#### CITY OF DALLAS et al. v. McDONALD et al.

No. 6766.

Supreme Court of Texas.

Nov. 4, 1936.

Hugh S. Grady, H. P. Kucera, W. Hughes Knight, and A. J. Thuss, all of Dallas, for plaintiffs in error.

Claud C. Westerfeld and Harold Young, both of Dallas, for defendants in error.

James E. Kilday, of Houston, amicus curias

*168RYAN, Commissioner.

This suit was instituted by C. M. McDonald, J. L. Dyer, J. W. Hill, B. E. Nelson, J. W. Crowley, and A. E. Harrell against the City of Dallas, its city manager, chief of police, city auditor, the three members of and composing what is known as the civil service board, and the secretary and chief examiner of said board, to compel the reinstatement of plaintiffs as policemen and in the alternative to recover their salaries for the unexpired terms of their respective offices. No question -is raised as to misjoinder of causes and parties inasmuch as the respective claims involve the same question and a multiplicity of suits may be avoided.

The trial court (jury waived) rendered judgment denying any relief to plaintiffs, which was reversed by the Court of Civil Appeals. That court, in view of the fact that plaintiffs’ terms of office had then expired, did not order their reinstatement to office, but rendered judgment for the respective ■ amounts of salary they would have earned between the date of their alleged illegal discharge and the expiration of their one-year term of office. 69 S.W. (2d) 175.

It was alleged by plaintiffs below, that prior to the adoption of the present charter of the city of Dallas in 1931, each was duly appointed and qualified as a regular police officer and had been actively and continuously engaged as such from nine to fourteen years under the then existing charter provisions which authorized their tenure in office during good behavior unless removed for cause; that on May 1, 1931, the city charter was amended, creating a civil service board of three members with authority to promulgate rules and regulations governing the conduct and efficiency of civil service employees, providing grounds for removal and creating a special tribunal to discharge them; that they were illegally discharged, no charges against them having been presented, and a trial before the tribunal provided by said charter amendments, denied to them; they further denied guilt of any misconduct justifying their removal.

Section 44 of the City Charter created and placed under control of the city manager, seven administrative departments, the second being the police department. The city manager is the chief administrative and executive officer of the city (section 24) with power, except as otherwise provided by charter, to appoint and remove all heads of departments and all subordinate officers and employees of the city, provided that in the classified civil service all appointments are subject to the civil service provisions of the city charter (section 25).

Members of the police department other than the chief of police and his assistant shall be selected from a list of eligibles prepared by the civil service commission, provided that the members of the police department as constituted at the time any charter amendment providing for civil service, takes effect, shall not be required to submit to a civil service examination, but shall continue in service subject to the provisions of the charter and the ordinances of the city and the rules and regulations of the department. Each member of the 'department, both rank and file, shall have issued to him a warrant of appointment signed by the city manager in which the date of his appointment shall be stated, and such shall be his commission. An oath of office is prescribed; if required by the city council, bond must be furnished in such penalty and with such security as may be required by ordinance. Section 66.

The civil service provisions of the charter likewise provide that all persons holding positions in the classified service at the time such civil service provisions go into effect, and who have filled said positions for a consecutive period of three months or more prior thereto, shall retain the same until discharged, reduced, promoted, or transferred in accordance therewith. Section 125.

Sec. 116 provides as follows:—

> “Civil Service Divided Into Unclassified and Classified Service.— The Civil Service of this City is hereby divided into the Unclassified and Classified Service, towit:

> “1. The Unclassified Service shall include :

> “(a) The City* Manager and his secretary.

> “(b) The heads of* departments, assistant heads of departments, members of appoint-' ive boards and the City Secretary.

> “(c) The labor class, which shall include all ordinary unskilled labor.

> “2. The Classified Service shall comprise all positions not specifically includ*169ed by the Charter of the City of Dallas in the Unclassified Service. There shall he in the Classified Service two classes to be known as the Competitive Class and the Non-Competitive Class, to-wit:

> “(a) The Competitive Class-shall include all positions and employment for which it is practicable to determine the merit and fitness of applicants by competitive examination.

