187 S.W. 194 | Tex. | 1916
In this action, for mandamus only, we are not called upon to decide, and have not undertaken to determine, and do not decide, whether any of the decisions of the several Courts of Civil Appeals in City of Houston v. Albers, 32 Tex. Civ. App. 70, 73 S. W. 1085, City of Paris v. Cabiness, 44 Tex. Civ. App. 587, 98 S. W. 925, and City of San Antonio v. Coultress, 169 S. W. 918, was correct. The real and only issue before us is, Does the decision in said Coultress Case conflict, upon any question of law, with either of said other decisions? And that defines the full extent of our jurisdiction in the premises.
Whether the petition in the last-mentioned case was substantially like the petition in both or either of the two other cases is not the controlling inquiry. In determining the issue involved we must consider the cases as a whole, including the city charters, the ordinances in issue, if any, and the facts, and not simply the petitions only. Upon consideration, accordingly, of relator’s motion and supplemental motion for a rehearing we find' no statutory conflict in the decisions mentioned, and- we adhere to our former views denying the writ.
Relator insists that the provisions of the
Whether said provisions of said two charters are to the same legal effect, and whether the Paris charter required that the establishment of the police force should be “by ordinance,” are questions which, perhaps, are immaterial in this action; but we incline to the view that the Paris charter did not so require, and, in any event, we decline to hold herein that the decision of the decision of the Court of Civil Appeals at Dallas to that effect, in the Cabiness Case, was erroneous.
Whatever may be the proper construction of the applicable provisions of the Paris charter and of the San Antonio charter, respectively, the fact remains that the two Courts of Civil Appeals construed them differently, one holding that the San Antonio charter did, and the other that the Paris charter did not, require that the establishment of the police force should be by ordinance of the city; from which it is evident that the fundamental difference between those decisions was as to the legal effect of the charters, respectively, rather than as to the mere sufficiency of petitions.
Relator’s petition for mandamus does not specifically allege conflict in constructions placed upon similar charters, or conflict as to the sufficiency of similar city ordinances under similar charters, but does, in effect, allege conflict as to the sufficiency of what he alleges to be substantially similar petitions ; and the questions which we are asked to have certified were framed accordingly.
Moreover, in the San Antonio Case 'Coul-tress sought to have his appointment upheld by virtue of an ordinance which the Court of Civil Appeals held to be not in compliance with charter requirements; but the Cabiness Case, under the Paris charter, did not involve, on appeal, any issue or decision concerning the sufficiency ■ of any city ordinance, none creating a police force, or the office of policeman, having been enacted by the city council, so far as shown; and, likewise, the Albers Case, under the Houston charter, did not present, upon appeal, any issue or express decision as to the sufficiency of any city ordinance.
The supplemental motion avers that, whereas the Court of Civil Appeals in said Coultress Case held the city ordinance relied upon insufficient in that it did not definitely fix the number of policemen, that same court, “in several lengthy and carefully considered opinions held the same ordinance valid, and permitted the policemen to recover their money under identical circumstances with those of Coultress. See the following cases, to wit: City of San Antonio v. Serna, 45 Tex. Civ. App. 341, 99 S. W. 875; City of San Antonio v. Beck, 101 S. W. 263; City of San Antonio v. Tobin, 101 S. W. 269; City of San Antonio v. Bodeman, 163 S. W. 1043.”
1. They were not presented in relator’s petition for mandamus. Upon motion for rehearing in a suit for mandamus to require certification, under R. S. art. 1623, by a Court of Civil Appeals, upon the ground of conflict in decisions, this court will not consider, as a basis of such conflict, any decision not mentioned in the petition for mandamus.
The motions are overruled.
@us>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes