
    McNATT et al. v. LAWTHER, Mayor, et al.
    (No. 1633.)
    (Court of Civil Appeals of Texas. Amarillo.
    June 9, 1920.)
    1. Municipal corporations &wkey;>l98(4) — Extent of reviewing power of courts on removal of city firemen by commissioners.
    Where city commissioners of Dallas removed firemen under a provision of the charter 'providing- that firemen could hold their positions during good behavior, and should not be removed except for such cause as, in the opinion of the board of commissioners, rendered them unfit, after an opportunity to be heard, the extent of the power of the courts is to inquire whether or not the commissioners exceeded their lawful authority so that their action may be treated as a nullity; and, if there might be fairly said to be any ground for difference of opinion as to whether the acts charged would be a sufficient cause,, the courts cannot interfere.
    2. Municipal corporations &wkey;>l98(2) — -Statute does not prevent city from discharging firemen belonging to labor union.
    Rev. St. art. 5244, merely announces that there is no prohibition of law against trade unions, and does not seek to regulate the attitude of the employer toward the organization of unions among his employés, and has no controlling effect in an action for reinstatement by discharged city firemen who violated rules and regulations of the fire department in becoming members of a labor union, in view of article 5246.
    3. Municipal corporations <&wkey;l98(2) — Discharge of city firemen joining labor union not arbitrary or capricious. '
    It cannot be said that the action of the city commissioners of the city of Dallas in removing city firemen joining a labor union in violation of a rule of the department was arbitrary or capricious.
    Appeal from District Court, Dallas County; Kenneth Foree, Judge.
    Suit by N. J. McNatt and others against Joe E. Lawther and others, as mayor and commissioners of the city of Dallas, for a mandamus to require the defendants to reinstate the plaintiffs as firemen. Judgment for defendants, and plaintiffs appeal.
    Affirmed.
    J. C. Patton, of Dallas, for appellants.
    Jas. J. Collins, W. S. Bramlett, and B. Dougherty, all of Dallas, for appellees.
   BOYCE, J.

N. J. McNatt and others brought this suit against Joe E. Lawther and others, as mayor and commissioners of the city of Dallas, for a mandamus, to require the defendants to reinstate the plaintiffs as firemen in the employ of the said city. The court sustained a general demurrer to the petition, so that it becomes necessary to state in some detail the contents of said pleading. The allegations of such petition were, in substance: That the plaintiffs had been, for some time prior to the acts of the defendants complained of, employed by the city of Dallas as firemen, performing the duties and receiving the pay incident to such employment. That at such time the charter of the said city contained the following provision:

“All policemen and firemen of the city of Dallas shall hold their positions during 'good behavior and shall not be removed from same except for such cause as in the opinion of the board of commissioners renders them unfit to remain in the service of the city and after written notice, giving the grounds for such discharge or removal, and an opportunity to be heard on such charges or reasons.”

That prior to January 9, 1918, the plaintiffs and other firemen of the city became members of a local union, affiliated with the American Federation of Labor. That the said firemen in so doing associated themselves together in the form of a trades union, for the purpose of protecting themselves in their personal work, personal labor, and personal service in their said pursuits, and employment, and that the object of said union was for such purpose and no other. That the plaintiffs were skillful and loyal in their service, and remained in good behavior in said employment, and no complaint was or could be made against them as such em-ployés of said city. That on the said 9th day of January, 1918, the defendants, as mayor and commissioners of said city, demanded of the said firemen that they immediately withdraw from said union upon penalty of being discharged from their respective employments. That the plaintiffs refused to withdraw from said union, and the defendants thereupon declared them to be suspended from their said positions for said reason. That thereafter, about the 24th day of January, 1918, plaintiffs presented to the said mayor and commissioners a petition for reinstatement, alleging that they had been wrongfully discharged. That in said petition they prayed in the alternative that the defendants cause to he filed against the plaintiffs a formal charge in accordance with the provisions of the charter of the said city, giving the reasons for their said dismissal or suspension, and that plaintiffs be granted a hearing thereon. That in pursuance to said petition charges were filed by the chief of the fire department, before the mayor and commissioners. That in the said charge it was alleged that the plaintiffs had knowingly and willfully violated the rules and regulations of the Dallas fire department, and had placed themselves in a position and state of insubordination to their superiors of said department and to the legally constituted authorities of said city, in that the said firemen, “with the purpose and intent to disregard tile rules and regulations of said department and to disobey tbeir superior officers, and to create, stir up', and foment strife, contention, disorganization, and disintegration, and insubordination in said department, .did agitate, aid, and abet tbe organization of a union in tbe Dallas fire department, tbe same to be under and become affiliated with and under the government and control of tbe American Federation of Labor, and did ally themselves with said union, and, when requested by said mayor and commissioners of said city to withdraw from said union and desist from such agitation and refrain from aiding and abetting the organization of said union, did refu'se to do so, and when called upon by tbe officers of said city to declare their absolute and unqualified allegiance and loyalty to the city of Dallas and its fire department, did refuse to make such declaration, all of which rendered them wholly unfit to be and remain in the service of the city in said department.” It is further alleged in the said petition that thereafter, on the 28th day of January, 1918, hearing was had on said charge, before the mayor and said commissioners, who thereupon ordered that said charges be sustained, and said dismissal of defendants be affirmed and ratified; that the plaintiffs were acting lawfully in the organization of said union, and were .specifically allowed to do so under the provisions of article 5244 of the Revised Statutes of the state, and that the charge filed against them was no charge in contemplation of law, and did not show any sufficient ground for such removal, and could not justify the action of said commissioners in dismissing the plaintiffs from the service of the city. Based on these allegations plaintiffs prayed for a writ of mandamus, requiring the defendants to reinstate plaintiffs as firemen of said city, and to allow them to perform the duties and enjoy the emolument and privileges of said positions, without requiring plaintiffs to withdraw from said union or to make any pledge not to join any union.

