Glass v. Smith

Justice Griffin,

joined by Justices Smedley, Garwood and Wilson, dissenting.

*647 I cannot agree with the majority opinion because I think the proposed ordinance is in conflict with the Firemen’s and Policemen’s Civil Service Act of 1947 as amended by Acts of the 52nd Legislature, 1949, and Articles 1582-3, Vernon’s Annotated Penal Code. I think the Legislature intended to make the civil service system, provided by the above acts, exclusive. I believe that these acts limit the authority to classify the positions held by firemen and policemen exclusively to the Civil Service Commission whose acts shall be carried forward- by ordinances passed by the city council or other governing body of the city which has adopted the Civil Service Act of 1947 and 1949. It is admitted that the City of Austin has, by popular vote, adopted said acts.

The caption to Acts, 50th Leg., Reg. Ses., (1947) p. 550, states that it is “creating a Firemen’s and Policemen’s Civil Service in cities having a population of ten thousand (10,000) inhabitants or more,” and “providing for the civil service classification of Firemen and Policemen”. The caption to S. B. 71, Acts, 51st Leg. Reg. Ses., (1949) p. 1114, amending the original Civil Service Act for Firemen and Policemen, among other things, provides: “* * * requiring and regulating competitive examinations and classification of applicants for classification and employment as firemen or policemen; * * *” Section 1 of the Act establishes, in certain cities named therein, “a Firemen’s and Policemen’s Civil Service.” The wording of the last two paragraphs of Section 3 of the Act clearly shows that the Legislature intended this Act to be exclusive as to civil service benefits for firemen and policemen. The next to the last paragraph of Section 3 states that in those cities having in existence at the time of the passage of the Act, a civil service commission, such commission shall serve for this Act and that the “said Commissioner shall administer the Civil Service of Firemen and Policemen m accordance with this law.” The last paragraph provides forxthe appointment of successors to a Civil Service Commission existing at the date of the passage of the Act in such manner “as will cause a staggered or rotating system of terms to conform with the provisions of this Act.” This language, to my mind, can have no other meaning than that the Legislature, by the passage of the Act, intended to vest exclusive control of the Firemen’s and Policemen’s Civil Service in agencies set out in the Act, to the exclusion of all others.

To the same effect is the language of the last sentence of Section 6, wherein it is stated that any existing Director of Civil Service “shall be the Director of the Firemen’s and Police *648 men’s Civil Service, but we shall administer civil service pertaining to Firemen and Policemen in accordance with this law.” In Section 9, which has to do with the powers and duties of the Commission with reference to examinations for original appointment or promotion, it is said: “* * * The age and physical requirements shall be set by the Commission in accordance with the provisions of this lorn and shall be the same for all applicants. * * *” Again," the last part of the second sentence of Section 12, which deals with probationary and full-fledged firemen and policemen, states: “* * * to discharge all Firemen and Policemen whose appointments were not regular, or not made in compliance with the provisions of this Act, or' of the rules and regulations of the Commission, * * *” (When italics are hereafter shown, we have added same.)

The last sentence of the first paragraph of Section 12 of the Act is as follows: “all positions in the Fire Department, except that of Chief or head of the Department, and in the Police Department, except that of Chief or head of that Department, shall be classified by the Commission and the positions filled from the eligibility lists as provided herein.” The last sentence of the first paragraph, Section 14, Subdv. D, states: “No person shall be eligible for promotion unless he has served in such Department for at least two (2) years immediately preceding the date of such promotional examination in the next lower position or other positions specified by the Commission * *

Section 14 deals generally with the powers and duties of the Commission over promotions, and examinations of candidates for positions, or promotion, and eligibility lists for filling vacancies by appointment and promotion. All these powers and duties are given to the Commission in such language that it seems to me no logical contention could be made that such powers and duties could be exercised by the people through an initiative and referendum election; but all such powers and duties are vested exclusively in the Commission. Respondents admit that exclusive powers over the administrative actions in connection with the establishment of a civil service system are vested in the agencies created and described by the Legislature in the Act. I cannot read the Act and find any difference in the language used by the Legislature with regard to the legislative duties in connection with establishing a civil service system, and in regard to the administrative duties. When the Act says it “shall supersede all other civil service pertaining to Firemen and Policemen in the cities covered hereby”, it does not exclude *649 legislative actions to be taken, but by plain and express language it supersedes “all other civil service, etc.” Not having excluded legislative action from the terms of the Act, I do not see how it can be contended, with any degree of logic, that the Legislature did not mean what it said, to-wit: to “supersede all other civil service, etc.” I do not see how the Legislature could have more clearly and plainly expressed its direction that this Act should be the exclusive and only law governing Civil Service.

