City of San Antonio v. Stauffer

• Decision Date: 23 December 1959
• Docket Number: No. 13511,13511
• Citation: 331 S.W.2d 443
• Parties: CITY OF SAN ANTONIO et al., Appellants, v. John J. STAUFFER, Jr., Appellee.
• Court: Texas Court of Appeals

Page 443

331 S.W.2d 443

CITY OF SAN ANTONIO et al., Appellants, v. John J. STAUFFER, Jr., Appellee.

No. 13511.

Court of Civil Appeals of Texas, San Antonio.

Dec. 23, 1959.

Rehearing Denied Jan. 27, 1960.

Carlos C. Cadena, City Atty., Charles L. Smith, Asst. City Atty., San Antonio, for appellants.

Adrian Spears, San Antonio, for appellee.

MURRAY, Chief Justice.

This is an appeal by the City of San Antonio and the Firemen's and Policemen's Civil Service Commission, from a judgment of the 131st District Court of Bexar County in favor of John J. Stauffer, Jr., ordering him reinstated as a fireman in the Fire Department of the City of San Antonio, and permitting his to recover back pay from March 11, 1958.

The record shows that on November 1, 1955, Stauffer was appointed a fireman in the City of San Antonio. On July 5, 1956, he took a military leave of absence, and on December 21, 1956, was given a medical discharge from the Army. In January, 1957, he talked to the Fire Chief of San Antonio, and on March 9, 1957, wrote a letter to the City Personnel Manager requesting reinstatement in some kind of a job with the Fire Department that would not hinder his health, since he had been medically discharged from the Army on December 21, 1956, because of a rheumatic heart and stomach ulcers. Stauffer was directed to report to Dr. J. J. Martinez, City Doctor, for a physical examination, but Dr. Martinez, without examining him, disqualified him from returning to the Fire Department, because he had a medical discharge from the Army showing heart disease. Stauffer was advised of this action on the part of Dr. Martinez, whereupon he contacted the Fire and Police Pension Board, hereafter called Pension Board. He was sent by the Pension Board to other doctors, who, while finding that he had Grade II Systolic Murmer in his heart, he was physically able to perform the duties of a City Fireman, and for this reason was refused a pension. Stauffer again applied to the City for reinstatement as a fireman and was again refused such reinstatement. On July 18, 1958, Stauffer instituted this suit against the City of San Antonio, the Civil Service Commission, and the Pension Board, seeking either reinstatement or a pension, and for back pay or back pension. This appeal does not involve the Pension Board or any ruling made by it.

A trial was had on March 5, 1959, before the court without the intervention of a jury, and judgment was rendered as before stated.

The City's first contention is that under the provisions of Section 9, Article 1269m, Vernon's Ann.Civ.Stats., the Chief of the Fire Department is made the sole judge as to whether or not a fireman is able to continue his duties, and therefore the Civil Service Commission has no authority to reinstate a fireman returning from a military leave of absence.

We overrule this contention. It is true that the Legislature attempted to amend Section 9 of Art. 1269m, at its regular session in 1957, by the enactment of Chapter 391, known as House Bill 79, but there is nothing in the caption of this Act to indicate that said Section 9 was to be in any way amended. The caption sets forth the sections to be amended but does not mention Section 9, nor does the descriptive language used, in any way indicate that Section 9 is to be amended. The attempted amendment, so far as Section 9 is concerned, therefore is unconstitutional and void. Article 3, Sec. 35, Tex. Const., Vernon's Ann.St.; State v. The Praetorians, 143 Tex. 565, 186 S.W.2d 973, 158 A.L.R. 596; Board of Water Engineers of State v. City of San Antonio, 155 Tex. 111, 283 S.W.2d 722; Shannon v. Rogers, Tex., 314 S.W.2d 810; Schlichting v. Texas State Board of Medical Examiners, Tex., 310 S.W.2d 557; Abernathy County Line Consol. Independent School Dist. v. New Deal Rural High School Dist. No. 3, Tex.Civ.App., 175 S.W.2d 446.