The provision of the charter referred to confers upon the board of commissioners of the city the authority to pass upon the sufficiency of the cause for removal, and the first matter to be considered is in reference to the power of the court to review the action of such board, and, if any such power exists, the rules under which it is to be exercised. We take it that the extent of the power of the courts in such matter has been definitely determined by the decisions in the cases of Riggins v. Richards et al., 79 S. W. 84; Id., 97 Tex. 526, 80 S. W. 524; Riggins v. City of Waco, 40 Tex. Civ. App. 569, 90 S. W. 657; Id., 100 Tex. 32, 93 S. W. 426. These cases grew out of the removal of Riggins from the office of mayor of the city of Waco by the city council of said city. Riggins first brought suit for mandamus to be restored to the office, and the first two cases dealt with this phase of the case. In the first report of the case in 79 S. W. 84, the Court of Civil Appeals mide this statement as to the law:

“The general rule is that where th,e duty to be performed is judicial, or involves the exercise of discretion upon the part of the tribunal or officer, and no appeal is permitted by law, the courts will not undertake, by mandamus or otherwise, to control or review the action of such tribunal or officer. * * . * However,, some courts hold that, if judgment or discretion has been abused and exercised in an arbitrary or capricious manner, the 'injured party may seek relief by mandamus.”

The first part of the proposition stated probably did not meet the approval of the Supreme Court, as was shown by the subsequent proceedings. The Supreme Court granted a writ of error in that case, but the term of office expired before the case was heard, and it was -dismissed. Riggins then sued the city for his salary, and the case was again before the Supreme Court on application for writ of error and that court said in part, in refusing the application:

“The application for the writ of error has received very careful attention, with the result that the court has reached the conclusion that it cannot interfere with or disregard 'the action of the city council whereby plaintiff in error was remo'ved from office. The power of removal is vested in that body by law, and no power of review, merely, is given to the courts. The law requiring that the removal should be for specified causes and after a hearing, the council was not empowered to deprive the may- or of his office arbitrarily or capriciously; and the courts, as incidental to their power to determine and enforce his right to the office, may inquire whether or not the council exceeded its lawful authority in the attempted removal, so that its action may be treated as a nullity, but beyond this have no rightful power over the subject. The most that could be asserted in favor of the power of the courts is that they may inquire whether or not charges'were duly preferred, a hearing had, and evidence adduced tending to sustain them.”

Tbe petition in the case before ns shows that a hearing -was had on the charges made against the plaintiffs. It does not disclose what evidence was offered on the hearing, and it will, of course, be presumed that the evidence supported the charge. So that the only question for us to determine is whether the charge itself, if sustained, was sufficient to authorize the removal. If there might be fairly said to be any ground for difference of opinion as to whether the acts charged would be sufficient cause within the provisions of the charter, then the courts could not interfere with the action of the board of commissioners. If there were no room for difference of opinion, and the charges preferred were clearly insufficient, then it might be concluded that the board acted arbitrarily or capriciously, and their action would not protect the city in this suit. We now pass to the consideration of such phase of the case.

It is appellants’ contention that their action in becoming members of the union was lawful, 'under the express provisions of article 5244 of the Revised Statutes, and could not form the basis of any charge for removal from their positions. This article reads as follows:

“It shall be lawful for any and all persons engaged in any kind of work or labor, manual or mental, or both," to associate themselves together and form trades unions and other organizations for the purpose of protecting themselves in their personal work, personal labor, and personal service, in their respective 'pursuits and employments.”

