Fire Department of City v. City of Fort Worth
| Decision Date | 09 February 1949 |
| Docket Number | No. A-1906.,A-1906. |
| Citation | 217 S.W.2d 664 |
| Parties | FIRE DEPARTMENT OF CITY OF FORT WORTH et al. v. CITY OF FORT WORTH. |
| Court | Texas Supreme Court |
R. E. Rouer, City Atty., and Heard L. Floore, Sam A. Woodward, and S. Langford Carlton, Asst. City Attys., all of Fort Worth, for City of Fort Worth.
A measure known as the Firemen's and Policemen's Civil Service Act was passed by the legislature in 1947 and approved by the Governor. Acts 1947, 50th Leg., ch. 325, Art. 1269m, Vernon's Ann.Civ.Stat. The provisions of the act were accepted by a majority vote of the citizens of the City of Fort Worth in an election called conformably to the statute's terms. Afterwards the City filed a suit in the nature of a class bill against all the members of the Fire and Police Departments, seeking, first, to have the entire act declared unconstitutional, and second, to have its provisions construed. The trial court adjudged one section of the act unconstitutional and, so, invalid, but upheld the validity of the other provisions of the law. The Court of Civil Appeals affirmed that judgment. 213 S.W. 2d 347. This writ of error was granted because of the tentative view that there was error in holding the questioned section unconstitutional. A further consideration of the arguments and the record confirms that conclusion.
Following is the section which has been held invalid:
The allegations of invalidity which the courts below sustained are in substance that the statute would permit the appeal of an indefinite suspension or dismissal on the part of any fireman or policeman to the district court, with the power of that court in a de novo trial to substitute its judgment and discretion for that of the executive, administrative and legislative bodies of the City charged with the discipline and supervision of the numerous members of the Fire and Police Departments, thus conferring executive and legislative power on the district court in violation of Section 1, Article II of the Texas Constitution, Vernon's Ann.St. (the article dealing with a provision of governmental powers into three separate departments).
This enactment provides for the appointment of a civil service commission to administer the system in each city where the provisions of the law are accepted by the voters. Section 16 sets up the procedure by which firemen and policemen may appeal to the commission from disciplinary orders issued by the department heads. Section 5 provides that the commission shall make rules and regulations prescribing what shall constitute cause for removal or suspension of firemen or policemen, but limits its power as follows: "* * * no rule for the removal or suspension of such employees shall be valid unless it involves one or more of the following grounds: Conviction of a felony or other crime involving moral turpitude; violations of the provisions of the charter of said city; acts of incompetency; neglect of duty; discourtesy by said employee to the public or to fellow employees while said employee is in line of duty; acts of said employees showing a lack of good moral character; drinking of intoxicants while on duty, or intoxication while off duty; or whose conduct was prejudicial to good order; refusal or neglect to pay just debts; absence without leave; shirking duty, or cowardice at fires; violation of any of the rules and regulations of the Fire Department or Police Department or of special orders, as applicable."
This statute confers upon an employee the right to continue in his employment so long as his conduct meets the stipulated standards. By providing a complete and exclusive list of acts of misconduct which may constitute cause for removal, the legislature has taken pains to withhold from the commission an unlimited discretion in dismissing or suspending employees. The rules under which the commission acts must conform to the pattern of Section 5; and the only power the commission has to order the removal or suspension of an employee rests upon a determination that he has been guilty of one or more of the enumerated derelictions. This responsibility must be exercised reasonably and according to law, and can in no sense be regarded as a matter of discretion beyond judicial review.
No attack is made by the City upon the general power of the legislature to establish a civil service system, nor is the authority of the civil service commission to act in a proper case denied. The only question is, can the commission's acts be subjected to judicial scrutiny?
It is generally recognized that even without express statutory authorization the orders entered by an administrative body pursuant to legislative sanction are subject to judicial review. English Freight Co. v. Knox, Tex.Civ.App., 180 S. W.2d 633, error refused. The exercise of this jurisdiction by the courts is not in derogation of the separation of powers among the three branches of government but, on the contrary, is calculated directly to uphold and preserve that principle. Denison v. State, Tex.Civ.App., 61 S.W.2d 1017, error refused 122 Tex. 459, 61 S.W. 2d 1022. And where the legislative branch has expressly provided for review by the courts, it must clearly appear that the review exceeds judicial authority before the legislation will be held to transcend...
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