Appellants next contend that the trial court did not have jurisdiction to hear Stauffer's attempted appeal from the action of the Civil Service Commission, as no such appeal is provided for by the terms of Section 22a, or any other section, of Article 1269m, Vernon's Ann.Civ.Stats., known as the Firemen's and Policemen's Civil Service Act. It is under Section 22a that Stauffer claims his right to be reinstated to the Fire Department of the City of San Antonio. This section provides that when a fireman has been granted a leave of absence so as to enable him to serve for a while in the Military Forces of the United States he is entitled to be returned 'to the position in the department held by him at the time the leave of absence is granted, upon the termination of his active military service, provided he receives an Honorable Discharge and remains physically and mentally fit to discharge the duties of that position; and further provided he makes application for reinstatement within ninety (90) days after his discharge.' Said Section 22a expressly makes it the duty of the Civil Service Commission to issue Military leave of absence without pay, but does not expressly make it the duty of such Commission to reinstate a fireman returning from such leave of absence. This section does make it the duty of such Commission to fill the vacancy created by the leave of absence and to remove such substitute when the absent fireman is reinstated. From a reading of Section 22a in connection with Section 16a, it is quite clear that it is the duty of the Civil Service Commission to pass upon a returning fireman, and, if he meets all the requirements set forth in Section 22a, to reinstate him to his former position. Certainly, it is not made the duty of any one lese. Section 16a of the Act makes it the duty of the Civil Service Commission to administer the entire Firemen's and Policemen's Civil Service Act, now known as Art. 1269m, Vernon's Ann.Civ.Stats. Appellee concedes that the Civil Service Commission is the proper authority to reinstate a returning fireman, and he is here asking us to uphold the judgment of the trial court requiring the Civil Service Commission to reinstate him.

It is conceded here that Stauffer was honorably discharged from the army, and that he applied for reinstatement within the ninety-day period allowed by the statute. Appellants are contending that Stauffer was not physically fit to discharge the duties of a fireman at the time he applied for reinstatement. The Civil Service Commission found that Stauffer was not physically fit to discharge the duties of a fireman and rejected his application for reinstatement. Stauffer has either attempted to appeal from this decision or instituted an original suit for a mandamus to require appellants to reinstate him to his former position. The transcript is not entirely clear on this matter.

The statute having given the Civil Service Commission at least the implied power to pass upon the right of Stauffer to reinstatement in the first place, we must treat this suit as an attempted appeal from the order of the Civil Service Commission denying reinstatement, or else Stauffer has not exhausted his administrative remedy.

The statute is silent as to any right of appeal from the order of the Civil Service Commission denying a returning fireman reinstatement, and therefore he has no right to a judicial review unless he has been denied a constitutional right. Reagan v. Bichsel, Tex.Civ.App., 284 S.W.2d 935; Fuller v. Mitchell, Tex.Civ.App., 269 S.W.2d 517; City of Amarillo v. Hancock, 150 Tex. 231, 239 S.W.2d 788. Whether or not Stauffer has been denied a constitutional right depends upon whether his right of reinstatement is a mere privilege given him by the civil service statute, or whether it is a vested property right.

The question is well settled in this State. In City of Amarillo v. Hancock, 239 S.W.2d 788, 791, Justice Wilson, speaking for the Supreme Court, said:

'Does plaintiff have a vested property right in his captaincy in the Amarillo Fire Department?

'The answer is 'No'.

'Clearly plaintiff had no vested property right in his captaincy before the passage of the Civil Service Act in question. Art. 1269m. He could be employed, promoted, demoted, or discharged within the judgment and discretion of his department head.'

Paraphrasing that language here, Stauffer had no vested property right to be reinstated as a fireman when returning from a military leave, prior to the passage of Section 22a. Therefore, the law now gives him a civil service privilege which he did not have before the passage of Sec. 22a, and he may be reinstated in his former position provided the Civil Service Commission finds him physically fit to continue to perform the duties of a fireman, but the law allows him no appeal from the finding of the Civil Service Commision as to his physical fitness.

In Fuller v. Mitchell, Tex.Civ.App., 269 S.W.2d 517, it was again held that a man does not have a constitutional right to be a policeman, and that the action of the Civil Service Commission in discharging him can be made final without the necessity of a judicial review. Where an appeal is provided for, the court passes upon whether the Civil Service Commission acted illegally, arbitrarily or capriciously only. The court should not substitute its findings for those of the Commission and put such findings into effect by means of a mandatory injunction.

In Reagan v. Bichsel, 284 S.W.2d 935, this Court held that there is no constitutional right to be a policeman. In Simpson v. City of Houston, Tex.Civ.App., 260 S.W.2d 94, the court held that where a policeman was discharged for allegedly accepting a bribe, his constitutional rights were not involved.

It is clear that none of Stauffer's constitutional rights were involved, and the Legislature has impliedly made the action of the Civil Service Commission final and provided for no judicial review. This the Legislature had a right to do, so long as only a civil service right, as distinguished from a vested property right, was involved. Ziebell...