Taxpayers' Ass'n v. City of Houston

• Decision Date: 12 May 1937
• Docket Number: No. 7240.,7240.
• Citation: 105 S.W.2d 655
• Parties: TAXPAYERS' ASS'N OF HARRIS COUNTY et al. v. CITY OF HOUSTON et al.
• Court: Texas Supreme Court

105 S.W.2d 655

TAXPAYERS' ASS'N OF HARRIS COUNTY et al. v. CITY OF HOUSTON et al.

No. 7240.

Supreme Court of Texas.

May 12, 1937.

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

Suit by the Taxpayers' Association of Harris County and others against the City of Houston and others. To review a judgment of the Court of Civil Appeals [100

S.W.(2d) 1066], which affirmed a judgment for defendants, plaintiffs bring error.

Affirmed.

H. Fletcher Brown and J. S. Bracewell, both of Houston, for plaintiffs in error.

R. R. Lewis, City Atty., Geo. D. Neal, W. M. Holland, and Walter E. Boyd, Asst. City Attys., and Ray Scruggs, all of Houston, for defendants in error.

CRITZ, Justice.

This suit was instituted in the district court of Harris county, Tex., by the Taxpayers' Association of Harris county, Tex., a private corporation, and a number of individual property taxpayers of the City of Houston, Tex., hereinafter designated the association et al., against the City of Houston, Tex., a municipal corporation, and a number of its officers and agents not necessary to name, hereinafter designated the city et al., to enjoin the enforcement of two ordinances fixing minimum salaries for certain of the officers and employees of the city. One of the ordinances fixes minimum salaries in the fire department, and the other fixes minimum salaries for numerous other officers and employees of the city. Both ordinances were adopted by a vote of the people under the referendum provision of the city's charter. No issue is raised to the regularity of the election in any of its stages. The petition of the association et al. in the district court seeks both a temporary and a permanent injunction against the enforcement of such ordinances. This appeal is predicated upon the refusal by the district court of the prayer for a temporary injunction. Such refusal was had after a full hearing of the facts. The action of the district court was in all things affirmed by the Court of Civil Appeals at Galveston. 100 S.W.(2d) 1066. The case is before this court on writ of error granted on application of the association et al.

As already indicated, the two ordinances here attacked were adopted under the referendum provision of the city's charter by a majority vote of the qualified voters of the city of Houston, duly ordered and held for that purpose. The association et al. contend that the initiative and referendum provisions of the charter have no reference to the fixing of minimum salaries for the city's officers and employees, because section 1 of article V of such charter by its express provisions places that power exclusively within the jurisdiction of the city council.

As we understand it, section 1 of article V was a part of the city's original charter. Among other things, it provides that the business affairs of the city shall be conducted by a mayor and four aldermen, who shall be elected by the people. Among others, it contains the following provisions:

"Compensation of all officers, except the Mayor and Aldermen, shall be fixed by the City Council, which may increase or diminish the same at will, or abolish entirely any office at any time, except as to the officers above mentioned, and until their two years' term of office expires."

Article VIIb of the city's charter was adopted in 1913 as an amendment to the original charter. It contains the initiative and referendum provisions thereof. Such provisions were not in the original document. Section 1 of such article reads as follows:

"Section 1. General Power — The people of Houston, in addition to the method of legislation hereinbefore provided, shall have the power of direct legislation by the initiative and referendum."

Section 2 of article VIIb provides the manner in which the initiative shall be exercised. Section 3 of the same article provides for the referendum. Section 4 of the same article reads as follows:

"Sec. 4. Submission by the Council— The Council, of its own motion, may submit to popular vote for adoption or rejection or repeal at any election any proposed ordinance or resolution or measure, in the same manner and with the same force and effect as provided in this Article for submission on petition."

Section 17b of article IX of the city's charter, which section was also adopted as an amendment to the original document in 1913, reads as follows:

"Sec. 17b. Publication of Ordinances and Resolutions — The City Secretary shall give notice of the passage of all ordinances and resolutions, except those granting franchises (which shall be published as now provided by the Charter), by causing to be published in some daily newspaper in the City of Houston at least once within 10 days after their passage and approval, the caption or title of such ordinances and resolutions, and such ordinance or resolution shall take effect and be in full force and effect from and after its passage and approval unless otherwise provided therein; provided, that all such resolutions and ordinances shall be subject to the provisions of this Charter for a referendum, and any action taken by authority of same shall be and become null and void should a referendum petition be filed on such ordinance or resolution as provided in Article VIIb of this Charter."

To our minds the provisions of the initiative and referendum amendments to the city's charter are plain and unambiguous. Prior to 1913, the power of the city to legislate was by the very terms of the charter vested exclusively in the city council. The very purpose of amending the charter by adopting the initiative and referendum provisions above mentioned was to change this, and give the people of the city the power to legislate direct, either by initiating the legislation themselves or by referendum passed by the council. A reading of section 1 of article VIIb, supra, discloses that it is very broad in its terms and expressly gives the people the power to direct legislation by the initiative and referendum. Also, it expressly provides, in substance, that such method of legislation is in addition to the method of legislation heretofore provided. The method heretofore provided was by direct and exclusive action of the city council. It is therefore evident that section 1 of article VIIb, in effect, expressly provides that the city, in addition to the power to legislate by action of the council, may legislate by vote of the people. Certainly under the original charter the council would have had the right to pass these ordinances fixing minimum salaries for the officers and employees named therein. It must follow that under the various referendum provisions of article VIIb the people now have the same right. In other words, we think article VIIb is very broad in its provisions and gives the people, except in certain instances, which we will later discuss, the same right to legislate that the council has. In a certain sense, under the city's charter, this right is even paramount to that of the council.

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. It follows that in a certain sense the prescribing of minimum salaries and wages for public officers and employees is but an expression of a public policy. We cite the following authorities upholding the right to fix salaries under the initiative and referendum provisions of city charters: State ex rel. Pike v. City of Belingham, 183 Wash. 439, 48 P.(2d) 602; State ex rel. Loe v. Davis, City Auditor, 41 S.D. 327, 170 N.W. 519; State v. Eastcott, 53 S.D. 191, 220 N.W. 613; State ex rel. Leo v. City of Tacoma, 184 Wash. 160, 49 P.(2d) 1113.

Further discussing the above matter, we think that the power of initiative and referendum, as provided for in the city's charter, is the exercise by the people of a power reserved to them, and not the exercise of a right granted. It follows 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. Ley v. Dominguez, 212 Cal. 587, 299 P. 713.

There are certain cases where, under the peculiar provisions of a city's charter or the peculiarity of certain legislation, it has been held that certain matters do not come within the purview of initiative and referendum provisions of city charters. The case of Southwestern Tel. & Tel. Co. v. City of Dallas, 104 Tex. 114, 134 S.W. 321, 322, cited by the association et al., is one of these. In that case there was an attempt to fix telephone rates within the city of Dallas by vote of the people under the initiative provisions of the charter. The charter expressly provided that the city should have the right, acting through its board of commissioners, to fix such rates after a hearing on their reasonableness. The court condemned the Dallas ordinance, not because the fixing of telephone rates was not a legislative matter, but because the charter expressly provided for a fair hearing before the commissioners,...