The last subdivision of such Section 14 is as follows: “G. In the event any new classification is established either by name or by increase of salary, the same shall be filled by competitive examination in accordance with this law.” To my mind, this can mean only that the classification can be established wholly, solely and only by the Commission.

The provisions of Section 8 of the Act are specific that “the Commission (meaning the Civil Service Commission) shall provide for the classification of all Firemen and Policemen. Such classification shall be provided by ordinance of the City Council, or legislative body. Said City Council, or legislative body, shall prescribe by ordinance, the number of positions of each classification.” This section clearly prevents the “City Council, or legislative body” from making classifications as an original proposition, but confines the City Council to passing ordinances to carry into effect the classifications made by the Commission. It is admitted by the majority that if the Act prevents classifications by the City Council, it would also prohibit classifications by initiative and referendum. To my mind, one has only to read the Act, keeping in mind the purpose of the Legislature when passing it, to see clearly that the City Council cannot, as an original proposition, make classifications of the jobs and positions involved.

According to Webster’s New International Dictionary, 2nd Ed., “provide” as a transitive verb means: “2. To look out for in advance; to procure beforehand; to prepare. 3 To supply for use; afford; contribute; yield. 4. To furnish; supply; stock.” Also as an intransitive verb: “1. To take precautionary measures in view of a probable or possible need to make provision. 2. To make proviso. 3. To make ready; to prepare for the future.”

Section 23 sets out that “The Commission shall cause to be published all rules and regulations which may be promulgated by it, and shall publish classifications and seniority lists for each Department, and such rules and regulations and lists shall be made available upon demand.” Finally, and in my opinion, to *650 put the cap stone on the proposition that classification shall be exclusively by the Commission, through ordinance of the City Council, or other governing or legislative body, the first sentence of Section 28 provides: “This Act shall supersede all other civil service pertaining to Firemen and Policemen in the cities covered hereby.” This sentence was contained in the original 1947 act, and when that act was amended in 1949 for the express purpose of clarifying the original act, this particular sentence was left unchanged. Therefore, the provisions of the Act are exclusive and only the Commission can classify positions, and this classification is to be effective through an ordinance of the City Council or other governing body of the city.

In addition to the detailed provisions of the Civil Service Act above referred to which clearly evidence the intention on the part of the Legislature to confer by the Act exclusive authority upon the Civil Service Commission and the City Council to deal with the subject matter of the proposed ordinance, namely, the classification of the Firemen and Policemen employed by the City, the purpose and scope of the Act as a whole are such that it must necessarily be given that construction.

The Act sets up an elaborate Firemen’s and Policemen’s Civil Service, creates a Commission with full authority to administer the civil service in accordance with the provisions of the Act, authorizes the Civil Service Commission to provide for the classification of all Firemen and Policemen, requires the City Council to provide by ordinance for the classification so set up by the Commission, provides for examination and eligibility lists on the basis of the examination for appointment and for promotion, provides for probationary periods of service as a condition to the enjoyment of full civil service protection, sets out methods of promotions which are made from eligibility lists and to those having the highest grades on the eligibility lists, which promotions necessarily are incidents to and a part of the classification, gives power of indefinite suspension but makes that subject to appeal to the Commission with hearing, and with the right of appeal to District Court, makes provision for demotion and disciplinary action, etc. The Act plainly, by reason of the above mentioned provisions, is intended to give full civil service benefits and protection to Firemen and Policemen and to assure them, after examination proving their fitness, employment and protection with consequent higher classification and compensation. In so doing the Act gives the Firemen and Policemen security and permanency of employment and opportunity for promotion in accordance with the carefully *651 planned civil service set up by the Act. That kind of civil service cannot be effective unless it has permanency. Change from time to time in the classification of the Firemen and Policemen by ordinance initiated by petition and submitted to the voters of the City would be destructive of the whole elaborate plan set up by the Act, particularly in that it would destroy the permanency of the plan and would deprive Policemen and Firemen of classification that they had attained and earned in the systematic operation of the Act. Without permanency the Act cannot perform a useful service, and to give permanency it must be construed as exclusive in so far as classification of Firemen and Policemen is concerned.

