City of Waco v. Akard, 3063

• Decision Date: 23 October 1952
• Docket Number: No. 3063,3063
• Citation: City of Waco v. Akard, 252 S.W.2d 496 (Tex. Ct. App. 1952)
• Parties: CITY OF WACO et al. v. AKARD et al.
• Court: Texas Civil Court of Appeals

Page 496

252 S.W.2d 496

CITY OF WACO et al. v. AKARD et al.

No. 3063.

Court of Civil Appeals of Texas, Waco.

Oct. 23, 1952.

Rehearing Denied Nov. 13, 1952.

Lyndon Olson, City Atty., Wiley W. Stem, Jr., W. H. White, Ass't. City Attys., D. M. Wilson, former City Atty., Waco, for appellant.

O'Dowd & O'Dowd, Waco, for appellees.

TIREY, Justice.

This cause involves the construction and application of a portion of Art. 1269m, Vernon's Ann.Tex.Civ.Stats., which is the Firemen's and Policemen's Civil Service Act. A statement is necessary.

After the City of Waco (a home rule city) adopted the Civil Service Ordinance putting into effect the Civil Service Commission, the City, by proper ordinance, established a classification system for all officers and places of employment in the Fire and Police Departments. Pertinent to this discussion the employees of the Police Department were placed in Grades 1, 2, 3 and 4. Grade 1 provides for 71 positions (which includes foot and motor patrolmen, traffic squad and police matron) and provides that each employee be paid $210 per month. Grade 2 provides for five sergeants and eight detectives and fixes the pay for each at $233.62 per month. Grade 3 provides for one lieutenant of police, one lieutenant of traffic, superintendent of the identification bureau and the chief radio mechanic and fixes the pay for each at $250 per month. Grade 4 provides for two captains and fixes the pay for each at $270 per month.

On December 8, 1950, the Commission examined papers given on the examinations for various positions in the Police Department on November 21, 1950, and declared the following eligibility list: In the sergeants' Grade No. 2 we find first, Cornell (2) Eakin, (3) Schober, (4) Farley, (5) Coan, (6) Lucas, and (7) Akard. The other names on the list are not pertinent. Thereafter Cornell and Farley were promoted to Grade 2. Appellees, on the 8th of December, 1951, filed with the Civil Service Commission a notice and application, the effect of which was to complain of the action of the Civil Service Commission in permitting the promotion of policemen Farley and Cornel and asked that the promotions and appointments be set aside; that Farley and Cornell be demoted to their original positions and that a competitive examination be held in accordance with the Civil Service Law for the purpose of establishing an eligibility list.

The Commission thereafter had a meeting on December 21, 1951, and entered the following findings, the pertinent parts of which are:

'The Firemen's and Policemen's Civil Service Commission after reading and studying the petition filed by Guy Akard et al. on December 8, 1951, makes the following findings and conclusions upon said petition.

'1.

'That all of the actions taken by the Director of the Firemen's and Policemen's Civil Service Commission on the matters mentioned in said petition have been diligently, legally and lawfully performed by Mr. Hubert Dunnam under the direction and with the knowledge of the Firemen's and Policemen's Civil Service Commission. All of the actions taken by the said Director on the matters mentioned in said petition are hereby affirmed and ratified by the Firemen's and Policemen's Civil Service Commission.

'2.

'The Firemen's and Policemen's Civil Service Commission further finds that the actions taken by the Chief of Police on the matters mentioned in said petition have been diligently, legally and lawfully performed by the Chief of Police in compliance with the Firemen's and Policemen's Civil Service law and according to the rules and regulations of the Firemen's and Policemen's Civil Service Commission. All of the actions taken by the Chief of Police on the matters mentioned in said petition are hereby affirmed and ratified by the Firemen's and Policemen's Civil Service Commission.

'3.

'That the Firemen's and Policemen's Civil Service Commission after duly considering the allegations contained in the above mentioned petition is of the opinion and so finds that said petition is a request for an interpretation of Article 1269m of the Revised Civil Statutes of the State of Texas and of the rules and regulations of the Firemen's and Policemen's Civil Service Commission of the City of Waco, Texas, and since all of the acts of the Director of the Firemen's and Policemen's Civil Service Commission and the acts of the Chief of Police complained of were done in accordance with the interpretation of said laws and rules by said Firemen's and Policemen's Civil Service Commission, the Firemen's and Policemen's Civil Service Commission of the City of Waco does not see any necessity for a new and further interpretation of said law and rules at this time.'

Thereafter, appellees, on December 28, 1951, filed their original petition on which they went to trial. It covers 28 pages in the transcript. Pertinent to this discussion the effect of appellees' petition was to complain of the action of the Civil Service Commission to permit the promotion of Farley and Cornell and they asked that the promotions be set aside, that Farley and Cornell be demoted to their original positions of policemen, and that the court issue a mandatory injunction requiring the Civil Service Commission, the Director of Civil Service, and the Chief of Police to remove Farley and Cornell from the sergeants' and detectives' positions and reassign them to Grade 1 and compel the Civil Service Commission to give another promotional examination as required by law.

Appellants seasonably presented pleas in abatement and motion for instructed verdict, each of which was overruled, and the court submitted the cause to the jury. The jury in its verdict found substantially: (a) that the transfer of a sergeant to a detective was a promotion; (b) that plaintiffs, by their failure to act on such transfers, were not guilty of laches; (c) that the Civil Service Commission, in reaching its decision on December 21, 1951, acted arbitrarily, unreasonably and capriciously. The decree of the court set aside the findings of the Civil Service Commission and substituted its findings for the findings of the Commission, and on the verdict of the jury and the court's findings entered its decree and granted a mandatory injunction authorizing plaintiffs to require the Civil Service Commission and the city officials of the City of Waco to put into effect the court's findings. The decree covers eight pages in the transcript. Appellants seasonably perfected their appeal to this court.

Since we are of the view that appellees' petition failed to state a cause of action and the further view that the trial court was without any authority to hear appellees' appeal from the findings of the Civil Service Commission and was without authority to substitute its findings for the findings of the Commission, a statement in detail of the findings and the decree of the court would be of no avail.

Appellants' first point is: 'Art. 1269m, Texas Revised Civil Statutes, precludes the appeal pursued by appellees.' We sustain this contention.

Section 14, subd. E of said Article provides in part: 'All eligibility lists shall remain in existence for one (1) year unless exhausted, and at the expiration of one (1) year they shall be destroyed and new examinations be given.' It is clear that the above eligibility list here under attack expired at midnight, December 7, 1951, by operation of law. Since such list expired at midnight, December 7, 1951, under the express terms of the statute, such list became a nullity. Needless to say that appellees' application filed with the Commission on December 8, 1951, asking for a public hearing before said Commission to set aside such eligibility list that had expired by operation of law, came too late. Perforce of the statute, the Civil Service Commission was without any authority to make any correction of said eligibility list if it had been illegally created, because its life had been extinguished by operation of the statute. In order to create another eligibility list, the Civil Service Commission must start over again and give new examinations. Since the eligibility list expired by operation of law and the Civil Service Commission was without authority to make any changes therein, the district court likewise was without authority or jurisdiction to hear any complaint about an eligibility list that had expired by operation of law.

Section 16a of Art. 1269m, supra, is applicable and controlling here. It provides:

'It is hereby declared that the...