City of San Antonio v. Wallace

• Decision Date: 13 July 1960
• Docket Number: No. A-7615,A-7615
• Citation: 338 S.W.2d 153,161 Tex. 41
• Parties: CITY OF SAN ANTONIO et al., Petitioners, v. Curtis WALLACE et al., Respondents.
• Court: Texas Supreme Court

Page 153

338 S.W.2d 153

161 Tex. 41

CITY OF SAN ANTONIO et al., Petitioners, v. Curtis WALLACE et al., Respondents.

No. A-7615.

Supreme Court of Texas.

July 13, 1960.

Carlos C. Cadena, City Atty., San Antonio, for petitioners.

Adrian Spears, San Antonio, for respondents.

NORVELL, Justice.

The petitioner's motion for rehearing in this cause was duly considered after submission and oral argument in the connected causes of City of San Antonio v. Kneupper, Tex.Sup., 338 S.W.2d 121, City of San Antonio v. Whitten, Tex.Sup., 338 S.W.2d 119, and City of San Antonio v. Carr, Tex.Sup., 338 S.W.2d 122. Such motion is overruled. Our original opinion in this cause is however withdrawn and the following substituted therefor:

The case involves the validity of an ordinance of the City of San Antonio which attempts to abolish certain classified positions held by respondents under the Firemen's and Policemen's Civil Service Act. Article 1269m, Vernon's Ann.Tex.Stats. The trial court in effect held that the questioned ordinance was not adopted in good faith but for the purpose of depriving the respondents of their rights under the Civil Service law. Upon motion for summary judgment, mandamus was granted ordering the reinstatement of respondents in the municipal service. The Court of Civil Appeals affirmed. See City of San Antonio v. Wallace, 330 S.W.2d 212 which refers to City of San Antonio v. Kneupper, Tex.Civ.App., 330 S.W.2d 205, decided the same day.

Each of the respondents held classified places as custodial workers in the Police Department of the City of San Antonio under the provisions of Article 1269m, § 12, Vernon's Ann.Tex.Stats. in that they were permitted to serve in such positions for a period of six months which ipso facto operated to create such places and give them the status of holders of classified positions under the Civil Service Act. Such status was definitely recognized in City of San Antonio v. Handley, Tex.Civ.App., 308 S.W.2d 608, wr. ref., which set out in some detail the legal experience of the City of San Antonio with the Civil Service Act and held that the fifty-one employees involved in that case (including the respondents here) did not lose their Civil Service positions by an attempted transfer from the Police Department to the Public Works Department which is not covered by the Firemen's and Policemen's Civil Service Act. By means of the ordinance now under attack, the city sought to abolish respondents' classified positions although obviously the work theretofore performed by respondents, i. e., the cleaning and caring for buildings, would have to be done by others. The city engaged the Building Servicing Company as an independent contractor to perform such services.

The above facts are disclosed by admissions made under Rele 169, Texas Rules of Civil Procedure, and the depositions of the Personnel Director and Chief of Police of the City of San Antonio. In its pleadings and in its own motion for summary judgment the city did not assert that the abolition of the civil service positions held by respondents was to effect an economy in governmental operations or to secure more efficient custodial care of the city's buildings. In the motion for summary judgment, it was simply stated that the positions formerly held by respondents had been abolished by ordinance and that the city had engaged an independent contractor to perform all custodial services for the Police Headquarters Building and the Corporation Court Building.

Upon this record the Court of Civil Appeals concluded that the city had 'again attempted to discharge these employees, while continuing the positions they occupied in the Police Department, by contracting with the Building Servicing Company, an independent contractor, to furnish the individual workers who supplant these appellees (respondents) in the same position and perform the same services in the Police Department.' (330 S.W.2d 214.)

The city's primary contention here, which was apparently the only theory urged in the trial court, is that the city's action in passing the ordinance abolishing the respondents' positions is not subject to judicial inquiry for want of good faith. It is urged that 'despite law to the contrary in other jurisdictions, the Texas Supreme Court has established the law in this State to be that where a legislative body, such as the City Council here, has the power to do something (such as abolish Civil Service positions) they cannot be subjected to inquiry by the courts as to its good faith, motives, reasons or purposes. Gray v. (S. T.) Woodring Lumber Co., Tex.Civ.App., 197 S.W. 231, wr. ref.; City of San Antonio v. Fetzer, Tex.Civ.App., 241 S.W. 1034, wr. ref.; City of San Antonio v. Walters, Tex.Civ.App., 253 S.W. 544, wr. ref.; Bielecki v. City of Port Arthur, Tex.Civ.App., 2 S.W.2d 1001, reversed on other grounds, Tex.Com.App., 12 S.W.2d 976; Community Natural Gas Company v. Northern Texas Utilities, Tex.Civ.App., 13 S.W.2d 184, wr. dis. * * *'