> “(b) The Non-Competitive Class shall consist of all positions requiring peculiar and exceptional qualifications of a scientific, managerial, professional or educational character, as may be determined by the rules of the Board.”

Warrants of appointment or official commissions signed by the city manager and attested by the city secretary, under the city’s corporate seal, were issued to each of said parties; said commissions bore date October 4, 1932, and certified each of them as appointed police officer in the police department of the city of Dallas for the fiscal year beginning October 1, 1932, and ending September 30, 12 p. m., 1933, and empowered him to discharge all and singular the duties of said position according to law and subject to the civil service provisions of the city charter and other provisions thereof and of the ordinances of the city of Dallas and the laws of the state of Texas. It was agreed that said officers immediately took the oath of office prescribed for public officers in the state of Texas, and when discharged, they had served their terms of probation and were regular officers.

For the period ending September 30, 1933, they were therefore de jure officers and entitled* to serve and receive the salary provided, as such, unless legally discharged or removed in the meantime, the offices never having been legally abolished. The question therefore is: Were they legally discharged or removed?

The charter (section 121) provides that any officer or employee may be removed, suspended, laid off, or reduced in grade by the city manager or the head of the department in which he is employed. If demanded by such officer or employee, he must be furnished with a written statement of the reasons therefor, he having the right to demand a public hearing thereon within a reasonable time thereafter before the trial board created -by section 122, as follows: *"Trial*Board.— There is hereby created for the purpose of hearing and determining charges made against any officer or employe of the City in the Classified Service, a board to be known and designated as the Trial Board, which shall be composed of two members of the governing body of the city, selected by said governing body, and either the Chairman or Vice-Chairman of the Civil Service Board. The said Board shall have final jurisdiction to hear and decide all ap peals made to them by any discharged or reduced officer or employe in the Classified Service, and the judgment or deci sion of a majority of said Board shall be final. Any aggrieved officer or employe, who desires to avail himself of .the right to appeal to said Board, must do so promptly and within ten days from the date of his notification of dismissal or reduction. He may be represented by counsel and shall have the right to an open hearing and to compel the attendance of such witnesses as he may desire to testify in his behalf. The appeal to said Board shall not suspend the executipn of the order of dismissal or reduction pending said hearing. The Trial Board may either sustain or reverse the action of the City Manager or the head of the department as the case may be, or modify and. amend the same as to them may seem just and equitable under all the facts and circumstances of the particular case.”

Under section 71, the chief of police is empowered to suspend any officer or, employee in the police department fpr incompetence, neglect of duty, immorality, drunkenness, or failure to obey orders, but- he must certify the fact together with. the cause for the suspension to the city manager who hears the complaint and -determines the discharge. So too, under section 123, three or more citizens may prefer charges of “misconduct” before the civil service board, and if found riieritoriouS, said board shall file charges with the trial board.

Section 124 makes it the duty of -the civil service board to 'fix a minimum standard of conduct and efficiency for each grade of service and whenever it shall appear to the board, from efficiency reports made to it,. that the conduct’ and efficiency of any employee has failed' below this minimum, he shall be called before the board, and if upon hearing no reason why he should not be removed, is shown, satisfactory to the board, he shall be removed, suspended, or reduced in grade as the board shall determine.

*170Construing all pertinent provisions of the charter, it appears that the board has the power to determine when the minimum standard of conduct and efficiency is reached, but the removal is effected by the city manager. That this is the construction placed by the board itself upon section 124 is evidenced by the communication from the secretary of the civil service board to the city manager, dated May 4, 1933, advising that the efficiency grades of the parties named are unsatisfactory and they should be and are removed from service, and by their formal dismissal by the chief of police under date May 13, 1933.

The removed officers demanded a written statement of the reasons for their discharge and a public hearing before the trial board, which the governing authorities of the city of Dallas- — the civil service board, city manager and chief of police — refused.

We think that, in any event, the removal is effective only by a trial board when an appeal is demanded and that the plain provisions of the charter guarantee to such officer or employee the right to an appeal and neither the civil service commission, the city manager, nor head of the department, may by a summary order, abridge, abrogate, or take away such appeal and the right of the discharged officer or employee for a hearing on charges preferred.

