Thaison v. Sanchez

• Decision Date: 11 March 1896
• Citation: Thaison v. Sanchez, 35 S.W. 478, 13 Tex.Civ.App. 73 (Tex. App. 1896)
• Parties: THAISON v. SANCHEZ et al.
• Court: Texas Court of Appeals

35 S.W. 478

THAISON v. SANCHEZ et al.

Court of Civil Appeals of Texas.

March 11, 1896.

Appeal from district court, Webb county; A. L. McLane, Judge.

Action by Dario Sanchez and others against A. Thaison and others for an injunction. From a judgment for plaintiffs, defendant Thaison appeals. Affirmed.

A. Winslow, John A. Valls, and Oscar Bergstrom, for appellant. E. A. Atlee and Dodd & Mullally, for appellees.

JAMES, C. J.

The case was submitted to the district judge upon an agreed statement of facts made out and signed by counsel for the respective parties, and certified by the court to be correct. Under article 1293, Rev. St. 1895, this and the judgment constitute the record in the cause. We think that in such case, by reason of the statute, issues in regard to the pleadings are laid aside, and the only question is whether or not the judgment rendered was the proper one, upon the agreed facts. Therefore we need not consider the assignments Nos. 1 and 2, which refer to the overruling of demurrers to the petition.

It appears that in 1889 the city council, by an ordinance provided for the office of recorder (article 361, Rev. St. 1879) making it the duty of the council to appoint such officer immediately upon the adoption of the ordinance, and thereafter annually, at the installation of each new city council; defining his duties as they are provided in the statute, and providing also that he should receive a fee of $2.50 in each case "tried and convicted before him." This ordinance has not been repealed. It seems, further, that for the four years prior to April, 1895, the council had not appointed a recorder, and the mayor, by virtue of articles 357 and 361, acted as such officer; the court being known, in the language of the statute, as the "Mayor's Court." Prior to January 1, 1895 (in December, 1894), the council, in anticipation of the election of April, 1895, adopted a resolution (an ordinance not being necessary) fixing the compensation of the mayor to be elected for the two years commencing April, 1895; providing that he should receive no salary, but should receive the fees of the mayor's court. Appellant, Thaison, was elected, and immediately, in April, 1895, the council complied with the existing ordinance of 1889, and appointed C. C. Pierce as recorder, who entered upon the discharge of his duties, and has received the emoluments thereof, which, in the absence of other evidence thereof, we take to be the fees attached to the office by the ordinance of 1889. In September of 1895 the council, by resolution, voted the mayor a salary of $150 per month, to commence from his qualification as mayor. Thereupon a warrant was issued to him for $685, and this suit was instituted by resident citizen taxpayers to enjoin the payment of the warrant, and to enjoin the issuance of future warrants under the said resolution.

Article 498, Rev. St. 1879 (article 569, Rev. St. 1895), provides that "the council shall, on or before the first day of January next preceding each and every election, fix the salary and fees of office of the mayor to be elected at the next regular election, * * * and the compensation or salary so established shall not be changed during the term for which said officers shall be elected or appointed." The ordinance of 1889, so far as it fixed the fees of the recorder, would not seem to answer the purposes of said article, in its application to the election of April, 1895. In December, 1894, the council determined the compensation of the incoming mayor by denying him any salary, and giving him the fees of the mayor's court, without, in such resolution, specifying these fees. The purpose was to give the mayor what fees should accrue to him by virtue of his office, while acting as recorder during his term. The council, when it passed the resolution, probably expected there would be no recorder, as had been the case...