
    CITY OF DALLAS et al. v. McDONALD et al.
    Motion No. 12907.
    Supreme Court of Texas.
    July 21, 1937.
    For former opinion, see 98 S.W.(2d) 167.
    . H. P. Kucera, City Atty., and J. Manuel Hoppenstein and A. J. Thuss, Asst. City Attys., all of Dallas, for plaintiffs in error.
    Claude C. Westerfeld and' Harold Young, both of Dallas, for defendants in error.
    James E. Kilday, of Houston, as amicus curiae.
   GERMAN, Commissioner.

Defendants in error have filed an able motion for rehearing, urging a review of certain questions not fully discussed in original opinion. They were not discussed because we were of the opinion that the question on which the decision was based disposed of the case. So far as the right of defendants in error to be restored to office and to recover emoluments of office was concerned, the former decision settled the case. It is urged, however, that a cause of action for reinstatement in the classified service of the city of Dallas was sufficiently alleged and proved.

The charter of the city of Dallas, prior to the adoption of the civil service amendment on May 1, 1931, contained a provision as follows:

“ * * * Provided, further, that the. members of the Police Department, as constituted at the time any Charter amendment takes effect, providing for civil service, shall not be required to submit to a Civil Service examination, but in the event civil service shall be inaugurated, they 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.”

The Civil Service amendment itself contained the following provision:

“All persons in the employ of the City, holding positions in the Classified Service, as defined and established by the Charter, at the time this amendment takes effect, and who have been filling said positions for a consecutive period of three months or more prior to the time that this amendment takes effect, shall, unless their positions or places of employment be abolished, retain the same until discharged, reduced, promoted or transferred in accordance with the provisions of this amendment.”

The manifest purpose of these provisions was to constitute members of the police department ■ employed' prior to the adoption of the civil service amendment a part of the classified service and to exempt them from competitive examination. It is obvious, however, that merely because these parties were continued in the service without the necessity of an examination, they did not become invested with office, when no office had been legally created in the manner provided by the charter. Toomey v. McCaffrey, 116 N.J.Law, 364, 184 A. 835. The civil service amendment did not assume to create offices or make appointments to service. City of Houston v. Mahoney, 36 Tex.Civ.App. 45, 80 S.W. 1142.

It is further plain that although defendants in error were by virtue of the civil service amendment constituted a part of the classified service without examination, they nevertheless continued in the service subject to the provisions of the charter and the ordinances of the city and the rules and regulations of the department. It is also clear that they were to retain their positions only “until discharged, reduced, promoted or transferred in accordance with the provisions of this (Civil Service) amendment.”

The civil service amendment (section 117 of the charter) expressly provided as follows:

“The Civil Service Board, subject to the approval of the governing body of the City, shall adopt, amend and enforce a Code of Rules and Regulations providing for appointment and employment in all positions in the Classified Service based upon merit, efficiency, character and industry, which shall have the force and effect of law; also rules regulating reduction of force of employes and in what order they shall be dismissed and reinstated; shall make investigation concerning the enforcement and effect of this section of the Charter and of the rules adopted under the powers herein granted.”

In pursuance of this power, the civil service board did on December 14, 1931, adopt rules and regulations, and the same were approved by the city council December 23, 1931. They then became as much the law of the city as any provision of the city charter. Rule XIII thus promulgated dealt with the subject of “Efficiency.” Among other things, this rule provided that the city manager should require all directors of departments and their administrative subordinates to make quarterly reports on the efficiency of employees subject to civil service regulations. It w'as further provided that the civil service board should ascertain the efficiency rating of the various employees of the departments, as determined by quarterly reports submitted by the directors of said departments and immediate superiors of said employees, and should keep a record of such rating. Section 5 of said rule expressly re-enacted section .124 of the charter and is as follows:

• “It shall be the duty of the Civil Service Board to fix a minimum standard of conduct and efficiency for each grade in the service, and whenever it shall appear from the reports of efficiency made to the said Board for a period of three months that the conduct and efficiency of any employee has fallen below this minimum, that employee shall be called before the Board to show cause why he should not be removed, and if upon hearing, no reason is shown satisfactory to the B'oard, he shall be removed, suspended or reduced in grade, as the Civil Service Board shall determine. (Charter, Section 124) Provided, however, that in any such hearing the City Manager shall be given notice of such hearing.”

