City of San Antonio v. Kneupper
330 S.W.2d 205
Tex. App.
1959
Check Treatment

*1 County plea after a guilty Appellant, BRUTON, Christene County, Court at Law No. Harris jury guilty found her her assessed v. punishment at a fine of $5. Appellee. Texas, STATE of imposed The fine 31259. County No. Court $100, not exceeding this court without Appeals Texas. of Criminal Court jurisdiction any enter herein order Dec. 1959. other than dismiss appeal. Art. Ann.C.C.P.; State, Perry v. Tex.Cr.App., 308 S.W.2d 890. is dismissed.

Opinion approved by the Court. al., Appellants, CITY OF ANTONIO SAN et al., Appellees. Ernest KNEUPPER et No. 13499. Appeals

Court of Civil of Texas. San Antonio.

Oct.

Rehearing Denied Nov. Rehearing Second Denied Dec. Divine, Houston, appellant. C.C. Walton, Atty., H. Dist. Samuel

Dan Robertson, Jr., Howell E. Stone Jack Houston, Rawitscher, Attys., Dist. Asst.

J. Austin, Douglas, Atty., State’s B. Leon State.

BELCHER, Commissioner. Corpora- convicted was

Appellant of Houston of the

tion soliciting punishment and her

offense at a fine From assessed $50. appealed she her trial *2 Cadena, Atty.,

Carlos C. Charles L. Smith, City Atty., Antonio, Asst. San for appellants. Spears,

Adrian A. San pellees.

BARROW, Justice. compel mandamus suit ais This Antonio appellants, City, of said to reinstate Police Chief and Atilano Ernest appellees, po- to restore each to the and S. sition, rank, class of status and San suspended, and for the re- he was back their covery and defendants each mov- Plaintiffs summary judgment in the ed plaintiffs’ granted trial court court. overruled motion. defendants’ motion plain- rendered in favor Judgment tiffs, judg- from that ment. Collector, Park- right case involves Division, respective performed their appellees from discharge City. other *3 by and employed February, 1957, Appellees were both In this Court handed Department employees of the Police down in

