter refused, and persistently refused, to allow him to perform any further duties as such officer; that, without fault on plaintiff's part, and without assigning any reason therefor, the marshal informed him that he need not report for duty any more, and that he (the marshal) "would have to let him out"; that at the date of his appointment and at the date of his discharge the city was acting under its special charter, which became a law on the 12th day of May, 1897; that he secured his position by appointment of the mayor and the approval of the city council, and, under one of the charter provisions, he could not be removed from office except upon trial before the tribunal provided by the charter for the purpose, and upon charges duly presented; that no such charges have been preferred, nor any such trial had, nor has he been guilty of any misconduct which would justify his removal; that by sections 26 and 26a of the charter it was provided that the terms of service of the members of the police, fire, and health departments of the city, except the heads of such departments, should continue during efficient service and good behavior, and that no member of either of said departments should be discharged unless proven guilty of an offense of sufficient gravity, in the opinion of the police, fire, and health board, to warrant such discharge, and, if the judgment of the board should be adverse to the party charged, an appeal to the city council would lie; that plaintiff's compensation had been duly fixed at $75 per month, payable monthly, and he was duly paid at that rate up to the time of his attempted discharge, since which time, though he has continuously held himself ready to perform any duty assigned him as such officer, his name has been stricken from the roll of policemen. He has been persistently refused assignment to duty, and the city has refused to pay his salary. To the petition the defendant interposed a general demurrer and 18 special exceptions. The court overruled all demurrers and exceptions to the petition, except that addressed to the allegations seeking a recovery for a longer period than two years from the date of his appointment, which was sustained. Answering to the merits, defendant set up the following defenses: (1) That plaintiff, prior to his appointment and qualification, did not stand an examination as to his fitness and qualification for the office, as prescribed by the charter and ordinances. (2) Limitation of two years. (3) That plaintiff had not complied with the requirements with reference to the execution of a bond before entering upon the duties of his office. (4) That, by article 216 of the revised ordinances of the city, the marshal was clothed with the power to suspend or discharge policemen for malfeasance or misfeasance; his action to be reviewable on appeal to the city council. That plaintiff did not appeal from the exercise of this power on the part of the marshal, but acquiesced therein; devoting his time to private pursuits which were incompatible with the further performance of his official duties. That his successor was appointed and qualified, discharging the duties of the office, receiving the salary therefor, and plaintiff has brought no suit to oust him, wherefore he is estopped to deny that he has acquiesced in his discharge and abandoned his office. (5) That the marshal, in discharging him, acted on authority of the mayor, who had the power to discharge plaintiff at any time. (6) That shortly after plaintiff's discharge the city council appointed a full corps of policemen, some one of which actually succeeded plaintiff in his office, and, since he has not been ousted by a suit for the office, plaintiff's suit must fail. (7) That the marshal discharged plaintiff for drunkenness in office, and plaintiff's allegation that he was discharged without cause is untrue.

Plaintiff filed a supplemental petition, containing, among other things, an exception to that part of the answer which sets up as a defense that the city appointed a full corps of policemen after plaintiff's discharge, and that some one of them, which defendant is unable to name, succeeded plaintiff. This exception was sustained. It is not necessary to set out the remainder of the supplemental petition. Nor have we deemed it essential to set out the pleadings, otherwise than in a most general way. They are lengthy, and set out fully the various sections of the charter and ordinances upon which the parties respectively rely.

On the trial, plaintiff established his appointment as alleged; his confirmation by the council; his qualification thereunder, and service until August 11, 1898; his dismissal by the marshal; his offer thereafter to serve, and his readiness always to do so; the persistent refusal to accept his services; and the dropping of his name from the roll. It was also shown that the stipulated salary was $75 per month, and that payment was refused when his services were dispensed with. It was also shown that thereafter a full corps of policemen were organized by the city, and the appointees duly qualified, but it appeared that the nature of the office was such that plaintiff had no successor; nor did defendant undertake either to aver or prove that the vacancy left by plaintiff's discharge was filled by a subsequent appointment, but confessed its inability to name such person. Such other facts or details as are necessary to the determination of the case will be set out in their proper connection.

Appellant contends, under the first assignment, that the court should have sustained the general demurrer, because sections 26 and 26a of the city's charter, by which the policemen's term of office was prescribed, are violative of the Constitution, and plaintiff's appointment to the office a nullity. The articles in question evidence a purpose to place the employés of the police, fire, and health departments of the city of Houston under what are known as "civil service regulations"; the provision being to the effect that the appointees shall hold office during good behavior and efficient service, and shall not be discharged except upon complaint for cause. The...