Glass v. Smith

• Decision Date: 28 February 1951
• Docket Number: No. 9947,9947
• Parties: GLASS et al. v. SMITH et al.
• Court: Texas Court of Appeals

Page 243

238 S.W.2d 243

GLASS et al. v. SMITH et al.

No. 9947.

Court of Civil Appeals of Texas.

Feb. 28, 1951.

Rehearing Denied March 28, 1951.

Trueman E. O'Quinn, W. T. Williams, Jr. and Robert L. Burns, all of Austin, for appellants.

Cofer & Cofer, Austin, for appellees.

HUGHES, Justice.

This is a mandamus proceeding instituted by six members of the Fire Department of the City of Austin, appellees, against the City Council, City Manager, and City Clerk of the City of Austin, appellants, to compel the performance of ministerial duties in connection with the submission of a proposed ordinance initiated by citizens of the City of Austin, including appellees, at a special election to be held in accordance with the provisions of Article IX of the Charter of the City of Austin.

The trial court, acting without a jury, granted the relief sought by appellees.

The facts are without dispute.

Section 1 of Art. IX of the Austin City Charter provides, in part ¹: 'The citizens of the City of Austin may propose and submit to the City Council ordinances in the following manner: By petition signed by at least twenty-five per cent of the highest vote cast for councilman at the last preceding general election. The petition shall set forth the proposed ordinance, and contain a request that the same be enacted into law by the Council. * * * If the petition is shown to be sufficient by the certificate of the Clerk, he sall submit the same to the Council without delay, and the Council shall either (a) pass the ordinance set out in said petition without alteration within ten days after the date of the Clerk's certificate of sufficiency thereon; 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 forth days from the date of said certificate, unless a general municipal election is fixed within ninety days thereafter, and then at such general municipal election such ordinance shall be submitted without alteration of any kind. * * * If a majority of the qualified votes cast is in favor thereof, such ordinance shall thereupon become a valid and binding ordinance of the City, and any ordinance so enacted shall not be repealed or amended, except by vote of the people. * * *'

The ordinance proposed to be submitted is as follows:

'Section 1. In accordance with the provisions of this ordinance and the acts of the Regular Session of the 51st Legislature of Texas, Chapter 572, Section 2, p. 1114, the Civil Service Commission in the City of Austin shall provide for the classification of all firemen and policemen employed in the City of Austin according to the classification hereinafter set out in Section 2 of this ordinance. The City Council of the City of Austin shall from time to time prescribe by ordinance the number of positions in each classification.

'No classification now in existence, or that may be hereafter created in the City of Austin, shall ever be filled except by examination held in accordance with the provisions of the Fireman's and Policeman's Civil Service Act of the State of Texas for cities over 10,000 (Acts of 1947, 50th Leg. of Texas, p. 550, ch. 325, and amendments thereto). All persons in each classification shall be paid the same salary and in addition thereto be paid any longevity or seniority pay that he may be entitled to. Computation of service time shall be figured retroactively to time of employment of the individual employees respectively entitled to such longevity payment. Nothing in this ordinance shall prevent the Head of the Department involved from designating some person from the next lower classification to fill a position in a higher classification temporarily, but any such person so designated by the Head of the Department shall be paid the base salary of such higher position plus his own longevity pay during the time he performs the duties thereof. Such temporary appointment must be made from the next lower classification, except upon an emergency where no employee in such next lower bracket is available. The temporary performance of the duties of any such position by a person who has not been promoted in accordance with the provisions of this ordinance and the General Law shall never be construed to promote such person. All vacancies shall be filled by permanent appointment from eligibility lists furnished by the Commission within ninety (90) days after such vacancy occurs.

'Firemen and policemen shall be classified as provided in Section 2 of this ordinance and shall be under civil service protection except the Chiefs of the Fire Department and Police Department.

'Said Chiefs of said Departments shall be appointed by the City Manager of the City of Austin, and confirmed by the City Council.

'Section 2. The Firemen and Policemen employer in the City of Austin shall be classified and paid as follows:

'Class 1: First year firemen and policemen, $220.00 per month.

'Class 2: Second year firemen and policemen, $230.00 per month.