were the the case, Castillo su- had pra, and City affirming of San the the of of the trial the prior to restoring more than six months both po- to their Policemen’s sitions, of Firemen’s the and giving enactment and them judgment for back in Act, pay continued full, Service and in Civil City paid which the up May to dis- in matters capacity least until the as employed Kneupper was pute arose. After the final decision in case, the the Antonio carpenter the San in maintenance Chief of assigned appellees Police the to col- as a Department, and Training Program, Cadet although, under Division Parking the Meter lector plain provisions the 1269m, of Article and will who Department. appellants, said the decisions of the construing Courts said City, present sev- the hereinafter called statute, authority has he no to do so. On questions: only points, but two main eral 25, 1957, he charges against ap- filed discharged (1) legally Were pellees charging them alleged with cheat- Are Department? (2) the Police which, on an examination under the pay, lon- pellees entitled to recover back law, they required take; were not to and rate of pay and at the gevity sick leave charged them inability perform also with pay patrolmen? base officers, the basic duties of law enforcement undisputed. In following are facts ability they not, law, under the virtue of policemen by required possess in order to fill their Ann. provisions of the respective positions. Appellees appealed Hand Antonio Civ.Stats. of San charges these to the Civil Service Com- 608; City Tex.Civ.App., ley, 308 S.W.2d mission. Tex.Civ.App., Cox, of Wichita Falls v. 317; after day v. Cas On the next the City of San Antonio Chief Po- S.W.2d 691; City tillo, Tex.Civ.App., charges, lice filed his the S.W.2d Council Tex.Civ.App., passed 25,124, Hahn, Ordinance No. which, Antonio v. omit- 162; portions, Wiley, ting immaterial of San Antonio v. follows: Tex.Civ.App., 252 S.W.2d 471. “Whereas, by judgments entered on City attempted In the under a re- 31, 1956, position January the classifi- plan organization remove certain em- Carpenter cations of Maintenance and n appellees, the ployees, including Po- Collector, Parking Meter Division Department protection out lice and of the recognized directed to be the Civil Service Law. was held of the City of San Antonio until such time supra. case, illegal Handley void in the position classifications are Kneupper’s reorganization plan Under City Council; abolished position Public was transferred “Whereas, longer there is no a need Castillo’s, Department, and to the Works classification in for such the Police Tax Collector’s Department City; Now, There- contracted the work of fore, By It Be Ordained collecting (Castillo’s from parking meters Council of of San Antonio: Service, job) Armored Motor Inc. position “1. Since face classifications of 1269m,supra, holding Collector, cases, Parking Division, in the above work of the San are abol- nance abolished the ished.” the Police the Courts have power inquire into the motives and hearings, After the Civil Serv- several good Council, faith the rea- ice the above men- Commission dismissed son that passage an ordinance appellees re- charges tioned and ordered legislative capacity. acts a “position stored former or status.” to their We overrule that contention. 12, 1957, Chief August On of Police appellee, dismissing wrote a to each inquiry letter No need be made. The only him status. Both let- changed from his attempt, its in its course *4 language, and long ters were in the same the standing, ignore plain to and evade the letter as follows: to reads Legislature the mandates of the deci- Courts, sions of the time after rendered “The Firemen’s and Policemen’s time. attempts now to do what Civil Service Commission dismiss- under it do, by the law cannot ingenious the preferred against I charges ed which adopting method of an ordinance. you, my you letter as reflected in to 28, May of 1957. Ordinances in which are conflict position Maintenance Car- “Your as with the Constitution or the law the of penter longer no exists in the Police 301, State are void. 30 Munici Tex.Jur. by Council or- pal Corporations, of a Ordinances § the dinance abolished classification of Home Rule subject at all times are to May 29, Carpenter on all power constitutional limitations of in the dismissed, therefore You protection property. City 29, pay Your to May effective Co., Wichita Falls Continental Oil 1957, May 29, will be forwarded to 256, Tex. 1 S.W.2d 596. you. Article Section 21 of applicable “Under The rule to this case has you placed be on a re- are entitled to been stated as follows: list for classification instatement the “ * * * Although it has been held Carpenter. You are of Maintenance may inquiry that not be made into the you herewith notified that have been exercising power, motive in the since placed such a reinstatement list.” on enough power exists, it that the is the It is that were not admitted weight authority is the effect any fact, placed reinstatement list. on that power the exercise must be * * that no list exists admitted such it is faith, good 62 C.J.S. placed. can It is also Municipal Corporations 585, p. 1179. § seniority there admitted that exists list (Emphasis supplied.) governing the demotion of un- “* * * A position civil service 21, of Section der may good faith, as, be abolished in 1269m. example, where there no longer is a Neither the public necessity for its continuance or Ap- of the Court of nor the Civil where its abolition is advisable pur- any contains peals in Castillo case poses economy. Nevertheless, good 25,- language that used Ordinance No. as cases is essential. The faith 124, restoring their civil laws service cannot be by evaded a time as such “until such classifi- pretended abolition, or sham as where are abolished Council cations the incumbent of an ousted, office is a contends, time, first change now colorable made in the title of office, person appointed inasmuch ordi- and another month, plus substantially the same du- perform longevity, May 1957, 29, 1957, (Emphasis month, Am to December 933 12. ties.” and $360 § Jur. plus longevity, supplied.) from January date judgment. Supreme Court by the As said It is disputed not that on the date of their Gilmur v. ex Washington State rel. discharge and during period said entire “To P. 61: 91, 145 Seattle, 83 Wash. from the date of the discharge in purpose of office, the sole with an abolish appellees held the rank and Pa- status of office, is the man but rid getting trolmen, and that during all said it permit faith, good act of not an City had no classification below that of Pa- farce.” a civil service would make trolmen. It undisputed also is up employee is the civil where true 1957, they salary independent contractor by an replaced provided for judgment. Com employee. State by another well as Riley, 9 Cal.2d Ins. Fund v. pensation The record before us demonstrates meth “The 985, 111 A.L.R. 1503. P.2d classify still fails to the civil- *5 (or dis removal to effect the pursued od ian employees in the as com appellees) not charge of is As said Pope in Handley Justice An em justice.” court of to a itself mends case S.W.2d [308 City “When the 612]: cause, only removed can ployee “who failed classify, the Act itself classified office.” out of legislated thus be cannot persons the other (appellees) in depart- 205, 880, 57 Boyle, Utah 20 Silvey v. ment, but it classified them in positions holding of be the universal This seems they occupied and drew, at the they See, Board of Com Glass v. the Courts. * * When the Civil Service Com- Frankfort, Ky. mon mission appellees ordered restored to their 700; City of 471, Rexstrew v. S.W.2d former status, or it restored them 630, 128 P.2d Park, 20 Cal.2d Huntington to the same status which existed at the Service Com 23; v. City of Camden Civil time of their unlawful discharge, which in- 686; 501, A. State mission, 118 N.J.L. cluded the salary bracket they were in. 287, Edwards, 40 Mont. Quintin v. ex rel. The did not ruling, that Riley, 695; 21 Cal. Stockburger v. 106 P. provided in Article ruling 1269m. The 741; Delaney, v. 68 P.2d Turel