Under the facts of this case, the civil service board prefers the charge and the city manager or chief of police effects the discharge, but always subject to the action of a trial board on appeal.

In this connection it may not be inappropriate to state that the minutes of the civil service board, in evidence, fail to show any formal or final action of the civil service board in the premises. The proceedings of April 27, 1933, show only:

> “The Civil Service Board met, with all members present, in the Mayor’s office of the City Hall, April 27, 1933, and at this meeting members of the police department who had been notified to appear on this day to show cause, if any, why they should not be removed from, the service of the City were heard, complying with the terms of the charter and rules and regulations of the Civil Service Board. The following patrolmen were heard: (naming them).

> “In compliance with terms of the charter, the City Manager was notified of the meeting and he designated Mr. D. L. Robinson Jr. to represent him, Mr. Robinson being present at this meeting. About six hours in session during this meeting.”

The action of the secretary of the civil service board in advising the city manager that these -parties had been removed or recommended for removal therefore finds no support from the minutes of the board offered in evidence.

Having reached the conclusion that these officers were illegally discharged, it follows that they are entitled to recovery of their salaries for the unexpired term. 30 Tex.Jur. p. 252, § 137; City of San Antonio v. Micklejohn, 89 Tex. 79, 33 S.W. 735; City of San Antonio v. Beck (Tex.Civ.App.) 101 S.W. 263; City of San Antonio v. Tobin (Tex.Civ.App.) 101 S.W. 269; Id.,100 Tex. 589, 102 S.W. 403; City of Paris v. Cabiness, 44 Tex.Civ.App. 587, 98 S.W. 925; City of San Antonio v. Bodeman (Tex.Civ.App.) 163 S.W. 1043 (writ denied); City of San Antonio v. Steingruber (Tex.Civ.App.) 177 S.W. 1023 and Steingruber v. San Antonio (Tex.Com.App.) 220 S.W. 77; City of Houston v. Estes, 35 Tex.Civ.App. 99, 79 S.W. 848; Cawthon v. City of Houston, 31 Tex.Civ.App. 1, 71 S.W. 329; City of Houston v. Lubbock, 35 Tex.Civ. App. 106, 79 S.W. 851; City of Houston v. Mahoney, 36 Tex.Civ.App. 45, 80 S.W. 1142; City of Houston v. Smith, 36 Tex. Civ.App. 43, 80 S.W. 1144; City of Houston v. Clark (Tex.Civ.App.) 80 S.W. 1198; Steinback v. City of Galveston (Tex.Civ.App.) 41 S.W. 822; City of Houston v. Floeck (Tex.Civ.App.) 80 S.W. 1198; City of Houston v. Fraser (Tex.Civ.App.) 80 S.W. 1198; Braden v. City of San Antonio (Tex.Civ.App.) 216 S.W. 282; City of San Antonio v. Serna, 45 Tex.Civ.App. 341, 99 S.W. 875 (writ denied); Proctor v. Blackburn, 28 Tex.Civ.App. 351, 67 S. W. 548; City of San Antonio v. Newnam (Tex.Civ.App.) 218 S.W. 128; City of Houston v. Albers, 32 Tex.Civ.App. 70, 73 S.W. 1084.

The Court of Civil Appeals correctly held that because tenure of their positions had expired before their appeal reached that court, these officers were not entitled to reinstatement, that mandatory feature of their appeal having become moot.

The Court of Civil Appeals also correctly held that said officers are entitled to recover the amount of their salaries for the unexpired term of their respective offices and correctly rendered judgment *171accordingly. This is warranted by the alternative prayer in the petition, viz.: “(3) That in event said matter should remain in the courts until such time that their term of appointment shall expire and the courts shall hold it has expired, that the City of Dallas and its board and officials be required and directed to pay said plaintiffs and each of them from time of discharge to the end of their appointment.”

The judgment of the Court of Civil Appeals is affirmed.

Opinion adopted by the Supreme Court.