'Class 3: Third year firemen and policemen, $240.00 per month.

'Class 4: After Third Year-hoseman, ladderman, and patrolman, $250.00 per month plus $10.00 per month additional for each 5 years service up to 15 years.

'Class 5: Driver, inspector, mechanic's helper, and detective, $265.00 per month plus $10.00 per month additional for each 5 years service up to 15.

'Class 6: Captain (fire), fire alarm operator, and police sergeant, $280.00 per month plus $10.00 per month additional for each 5 years service up to 15.

'Class 7: District chief (fire), master mechanic, and police lieutenant, $300.00 per month plus $10.00 per month additional for each 5 years service up to 15.

'Class 8: Assistant Chief (fire), fire marshall, and police captain, $350.00 per month plus $10.00 per month additional for each 5 years service up to 15.

'Class 9: Chiefs of Fire and Police Departments, $450.00 per month plus $10.00 per month additional for each 5 years up to 15.

'Section 3. Any employee classified herein who shall work in excess of 144 hours in two consecutive weeks shall be paid for the over time at the rate of time and one half for the duties performed.

'The following six holidays shall be added to the fifteen (15) day vacation: January 1st, February 22nd, July 4th, Labor Day, Thanksgiving and Christmas.'

The Firemen's and Policemen's Civil Service Act, ² mentioned above, has been adopted at an election held by the City of Austin.

Appellants' brief contains four points: First: That the Policemen's and Firemen's Civil Service Act is void and that the proposed ordinance being largely based on such Act is likewise void. Second: That the proposed ordinance is inconsistent with various general laws of this State and hence is void. Third: That the subject-matter of the proposed ordinance is vested exclusively in the City Council of Austin. Fourth: That the subject-matter of the proposed ordinance is purely administrative and executive in nature and is not a proper subject of initiative and referendum provisions of the Austin City Charter.

We have concluded that (a) the proposed ordinance is subject to the initiative and referendum provisions of the Austin City Charter, and (b) we are presently not concerned with the validity or invalidity of the proposed ordinance.

The main purpose of the proposed ordinance is to classify members of the Fire and Police Departments of the City of Austin and to provide pay scales for each class.

Appellants say that this is an administrative matter and appellees describe it as legislative. As to whether it is one or the other seems to make a difference. Denman v. Quin, Tex.Civ.App., 116 S.W.2d 783, San Antonio C.C.A. Writ Ref. This very case, later discussed, says, however, that '* * * an ordinance fixing salaries to be paid city officials is a practical example of those which are referable * * *.' 116 S.W.2d 786.

We believe this question to be authoritatively determined by the decision in Taxpayers' Ass'n v. City of Houston, 129 Tex 627, 105 S.W.2d 655, 657. We quote from that opinion: 'As shown by section 1 of article VIIb, supra, of the city's charter, its initiative and referendum provisions are confined to legislative matters only. This is true, because such section by its express terms only gives the qualified voters of the city the power to legislate. The association et al. contend that these ordinances are invalid because they involve a matter that is purely administrative and not legislative. We overrule this contention. It is true that in many instances, and under certain conditions, the fixing of salaries is administrative in its nature. In spite of this, such matter also appeals to the lawmaking power. The creation of an office is a legislative function. If the legislative arm of the government has the power to create an office and prescribe its duties, it must surely follow that it has the power to prescribe its emoluments. Furthermore, we think the people generally are vitally interested in having their officers and employees paid a living wage, and a wage commensurate with the duties involved.'

In reaching our second conclusion the way has been more strenuous.

Courts are without power to interfere with an election even though the election may be void. City of Austin v. Thompson, 147 Tex. 639, 219 S.W.2d 57. Should then an administrative official have the power to obstruct the holding of a void election by refusing to perform a purely ministerial duty?

There is no question but that the duties which appellants are required to perform in calling and holding an election in response to a proper initiative petition are purely ministerial in character and do not involve the exercise of any discretion on their part.

Appellants' position is that they may, nevertheless, question the validity of the proposed ordinance before submitting it to the electors, and cite the case of McCarty v. Jarvis, Tex.Civ.App., 96 S.W.2d 564, Fort Worth C.C.A. Writ Dis., as...