App.2d of the Civil Service Commission is res 774; City 16, 32 of San N.E.2d 285 N.Y. judicata and binding. Hahn, supra; City An of San v. The undisputed facts is law Handley, supra. v. tonio clear. accept courts must they both as find them. 25,124 clear that Ordinance No. It is judgment that was its face it abolish court

shows on is appellees. get but to rid of affirmed. positions, clearly Moreover, the record shows that Rehearing. On Motion for attempt comply with the there was 21 of Article Section our original We adhere to opinion appellees’ posi could be said that it even if of the the action in attempting that legally abolished. The con had tions appellees abolish the in the inescapable they that is were sum clusion Department of the San An regard without marily to their dismissed tonio, supplant them engaging other the Civil Service Law. rights under perform the same City, by point, urges its fifth department illegal However, that and void. ruling erred have reached the conclusion that we we salary per holding to receive a error our $340 entitled pellees partment, Department to the classification are entitled in the Police Patrolmen in the Police and that each of salary as entitled to for back recover judgment against the pro- City we original In our salary such. San Antonio for assumption that ceeded the erroneous patrolmen was

the status of Reformed and affirmed. suit, by stipulation in their fixed former of San Antonio v. Tex.Civ. App., case as was Hahn,

the case of of San Antonio v.

Tex.Civ.App., 274 S.W.2d 162. On was

contrary, shows that this record was, case, that Castillo at

not the but May 27, discharge, time of his Col- al., Appellants, CITY OF SAN ANTONIO et Department and in the Parking lector per being paid at rate of was $360 plus longevity; and that

month al., Appellees. Jesse F. WHITTEN et employed as was at such maintenance No. 13524. carpenter in the Police being Appeals the rate $360 of Civil of Texas. further plus longevity. The record month San Antonio. had never classified shows Nov. *6 in the Police these Rehearing Denied Dec. Therefore, they it is our automatically at classified Ann.Civ.Stats., positions they held and the rate

pay they drawing. Section art.

1269m, supra. City of San Antonio v. See

Handley, Tex.Civ.App., 308 S.W.2d 608. Whitten, of San Antonio this Court held that ordi- attempt- San

nance of the employees,

ing to set the salaries of all

except officers, per plus peace month, at $220 Therefore, conten-

longevity, is void. appellees’

tion salaries must be that ordinance

should fixed overruled.

be original opinion part affirm-

That of our ordering and status of Patrolmen

placed the rank rendering judgment their favor for patrolmen, is withdrawn

back appellee so judgment reformed to the restored status of Maintenance

classification appellee and that the status be restored to and classi-

Castillo Collector, Parking Meter De-

fication