The opinion
On Appellee’s Motion for Rehearing.
In appellee’s motion for rehearing, he cites certain portions of the court’s statement of appellee’s pleadings as findings of fact by this court. For instance, the court, in its statement of the pleadings and - contentions of plaintiff below, said:
“Said commission adopted a resolution whereby this plaintiff was to be relieved of his duties as chief of police and fire marshal on June 1, 1927, whereas the term for which this plaintiff was appointed was for a period of two years from and after the 14th day of April, 1926.”
The court further stated:
“That plaintiff has performed the duties of said offices so that none of the grounds for removal as set out in said section 6 are applicable to him or to his conduct, and no such charge or charges have been made against him, nor has any notice of a hearing been given, nor has any hearing been had, nor has there ever been a unanimous vote in favor of a resolution calling for this plaintiff being relieved of his duties as chief of police and city fire marshal.”
As before stated, they were but statements of pleadings of the plaintiff below, and not statements of findings of fact by this court. Appellee’s counsel admits this to be true in his oral argument, but insists that the court must have found such to be the facts upon the record and the pleading of plaintiff in his sworn petition.
In the oral argument, the counsel states that the opinion of this court is correct, unless it miist be admitted and assumed, from the sworn petition and provisions of the charter, that the appellee was elected o-r appointed by the commissioners of the city of Electra for a period of two years, subject to removal only upon charges filed and the finding that appellee was guilty of such charges, so as to render him subject to removal. He urges that the cases of City of Paris v. Cabiness, 44 Tex. Civ. App.. 587, 98 S. W. 925 , and Ridgway v. City of Fort Worth (Tex. Civ. App.) 243 S. W. 740 , are in conflict with our holding that appellee was subject to removal by a majority vote of the commissioners, without any charges being filed, and that he be proved guilty of such charges.
In the Ridgway Case, by this court, opinion by Chief Justice Conner, it was shown that, under the charter of the city of Fort Worth, the board of commissioners had the power to remove any elective officer for incompetency, corruption, malconduct, malfeasance, or non-feasance in office, or such other causes as may be prescribed by ordinance, after notice in writing and opportunity to be heard in his defense, under the' rules and regulations therein. It was provided by ordinance that, with the exception of the corporation counsel, all officers and employees of the city of Fort Worth, whose position comes by appointment from the board of commissioners, may at any time be removed from office by a vote of the majority of said board, and in malting said removal, it was not necessary nor required to assign any reason therefor. It was further provided in the charter of the city of Fort Worth that the corporation counsel could be removed only “for such causes as would occasion removal of a member of the board of commissioners,” the manner, method, or procedure to be adopted by the commissioners in the ascertainment of the specified cause of removal not being provided for. This court held that inasmuch as the city of Fort Worth had not provided by charter or. ordinance the procedure governing the removal of the corporation counsel, and he being elected of appointed for a fixed term, subject to removal for cause, he was entitled to notice and a hearing in order that he might have an opportunity to defend himself. But in the instant case there is no such provision in the charter, but the charter does provide that city officers, including chief of police, “may be removed by a like majority vote of said city commission at the pleasure of said board of *501 city commission.” We think that the charter provision in article 4, § 3, does provide a method of removal of appellee here, and that it is specially provided that a majority vote of the commissioners may remove him and at the pleasure of the commissioners. That these provisions include the idea that, except as to the grounds and causes in article 7, § 6, of the charter, quoted in original opinion, appellee was subject to removal at the pleasure of the commissioners, without their giving any cause or reason for such removal.
Appellee urges that in the absence of any fixed term for the tenure of position of chief of police, under a sworn allegation in his petition that he was appointed for a period of two years, he would be entitled to hold said position for the two years’ term, in spite of the provisions of article 4, § 3, of the charter, unless he should be removed for good cause, after charges filed and a hearing had. He cites the ease of City of Paris v. Cabiness, 44 Tex. Civ. App. 587 , 98 S. W. 925 . Cabiness sued the city of Paris to recover the balance of salary alleged to be due him for two years subsequent to his appointment. His petition alleged that on a certain day, plaintiff was appointed policeman; that he entered on his duties the following day; that he performed his duties until a certain day, when without any fault on his part, and without charges, notice, or trial, the city marshal, without authority, dismissed him; that under the Constitution and laws, the tenure of his office was for two years; that he had continuously held himself ready to perform the duties of his office, but his name had been stricken from the roll, and his salary not paid; that no authority was vested in the city marshal to discharge him, but such authority was in the city council alone. The court said:
“Besides, it does not appear that his discharge was based upon any such ground. He qualified and entered upon the discharge of his duties. He was recognized under the appointment made, and his salary paid by appellant for three months without objection, and without any question being raised concerning the legality of his appointment so far as disclosed by the record. Under these facts it seems clear that he became an officer de jure, and entitled to hold the office to which he had been appointed for two years, unless lawfully ousted,” citing cases.
The opinion further states:
“Clearly the policy of this state is that all appointments to a public office shall be based alone upon the qualification and fitness of the appointee, and that the terms of all officers, except, perhaps, some special appointment to meet an emergency, shall be fixed by law, and are not the subject of contract. Where not otherwise fixed, article 16, §, 30, of the Constitution, limits the term to two years, and this provision has been construed to. fix the tenure of the constitutional term at two years, subject to the provision of removal for cause during that time. * * * The term of appellee’s office does not appear to have been fixed by appellant’s charter, by an ordinance, or by any statute of the state. Therefore section 30 of the Constitution, above referred to, and the construction given it, are applicable. The character of service was not a mere employment, but, as a result of his appointment, appellee acquired a franchise in thé office, and, upon his qualification, became entitled to the office and its emoluments for the period of two years (subject only to removal in the manner and for cause as prescribed by appellant’s charter), by law, and not by force of, but in spite of, any parol agreement he may have entered into with reference thereto with appellant’s city council.”
It does not appear that the charter of the city of Paris provided, as in this case, that appointive officers and employees might be removed by a majority vote “at the pleasure” of the governing body. We think this difference in the facts distinguishes the City of Paris v. Cabiness Case from the instant case.
The motion for rehearing is overruled.