# City of San Antonio v. Coultress

> Court of Appeals of Texas · June 22, 1914 · 169 S.W. 917

URL: https://www.frixlaw.com/law-library/cases/9833307

## Case

- **Full name:** City of San Antonio v. Coultress.
- **Court:** Court of Appeals of Texas
- **Decided:** June 22, 1914
- **Citations:** 169 S.W. 917; 1914 Tex. App. LEXIS 817
- **Precedential status:** Published
- **Opinion:** On rehearing
- **Judges:** Carl
- **Cited by:** 14 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9833307

## Opinion text

On Motion for Rehearing.
The city of San Antonio has filed a motion to have corrected the findings of fact so as to show that the name of appellee, Coul-tress, was taken off the pay rolls as a policeman when he was discharged. This is correct, for it is alleged in plaintiff’s second amended original petition, which reads in part as follows:
“Sixth. * * * And continued to discharge them until on or about the 24th day of August A. D. 1912, when plaintiff was illegally discharged * * * and his name was taken oft the pay rolls of the city. * * * ”
.“Appellee charged and appellant admitted— besides it was proven and not denied — that his name was taken off the pay roll by the city authorities after his illegal discharge.”
This last is taken from the brief of appel-lee. What we should have said is that the usual appropriations were made in the budgets for the place Ooultress had held, but we do not find that such provisions were made for his salary, or for any particular place. His name was taken off the pay roll about August 24, 1912, and thereafter he was considered as discharged by the city authorities. This motion is granted and the original findings of fact modified as herein indicated.
Appellee, in his motion for a rehearing, insists that the laws of the state of Texas and the courts recognize a policeman as an officer. We do not deny this, but that is not the matter before us. The question here is as to whether that office has been legally created; for if it has, then certainly the law recognizes the office. But when our statutes and courts recognize such office, it presupposes a legal creation of the same. But the fact that the position is acknowledged by law to be an office does not lead to the conclusion that because tile law recognizes such office, the same need not be legally created. The office only comes into existence when created in a legal manner, and when that is done, of course the state law recognizes the office. The state law recognizes the position of county auditor, and yet some counties have them and others do not. It is only when the place is created in the manner provided by law that the same is entitled to recognition as an existing office.
It is contended that the two ordinances, one dated March 2, 1903, and the other contained in the revised ordinances in force August 1, 1899, and published by authority of the city council, as authorized by sections 219 and 220 of the 1870 charter, became effective before the present charter of 1903, *922 and are therefore not founded upon it, because section 50 of the 1903 charter continues them in force. That section reads in part:
“And all ordinances of the city of San Antonio now in force not contrary to the provisions of this act and the laws of this state shall continue in force until repealed.”
But these ordinances would be in conflict with the charter of 1870, almost, if not entirely, as much as with the present charter or the charter of 1903. For when we examine the 1870 charter we find that section 42, in enumerating what powers the council has, says: “ * * * And shall have power by ordinance.” Then with various sections beginning with the phrases, “To borrow money,” “To appropriate money,” etc., on down to section 50, where we find: “Sec. 50. To establish, regulate and support night watch and police, and define the duties thereof.” This clearly refers back to the requirement that this be done by an ■ ordinance. So, whether we look at the proposition from the standpoint of the 1870 charter or the present one, there is practically no difference. The whole matter summed up is that the department must be established by an ordinance, and the office of policeman cannot be created by resolution. Appellee has not shown that the office he seeks to recover (or rather the salary thereof) has -ever. been legally established.
Appellee’s motion for a rehearing is overruled.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9833307. Public record. Not legal advice.