This cause involves the construction and application of a portion of Art. 1269m, Vernon's Ann.Tex.Civ.Stats., which is the Firemen's and Policemen's Civil Service Act. A statement is necessary.
After the City of Waco (a home rule city) adopted the Civil Service Ordinance putting into effect the Civil Service Commission, the City, by proper ordinance, established a classification system for all officers and places of employment in the Fire and Police Departments. Pertinent to this discussion the employees of the Police Department were placed in Grades 1, 2, 3 and 4. Grade 1 provides for 71 positions (which includes foot and motor patrolmen, traffic squad and police matron) and provides that each employee be paid $210 per month. Grade 2 provides for five sergeants and eight detectives and fixes the pay for each at $233.62 per month. Grade 3 provides for one lieutenant of police, one lieutenant of traffic, superintendent of the identification bureau and the chief radio mechanic and fixes the pay for each at $250 per month. Grade 4 provides for two captains and fixes the pay for each at $270 per month.
On December 8, 1950, the Commission examined papers given on the examinations for various positions in the Police Department on November 21, 1950, and declared the following eligibility list: In the sergeants' Grade No. 2 we find first, Cornell (2) Eakin, (3) Schober, (4) Farley, (5) Coan, (6) Lucas, and (7) Akard. The other names on the list are not pertinent. Thereafter Cornell and Farley were promoted to Grade 2. Appellees, on the 8th of December, 1951, filed with the Civil Service Commission a notice and application, the effect of which was to complain of the action of the Civil Service Commission in permitting the promotion of policemen Farley and Cornel and asked that the promotions and appointments be set aside; that Farley and Cornell be demoted to their original positions and that a competitive examination be held in accordance with the Civil Service Law for the purpose of establishing an eligibility list.
The Commission thereafter had a meeting on December 21, 1951, and entered the following findings, the pertinent parts of which are:
Thereafter, appellees, on December 28, 1951, filed their original petition on which they went to trial. It covers 28 pages in the transcript. Pertinent to this discussion the effect of appellees' petition was to complain of the action of the Civil Service Commission to permit the promotion of Farley and Cornell and they asked that the promotions be set aside, that Farley and Cornell be demoted to their original positions of policemen, and that the court issue a mandatory injunction requiring the Civil Service Commission, the Director of Civil Service, and the Chief of Police to remove Farley and Cornell from the sergeants' and detectives' positions and reassign them to Grade 1 and compel the Civil Service Commission to give another promotional examination as required by law.
Appellants seasonably presented pleas in abatement and motion for instructed verdict, each of which was overruled, and the court submitted the cause to the jury. The jury in its verdict found substantially: (a) that the transfer of a sergeant to a detective was a promotion; (b) that plaintiffs, by their failure to act on such transfers, were not guilty of laches; (c) that the Civil Service Commission, in reaching its decision on December 21, 1951, acted arbitrarily, unreasonably and capriciously. The decree of the court set aside the findings of the Civil Service Commission and substituted its findings for the findings of the Commission, and on the verdict of the jury and the court's findings entered its decree and granted a mandatory injunction authorizing plaintiffs to require the Civil Service Commission and the city officials of the City of Waco to put into effect the court's findings. The decree covers eight pages in the transcript. Appellants seasonably perfected their appeal to this court.
Since we are of the view that appellees' petition failed to state a cause of action and the further view that the trial court was without any authority to hear appellees' appeal from the findings of the Civil Service Commission and was without authority to substitute its findings for the findings of the Commission, a statement in detail of the findings and the decree of the court would be of no avail.
Appellants' first point is: "Art. 1269m, Texas Revised Civil Statutes, precludes the appeal pursued by appellees." We sustain this contention.