As regards the removal of the defendants in error from the "classified service within the police department, the record shows that on April 27, 1933, the civil service board addressed to each of these parties the following letter:

“You are requested to meet with the members of the Civil Service Board of the City of Dallas for private personal conference on Thursday afternoon, April 27th, at 5:00 o’clock in the Mayor’s office of the City Hall.

“The Civil Service Board has carefully studied your efficiency reports for recent months, which indicate. your efficiency rating as unsatisfactory. Under the provisions of the charter and the Civil Service regulations you are entitled to appear before the Board in person in this connection. The members of the Civil Service Board have spent many hours in studying, checking, verifying, and correcting these ratings, and are personally desirous of full personal discussion to prevent any possible error. In compliance with provisions of the charter the City Manager also will be present in the conference.”

It is agreed that in response to this communication each of the defendants appeared before the civil service board at the time designated and participated in the hearing, and on May 13, 1933, each of them received the following letter from the chief of police of the city of Dallas:

“I am advised by the Civil Service Board, in a communication addressed to City Manager John N. Edy and referred to me, that they have carefully examined your efficiency reports and find that you have fallen below the standard for services in this department; that they have spent many hours in investigation of information from various sources relative to the several reasons given for your failure and find nothing to indicate other than a fair and impartial estimate of your services.
“Therefore, under Section No. 124 of the City Charter, in view of the premises, your separation from the service becomes effective immediately.”

Thereafter, each of the defendants in error addressed a communication to the “Manager, Board of Councilmen and Civil Service Board of the City of Dallas,” complaining of the action of the chief of police, stating that they wished to appeal, and requesting that they be given a “public trial, after the City has filed its specifications of the crimes, misconduct, etc., that caused discharge.” This communication was apparently referred to the city attorney, and on May 27, "1933, the city attorney addressed a communication to the members of the city council, which, among other things, contained the following:

“It appears from the petitions for a hearing and from the record that these officers were discharged by the Civil Service Board in pursuance of the provisions of Section 124 of the Charter, which provides, in substance, that it shall be the duty of the Board to-fix the minimum standard of efficiency and conduct and whenever it appears to the Board that for a period of three months the standard of conduct and efficiency of an employe has fallen below the minimum, that the employe shall be called before the Board .to show cause why he should not be removed and that upon a hearing if no satisfactory reason be shown to the Board, it may order his removal, suspension or reductioñ in grade. The charter makes no provision for an appeal in such cases either to the Council or the Trial Board, but in effect vests the final authority in such cases in the Civil Service Board.
“It is, therefore, my opinion that neither the Council nor the Trial Board is authorized in these cases to afford the discharged parties a further hearing.”

The agreed statement of facts shows beyond dispute that the action of the civil service board was based upon reports regularly made to it by the police department, in accordance with standards of efficiency, etc., theretofore regularly promulgated; that said reports were properly graded, and all proceedings leading up to the action of the board in removing defendants in error were regular. It is further shown that the hearing before the board was open, free, and fairly conducted.

It will be observed from the letter of the chief of police that he did not himself discharge or attempt to suspend defendants in error, but merely advised them of the action of the civil service board in removing them from the classified service. He had no discretion in the matter.

It is thus shown that the removal of defendants in error from the service was by the civil service board, strictly in accordance with the civil service amendment, and particularly in accordance with the authority given by section 124, and the rules and regulations promulgated under the authority of section 117 of the charter.

