Moore v. Logan

• Citation: 10 S.W.2d 428
• Decision Date: 20 August 1928
• Docket Number: (No. 1692.)
• Parties: MOORE, Com'r of Public Records and Finance, et al. v. LOGAN, Mayor.
• Court: Court of Appeals of Texas

10 S.W.2d 428

MOORE, Com'r of Public Records and Finance, et al. v. LOGAN, Mayor.

(No. 1692.)

Court of Civil Appeals of Texas. Beaumont.

August 20, 1928.

Rehearing Denied September 27, 1928.

Appeal from District Court, Jefferson County; Geo. C. O'Brien, Judge.

Suit by J. P. Logan, Mayor of the City of Port Arthur, against C. B. Moore, Commissioner of Public Records and Finance, and others. Judgment for plaintiff, and defendants appeal. Reversed and rendered.

J. W. O'Neal, of Port Arthur, and Sonfield & Sonfield, of Beaumont, for appellants.

Wistner & Lamson, of Port Arthur, for appellee.

O'QUINN, J.

J. P. Logan, mayor of the city of Port Arthur, brought this suit against C. B. Moore, commissioner of public records and finance of the city of Port Arthur, and B. J. Wade, commissioner of public property and improvements of the city of Port Arthur, and Carroll Carlson, who, it is alleged, is assuming to act as commissioner of public utilities of the city of Port Arthur. Plaintiff sought an injunction to restrain appellants Moore and Wade from passing any ordinance, resolution, or rule affecting plaintiff's duties as mayor or in the enforcement, or attempting to enforce, any ordinance, resolution, or rule passed taking from plaintiff control of the collection and disposal of the city garbage, and to restrain Carlson from assuming or attempting to discharge any duty or duties in connection with the garbage department of the city, or assuming, or attempting to assume, any control thereof, and from interfering with plaintiff in any manner in exercising complete control of the garbage department of said city, and to restrain appellants Moore and Wade from paying, or attempting to pay, out of the funds of the city of Port Arthur any sum of money to appellant Carlson for any such service performed by him.

A temporary injunction was issued ex parte.

Appellants, defendants, filed answer and motion to dissolve. On hearing of the motion certain exceptions by appellants to plaintiff's petition were sustained. Plaintiff then filed his first amended original petition, and prayed for an injunction to restrain appellants from interfering with plaintiff in the exercise of his duties as mayor of the city of Port Arthur in the operation of the water and sewer departments and the collection and disposal of garbage, and that appellants Moore and Wade be enjoined from paying, or attempting to pay, out of the funds of the city of Port Arthur any sum or sums of money to appellant Carlson, and for general and special relief in the premises.

Upon a hearing upon the merits, appellants' motion to dissolve was denied and the temporary injunction made permanent. From the order and judgment of the court appellants have appealed.

The city of Port Arthur operates under a special charter granted by the Legislature in 1911 (Loc. & Sp. Laws 1911, c. 52). This charter has been amended in several particulars under the Home Rule Amendment to the Constitution and Enabling Act. By agreement of the parties the printed book of ordinances and the printed charter of the city and Ordinance No. 908 were introduced in evidence, and are filed as a part of the record here.

The issues involved are clearly manifested in the allegations of appellee's first amended original petition, the basis of the action being the alleged invalidity of an ordinance known as chapter 23 of the printed Code of Ordinances of the city, creating a department of public utilities, and resulting in the appointment of appellant Carlson as superintendent of public utilities in charge of the water, sewer, and garbage departments of the city; the petition alleging specifically the grounds of invalidity, being chapter 23 of the printed Code of Ordinances, the appointment of Carlson, and the resolution placing the garbage department under the superintendency of Carlson.

In substance, appellee alleged as grounds for the injunction:

(a) That he is the duly elected and qualified mayor of the city of Port Arthur, and that appellants Moore and Wade are the duly elected and qualified commissioners, respectively, of public records and finance and public property and improvements of said city, and that appellant Carlson is assuming to act as superintendent of public utilities of and for said city.

(b) That in accordance with the charter and ordinances of the city, he, as mayor, is vested with all the powers in connection with the administration of affairs of the city, save and except those which are specifically designated to Moore, as commissioner of public records and finance, and Wade, as commissioner of public property and improvements.

