Cunningham v. Henry
| Citation | 231 S.W.2d 1013 |
| Decision Date | 01 June 1950 |
| Docket Number | No. 6523,6523 |
| Parties | CUNNINGHAM et al. v. HENRY et al. |
| Court | Court of Appeals of Texas. Court of Civil Appeals of Texas |
Norman C. Russell, Atchley & Vance, Texarkana, for appellants.
Brown & Brown, Texarkana, for appellees.
In the declaratory judgment appealed from, the trial court decreed that appellant Bruce Cunningham was not entitled to be paid by the City of Texarkana, Texas, any sum as mayor in excess of $125 per month during the remainder of his present term of office, and any sum paid in excess thereof was not authorized by law. The court further decreed that the other appellants, Ben Taylor, Perry DeMarce, Paul Blankenship, David Watts and Dan Smith, were not entitled to be paid any sum as an alderman of the city in excess of $5 for each regular meeting of the City Council and $2.50 for each called meeting actually attended by each alderman, and any sum paid in excess thereof was not authorized by law. The court further declared that the sums paid to each of the appellants in excess of above monthly salaries, the respective amounts that each had received being stated, should be returned to the City Treasurer. A substantial part of the agreed statement of facts upon which trial was had is herein indicated by quotation marks.
On September 7, 1949, and for many years prior thereto, the City Charter of the City of Texarkana contained the following provisions pertaining to the salary and compensation to be paid to the mayor and aldermen comprising the city council, to-wit:
'Sec. 83. Aldermen-Compensation.-Each alderman shall receive as compensation, to be paid from the city treasury, the sum of five dollars for each regular meeting of the city council that he shall actually attend, and the sum of two dollars and fifty cents for each called or special meeting that he shall actually attend; provided, that the compensation paid shall not exceed the sum of one hundred and fifty dollars per annum for any one alderman.'
'He shall act as recorder and preside over the corporation court of said city, and shall do and perform all the duties required of him by this charter and the laws of the said city of Texarkana, and shall do and perform all other duties that shall be prescribed by the city council. * * *
'The said mayor shall be ex-officio chairman of the city council, and in case of a tie vote in said council he shall cast the deciding vote.
'The said mayor shall from time to time make such recommendations to the city council as he may deem proper for the welfare of the city.'
The City Charter contains Secs. 47 and 48, which sections are a part of the original charter, and as agreed to by litigants in the trial, 'are still in full force and effect and have not been amended.' Said sections read:
'On the 31st day of December, 1947, and prior to the election, when the present mayor was elected to his present term of office, the City Council met and fixed the mayor's salary at $1500.00 per year.'
'On the 7th day of September, 1949, at an election duly and legally called and held in the City of Texarkana, Texas, for said purpose, Sections 83, 109, and 110 of the City Charter as it then existed, were amended by a majority vote of the people, and as amended now reads:
'After said election was held, and at a special legally called meeting of the city council, the votes cast at said election were canvassed; the mayor of said city in pursuance to Art. 1173, R.C.S. of Texas, certified to the Secretary of State an authenticated copy under the seal of said city, showing in approval and adoption of said charter amendments by the qualified voters of said city; and the city secretary in pursuance to Art. 1174, R.C.S. of Texas, duly and legally recorded said amendments in a book kept for said purpose, as required by law.'
'On September 15, 1949, Bruce Cunningham, the mayor, began to serve as fulltime mayor, purporting to act under Section 110 of the City Charter as amended by vote of the people on September 7, 1949, and has continued to so act to the date of this trial.'
'Prior to September 15, 1949, the mayor devoted only such time to the duties of his office as the duties of the office required.'
'On October 25, 1949, the city council at a regular meeting, by a motion duly made, seconded and carried, voted to fix the full-time mayor's salary at $500.00 per month, and by said motion provided said salary should be retroactive to September 15, 1949; said Bruce Cunningham, the mayor, was paid such salary from September 15, 1949, to December 15, 1949; and had been paid up to December 15, 1949, $1125.00 in excess of the salary of $125.00 per month fixed by the charter, and by the city council prior to his election.'
'The aldermen defendants, Ben Taylor, Perry DeMarce, Paul Blankenship, Davis Watts and Dan Smith, were elected to their present terms of office prior to the amendment of the City Charter by vote of the people on September 7, 1949, and their salaries were automatically fixed by the terms and provisions of the Charter, without any action of the council at the time of their respective elections;' and 'the salary of defendants aldermen was never fixed for the years 1947 and 1948 by ordinance, resolution or otherwise than by the Charter itself.'
'Each of the aldermen defendants have been paid $12.50 for each regular and $5.00 for each called special meeting attended from September 13, 1947, through November 28, 1949, each...
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Kenny v. El Paso Elec. Co.
...268 S.W. 273, (error refused), holding ordinance not repealed in absence of inconsistency between the two. Also see Cunningham v. Henry (Tex.Civ.App.), 231 S.W.2d 1013 (err. ref'd., n. r. e.), holding new ordinance inconsistent with earlier one dealing with same subject matter amended in pr......