Glass v. Smith

• Decision Date: 28 November 1951
• Docket Number: No. A-3171,A-3171
• Citation: 244 S.W.2d 645,150 Tex. 632
• Parties: GLASS et al. v. SMITH et al.
• Court: Texas Supreme Court

Page 645

244 S.W.2d 645

150 Tex. 632

GLASS et al. v. SMITH et al.

No. A-3171.

Supreme Court of Texas.

Nov. 28, 1951.

Rehearing Denied Jan. 16, 1952.

Trueman E. O'Quinn, formerly City Atty., W. T. Williams, Jr., City Atty. and Robert L. Burns, Asst. City Atty., all of Austin, for petitioners.

Cofer & Cofer, Austin, for respondents.

CALVERT, Justice.

This case involves the right of respondents (six members of the Fire Department of the City of Austin who are also signers of an initiative petition) to a writ of mandamus to compel petitioners (the City Council, City Manager and City Clerk of the City of Austin) to perform certain duties prescribed by the charter of the City of Austin in the calling and holding of an election for approval or rejection by the qualified voters of the City of Austin of a proposed ordinance classifying policemen and firemen, fixing their pay, designating certain holidays, etc. The full text of the proposed ordinance is set out in the opinion of the Court of Civil Appeals and need not be repeated here.

The trial court granted the writ of mandamus as prayed for by respondents and that judgment was affirmed by the Court of Civil Appeals. 238 S.W.2d 243.

The proposed ordinance was initiated by a requisite number of citizens of the City of Austin under the provisions of Article IX of the Charter of the City of Austin. Section 1 of Article IX provides that 'The citizens of the City of Austin may propose and submit to the City Council ordinances * * *' by petition with 'a request that the same be enacted into law by the Council.' The section then directs that 'the Council shall either (a) pass the ordinance set out in said petition without alteration within ten days * * * or (b) submit the same to a vote of the qualified voters of the City at a special election to be called for that purpose within forty days * * *.' Section 2 provides for publication of the proposed ordinance by the City Clerk.

It is conceded by petitioners that all procedural requirements for submission of the proposed ordinance have been met and no objection is made to its form. Refusal of petitioners to comply with the mandatory provisions of the Charter for the calling and holding of the election is based upon their contentions that the subject matter of the proposed ordinance is not legislative in character, and that the ordinance, if adopted, would be void. It follows, they contend, that the calling and holding of the election would be a vain and useless procedure and that a court of equity should not and will not issue a writ of mandamus to compel the performance of a vain and useless act.

Petitioners assign several reasons for their view that the proposed ordinance would be invalid. They may fairly be summarized as follows: (1) Because the proposed ordinance is in conflict with Article 1269m, Vernon's Annotated Civil Statutes, (Acts 1947, 50th Leg., p. 550, ch. 325 as amended by Acts 1949, 51st Leg., p. 1114, ch. 572 § 6,) in that whereas the proposed ordinance permits the electorate to create and provide classifications of firemen and policemen Article 1269m confers that power upon the Civil Service Commission and the City Council exclusively. (2) Because the proposed ordinance is in conflict with Article 1583-2, Vernon's Annotated Penal Code, in that that article also vests in the City Council exclusively power to set up the proposed classifications; (3) Because the Charter of the City of Austin vests in the City Council exclusively authority to deal with the subject matter of the proposed ordinance; (4) Because the proposed classifications are set up on a basis contrary to the requirements and provisions of Article 1269m; (5) Because the proposed ordinance is based upon a legislative act which is itself void because violative of Article III, Section 56 of the Constitution of Texas, Vernon's Ann.St.

With these questions before it the Court of Civil Appeals concluded that the subject matter of the proposed ordinance was legislative in character, and, having so held, then refused, on authority of City of Austin v. Thompson, 147 Tex. 639, 219 S.W.2d 57 and City of Dallas v. Dallas Consolidated Electric Street Railway Co., 105 Tex. 337, 148 S.W. 292, to consider or pass upon any of the other questions touching the validity of the ordinance. The City of Austin and City of Dallas cases were cases in which this Court held that writs of injunction would not issue to restrain the holding of void elections duly called by those charged with the duty and responsibility of calling and holding elections. A like holding was made by the Commission of Appeals in the case of Winder v. King, Tex.Com.App., 1 S.W.2d 587. The basis of the decisions in the City of Austin and the Winder cases was that the courts will not interfere with the exercise by the people of their political right to hold elections. The same idea was involved in the decision in the City of Dallas case but that decision involved also another theory to be noticed later at greater length.

