Jud v. City of San Antonio

• Decision Date: 17 January 1945
• Docket Number: No. A-343.,A-343.
• Citation: 184 S.W.2d 821
• Parties: JUD v. CITY OF SAN ANTONIO.
• Court: Texas Supreme Court

184 S.W.2d 821

JUD v. CITY OF SAN ANTONIO.

No. A-343.

Supreme Court of Texas.

January 17, 1945.

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Suit by George F. Jud against the City of San Antonio and others for a declaratory judgment setting aside order of Board of Firemen, Policemen and Fire Alarm Operators' Pension Fund Trustees of San Antonio denying plaintiff a pension and requiring board to place plaintiff on pension rolls or pay him the amount paid into pension fund by plaintiff. To review a judgment of the Court of Civil Appeals, 182 S.W.2d 260, affirming a judgment of dismissal, plaintiff brings error.

Judgments of district court and of Court of Civil Appeals reversed and case remanded to district court with instructions.

Reynolds N. Cate, of San Antonio, for plaintiff in error.

T. D. Cobbs, Jr., City Atty., and Hugh R. Robertson, his Asst., both of San Antonio, for defendant in error.

HICKMAN, Commissioner.

This suit was instituted by George F. Jud against the City of San Antonio, the Board of Firemen, Policemen, and Fire Alarm Operators' Pension Fund Trustees of San Antonio, Texas, referred to hereinafter as the Pension Board, and against the Mayor and other individuals alleged to be members of the Pension Board. The plaintiff labeled his pleading a "petition for declaratory judgment." To this pleading the defendants filed an answer consisting of a plea to the jurisdiction, exceptions to plaintiff's petition, answer on the alleged facts, and a special answer. The Court set the case for a hearing on the plea to the jurisdiction only and after such hearing entered an order sustaining the plea and dismissing the case at plaintiff's cost. That order was affirmed by the Court of Civil Appeals, 182 S.W.2d 260.

The Pension Board operates under authority of Acts of the 47th Legislature, 1941, ch. 105, Vernon's Ann.Civ.St. Art. 6243f. There is no provision in that law for an appeal from a decision of the Pension Board to the courts. The Court of Civil Appeals was of the opinion that the suit was an attempt to appeal from an order of that Board and upon that basis it affirmed the judgment of the trial court sustaining the plea to its jurisdiction and dismissing the case.

While we experience some difficulty in classifying the cause of action, if any, alleged by plaintiff, we have concluded that it was not merely an attempted appeal from an administrative order of the Board. We shall not undertake to summarize the allegations of plaintiff's petition, but shall point out some of the salient points thereof. In 1919 the Legislature enacted a law on the subject of city pensions. That law is now Articles 6229 to 6243, inclusive, R.S. 1925, Vernon's Ann.Civ.St. arts. 6229 to 6243. By Article 6242 it was provided, in effect, that no funds should be paid out of the public treasury of a city to the carrying out of the provisions of the law except on a majority vote of the voters of such city. It appears that the City of San Antonio did not so vote, but, according to the petition, it did set up a system of pensions for firemen and policemen. Plaintiff claims to have been a fireman in the employ of the City in 1919 and to have served in that capacity for more than twenty years. He alleged that he made a written application to participate in the fund collected from firemen and policemen and allowed a deduction of one per cent or more monthly from his salary as a contribution to that fund, and that his contribution was "from $600 to $700." A part of the relief sought in the case is a judgment for that amount against the City, the Pension Board, and each...