..” . 

THEATTORNEY GENERAL 

'OF TErvAs 

W’ILL WILSON 

A-rroRNEY aWERAt 

Ausnlv 66. TEXAS 

~March 10, 1961 

Honorable George L. Preston, ~Chairman 

~Municipal ,and Private Corporations 

House of Representative6 

Austin, Texas 

Dear Mr. Preston: 

Opinion No. WW-1012 

Re: Constittitionality of House Bill 

14 of the 57th Legislature pertaining to settlement of grievances and disputes concerning 

firemen’s slary, hours of 

wor’k and other emoluments. 

You have requested an opinion on the constitutionality of 

House Bill, 14 of the 57th Legislature. 

Section 1 of House Bill 14 declare6 a public policy that 

firemen are prohibited from striking or engaging in collective 

bargaining while claiming the right to strike as against the 

publics policy of the State of Texas, ~and~that grievance6 and 

disputes shall be submitted ‘to arbitration as provided by the 

Bill. 

Sections 2, 3, 4, 5, 6, and 7~prercribe the me,thod and 

procedure of such arbitration. Section 8 make6 it a penal offense for any city official in any city covered, by the Bill to willfully violate the provision6 and terms of any decision made pursuant to the Bill. Section 9 is a severability clause, Section 10 

is a cumulative clause and Section 11 is the smergency clause. 

Briefly, the Bill provide6 the procedure for submitting 

a grievance o* diEputs to a Commis6ion of Arbitration or to a 

Firemen’6 Hearing Commission and provide6 for the approval 

of the decirion or recommendation of such Commission by 
. ” __ 

Honorable George L. Preston, .page 2 (WW-1012) 

adoption of a city cedinance pursuant thereto or rejection of such 

decision or recommendation by the governing body of the city and 

an election to be submitted to qualified voter6 of the city to determine whether to approve or adopt such decision or recommendations and ordinance pursuant thereto. 

House Bill 14 contains but one subject, which i6 expressed 

in its title and the body of the Bill conform6 to the caption and is, 

therefore, in compliance with the provisions of Section 35 of Article III of the Constitution of Texas. 

Article XVI, Section 13 of the Constitution, provides: 

“It rhall be the duty of the Legislature 

to pass such laws as may be necessary and 

proper to decide differences by arbitration 

when the parties shall elect the method of 

trial. ” 

Section 3 of House Bill 14 provide6 that upon receipt of 

an appropriate request, the governing body of ,the city “may 

elect-to participate in an arbitration proceeding . . . ” The ‘~. 

proposed legislation is accordingly authoriaed by the above quoted 

provision of our Constitution. 

We presume that a constitutional question may also ,have 

arisen as to whether this act would take from the governing body 

of a city one of its governmental functions and in effect transfer 

the city’s duties and responsibilities concerning wages and working conditions to 6ome other agency or group. The authority of 

the Legislature with reference to municipal matter6 was well 

stated in Hunt v. Atkinson, 18 S. W. 2d 594 (Tex. Comm. App. 1929), 

as follows: 

“Their (city) charters must be ‘subject to 

such limitations as may be prescribed by the 

Legirlature. ’ This clearly 6hows that the legi6- 

lative power ir in all things 6upreme; that the 

power of the municipality is subject in all respects to ‘such limitations’ as may be prescribed 

by the Legislature, without distinction as to those 
Honorable George L. Preston, page 3 (WW-1012) 

limitations then, existing or arising through 

subsequent~ legislative enactments. We take 

it to be that the power of the municipaH!ty of 

home rule cities is not supreme in matters 

of legislation, but is at all times subject to 

any and all limitation6 that may be prescribed,by,the Legislature. I’ 

In House Bill 14if is not mandatory that the city official6 

accept the recommendations of either, the Arbitration Commi66ion 

or the Hearing Commission and such recommendations. not being 

binding on the city, cannot, therefore, be considered an invalid 

delegation of a governmental function. The authority of theelegislafItretbpr&de that issues relating to salaries of firement and 

policemen be submitted to the vote of the qualified electors at an 

election, as is provided in Article 1583-Z. Vernon’s Penal Code, 

is well established and clearly constitutional. City of Wichita 

Falls v. Cox , 300 S. W. 2d 317 ,(Civ. App. 1957, error ref., n. r. e. ) 

and, Cases cited therein. The authority of the Legislature to establish 

the Firemen’s and Policemen’6 Civil Service, Article 1269m. Vernon’s &il Statutes, dealing with working conditions and related 

matter6 has similarly been held constitution&in numerous cases. 

City of Wichita Falls v. Cox, supra, The authority of the Legislature in this field has in fact beenconsistently upheld by the Courts. 

Article 1583, Vernon’6 Penal C,ode. providing a wage and 

hour law for members of any fire department or police department 

in certain cities and making it a penal offense for the city official 

having charge of the fire depart-n-e nt or police department to violate any provision ~of Article 1583, was held to beg constitutional in 

Dry v. Davidson, 115 S. W. 2d 689 (Civ. App., 1938, error ref. ) and 

McGuire v. City of Dallas , 141 Tex. 170, 170 S. W. 2d 722 (1943). 

In Dry v. David~son it was held that under Section 5 of Article XI’ 

of the Constitution of Texas: 

“Thus upon its face the provision of giving 

such citi& the right to adopt or amend their own 

charters accord6 that privilege only with these 

two string6 tiM&o:it: (1) They may do so ‘subject 

to such limitations as may be prescribed by the 

Legislature;’ and.( 2) provided no charter ‘shall 
Honorable Geoige L. Preeton. ~page 4 (WW-1012) 

contain any provision inconsistent with ~the 

Constitution of the State, or of the general 

laws enacted by the Legislature;’ thi6 phrase, 

‘as may be prescribed’ can only mean that 

future legislation may also limit whatever 

action a city may take, as well as that existing at the time it first takes out or amends 

its charter. ” 

The Court further pointed out that Article 1583, ‘Uassifies 

cities according to their population at the pr eceding census and 

makes the salary provision here involved applicable to cities of 

more than 75, 000, to which growHouston belongs” and held that 

the classification constituks a general law and not a special one 

within the meaning of Section 56 of Article III of the Constitution 

of Texas. 

In construing the provisions of Article 1583 of the Penal 

Code, the Court in McGuire v. City of Dallas, supra, pointed 

out: 

“It is clear therefore’ that the legislature 

by the grant of additional compenaation’:to’those 

who were required or permitted to work overtime hours did not intend to render the prohibited work void, but rather to prevent it. The 

statute does not undertake to penaliie the firemen but penalizes the municipality by the exaction of time and one-half for overtime for the 

ovettime hour6 required or permitted. The 

penal offense provided,by the statute is applicable to ’ the. city official having charge of the 

fire department 4: * *’ and not to the municipality or firemen. . . . ‘I 

On the constitutional question, ,the Supreme Court atated: 

“The city attack6 the quoted statute, 

particularly Section 7 thereof, on constitutional grounds. This court settled that question by the. refusal of the writ of error in 
Honorable George L. Preston, .page 5 (WW-1012) 

then cacle of Dry v. Davidson, Tex. Civ. App. , 

115 S. W. 2d 689, writ refu6ed. ” 

The Court further pointed out: 

‘1. . . There is~ no relation between the 

pension law and Article 1583. They are supk= 

ate and independent legislative enactments. 

A comprehensive pension system for incorporated cities and towns has been authorized by 

rrtatute. Article6 6229-6243; 6243a a6 amended, 

44th Legislature, Vernon’s Ann. Civ. Sts. arts. 

6229-6243, 6243a. The constitutionality of 

~the act was sustained by thi6 court in the case 

of Byrd v. City of Dallas, et al., 118 Tex. 28, 

6 S. W. 2d 738, upon the theory that contributions 

made by the municipality and the employee to 

the pension fund were a part of ,the agreed compensation, hence, not a grant of public funds to 

private purposes. etc. as prohibited by our 

6tate constitution. ” 

The case of Gong ress of Indu6trial Grgknizations v. City 

of Dallas , 198 S. W. 2d 143 (Civ. App. 1946, error ref., n. r. e. ) 

involved~the validity oft a city ordinance prohibiting any city em; 

ployee from organieing or becoming a member of a labor union; 