It may be observed that denial to the voters of the City of a right by the initiative process to change the provisions of the Civil Service Act with respect to classification of Firemen and Policemen is not contradictory of government by the people. The Civil Service Act is a general law, but it became effective in Austin, as the Act provides, only when the majority of the people voting at an election determined that the provisions of the Act should be adopted. The voters were free to reject the adoption of the Act and to leave the classification of Firemen and Policemen to another means or method, but when they adopted the Act, which is an elaborate general law, effective only if given at least a degree of permanency, they made its provisions a general law applicable to the City and its provisions were not subject to change except by repeal at an election which could be called only after the Act had been in effect in the City for a period of five years. See Section 27 (b) of the Act.

Further, the proposed ordinance conflicts with Article 1583-2, Section 3, Penal Code, as follows: The provision of the charter of the City of Austin, under which the election is sought to be held, provides that upon the presentation of a proper petition submitting to the City Council a proposed ordinance, the Council shall (a) pass the ordinance set out without alteration within ten days after date of clerk’s certificate of sufficiency; or (b) submit the same to the qualified voters within forty days from the date of said certificate, unless there is a general municipal election within 90 days thereafter, in which event the proposed ordinance without alteration therein, shall be submitted at such general election. Article 1583-2, Section 3, Penal Code, provides “that all municipal governments affected by this Act, shall, within thirty (30) days following such enactment, set up classifications in Police and Fire Departments, * * * To follow the charter provision would be to violate the quoted part *652 of Article 1583-2, Penal Code, and subject the city officials to a heavy fine for each day’s delay. Such could not have been the intention of the Legislature, and this Court should not so declare the law.

It is admitted by all parties that Article XI, Section 5 of our State Constitution provides that no city charter shall contain any provision inconsistent with the general laws of this State, and that no charter may confer rights upon its citizens which violate this part of our State Constitution. Believing, as I do, that the proposed ordinance is violative of the general laws of this State, as I have set out in detail above, I am forced to the conclusion that such ordinance is void.

Having decided that the proposed ordinance is void, and would be of no force and effect if it should be put to a vote and a majority of the electors of the City of Austin vote in favor of the ordinance, we must next decide if the writ of mandamus shall issue to force the proper city officials to proceed with the election.

Respondents in this court take the position that the cases of City of Austin v. Thompson, 147 Texas 639 , 219 S.W. 2d 57 , and the City of Dallas v. Dallas Consolidated Electric St. Ry. Co., 105 Texas 337 , 148 S.W. 292 , and other cases wherein an injunction- was sought to prevent an election, are authority for their right to the writ of mandamus herein. I do not think so. Those cases are for an injunction, while this is an application for writ of mandamus.

In 34 Am. Jur. 829 , Mandamus, Sec. 32, it is said:

* * the writ will not issue in doubtful cases, but only where the right involved and the duty sought to be enforced are clear and certain and where no other specific and adequate mode of relief is available to the complaining party. Likewise the writ will not be granted where it would serve no useful purpose, or where it would work hardship or injustice, or be detrimental to the public interest.”

“It is apparent from the drastic and extraordinary character of the writ of mandamus that courts act with caution in respect to it and award it only in cases where it clearly appears that under the law it ought to issue. The right and the duty must be clear; for the writ will not be granted in a doubtful case, and especially not where, if granted, it would not be effectual.” Id., Sec. 36, p. 831.

