CITY OF SAN ANTONIO ET AL V. CURTIS WALLACE ET AL.
No. A-7615
Supreme Court of Texas
Decided July 13, 1960.
(338 S.W. 2d Series 153)
In view of the disposition we are making of this case we do not think it necessary to discuss the other points raised by petitioner.
The judgments of the Court of Civil Appeals and the trial court are reversed and judgment is here rendered for petitioner.
Opinion delivered June 8, 1960.
Rehearing overruled July 13, 1960.
The Court of Civil Appeals erred in holding that respondents were entitled to hold his former position; that the ordinance passed and approved by the City Council, abolishing the classification of custodial workers in the personal and police department of the city was null and void; that the court could inquire into the good faith of the city council in passing said ordinance; that said city council acted in bad faith in the adoption of said ordinance and that said ordinance showed on its face that it was not passed to abolish the positions in question, but was for the purpose of ousting said respondents from the positions held by them. Glass v. Smith, 150 Texas 632, 244 S.W. 2d 645;
Adrian A. Spears, of San Antonio, for respondent.
MR. JUSTICE NORVELL delivered the opinion of the Court.
The petitioner‘s motion for rehearing in this cause was duly considered after submission and oral argument in the connected causes of City of San Antonio v. Kneupper, 161 Texas 153, 338 S.W. 2d 121, City of San Antonio v. Whitten, 161 Texas 150, 338 S.W. 2d 119, and City of San Antonio v. Carr, 161 Texas 155, 338 S.W. 2d 122. Such motion is overruled. Our original opinion in this cause is however withdrawn and the following substituted therefor:
The case involves the validity of an ordinance of the City of San Antonio which attempts to abolish certain classified positions held by respondents under the Firemen‘s and Policemen‘s Civil Service Act.
Each of the respondents held classified places as custodial workers in the Police Department of the City of San Antonio under the provisions of
The above facts are disclosed by admissions made under
Upon this record the Court of Civil Appeals concluded that the City had “again attempted to discharge these employees, while continuing the positions they occupied in the Police Department, by contracting with the Building Servicing Company, an independent contractor, to furnish the individual workers who supplant these appellees (respondents) in the same position and perform the same services in the Police Department.”
The City‘s primary contention here, which was apparently the only theory urged in the trial court, is that the good faith of the City‘s action in passing the ordinance abolishing the respondents’ positions is not subject to judicial inquiry for want of good faith. It is urged that “despite law to the contrary in other jurisdictions, the Texas Supreme Court has established the law in this State to be that where a legislative body, such as the City Council here, has the power to do something (such as abolish Civil Service positions) they cannot be subjected to inquiry by the courts as to its good faith, motives, reasons or purposes. Gray v. Woodring Lumber Co., Texas Civ. App., 197 S.W. 231, wr. ref.; City of San Antonio v. Fetzer, Texas Civ. App., 241 S.W. 1034, wr. ref.; City of San Antonio v. Walters, Texas Civ. App., 253 S.W. 544, wr. ref.; Bielecki v. City of Port Arthur, Texas Civ. App., 2 S.W. 2d 1001, reversed on other grounds, Texas Com. App., 12 S.W. 2d 976; Community Natural Gas Company v. Northern Texas Utilities, Texas Civ. App., 13 S.W. 2d 184, wr. dis. * * *”
While the City of San Antonio is a home rule city,
This seemingly is the universal rule among the American jurisdictions whenever a question of the abolition of an office classified under a state civil service act is involved, although there is some divergence of opinion as to the nature and scope of the judicial inquiry.
McQuillin recognizes the general rule that, “[W]here a municipal corporation under charter or legislative act has power to create by ordinance an office, it also has the power to abolish it.” McQuillin, Municipal Corporations Sec. 12.118. However, when civil service and veterans preference laws are involved, the action of the city council must be taken in good faith to effect an economy in operations or a betterment of municipal service as “There is a real and fundamental distinction between the lawful abolition of an unnecessary position and the discharge of a faithful employee in violation of the rights secured to him by statute; and the latter action can neither be concealed
We find no Texas cases which militate against the general American rule represented by the authorities above cited and discussed and accordingly overrule petitioner‘s contentions that there can be no judicial inquiry as to whether or not the City Council‘s action in abolishing the positions held by respondents was a good faith action. We do not wish to be understood as holding that the secret motives of members of the City Council are matters for judicial inquiry. If an action be proper as an economy move, it would not be rendered otherwise because a member of a city council derived some malicious pleasure because a particular individual lost his job. Rossi v. Mayor and Council of Moonachie, 127 N.J. Law 374, 22 A. 2d 564. The authorities however do support the proposition that an action of a city legislative body abolishing civil service positions may be judicially examined in the light of its surrounding circumstances, the prior and subsequent actions of such legislative body and the public policy represented by the civil service law in order to determine the good faith of the questioned action.
As an alternative proposition, the City asserts that even if the courts may inquire into the good or bad faith of the City Council in passing the ordinance, the trial court was not authorized to find that the Council acted in bad faith. As above pointed out, there were no pleadings which suggested that the questioned ordinance was adopted in the interest of either economy or increased efficiency, and the City relies heavily upon the doctrine that public officials are presumed to act in good faith.
As judgment in this case was rendered upon motion for summary judgment, we determine from an examination of the affidavits, admissions and depositions on file whether or not the City Council has abused the discretion vested in it by law.
So far as the pleadings and the proceedings relating to the summary judgment are concerned, the City never attempted to support its action in abolishing respondents’ civil service positions. Its position is that it was not required to do so. It is urged that respondents’ case must fall because they failed to show that the employment of an independent contractor was not in the interest of economy or was not in the promotion of more efficient municipal service. Perhaps other grounds could be put
While there is a presumption favoring the regularity of official acts, this presumption should not be extended in civil service cases so as to support the position urged by the City here.
