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# THEATTORNEY GENERAL 'OF TErvAs

W ’ILL WILSON A-rroRNEY aWERAt Ausnlv 66. TEXAS

~March10, 1961

Honorable George L. Preston, ~Chairman ~Municipal,andPrivate Corporations House of Representative6 Austin, Texas

Dear Mr. Preston: Opinion No. WW-1012 Re: Constittitionality of House Bill 14of the 57th Legislature pertaining to settlement of grievances and disputes concerning firemen’s slary, hours of wor’kandother emoluments. You have requested an opinion onthe constitutionality of House Bill, 14 of the 57th Legislature.

Section 1of House Bill 14declare6 a public policy that firemen are prohibited from striking or engaging in collective bargaining while claiming the right to strike as against the publicspolicy of the State of Texas, ~and~that grievance6 and disputes shall be submitted ‘toarbitration as provided by the Bill. Sections 2, 3, 4, 5, 6, and 7~prercribe the me,thod and procedure of such arbitration. Section 8make6 it a penal offense for any city official in any city covered, by the Bill to willfully violate the provision6 andterms of any decision made pursuant to the Bill. Section 9 is a severability clause, Section 10 is a cumulative clause andSection 11is thesmergency 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 andprovide6 for the approval of the decirion or recommendation of such Commission by. ”

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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 todetermine whether to approve or adopt such decision or recommendations andordinance pursuant thereto.

House Bill 14contains but one subject, which i6 expressed in its title andthe body ofthe Bill conform6 to the caption and is, therefore, in compliance withthe provisions of Section 35 of Article III ofthe Constitution of Texas.

Article XVI, Section 13of the Constitution, provides:

“It rhall be the dutyof 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 3ofHouse Bill 14provide6 that upon receipt of an appropriate request, the governing body of,thecity “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 andin effect transfer the city’s duties and responsibilities concerning wages andworking conditions to 6ome other agency or group. The authority of the Legislature with reference to municipal matter6 was well stated in Huntv. Atkinson, 18S.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 theLegislature, without distinction as to thoseHonorable 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 andall limitation6 that may be prescribed,by,the Legislature. I’ InHouse Bill 14if is not mandatory that the city official6 accept the recommendations of either, the Arbitration Commi66ion or the Hearing Commission and such recommendations. notbeing binding onthe 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 ofthe Legislature in this field has in fact beenconsistently upheld by the Courts.

Article 1583, Vernon’6 Penal C,ode. providing awage and hour law for members of any fire department or police department in certain cities andmaking it apenal offense for the city official having charge of the fire depart-n-e nt or police department to violate any provision ~ofArticle 1583, was held to beg constitutional in Dry v. Davidson, 115S. W. 2d 689 (Civ. App., 1938, error ref. ) and McGuire v. City of Dallas , 141Tex. 170, 170S. W. 2d 722 (1943). In Dry v. David~sonit 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 thatprivilege 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 ‘shallHonorable Geoige L. Preeton. ~page4 (WW-1012)

contain anyprovision 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 outthat Article 1583, ‘Uassifies cities according to their population at the preceding census and makes the salary provision here involved applicable to cities of more than 75, 000, towhich growHouston belongs” andheld that the classification constituks a general law andnot a special one within the meaning of Section 56 of Article III ofthe Constitution of Texas.

In construing the provisions ofArticle 1583 of the Penal Code, the Court in McGuire v. City of Dallas, supra, pointed out:

“It is clear therefore’ thatthe legislature

by the grant of additional compenaation’:to’those whowere required or permitted towork overtime hours didnot intend to render the prohibited work void, but rather to prevent it. The statute does not undertake to penaliie thefiremen 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:* *’ andnot to the municipality or firemen.

. . . ‘I On the constitutional question, ,theSupreme 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 inHonorable George L. Preston, .page 5 (WW-1012)

then cacle of Dry v. Davidson, Tex. Civ. App. , 115S.W. 2d 689, writ refu6ed. ” The Court further pointed out:

‘1.

. . There is~no relation between the pension law andArticle 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 ~theact was sustained by thi6 court inthe case of Byrd v. City of Dallas, et al., 118Tex. 28, 6 S.W. 2d 738, uponthe theory that contributions made by the municipality andthe employee to thepension fundwere a part of ,theagreed compensation, hence, not a grant of public funds to private purposes. etc. as prohibited by our 6tate constitution. ” The case of Gongress ofIndu6trial Grgknizations v. City of Dallas , 198 S.W. 2d 143 (Civ. App. 1946, error ref., n. r. e. ) involved~the validity ofta city ordinance prohibiting any city em; ployee from organieing or becoming a member ofa labor union; In sustaining ,thevalidity of such ordinance, the Court pointed out that the a6atukof government employee6 is radically different from that of employees in private business in industry, andquoted 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 andits employees. by reason of the very nature of Government itself. The formidable andfamiliar weapon in industrial strice andwarfare -- 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 notby,laws butby men. Suchpolicy if followed to its logical conclusion would inevitably lead to chaos, dictator6 andthe annihilation of representative government!” After a thorough review of the authorities inthis State and numerous authorities in otherjurisdictions, the Court concluded: “Appellants main contention seems to be

that the ordinance in question is unconstitutional andvoid because it would deprive them of certain freedoms. rights andprivileges granted by both the Federal andState Constitutions. We do not,think 60; these rights andprivileges are purely personal andmay 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 ofthe City may assert their constitutional rights andprivileges if they choose to do 130,but itis 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 andfreedoms, they have no constitutional right to remain in the service of the City.” Since government

.em p1b-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 ofthe city being interfered with.

Summarizing the foregoing authorities andthe authorities contained in such cases, it is not settled that the Legislature has the authority toprescribe by general law salary, wages, compensation, emoluments, hours of employment andworking 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, 115S. W. 2d 689 (Civ. App. 1938, error ref. ); McGuire v. City of Dallas, 141Tex. 170. 170 S. W. 2d 722 (1943); Congress d Industrial Organizations v. City of Dallas, 198S. W. 2d 143 (Civ. App. 1946, error ref., n.r. e. ). SUMMARY House Bill 14of the 57th Legislature, as submitted with your request, pertaining to settlement of grievances and disputes concerning firemen’s salary, hours ofwork, conditions of work and other emoluments, is constitutionaALp Dly3fv. ~Davidson, 115S. W. 2d 689 (Civ. Dallas, 141Tex. 170, 170S.

3, error ref. ); McGuire v. City of W. 2d 722 (1943); Congress ofIndustrial 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:mfhHonorable 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