The opinion
*456 On Motion for Rehearing.
The very earnest motion for rehearing presented by appellees’ attorneys has received our careful consideration, but fails to raise any doubt in our minds of the soundness of our decision of the questions presented by the record of the case. The criticisms in the motion of some of the conclusions expressed in our main opinion are apparently due to a misconception of the grounds upon which the conclusions are based, which may have been caused by the failure of the writer to more fully and clearly state such grounds.
The first complaint presented in the motion is thus stated: “Because the Court erred in holding that because the Appellee, Oscar F. Holcombe, assigned no reason for discharging the Appellant, the provision of Section 2, Article 5 holding in substance that the Mayor may remove employees in the service of the City for cause whenever in his judgment the public interests demand or will be better served thereby, cannot be invoked by appellees to support the discharge of Appellant, W. R. (Bobby) Ellis.”
We made no such holding, and we find nothing in our opinion which seems to us can be reasonably construed as making the holding stated in the motion. The statement in the opinion that the mayor in his letter of discharge “gives no intimation of the cause (of appellant’s removal) further than may be inferred from the statement that Director Woods in his letter of May 1st, removing appellant, was acting under the mayor’s instructions,” was not intended, and we do not think can be reasonably construed, as a holding that because of this failure of the mayor to more specifically state the cause of appellant’s discharge, he cannot now claim that the discharge was made for cause. This statement was inserted as showing, by its indorsement of Wood’s statements in his letter removing appellant, that such removal was not for cause.
But regardless of whether this is a sound conclusion, there was a general demurrer to appellant’s petition, and the correctness of the trial court’s ruling on the demurrer is the final question presented by the appeal. As pointed out in our former opinion, the petition alleges facts which, if true, and upon general demurrer they must be taken as true, show that the reason for appellant’s discharge was political and not for any cause affecting his character, or his qualification for the discharge of the duties of his employment, or that he had ever been unfaithful in the discharge of those duties.
From other conclusions expressed in the opinion, it is clear that this court holds that under the civil service amendment to the charter, the mayor, if he could directly discharge for cause any of the city officers or employees classified under the charter provision as civil service employees, cannot, by so removing such classified employees, deprive them of their right of appeal to the civil service commission. We do not think, however, he can act directly in such removal. The civil service amendment requires such removal to be made by the head of the department under which the employee is working and the department head must first suspend the officer or employee, and such suspension does not become permanent unless the employee fails to appeal to the civil service commission within the time fixed by the civil service amendment, or unless upon such an appeal the commission decides that the employee shall not be reinstated. This construction of the amendment in no way lessens the authority and duty of the mayor to be vigilant in requiring all officers and employees of the city to faithfully discharge their duties. If he learns, or is informed, that any of such employees are not so discharging their duties, he can, just as he did in this case, instruct the head of the department in which the employee is classified to make the remov-, al or suspension, and such suspended em-' ployee could then appeal to the civil service commission for final decision of whether his removal should be made permanent. Under the civil service amendment the may- ‘ or or city council have power to remove any head of department when in their judgment the best interests of the city will be sub-served thereby, and it follows that direction of the mayor to remove any employee for cause would be followed by any head of a department so directed who eared to retain his office.
The second error assigned in the motion is: “Because the court erred in holding that the Oivll Service Amendment to the Charter of the City of Houston superseded and repealed those sections of the Charter which gave the Mayor and the City Council the power to remove or discharge employees of the City of Houston.”
1-Iere again it can be said this court made no such holding. Attorneys for appellee® seem to ignore the plain and unambiguous statements in our former opinion which ex *457 pressly limit our conclusions, restricting the power of appellees to discharge at will, to officers and employees classified in accord' anee with the provisions of the civil service amendment.
The third 'assignment in the motion is: “Because the Court erred in holding that when the Civil Service Amendment to the Charter of the City of Houston expressly provides that any of the employees and officers of the City classified under the Civil Service Amendment may he suspended by the head of the department in which he is employed and further provides that the decision of the Civil Service Commission upon appeal thereto of the employee or officer so suspended shall be final, it prescribed the only method for removal of such employee.”
This assignment correctly states the holding of this court. The soundness of this holding seems so clear to us that we do not deem it necessary to add anything in its support to what is said in our main opinion. However, we add, as we have before indicated in this opinion, that section 3 of the civil service amendment, which,is set out in our main opinion, under the title of Bemoval of Employees, provides in substance that the removal of civil service employees shall be accomplished by a suspension of the employee sought to be removed by the head of the employee’s department, and such suspended employee shall have the right of appeal to the civil service commission, and the suspension shall not become permanent unless sustained by the commission. We adhere to our conclusion expressed in our former opinion that this is the exclusive method provided by the city charter for the discharge or permanent removal of officers or employees of the city classified as civil service employees in accordance with the provisions of the civil seryice amendment. The fact that the case of Bryan v. Sundberg was not a case involving the construction of laws pertaining to the removal of public officers and employees in no way affects or lessens the force of its declaration of the rule which generally applies on the question of repeal by implication, and which we think is the rule applicable to that question upon the facts of this case.
The next complaint in the motion attacks the conclusions of the court that the provisions of the civil' service amendment ‘‘create a new mode or system of selecting employees for appointment to municipal positions in the service of the City of only those found qualified by the Civil Service Commission for the duties of their employment and are so classified as directed by the Amendment, and also provide an independent method for the removal of employees so selected and qualified”; and that such methods must be held exclusive, and to supersede all previous conflicting provisions of the charter respecting the appointment and removal of such classified employees. This conclusion is assailed on the ground that in so far as it relates to the appointment of employees to nonpolitieal positions it is ob-iter dicta. This criticism may be technically justified, but how does it harm appellees? The writer did not have in mind the question of obiter dicta when he wrote the conclusion complained of, but the new methods for the selection and removal of civil service employees of the city are so interwoven in the amendment that the clear purpose and intent evidenced by the language of the civil service amendment is that these methods for selection and removal were both exclusive. The court feels under no compulsion to withdraw this conclusion, since our. views upon the question of appointment cannot possibly affect the question involved in this case, or the right of the mayor to arbitrarily remove a civil service employee of the city of Houston.
The two remaining assignments in the motion complain of what appellees contend are contradictions or inconsistencies in the construction placed by us upon the civil service amendment. The last of these assignments is: “In the event the Court in its opinion held that the power of the Mayor to discharge has not been entirely taken away by the Civil Service amendment to the Charter, but that by said amendment said power of discharge has been limited and restricted to that of suspension only and that said suspended employee may appeal from said suspension to the- Civil Service Commission as is provided in Article 5a of the Charter, then the Court erred in so holding.”
If we have not already made ourselves clear* upon the question of the right of the mayor to discharge a civil service employee, the writer must despair of being able to make himself clear to attorneys for appellees. It follows from what we have said that the motion for rehearing should be overruled, and it has been so ordered.
There is, however, one paragraph of our main opinion, not referred to in the motion, which contains needless repetitions which tend to produce some ambiguity in the statement therein made. This confus *458 ing statement in the opinion is found in the discussion of section S, art. 7, of the charter, on page 453 [of 69 S.W.(2d)] of our former opinion. The whole section had. been previously copied in the opinion, and we should have only set out in our discussion of the question then being considered the following clause in the provision of the section: “and any incumbent of any office, except the Comptroller, may be removed at any time by the Mayor, with or without the concurrence of the Council.” This is the part of the section under which appellee mayor claims the right to remove the appellant and which we hold in the main opinion was repealed by the civil service amend-ment so far as it relates to civil service employees.
Motion refused.