Section 16a of Art. 1269m, supra, is applicable and controlling here. It provides:
Neither of the appellees has been suspended or aggrieved Each of them was an employee of the Police Department in the grade in which they had been employed. It is true that appellee Akard's name was seventh on the eligibility list that was prepared on December 8, 1950, but only four men had been promoted from Grade 1 to Grade 2, and Nos. 5 and 6 were in line for promotion ahead of Akard, so appellees were before the Civil Service Commission asserting a complaint that had not accrued during the life of the eligibility list and under which Farley and Cornell had been appointed. No complaint had been filed with the Commission concerning such eligibility list during the time it was in force, and the City of Waco, acting upon the findings of the Civil Service Commission, had made the promotions of Cornell and Farley from Grade 1 to Grade 2. Under the express terms of the statute, appellees stood before the Civil Service Commission without any eligibility whatsoever to be considered for promotion from Grade 1 to Grade 2, and the Civil Service Commission was powerless to make another eligibility list without giving new examinations and proceeding according to law, and besides there was no vacancy in Grade 2. So appellees were before the Civil Service Commission and the trial court without a justiciable interest in the subject matter. Our court save steadfastly adhered to the legal principle that in order for one to seek relief in a court of justice, he must have a justiciable interest in the subject matter. The promotions that had been made by the city officials of the City of Waco had become effective under an eligibility list that had been in force for the period of one year governing such promotions, and the city officials of the City of Waco alone had authority to suspend or dismiss these men from their new positions. Needless to say that the statute provides that in the event a policeman is suspended or dismissed from his position, he has a right to be heard under the terms of the statute, but no such controversy is before us here.
We think we should say that our Supreme Court has recently rendered two very important decisions construing this pertinent statute. See City of Amarillo v. Hancock, Tex.Sup., 239 S.W.2d 788, and Glass v. Smith, Tex.Sup., 244 S.W.2d 645. These cases reflect the most recent views of the Supreme Court and they should be studied and followed in causes arising under this statute.
We think we should also say that no principle of law is better settled by our Supreme Court than that in cases where a trial court has appellate jurisdiction from the orders of the Civil Service Commission or an administrative agency, the trial court has no authority to substitute his findings for the findings of the Commission, and that such court necessarily would have no authority to put such findings into effect by means of a mandatory injunction. See Lone Star Gas Co. v. State, 137 Tex. 279, 153 S.W.2d 681; Trapp v. Shell Oil Co., 145 Tex. 323, 198 S.W.2d 424; City of San Angelo v. Boehme Bakery, 144 Tex. 281, 190 S.W.2d 67; Texas Consolidated Theatres v. Pittillo, 204 S.W.2d 396 (by this court); Montgomery v. City of Dallas, 245 S.W.2d 753 (by this court, er. ref.); Fire Dept. of City of Fort Worth v. City of Fort Worth, 147 Tex. 505, 217 S.W.2d 664.
Notwithstanding the views heretofore expressed dispose of this cause, we think we should make the following statement: The finding of the jury as well as the finding of the court that the transfer of a sergeant to a detective was a promotion is without any support in the evidence and violates and contradicts the undisputed evidence on this matter. The City of Waco, by ordinance, established a classification system, and Grade 2 placed sergeants and detectives in the same class and fixed their pay on the same basis. Neither the jury nor the court had authority to change the city ordinance in this behalf. That power is peculiarly lodged with the Board of Commissioners of the City of Waco and it cannot be taken away from this body by judicial order and any attempt to do so is void. Our Supreme Court in Glass v. Smith, 244 S.W.2d 645, in an opinion handed down on October 28, 1951, expressly held that the legislature itself had declared the classifications should be provided by ordinance of the City Council and that the City Council in the aldermanic form of government and the City Commission in the commission form of government have always been the primary repository of legislative powers in this state. Since they City of Waco by ordinance pursuant to authority of the legislature fixed the grades of its employees, neither the jury nor the trial court had authority to change these grades and classifications. Since a sergeant and detective are in the same grade under the terms of the ordinance, it would indeed severely handicap the Police Department if the Chief of Police, charged with the duty of supervising and handling his force, could not assign the sergeant of a detective's duty or a detective to a sergeant's duty, if he thought the best interests of the safety and welfare of the city demanded it. Neither the statute nor the ordinance makes such restrictions upon the authority of the Chief of Police and we find no authority for the trial court to limit the authority of the Chief of Police by a court order in this behalf, and the trial court's attempt to do so is void.
We think J. D. Farley had complied with Section 14 of Article 1269m, supra. The record is without dispute that Farley complied with the first provision of
Since the trial court did not have jurisdiction to hear the appeal, it necessarily follows that the court was without authority to substitute its findings for the findings of the Commission and grant the mandatory injunction or any other relief. Since the trial court was without jurisdiction to hear the appellees' complaint, the decree entered by the court becomes a nullity and must be set aside and the injunction granted must be vacated and dissolved. See City of Amarillo v. Hancock, supra.
Accordingly, the judgment of the trial court is reversed, the injunction granted vacated and dissolved, and the cause dismissed.
LESTER, C. J., took no part in the consideration and disposition of this case.