City of San Antonio v. Micklejohn

• Decision Date: 23 December 1895
• Citation: 33 S.W. 735
• Parties: CITY OF SAN ANTONIO v. MICKLEJOHN.
• Court: Texas Supreme Court

Page 735

33 S.W. 735

CITY OF SAN ANTONIO v. MICKLEJOHN.

Supreme Court of Texas.

December 23, 1895.

Certified questions from court of civil appeals of Fourth supreme judicial district.

Action by T. H. Micklejohn against the city of San Antonio to recover salary alleged to be due plaintiff as superintendent of public works of such city. There was a judgment for plaintiff, and defendant brought error to the court of civil appeals, which certified certain questions to the supreme court for determination.

R. B. Minor, for plaintiff in error. W. W. King, for defendant in error.

GAINES, C. J.

In this case the court of civil appeals for the Fourth supreme judicial district have certified for our determination the following questions:

"By the charter of the city of San Antonio, the city council is given the power to create, by ordinance, any office or employ any agent they may deem necessary for the good government and interest of the city. Revised Charter of San Antonio, § 55. Section 220 of said charter provides that `the style of the ordinance shall be, "Be it ordained by the city council of the city of San Antonio," but may be omitted when published in form of book or pamphlet.' On March 19, 1894, the council passed the following ordinance:

"`An ordinance to create the office of superintendent of public works. Be it ordained by the city council of the city of San Antonio:

"`Section 1. That the office of superintendent of public works be and the same is hereby created.

"`Sec. 2. That the mayor be and he is hereby authorized to appoint a superintendent of public works.

"`Sec. 3. The superintendent of public works shall exercise a general supervision over all improvements done in or upon the streets of the city of San Antonio; shall supervise the construction of side walks whether the same be constructed by the owners of the property abutting thereon or by private individuals; shall supervise the construction of all public buildings or public works of all kinds, and do and perform such other work as may be assigned him by the mayor and said city council.

"`Sec. 4. The office of the superintendent of public works shall be at the city hall, and he shall receive as compensation for his services the sum of $150.00 per month.

"`Passed and approved March 19, 1894.'

"On the 20th of March, 1894, the defendant in error was appointed by the mayor of said city superintendent of public works. On the 30th of July, 1894, the following resolution was passed by the city council of the city of San Antonio: `Be it resolved that the office of superintendent of public works be and the same is hereby abolished to date from July 31st, 1894.' The defendant in error performed the duties of said office from the date of his appointment until 31st of July, 1894, and offered to continue to perform them; making such offer to the chairman of public improvement committee of the city and other aldermen, but did not make such offer to the city council. He has had possession of the books and records of said office ever since his appointment, and they have never been demanded of him.

"Questions: (1) The office having been created by an ordinance, could it be abolished by a resolution, and was it the effect of said resolution to abolish said office? (2) The duration of the term of said office not being fixed by the ordinance creating it, and no official services having been performed by defendant in error after July 31, 1894, is he entitled to recover the salary of the office from said time up to the 20th day of March, 1895, if the office was not abolished by the resolution referred to?"

1. We are of the opinion that the resolution of July 30, 1894, did not operate as a repeal of the ordinance creating the office of superintendent of public works. The common council of the city is invested by its charter with powers both of a legislative and of a ministerial character, but it can legislate only under the forms and in the manner prescribed by the law of its creation. There is a well-founded distinction between an ordinance and a resolution, and yet we see no good reason to doubt that, in the absence of any directions in the charter of a city, its council might enact a valid law in the form of a resolution. First Municipality v. Cutting, 4 La. Ann. 335. The essence of a law is the solemn expression of the will of the lawmaking power upon its subject-matter; and it would seem that the expression of a command, though in the form of a resolution, should be deemed valid as an ordinance, even where the charter requires the council to legislate by ordinance, provided it be passed in conformity to the other requirements of the act of incorporation. The resolution in question clearly manifests the intent of the council to abolish the office, by the resolution...