City of Uvalde v. Burney

• Decision Date: 06 March 1912
• Parties: CITY OF UVALDE v. BURNEY.
• Court: Texas Court of Appeals

145 S.W. 311

CITY OF UVALDE v. BURNEY.

Court of Civil Appeals of Texas. San Antonio.

March 6, 1912.

Appeal from Uvalde County Court; T. M. Milam, Judge.

Action by Mat Burney against the City of Uvalde. From a judgment for plaintiff, defendant appeals. Affirmed.

G. B. Fenley and Claude Lawrence, for appellant. Martin, Old & Martin, for appellee.

FLY, J.

Appellee sued appellant to recover the sum of $690, alleged to be the salary due him, as mayor, by the city for 23 months at the rate of $30 a month.

Appellee filed an original and two amended petitions, a supplemental petition, and a trial amendment. The record contains only a first supplemental answer of appellant, which was devoted to attacks on the trial amendment filed by appellee, and appellant filed and has brought up in the record 24 assignments of error, 11 of which are presented in the brief. The cause was tried by the court, without a jury, and judgment rendered in favor of appellee for $699, with interest at 6 per cent. per annum from January 1, 1911.

The evidence showed that appellee was elected, on April 7, 1908, mayor of the city of Uvalde, which was incorporated under the general laws of Texas relating to the incorporation of cities. The salary of the mayor had not been fixed by the council at any time prior to the election of appellee. He qualified as mayor in April, 1908, and on May 2, 1908, the council passed an ordinance providing for a salary of $30 a month for the mayor, at the same time providing that "he is to summon the hands subject to road duty, oversee same, and see that the streets and alleys are worked."

In article 569, Revised Statutes, it is provided: "The city council shall, on or before the first day of January next preceding each and every election after the first under this title, fix the salary and fees of office of the mayor to be elected at the next regular election, and shall at the same time establish the compensation or salary to be paid to the officers elected or appointed by the city council, and the compensation or salary so established shall not be changed during the term for which said officer shall be elected or appointed." The question arises, if the salaries of the city officers are not fixed by the city council on or before January 1st next preceding the election, can such salaries be fixed after the election?

It is the rule that a departure from statutory provisions as to the time or mode of doing a thing required or permitted by law will not usually invalidate the proceedings thereunder, although there is no universal, infallible rule by which directory provisions may, under all circumstances, be distinguished from those which are mandatory.

Again, it is stated by a text-writer, and supported by authority, that, "where the provision is in affirmative words, and it relates to the time or manner of doing the acts which constitute the chief purpose of the law, or those incidental or subsidiary thereto, by an official person, the provision has been usually treated as directory." The same writer says: "Where a statute is affirmative, it does not necessarily imply that the mode or time mentioned in it are exclusive, and that the act provided for, if done at a different time, or in a different manner, will not have effect." Suth. Stat. Cons. § 447. The same author cites a number of authorities to sustain the proposition that provisions regulating the duties of public officers and specifying the time for their performance are, in that regard, generally directory. Section 448.

The law in question is affirmative in requiring that the salaries of the city officers shall be...