*653 “* * * The writ will not issue if for any reason it would be useless or unavailing, nor for the mere purpose of determining an empty and barren technical right on the part of relator, nor where it is apparent to the Court that the object sought is impossible of attainment. * * *” 28 Tex. Jur. 524.

As stated in the note found in 30 ALR 378 , et seq.:

“* * * Despite, however, the conflicting points of view which have been taken, which have resulted in apparently conflicting decisions on the question under annotation, the courts seem in general to have followed a line of thought which, though not expressly or definitely brought out, or always adhered to, furnishes a general rule commonly applied; and that is that a merely ministerial officer, whose duties are of a subordinate character, imposing on him no personal obligation or liability, is not allowed to question the validity of a statute in a mandamus proceeding to compel his obedience thereto. Practically, however, when the constitutional objection is probably well taken and the consequences of enforced obedience to the statute, if in truth unconstitutional, would be serious, the courts not infrequently avoid the effect of the rule by making an exception where public interest is involved, or where in the circumstances the obedience to the requirements of the statute would violate the oath of office, or by ignoring the rule altogether and proceeding to consider the constitutional question without discussing the right to do so.”

Also in 129 ALR 944 , we find stated the rule in Texas as follows:

“The view which is opposed to the general rule first above stated has also been more recently expressed. Thus, in Holman v. Pabst (1930), Tex. Civ. App., 27 SW (2d) 340 , on an application for mandamus for freeholding taxpaying citizens against a county judge and members of a county commissioners’ court to compel them, in their official capacities, to order an election to determine whether certain stock should be permitted to run at large in the county, pursuant to a statute providing for such determination, the court, in holding that the respondents could question the validity of the procedure set up by the act, said: ‘That appellants, constituting as they did the governing body in all Galveston County’s varied public business, although having no personal pecuniary interest to be affected, and despite the fact that calling the election may have constituted only a ministerial act or duty, were not beyond the pale of proper privilege in challenging the constitutional *654 validity of two alleged acts of the legislature, in virtue of which alone it was sought to control their official action by so drastic a proceeding as the writ of mandamus, is not, we think, to be doubted, notwithstanding the existence of such cases as State ex rel. Atlantic Coast Line R. Co. v. Board of Equalizers (1922) 84 Fla 592, 94 So. 681 , 30 ALR 362 ; State ex rel. New Orleans Canal & Bkg. Co. v. Heard (1895) 47 La Ann 1679, 18 So 746, 47 LRA 512; and Threadgill v. Cross (1910) 26 Okla 403, 109 P 558 , 138 Am St Rep. 964, seemingly holding otherwise; the contrary view, upon what we regard as much the better reason, has been applied in these decisions: Huntington v. Worthen (1887) 120 US 97 , 30 L ed 588, 7 S Ct 469 ; Van Horn v. State (1895) 46 Neb 62, 64 NW 365 ; Hindman v. Boyd (1906) 42 Wash 17, 84 P 609 ; State ex rel. University of Utah v. Candland (1909) 36 Utah 406 , 104 P 285 , 24 LRA (NS) 1260, 140 Am St Rep 834. The rationale of these last-cited holdings is that, as an unconstitutional act of the legislature is no law at all, the courts have no power to compel anyone — much less a public body or officer — to obey it; by all the authorities, a writ of mandamus to compel a public officer or body to perform some act or duty will not issue unless and until it is shown that the performance thereof is clearly imposed by law upon him or it, and that a correlative legal right to have it performed is vested in the applicant for the writ.’ ”

Writ of error in the Pabst case was refused by this court. To the same effect is the holding of this court in McCutcheon v. Wozencraft, 116 Texas 440 , 294 S.W. 1105 ; City of Galveston v. Mann, 135 Texas 319 , 143 S.W. 2d 1028 ; and of the Court of Civil Appeals at Fort Worth, writ dismissed, in the case of McCarty, et al v. Jarvis, et al, 96 S.W. 2d 564 . I fail to find where this holding in the above cases has been questioned by any Texas court. Therefore, I would reverse the judgment of both courts below and render judgment that the respondents take nothing.

Opinion delivered November 28, 1951.

Rehearing overruled January 16, 1952.