After referring to the City of Austin and the City of Dallas cases, the Court of Civil Appeals in the instant case said that 'as a corollary to the rule of nonjudicial interference with elections the courts are duty bound to prevent all interference with the political power of the people.' (238 S.W.2d 249) It was in keeping with this pronouncement that the Court of Civil Appeals held that the writ of mandamus would issue irrespective of the possible invalidity of the proposed ordinance. Petitioners vigorously attack this holding of the Court of Civil Appeals.

While we do not agree with the full import of the rule announced by the Court of Civil Appeals, we do agree with its conclusion that respondents being otherwise entitled to have the initiative election called and held, cannot be defeated in that right by the refusal of petitioners to perform purely ministerial duties on the ground that in their opinion the ordinance would be invalid if adopted. We believe also that to determine whether respondents are otherwise entitled to have the election called and held the court's inquiry should be on a broader basis than that established by the opinion of the Court of Civil Appeals. As heretofore indicated, the inquiry of the Court of Civil Appeals extended only to a determination of whether the subject matter of the ordinance was legislative in character. But to entitle respondents to a writ of mandamus on the ground that they have a legal right to have the election called and held and that petitioners are under a legal duty to order and to hold it, it is not enough that the subject matter of the proposed ordinance be legislative in character but it must also appear that the subject matter of the ordinance has not been withdrawn from the field in which the initiatory process is operative.

In the case of Taxpayers' Ass'n of Harris County v. City of Houston, 129 Tex. 627, 105 S.W.2d 655, 657, this Court said that 'the power of initiative and referendum * * * is the exercise by the people of a power reserved to them, and not the exercise of a right granted', and that 'in order to protect the people of the city in the exercise of this reserved legislative power, such charter provisions should be liberally construed in favor of the power reserved.' Even so, the field in which the initiatory process is operative is not unlimited. It is first limited by the very nature of the proceeding. When the people exercise their rights and powers under the initiative provisions of a city charter they are acting as and become in fact the legislative branch of the municipal government. Accordingly, city charters frequently expressly limit the right of initiative to legislative matters. But even though a charter contains no such express limitation-and there is none in the Charter of the City of Austin-the limitation is usually read into the charter by the courts. Southwestern Telephone & Telegraph Co. v. City of Dallas, 104 Tex. 114, 134 S.W. 321; Denman v. Quin, Tex.Civ.App., 116 S.W.2d 783 (writ ref.); McQuillen on Municipal Corporations, 3rd Ed., Vol. 5, p. 253, Sec. 16.55. The field where the initiatory process is operative may also be limited by general law. Article XI, Section 5 of our Constitution provides that no city charter shall contain any provision inconsistent with the general laws of this state. Any rights conferred by or claimed under the provisions of a city charter, including the right to an initiative election, are subordinate to the provisions of the general law. It follows that the Legislature may by general law withdraw a particular subject from the field in which the initiatory process is operative. Again, the field may be limited by the city charter itself. Other provisions of the charter may withdraw from the people the power under the initiative provisions to deal with a particular subject. The limitation by the general law or by the charter of the field in which the initiatory process is operative may be either an express limitation or one arising by implication. Such a limitation will not be implied, however, unless the provisions of the general law or of the charter are clear and compelling to that end.

From what has been said it follows that we must first determine whether the initiative election sought by respondents is within the field in which the initiatory process is operative and therefore one which they have a legal right to have held. That the scope of our inquiry should be thus extended is indicated by the opinion of this Court in the case of Dallas Ry. Co. v. Geller, 114 Tex. 484, 271 S.W. 1106, and that the Court is justified in extending in this far and no further is indicated by the opinion of the Supreme Court of Massachusetts in the case of Bowe v. Secretary of the Commonwealth of Massachusetts, 320 Mass. 230, 69 N.E.2d 115, 167 A.L.R. 1447. In the Geller case this Court held that the referendum provisions of the charter of the City of Dallas...