The Houston daily post. [volume] (Houston, Tex.) 1886-1903, 1902-03-29
Text of the Opinion Rendered by the
Court Of Appeals.
THE MARSHAL'S POWER IS RESTRICTED
And the Civil Service Board Must Be
Consulted Before an Officer Is Dis
charged from Service.

/
The plaintiff In error filed suit IN the
| court below against the defendants in error
/ alleging that on September "a, 1901 he
| was a duly appointed, qualified and acting
policeman of the city OF Houston. and that
| the defendant Blackburn was chief Of 20.
lice and defendant WoOfword was mayor
OF the city; that on said date the defend.
ant Blackburn, whose act was concurred
in and approved by he defendant Woolford,
/ Illegally and wi hout authority Of law re-
moved piaintifI and refused him the right
to perform his duties under his employ
! mcnt as Il policeman. or to receive any pay
Us such, that on September 26, 1901, the
| plaintiff appealed TO the board OF police
nre and health OF said city and asked to
| be renstated and pu to work; that sad
| board gave piamtia d hearing. and nutil.ed
/ tue defendant Blackburn that II ne had
| any charges against the p.aintin he should
| prefer thein mat on said nearing me board
! Hoqultteu tue p.alliIiu OF he charge alleged
1 ny tue sara chltt OF police as the reason
! tof MS discharge; thdl thereafter on sep
! TENDER 90, loOl, the city council OF tle
| cltJ oil Houston by majority vote sus-
.albeu Sald board and CRU red plaln,in to
| DC put To work; piainin offered TO the
| delenuahts TO 20 10 work, but they re-
/ fused 10 allow him TO do so. Plaintiff
pay ed Tor writ Of mandamus to the de.
/ lenuuus to reiusta him IN all the duties
| plNhvges and emolum, MS OF mis- otuce
/ as lOuceman OF the city OF houston. Uhe
answer admitted the. appointment and
/ qualification Of piaiuiH ana his discharge
! as alleged as well as the proceedings ue-
/ lore the board OF police, fire ana uCa4ta,
( 3Ad alleged IN avoidance that the plalnun
/ became drunk and disorderly Oh Suptem-
/ Der ~ 1901, while In the discharge VI his
! duties as policeman aud tn4t under see
/ iluu 10 OF the ordinances OF the city OF
] Houston the defenuanl Blackburn as chief
r re
TO obey the orders OF the said board and
OF the city council and nat ais action was
/ paluclpa.ed IN ana approN ed by the mayor;
/ ne pulntlu excepted TO the answer and
pIcu0ed That the ordinance PIG was VOID
I being contrary to the charter. lie also de
/ hltd the allegations OF misconduct. A n al
I Was rad below TO the court without Jury
ana Judgment was rendered In favor OF the
/ defendants.
1t was admitted that plaintiff was as he
/ hleBcu duly appointed on October 10, 1900
as policeman of he city of Houston. on
the several dates the defendant j. u. Wool.
/ fora was mayor aud the defendant j. G.,
Blackburn was chief OF police oil the city
/ Of Houston. On September -. 1901, plain
/ IN was discharged as policeman by tuf
cnleI OF police with the approval of tho
mayor without any charge having been
made against him or Of a hearing before
/ NC board Of police, fire and heal h. The
! defendant Blackburn testified that he dis
1 charged the plaintiff for drunkenness and
misconduct while on duty and detailed tAe
facts, which need not be set out Notice
Of the discharge WAS given to the plaintiff
IN writing as follows; Houston, Texas,
September "A. igul.-J. D. Proc or: You
are hereby notified that on and alter This
date YOU are dismissed from any further
service In this department tSgned) j. G.
Blackburn, Chief of Police Approved. j.
u. Woolford, Mayor of the CITY " Hous.
ton. The plaintiff laid the matter be FORE
the police board and the police board ad
judged him not guilty The chief refused
10 reinstate him. He then petitloned the
! city council 70 be reinstated ana the city
| council by majority woe directed that
be reinstatcd as policeman. This act on
Plaintin applied TO the defendants to be re.
instated, but they refused to rcinslate him.
ordinancc 2l6 is as follows:
Art PIG. Marshal shall have power 70
! suspend or discharge The city marshal
! SHAH have the power to suspend or dis
charge any officer or subordinate in the
police department for disohedicncc of or.
/ dcrs. characterization, neglect OF duty or
any other violation Of the rules of the dc
partmcut, and he shall have the right TO
AL such vacancy by temporary appointment
} uhtll me city council shall c0uhrm the
name oi the officer submitted by him TO
h such vacancy. Any officer so suspended
or discharged shall have the right 10 have
the matter Investigated nv the city conn.
ell which may reinstnte him by two
! thirds vote Of all the members elect Of the
! city council but in no case shall such ofh-
Ger be entitled n pay during the time he
! has been 50 suspended or discharged "
! The ordinance, ZIG. which * above set out
gives the city marshal. who Is tho chief
/ Oh police authority 10 discharge any ofd.
cor In the police department. In the at
! Tempt 10 confer such power on the chief
/ Of police the ordinance Is In conflict with
I sections 81 and 26a Of tho charter of the
city, and the action OF the chief OF police
! in dischnrglng the plalntih from his duties
/ and office as policeman can only he sus.
/ tanned on the ground that these sections
: Of the charter are in contraventon Of the
constitution Of the state and are void II
] ! mr. nj IN
| hecause they attempt 10 fix torn OF offce
| for policemen and certain ether officers
| 10 last during good behavior whica is
! longer than is allowed by tho constltu-
/ ton. These sections OF the charter are
/ amendments 10 II made in 1891 Especial
Laws PIP 81 92l, ana are as follows:
I Sec 20 That the terms Of service of
/ all employees in the IRE police and health
/ departments Of the city If Houston shall
| continue during efficient service and good
| behavior except the heads of departments:
| health departments now In the service of
/ said depart ments, shall he discharged from
/ said service OF said departments unless
/ proven guilty of an o1ense OF sufficient
| gravity. in the opinion of the police. IRE
and health boards of the city OF Houston.
/ 10 warrant such discharge and Ia any
/ event such discharged member or employee
/ shall have the right TO appeal from said
! board to the city council, but said member
| or employc shall stand suspended during
I the tendency Of said appeal to the city
! sustained against said member or employe.
! such suspended member or enpoye shall
/ be entitled to regular pay from tho date
Of his suspension and be renstated Ia tho
] service. The rules and regulations now
IN force shall be continued MS the rules
ard regulations Of the department so far
} as applicable under this section but may
I be amended or altered by the city council
J upon the recommendation OF the chief en-
gineer and the Are committee Of tho coun.
! ell To render any person eligible for
\ employment I'm the fire department he shall
, ne between the ages Of n aud AZ; he shall
] be a citizen Of the United States shall
/ have been a bona tide resident OF the city
! OF Houston for at least two Years imme
! diately preceding his appointment, shall be
! OF good moral character and shall success
| fully pass a proper physical examination.
Sec. 2Ba. That on and after January
l. 1855. the police, hre ana health depart
! ments of the city Of Houston shall De
! pinced under civil service rules and regu
iations, save and except the heads Of said
departments. and shall he under the super
vision. direction and control Of the respec
tive heads of said departments. The mayor
and four aldermen receiving the highest
number OF votes at city election shall con
I stitute a board which shall he known al
the police fire and health board OF the
city Of Houston, which said board shall
make all necessary rules and regulations
Tor the examination Of applicants for posi-
tions ia said departments, and said hoard
shan also pass upon all charges preferred
against any member or employe OF any Of
said departments"
| ,,oiieaunan Of an Incorporated town Of