Stauffer v. City of San Antonio

• Decision Date: 01 March 1961
• Docket Number: No. A-7752,A-7752
• Parties: John J. STAUFFER, Jr., Petitioner, v. CITY OF SAN ANTONIO et al., Respondents.
• Court: Texas Supreme Court

Page 158

344 S.W.2d 158

162 Tex. 13

John J. STAUFFER, Jr., Petitioner, v. CITY OF SAN ANTONIO et al., Respondents.

No. A-7752.

Supreme Court of Texas.

March 1, 1961.

Rehearing Denied March 29, 1961.

Adrian A. Spears, San Antonio, for petitioner.

Carlos C. Cadena, City Atty., Charles L. Smith, Asst. City Atty., San Antonio, for respondents.

WALKER, Justice.

This suit was brought by John J. Stauffer, Jr., petitioner, against the City of San Antonio, the Firemen's and Policemen's Civil Service Commission, and the Board of Firemen, Policemen and Fire Alarm Operators' Pension Fund Trustees, to compel his reinstatement to the Fire Department under Section 22a of Article 1269m, ¹ or in the alternative to require the Pension Board to grant him a disability pension in accordance with the provisions of Article 6243f. He also prayed for recovery of either salary or pension payments alleged to be in arrears. The case was tried by the court without a jury, and judgment was entered ordering the City and the Commission, respondents, to reinstate petitioner to his former position in the Fire Department. He was also awarded back salary from March 11, 1958, but was granted no relief against the Pension Board. The judgment of the trial court was reversed and the cause dismissed by a divided Court of Civil Appeals. 331 S.W.2d 443.

Section 22a of Article 1269m provides that:

'The Civil Service Commission on written application of a member of the fire or police department shall grant military leave of absence without pay to such member to enable him to enter military service of the United States * * *. Any such member receiving military leave of absence hereunder shall be entitled to be returned to the position in the department held by him at the time the leave of absence is granted, upon the termination of his active military service, provided he receives an Honorable Discharge and remains physically and mentally fit to discharge the duties of that position; and further provided he makes application for reinstatement within ninety (90) days after his discharge. * * *'

Petitioner, who had been granted a military leave of absence from the San Antonio Fire Department, was given a medical discharge from the Army. Within ninety days he wrote the Director of the Civil Service Commission applying for reinstatement 'to some kind of job with the San Antonio Fire Dept. that will not hinder my health.' The letter stated that he had been medically discharged from the Army because of a rheumatic heart and stomach ulcers. He was directed to and did report to the City Physician, who disqualified him on the basis of the medical discharge but advised that his application would be reconsidered if certain laboratory reports were submitted. Petitioner then applied to the Pension Board, which conducted a hearing and sent him to other doctors. The latter concluded that he was physically able to perform the duties of a fireman, and a pension was denied for that reason. Petitioner later asked for reconsideration of his reinstatement application and brought this suit after the same was rejected.

We are not entirely satisfied that petitioner's application for a position consistent with his health complies with the requirements of Section 22a, but that question was not raised in the Court of Civil Appeals. Respondents' points of error there assert that the trial court erred in ordering reinstatement because: (1) Section 9 of Article 1269m makes the Chief of the Fire Department the sole judge of whether petitioner is physically qualified to discharge the duties of his position; (2) the courts have no power to review the action of the Commission in refusing reinstatement; and (3) the decision of the Commission on the question of petitioner's physical fitness is supported by substantial evidence. It is to be assumed then that petitioner made proper application for reinstatement within ninety days after he was honorably discharged from the Army.

In 1957 the Legislature attempted to amend Section 9 of Article 1269m. If this amendment is effective, it requires that a report be submitted by the physician appointed to examine a fireman and makes the department head the sole judge of whether such fireman is able to continue his duties. Acts 1957, 55th Leg., p. 1171, ch. 391, § 2. The caption of the amendatory Act refers to several sections of Article 1269m and indicates that each is amended in certain respects, but Section 9 is not mentioned and there is nothing in the caption to suggest that any change is made therein. We agree with the Court of Civil Appeals that the attempted amendment is unconstitutional and void in so far as Section 9 is concerned. Texas Constitution, Article III, Section 35, Vernon's Ann.St.; Board of Water Engineers of State v. City of San Antonio, 155 Tex. 111, 283 S.W.2d 722. An administrative agency such as the Civil Service Commission has only such powers as are expressly granted to it by statute together with those necessarily implied from the authority conferred or duties imposed. See Brown v. Humble Oil & Refining Co., 126 Tex. 296, 83 S.W.2d 935, 99 A.L.R. 1107; Railroad Commission of Texas v. Red Arrow Freight Lines, Tex.Civ.App., 96 S.W.2d 735 (wr. ref.); 42 Am.Jur. Public Administrative Law, p. 316, § 26. Section 22a states in no uncertain terms that a returning fireman shall be reinstated if he remains physically and mentally fit to discharge the duties of his position and satisfies the other conditions specified therein. It does not provide for reinstatement upon a finding by the Commission that the applicant is qualified, and there is no language suggesting that the Commission is to hear and decide that question. The statute does not even disclose where the ...