Dry v. Davidson

• Citation: 115 S.W.2d 689
• Decision Date: 24 February 1938
• Docket Number: No. 10716.,10716.
• Parties: DRY v. DAVIDSON et al.
• Court: Court of Appeals of Texas

Page 689

115 S.W.2d 689

DRY v. DAVIDSON et al.

No. 10716.

Court of Civil Appeals of Texas. Galveston.

February 24, 1938.

Rehearing Denied March 24, 1938.

Appeal from District Court, Harris County; Roy F. Campbell, Judge.

Proceeding by Ernest Dry for writs of mandamus, compelling J. H. Davidson and others, officers of the City of Houston, to pay relator a sum claimed as the balance of salary due him for services rendered as a city fireman. Judgment for respondents, and relator appeals.

Reversed, and writs granted.

W. Ray Scruggs, of Houston, for appellant.

R. R. Lewis, Geo. D. Neal, W. M. Holland, and Walter E. Boyd, all of Houston, for appellees.

GRAVES, Justice.

This appeal involves alone the constitutionality of subdivision or paragraph 7 of Penal Code, art. 1583, as amended by Senate Bill No. 89, which became effective April 19 of 1937, Vernon's Ann.P.C. art. 1583, subd. 7, applied to cities of Houston's class, and runs as follows: "7. It is further provided that in any city of more than seventy-five thousand (75,000) inhabitants that each member of any such department shall receive a sum of One Hundred Fifty ($150.00) Dollars per month as a minimum wage for said services so rendered."

The suit itself, as brought by appellant — in the form of an application to the Eightieth district court of Harris county for writs of mandamus, effective against the mayor of Houston, members of its city council, and the several heads of its different departments, that is, all the city officials with jurisdiction over the allowance and payment of salaries due its firemen — having been designed as a test of the validity of the quoted statute, was met solely upon that tendered issue by the appellees; and, while the judgment of the learned trial court holding generally in favor of the appellees and against the appellant does not expressly so recite, it otherwise undisputedly appears that it was based solely upon the conclusion that this act was unconstitutional and void.

The act, of which quoted subdivision 7 is the applicable part in this instance, otherwise has to do with the working hours, pay, and vacations of members of the fire and police departments of what are termed our home rule cities, appellant here having been at the time of and for some 15 months prior to the passage of such Senate Bill 89, as well as on the date of the judgment, a member of Houston's Fire Department; as such he sought by this mandamus suit against its officers to compel the payment to him by the city of $4.40, being what he claimed as the balance of salary, as such fireman, due him for the service he had rendered in that behalf during the last half of the month of April of 1937, represented by the difference in pay between the $138 per month rate for its firemen's salaries under which the city had theretofore been operating, and the $150 per month rate provided for in Senate Bill 89, which had so become effective on the 19th of that month.

So that, this action does not involve the working hours, vacations, or other provisions of this legislation, but specifically and merely the $4.40 wage claim of this city fireman, grounded wholly upon the asserted validity of the raise in pay thus granted him by the Legislature of the state in the copied provision of Senate Bill 89.

As indicated, the parties joined sole issue upon the constitutionality of that act, with the result stated in the court below. They likewise reiterate their controversy here; the appellant, on the one hand, insisting that he had already rendered the service at the date of this trial, that the Legislature had so validly vouchsafed him the increase in pay therefor, and that the city officials — without any other reason or excuse than their claim that the legislative act was unconstitutional — had refused to either issue him the warrant for or pay to him the increased rate so demanded.

The city, on the other hand, while denying none of the factual basis thus laid for the sued-for writs of mandamus, asserted that the act relied upon, relating as it was claimed to do to purely local or municipal affairs, the control of which was vested exclusively in home rule cities by section 5, article 11, of the Constitution of Texas, was wholly void and not binding upon it.

It is deemed unnecessary to further detail the nature of and incidents to the two opposing positions thus taken here by the parties; suffice it to say that, under the findings of fact made from undisputed evidence in the record, this court determines not only that the proper factual basis for the coveted writs of mandamus was in all material respects alleged and shown by the appellant, but, further, that it was also made to conclusively, if not undisputedly, appear that the city at the time of this judgment had on hand amply sufficient funds out of which the $4.40 claimed by appellant was properly payable, provided the act he relied upon was valid, in that there was an excess of $2,000 in the 1937 budget of the fire department, pay-roll account, out of which this small demand could have been paid.

Wherefore, if the challenged section of the law invoked is constitutional, the money being thus available and on hand, the appellant was entitled to the writs sought.

After careful consideration of the matter, aided by able briefs and oral arguments of eminent counsel on both sides, this court finds no fault with the legislative act thus brought under fire, considering it valid and binding upon the city of Houston, under the well-defined holdings of our courts in these, among other, decisions already rendered: Brown v. Galveston, 97 Tex. 1, 75 S.W. 488; Yett v. Cook, 115 Tex. 205, 281 S.W. 837; Hunt v. Atkinson, Tex.Com.App., 18 S.W.2d 594; Hunt v. Atkinson, Tex.Com.App., 12 S.W.2d 142; City of Beaumont v. Fall, 116 Tex. 314, 291 S.W. 202; McCutcheon. v. Wozencraft, 116 Tex. 440, 294 S.W. 1105; Dallas Ry. & Terminal Co. v. Price, Tex.Civ.App., 94 S.W.2d 884; Huff v. Wichita Falls, 121 Tex. 281, 48 S.W.2d 580; Brown v. Fidelity Inv. Co., Tex.Com. App., 280 S.W. 567; City of Fort Worth v. Zane-Cetti, Tex.Com.App., 278 S.W. 183; City of Corpus Christi ex rel. Harris v. Flato, Tex.Civ.App., 83 S.W.2d 433.

Indeed, under the extended discussions of counsel before this court, the points of difference between them, in their mutual reliance upon section 5, article 11 (the Home Rule amendment of the State Constitution), apparently get down to the one ultimate question of whether or not the act here under review is "a general law enacted by the Legislature," within the meaning of that amendment; it would, accordingly, appear to be a work of supererogation to range farther out.

The language of the material portion of the Home Rule Amendment, the italics being added here, is this: "Cities having more than five thousand (5000) inhabitants may, by a majority vote of the qualified voters of said city, at an election held for that purpose, adopt or amend their charters, subject to such limitations as may be prescribed...