As set forth in the opinions of the Court of Civil Appeals in this case, the connected Kneupper case [330 S.W. 2d 205] and the prior Handley case, [308 S.W. 2d 608, writ of error refused] these respondents’ civil service status has been sustained notwithstanding the City‘s attacks thereon. The record of the summary judgment proceedings discloses that the duties performed by respondents as civil service employees are essential to the operation of the Police Department, namely, the maintenance of its buildings. It is further shown that such services are now being performed for and on behalf of the City by others. The abolishing ordinance stands unsupported by either recitation, pleading or evidence;—its purpose is unexplained in the record. On the record, the trial court was justified in concluding that the respondents had been legislated out of office and that the unsupported ordinance was not a good faith enactment.
To say that a discharged employee must go further and without being advised of the particular ground upon which validity for the ordinance is premised, bear the burden of adducing evidence negativing the supposition that the ordinance is a valid economy measure, a valid efficiency measure, or what not, is to exalt a mere evidentiary presumption at the expense of the efficacy of the civil service law.4 The handicap to the displaced employee is obvious, while on the other hand, it should entail no great hardship on the City to support its action in destroying civil service positions and substituting an independent contractor system in its place. Most certainly the City is in a much better
In the annotation following the report of State Compensation Insurance Fund v. Riley, 9 Cal. 2d 126, 69 P. 2d 985, 111 A.L.R. 1503 in the American Law Reports, it is stated that, “The device of an agreement under which one is engaged as an ‘independent contractor’ rather than an ‘employee’ in order to circumvent requirements of civil service, appears to have been reviewed in few reported cases.” Such agreements are seemingly scrutinized carefully as the unrestricted use thereof could obviously defeat the public policy of the state as evidenced by its civil service law, which is to place municipal employees for the most part upon a merit system and free them from political control. It was pointed out in Stockburger v. Riley, 21 Cal. 2d 165, 68 P. 2d 741 that:
“If this [independent contractor] agreement is valid, there is nothing to prevent similar agreements from being made with relation to other janitor service, gardening, typing, and many other branches of service now accepted as subject to civil service. To sanction such an agreement would destroy the effectiveness of the enactment of the people in creating a Civil Service Act.”
In State Compensation Insurance Fund v. Riley, supra, the Supreme Court of California recognized the employment of an independent contractor as being the unusual procedure, and one which the employing authority must justify. The State Compensation Insurance Fund sought to employ an attorney upon an independent contractor basis. The Court pointed out that the Fund had “not alleged that the services here involved could not be rendered by one selected under the provisions of the Civil Service Act, * * *. [T]he petition does not allege that the services here involved could not be performed satisfactorily by an attorney selected under civil service.”
Similarly in Glass v. Board of Common Council of the City of Frankfort, 262 Ky 471, 90 S.W. 2d 700, 703, the Kentucky Court of Appeals, while recognizing the right of the City to abolish civil service positions and thus reduce its police force as an economy measure, nevertheless recognized that such action must be supported by the City. It was pointed out that:
“The answer [of the City] does allege in effect that the move was made in the interest of economy, but this allegation is not
sustained by the stipulation or other proof. Neither pleading without proof, nor proof without pleading is sufficient.”
We are here concerned with a civil service case which involves a city ordinance of a particular type, namely, one attempting to abolish civil service positions. While the ordinance is legislative in form, it is largely administrative in effect. We are not concerned with the constitutionality of a statute as was the case in State v. Southwestern Gas & Electric Company, 145 Texas 24, 193 S.W. 2d 675. We are, however, concerned with supporting the public policy declared by the Legislature in the Firemen‘s and Policemen‘s Civil Service Acts.
Opinion delivered July 13, 1960.
MR. JUSTICE GRIFFIN dissenting.
The part of the majority opinion from which I particularly dissent is the following:
“It seems reasonable to say that if an established plan involving the use of employees having civil service status is to be modified and in part abolished, the burden of going forward with evidence to show that real economy or more efficient service will result from the change should rest upon the municipality desiring to effect the change. * * *”
As I understand it, the majority opinion thus puts the burden of proof on the city to justify an ordinance which has been passed in due form by the legislative body of the city. That is contrary to my concept of the law. It is my understanding that
“* * * It is equally well settled that ‘The presumption is always in favor of the validity of legislation; and if there could exist a state of facts justifying the classification or restriction complained of, the courts will assume that it existed.’ Nolen v. Riechman, D. C., 225 F. 812, 819. * * * The Supreme Court of the United States in Sproles v. Binford, 286 U.S. 374, 52 S. Ct. 581, 76 L. Ed. 1167, wherein a Texas statute was the subject of litigation, held outright that the transportation of persons for hire need not be treated as falling within the same classification for the purpose of regulation. See also Packard v. Banton, 264 U.S. 140, 44 S. Ct. 257, 68 L. Ed. 596; Auto Transit Co. v. City of Fort Worth, Texas Civ. App., 182 S.W. 685, writ ref.; Fletcher v. Bordelon, Texas Civ. App., 56 S.W. 2d 313; Dallas Taxicab Co. v. City of Dallas, Texas Civ. App., 68 S.W. 2d 359.”
Also see Beene v. Bryant, Texas Civ. App., 1947, 201 S.W. 2d 268 (6-12), no writ history; Fletcher v. Bordelon, Texas Civ. App., 1933, 56 S.W. 2d 313, wr. ref.; 30A Texas Jur. 291, section 300.
I think it is dangerous to promulgate a special rule contrary to general principles to fit special situations, and for that reason I respectfully dissent.
Opinion delivered July 13, 1960.