In sustaining ,the validity of such ordinance, the Court pointed out 

that the a6atukof government employee6 is radically different 

from that of employees in private business in industry, and quoted 

with approval the following from Railway Mail Ass’n. v. Murphy, 

180 Misc. 868, 44N. Y. S. 2d 601: 

,‘I. . . ‘Much as we all recognize the 

value. and the necessity of collec,tive bargaining in industrial and social life, nonetheless, 

ruch bargaining is impossible between the 

Government and its employees. by reason 

of the very nature of Government itself. The 

formidable and familiar weapon in industrial 

strice and warfare -- the strike -- is? without 

justification when used against the Government. 
Honorable George L. Preston. page 6 (WW-1012) 

When so used, it is rebellion against constituted authority. 6 * *’ The Court themcnaeluded, a6 follows: ‘To hold otherwise would 

be to sanction control of governmental fune- 

,tions not by,laws but by men. Such policy if 

followed to its logical conclusion would 

inevitably lead to chaos, dictator6 and the 

annihilation of representative government!” 

After a thorough review of the authorities in this State 

and numerous authorities in other jurisdictions, the Court concluded: 

“Appellants main contention seems to be 

that the ordinance in question is unconstitutional 

and void because it would deprive them of certain freedoms. rights and privileges granted by 

both the Federal and State Constitutions. We 

do not ,think 60; these rights and privileges are 

purely personal and may be waived. Appellants overlook the fact that by voluntarily accepting employment with the City of Dallas, 

they assumed the obligations incident to such 

employment; impliedly agreed to accept same 

under the conditions as they existed; agreed to 

accept the employment and compensation therefor as regulated and controlled by existing laws; 

especially did they obligate themselves not to 

organize a labor union or affiliate with one. 

These employees of the City may assert their 

constitutional rights andprivileges if they choose 

to do 130, but it is quite clear that to assert them 

under the circumstances would be inconsistent 

with the duty as employees of the City, and subject them to discharge from the service. While 

they have the right to these constitutional privileges and freedoms, they have no constitutional 

right to remain in the service of the City.” 

Since government . em p 1 b-yees,: such as city firemen. do 

not have the authority to strike, the Legislature ha6 the authority 
. 

Honorable George L. Preston, ,page 7 (WW-1012) 

to prescribe the method ubereby peaceable settlements of 

grievances and disputes involving city firemen may be accomplished without the governmental opexations of the city being 

interfered with. 

Summarizing the foregoing authorities and the authorities 

contained in such cases, it is not settled that the Legislature has 

the authority to prescribe by general law salary, wages, compensation, emoluments, hours of employment and working conditions 

of city employees atd to presc.ribe,penalties for violation of such 

acts by city officials. 

It is our opinion that House Bill 14 as submitted with your 

request is a general law prescribing the conditions of employment 

of firemen in,cities of 10, 000 inhabitants or more and it is, therefore, constitutional. Dry v. Davidson, 115 S. W. 2d 689 (Civ. App. 

1938, error ref. ); McGuire v. City of Dallas, 141 Tex. 170. 170 S. W. 2d 

722 (1943); Congress d Industrial Organizations v. City of Dallas, 

198 S. W. 2d 143 (Civ. App. 1946, error ref., n. r. e. ). 

SUMMARY 

House Bill 14 of the 57th Legislature, as submitted with your request, pertaining to settlement of grievances and disputes concerning 

firemen’s salary, hours of work, conditions 

of work and other emoluments, is constitutionaALp Dly3fv. ~Davidson, 115 S. W. 2d 689 (Civ. 

Dallas, 141 Tex. 170, 170 S. 

3, error ref. ); McGuire v. City of 

W. 2d 722 (1943); 

Congress of Industrial Organizations v. Gity 

of Dallas. 198 S. W. 2d 143 (Civ~. ADD. 1946. error _. . 

ref., n. r. e. )* 

Yours very truly, 

WILL WILSON 

Attorney General of Texas 

JR:mfh 
Honorable George L. Preston, page 8 (WW-1012) 

APPROVED: 

OPINION COMMITTEE 

W. V. Geppert. Chairman 

W. E. Allen 

w. Ray Scruggr 

Raymond V. Loftin 

REVIEWED FOR THE ATTORNEY GENERAL 

BY: MORGAN NESBITT