But it is urged that defendants in error were entitled to a hearing before the “Trial' Board,” as provided for in sections 121 and 122 and section 71 of the charter. These sections are respectively as follows:

“Any officer or employe in the Classified Service may be removed, suspended, laid off or reduced in grade by the City Manager, in the event the Charter of the City of Dallas should be amended to provide for a City Manager, or the head of the department in which .he is employed after the three months’ probation period has expired ; but, if demanded by such officer or employe, it shall be the duty of the officer discharging him to furnish him with a written statement of the reasons therefor and the said .discharged or reduced officer or employe shall have the right to demand a public hearing upon said charges within a reasonable time thereafter before the Trial Board, as hereinafter defined.”
“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 appeals made to them by any discharged or reduced officer or employe in the Classified Service, and the judgment or decision 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 thp 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 t6 testify in his behalf. The appeal to said Board shall not suspend the execution 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.”
“The Chief of Police shall have the exclusive right to suspend any of the officers or employes who may be under his jurisdiction and control for incompetence, neglect of duty, immorality, drunkenness or failure to obey orders given by the proper authority. If any officer or employe be suspended, as herein provided, the Chief of Police shall forthwith in writing certify the fact, together with the cause for the suspension, to the City Manager, who shall within five days from tjie receipt of such certificate, if demanded by the suspended officer or employe so to do, proceed to inquire into the causé of the suspension and render judgment thereon, which judgment, if the charge be sustained, may be suspension,' reduction in rank or dismissal, and such judgment shall be final unless such suspended officer or employe shall desire to avail himself of the right to a public hearing before such board, or committee as may be provided by the Charter of the City of Dallas or ordinances passed in pursuance thereof.”

After a careful study of these provisions of the charter, in light of the manifest purpose of the city service amendment, and its provisions, it becomes perfectly clear to us that the appeal provided for in the foregoing -sections is limited to actions on the part of the city manager and heads of departments in discharging or suspending members of the classified service for personal reasons and alleged official misconduct. Said sections do not attempt to give the right of appeal from the action of the civil service board in matters touching the efficiency and qualifications of the employees. There is absolutely nothing which allows an appeal from the action of the civil service board after the hearing provided for in section 124 of the charter. The hearing therein provided for, which is to be had after due notice, is certainly all that any employee could expect when questions concerning his efficiency have arisen.

It will be noted that under section 71 of the charter the chief of police may suspend for “incompetency, neglect of duty, immorality, drunkenness, or failure to obey orders given by the proper authority.” For such action, the suspended officer may appeal to the trial board. Again, in section 122 it is provided that the trial board is created for the purpose of “hearing and determining charges against any officer or employee in the Classified Service.” This obviously has reference to charges concerning personal or official misconduct or behavior, and has nothing whatever to do with findings by the civil service board of failure to meet the requirements of efficiency standards.'

Besides, to allow an appeal from the action of the civil service - board in matters pertaining to efficiency and qualifications to the trial board, composed in part of two members of the governing body of the city, would tend to defeat absolutely the purpose of the civil' service. Instead of vesting decision of questions of efficiency in a nonpartisan and nonpolitical board, it would make the decisions of the board subject to review and suspension by members of the political and appointive department. There is strong authority for the proposition that the question of efficiency or inefficiency in the performance of official duties is a matter peculiarly within the jurisdiction of the civil service board, and does not admit of an appeal, except perhaps to the courts in cases of gross abuse of discretion. See Keim v. U.S., 177 U.S. 290, 20 S.Ct. 574, 44 L.Ed. 774. It is clear that sections 71, 121, and 122 were designed for the purpose of protecting employees against the prejudices of superior administrative officers and political and partisan influences from that source. On the other hand, the em-. ployee is amply protected in matters touching his efficiency and qualification, and unfair or biased - reports by superiors, by the hearing provided for in section 124 of the charter.

In so far therefore as defendants in error’s cause of action constituted an attempt to be reinstated in the classified service, we think it appears from the undisputed proof that they were lawfully removed from the service in accordance with' the provisions of the civil service amendment, and the. rules and regulations of the civil service board; and were not entitled to an appeal to the trial board.

The motion for rehearing is in all things overruled.

Opinion adopted by the Supreme Court.  