It was probably the purpose of this legislation to make it clear that the early English decisions, which held labor unions under certain circumstances to be unlawful, and our own laws against trusts and combinations in restraint of trade, did not apply to labor unions. The act merely announced that there was no prohibition of law against such unions. But, on the other hand, it did not seek to regulate the attitude of the employer toward the organization of unions among his employés, and we take it that, if the employer should see fit to prohibit his enfployés from becoming members of such “trades unions” on pain of discharge in case of violation of such prohibition, such act would not be in violation of this law. Martin’s Modern Law of Labor Unions, § 258. This would have been plain, we think, without any statement to such effect in the law, but the act itself declares that—

“Nothing herein contained shall be held to interfere with the terms and conditions of private contract with regard to the time of service, or other stipulations between employers and employés.” R. S. art. 5246.

If the act had sought to impose any restrictions upon the freedom of the employer in such matter, it would probably be held unconstitutional. Coppage v. Kansas, 236 U. S. 1, 35 Sup. Ct. 240, 59 L. Ed. 441, L. R. A. 1915C, 960; Adair v. United States, 208 U. S. 161, 28 Sup. Ct. 277, 52 L. Ed. 436, and note, 13 Ann. Cas. 764; R. C. L. vol. 16, pp. 480, 481; Labatt on Master and Servant (2d Ed.) § 2862; Martin’s Modern Law of Labor Unions, § 259 et seq. So we conclude that article 5244 has 'no controlling effect in the decision of the case, and we must return to the question as to whether the courts may say that the rules and regulations of the fire department referred to in the charge preferred against the firemen, prohibiting firemen of the city from becoming members of such labor organization, and the enforcement thereof, are purely arbitrary or capricious. By way of parenthesis we may say that the court sustained the demurrer in this case after evidence had been introduced on hearing before him, and such evidence showed that there was at such time in force in the city of Dallas a city ordinance which provided that—

“Hereafter no organization or association shall be organized among the members of the fire department unless the same first receives the approval of the chief of the fire department and police and fire commissioner; and if at any time after the creation of any such organization or association it should appear to the chief of the fire department or police and fire commissioner that such organization or association is detrimental to the duties and service required to be performed by the members of the fire department, it shall be the duty of the members composing any such organization, upon request from the chief of the fire department and police and fire commissioner, to discontinue, and dissolve any such organization.”

We refer to this ordinance as merely explaining the reference in the charge to the rule and regulations of the fire department, which, it was charged the plaintiffs had violated, and while the petition itself did not refer to such ordinance, it can be fairly inferred from the allegations of the petition, which set-out the charge preferred against the firemen, that such charge was made in view of such or similar rules, duly promulgated for the regulation of the fire department. Returning to the question we are considering. The Supreme Court of the United States said in the case of Coppage v. Kansas, supra, that—

“It cannot be judicially declared that membership in such an organization [a labor union] has no relation to a member’s duty to his employer; and, therefore, if freedom of contract is to be preserved, the employer must be left at liberty to decide for himself whether such membership by his employé is consistent with the satisfactory performance of the duties of the employment.”

The Supreme Court of Wisconsin, in the case of State v. Kreutzberg, 114 Wis. 530, 90 N. W. 1098, 58 L. R. A. 748, 91 Am. St. Rep. 934, said:

“Without enlarging upon or debating the relative advantages or disadvantages of the labor union, either to its members or to the community at large, it is axiomatic that an employer cannot have undivided fidelity, loyalty, and devotion to his interests from an employé who has given to an association right to control his conduct. He may, by its decisions, be required to limit the amount of his daily product; he may be restrained from teaching his art to others; he may be forbidden to work in association with other men whose service the employer desires; he may not be at liberty to work with such materials or products as the employer deems essential to his success.' In all these respects he may be disabled from the full degree of usefulness attributable to the same abilities in another who had not yielded up to an association any right to restrain his freedom of will and in his employer’s behalf according to the latter’s wishes. Such considerations an employer has a right to deem valid reasons for preferring not to jeopardize his success by employing members of organizations. A man who is 'by agreement, or otherwise, shackled in his faculties — even Ms freedom of will — may well be considered less useful or less desirable by some employers than if free and untrammeled.”

The board of commissioners of the city of Dallas had the interest of the public, as well as the employés of the city, to consider. In addition to the considerations stated in the quotations above referred to, the commissioners may have taken into consideration the effect of the increased probability of strikes by the policemen or firemen of the city, as a body, if such employés were permitted to become members of an organization which might bind them to act as a body in such matters. . The dire consequences of such a strike has been exemplified in the comparatively recent strike of the policemen of the city of Boston. The adoption of the ordinance referred to or similar rules and regulations, may have been the result of a purpose to minimize, as far as possible, the probability of some such calamity in the city of Dallas. We are not called upon to express an opinion as to whether such rules were wise or not. We do conclude, however, that we cannot say that the adoption and enforcement thereof by the constituted authorities of the city was arbitrary or capricious.

We think the court correctly sustained the demurrer to the petition, and its judgment will be affirmed. 
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