(c) That, as mayor, he is specially charged with the enforcement of all the police, fire, and sanitary ordinances and regulations of the city; that he is chairman of the board of health, and has supervision of the police department and such other duties as are set forth in sections 4 and 7 of chapter 3 of the charter, which were attached to, and made a part of, his petition.

(d) That Moore, as commissioner of public records and finance, under the charter is charged with the duty of collecting all revenues belonging to the city, keeping a correct account thereof, as shown by section 3, chapter 3, of the charter, a copy of which is attached to his petition.

(e) That Wade, as commissioner of public property and improvements, under the charter has special charge of, and the care and maintenance of, all parks, playgrounds, and buildings belonging to the city, except as otherwise provided, and has supervision of the streets, avenues, and alleys, and is charged with the duty of lighting the city, and keeping the streets, plazas, parks, and other public grounds and property in a clean, sanitary condition, as shown by section 6, chapter 3, of the charter, attached as an exhibit to appellee's petition.

(f) That the duties of Moore and Wade, as commissioners of public records and finance and public property and improvements, are designated and made specific in the charter; that plaintiff, as mayor, is charged with the duty of protecting and guarding the health, safety, and welfare of the inhabitants of the city; that in accordance with the charter he is to perform, and it is made his duty to perform, all matters and things not specially designated to either of the other two commissioners; and that as mayor of the city he is chairman of the board of health.

(g) That under the charter it is his duty to provide the city with pure and wholesome water, to keep the city clean and sanitary, in order to protect the health of the inhabitants.

(h) That the charter provision plainly and specifically set forth the duties to be performed by the commissioner of public records and finance and the commissioner of public property and improvements, and that nowhere in said charter are either of said commissioners expressly or by implication made responsible for the operation of any utility of the city, or the furnishing of pure and wholesome water, or guarding the health and welfare of the city; that in order to promote the health of the city it is necessary that pure and wholesome water be furnished, and that the city be kept clean and sanitary, which includes the collection and disposal of garbage, all of which is under his control as mayor of the city, and which duties he is willing and able to assume and discharge.

(i) That on about August 11, 1913, the city commission passed an ordinance providing for the creation of a public utilities board, which is chapter 23 of the Code of City Ordinances, entitled "Public Utilities Department," and which provides for the appointment of members to constitute said utilities board; said board being vested with authority to employ a superintendent for said board and to fix his compensation.

(j) That said ordinance creating said public utilities board and all amendments thereto are void because not authorized by the charter of said city; that the appointment of said Carlson as superintendent of said board is null and void, and any compensation paid to him is paid without authority of law, and the payment of compensation to said Carlson is unlawful and a wanton waste and extravagance of funds belonging to said city.

(k) That plaintiff, as mayor, is charged with the duty of looking after and managing the operation of said utilities, and he is ready, willing, and able to do so, which will be without cost to said city other than the salary he is receiving and will continue to receive.

(l) That on or about the ____ day of January, 1928, defendants Moore and Wade passed an ordinance, resolution, and rule, by the terms of which plaintiff will be deprived of his power and authority to regulate and control the collection and disposition of the garbage of the city, and, in pursuance thereof, employed and attempted to employ and to pay defendant Carlson the sum of $400 per month for looking after and superintending the said department, which plaintiff is ready and willing and has always so been to superintend; that said ordinance, resolution, and rule was passed in violation of section 1, chapter 2, article 2, of the charter of said city entitled "Legislative Duties of Commissioners and Officers," wherein it provides that "no ordinance, resolution, motion or action directly and specifically affecting the department presided over by any commissioner shall be passed or taken in the absence of such commissioner, nor without his affirmative vote;" that depriving plaintiff of the right to superintend and control the garbage department affects his department, as is shown by chapter 34 of the Code of Ordinances of said city entitled "Health and Sanitation Department"; that said ordinance, resolution, and rule was taken without his affirmative vote, and is therefore void.

(m) That plaintiff, aside from being mayor of said city, is a citizen of said city, and pays a large sum of money as taxes, which is used by the city in paying operating...