The rule supported by the cited authorities is general in nature and applicable whenever a legislative enactment or a valid provision of a Home Rule city charter vests a discretionary power in a city council or like governmental agency. None of the cases relied upon relate to ordinances which attempt to abolish classified positions under a civil service act adopted by a state legislature. Where state imposed civil service or veterans preference laws are involved, there are two legislative actions to consider, i. e., the state enactment and the city ordinance, or specifically, as applied to this case, the Firemen's and Policemen's Civil Service Act, and the ordinance adopted by the City Council of the City of San Antonio which seeks to abolish the positions held by respondents.

While the City of San Antonio is a home rule city, Article 11, § 5 of the Texas Constitution, Vernon's Ann.St. (the home rule amendment) expressly provides that 'no (City) charter or any ordinance passed under said charter shall contain any provision inconsistent with the Constitution of the State, or of the general laws enacted by the Legislature of this State; * * *.' Should we close the doors against a judicial inquiry into the element of good faith in municipal action, a colorable or sham ordinance could render an express constitutional provision impotent and meaningless. The policy of the state, as reflected in its civil service statutes, would be at the mercy of municipal action. In this situation, the courts in carrying out state policy must consider the element of good faith in passing upon the validity of municipal actions.

This seemingly is the universal rule among the American jurisdictions whenever a question of the abolition of an office classified under a state civil service act is involved, although there is some divergence of opinion as to the nature and scope of the judicial inquiry.

McQuillin recognizes the general rule that, '(W)here a municipal corporation under charter or legislative act has power to create by ordinance an office, it also has the power to abolish it.' McQuillin, Municipal Corporations § 12.118. However, when civil service and veterans preference laws are involved, the action of the city council must be taken in good faith to effect an economy in operations or a betterment of municipal service as 'There is a real and fundamental distinction between the lawful abolition of an unnecessary position and the discharge of a faithful employee in violation of the rights secured to him by statute; and the latter action can neither be concealed nor protected by a pretense that it was in the exercise of the former right.' McQuillin § 12.119 quoting from Garvey v. City of Lowell, 199 Mass. 47, 85 N.E. 182 and Murphy v. Justices of Municipal Court, 228 Mass. 12, 116 N.E. 969. If the attempt to abolish an office be merely colorable and the real objective be to legislate one out of office or a civil service position, the courts are not bound by the apparent form of the action but will disregard the pretense and be governed by the substance of the action. McQuillin § 12.121; Smith v. Sells, 156 Tenn. 539, 3 S.W.2d 660. Tenure of office and civil service laws cannot be evaded by a sham or pretended abolishment of position. Mack v. Hoover, 342 Pa. 291, 20 A.2d 757; Cohen v. Township Committee of Hamilton Tp., 15 N.J.Misc. 74, 188 A. 669. Annotations 4 A.L.R. 205, Power to Abolish or Discontinue Office, specifically as to positions under 'Tenure of office, civil service, and veteran laws,' p. 207; 172 A.L.R. 1366, 1369. 62 C.J.S. Municipal Corporations § 585, p. 1179. 10 Am.Jur. 933, Civil Service § 12.

We find no Texas cases which militate against the general American rule represented by the authorities above cited and discussed and accordingly overrule petitioner's contentions that there can be no judicial inquiry as to whether or not the City Council's action in abolishing the positions held by respondents was a good faith action. We do not wish to be understood as holding that the secret motives of members of the City Council are matters for judicial inquiry. If an action be proper as an economy move, it would not be rendered otherwise, because a member of a city council derived some malicious pleasure because a particular individual lost his job. Rossi v. Mayor and Council of Borough of Moonachie, 127 N.J.L. 374, 22 A.2d 564. The authorities however do support the proposition that an action of a city legislative body abolishing civil service positions may be judicially examined in the light of its surrounding circumstances, the prior and subsequent actions of such legislative body and the public policy represented by the civil service law in order to determine the good faith of the questioned action.

As an alternative proposition, the city asserts that even if the courts may inquire into the good or bad faith of the City Council in passing the ordinance, the trial court was not authorized...