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CITY SAN ANTONIO ET AL. v. VIRGINIA HANDLEY (12/18/57)

December 18, 1957

CITY OF SAN ANTONIO ET AL., APPELLANTS,
v.
VIRGINIA HANDLEY, A FEME SOLE, ET AL., APPELLEES; CITY OF SAN ANTONIO, APPELLANT, V. BERTHA R. JONES, A FEME SOLE, ET AL., APPELLEES



On Motions for Rehearing.

City, by its motion for rehearing, invites our attention to the fact that ten of the appellees were transferred into the Department of Public Works in 1952. They are, appellees Ward, Moore, Tease, Casey, Clack, Davis, Granieri, Hopkins, Janert, and Blas Rodriguez. City argues that the transfer was a bona fide reorganization and not a paper transfer, and that those employees were placed under the direction and supervision of the Director of Public Works. City argues that those appellees delayed their action seeking reinstatement as policemen for four years and that a fact issue concerning laches is present as to them. No new or different employees were hired by the City because of the reorganization and the work of the ten appellees continued the same as it did before. The situation is similar to that presented in City of San Antonio v. Castillo, Tex.Civ.App., 293 S.W.2d 691, 695. In our opinion, however, laches was not raised by the pleadings. Five different suits were consolidated in the trial court. The pleadings and answer which concern and relate to these ten employees do not mention an issue of laches. Laches was not in the case. Rule 94, Texas Rules of Civil Procedure; Culver v. Pickens, 142 Tex. 87, 176 S.W.2d 167; Perkins v. Martel, Tex.Civ.App., 277 S.W.2d 741.

In the recent case of Firemen's and Policemen's Civil Service Commission of City of San Antonio v. Wells, Tex.Civ.App., 300 S.W.2d 676, the Supreme Court held that one may be a "member of the Police Department" under the Civil Service Act and yet at the same time not qualify as a "duly appointed and enrolled" policeman under the Pension Act. Art. 1269m, Sec. 2, Art. 6243f, Sec. 7(a), Vernon's Ann.Civ.Stats. City urges that by like reason one may be a member of the Police Department under the Civil Service Act and yet not qualify for the benefits of the minimum salary act. Art. 1583-2, Vernon's Penal Code.

The Supreme Court in the Wells case stated that it had refused to grant writs in several Civil Service cases, in at least one of which the same point had been squarely presented. City of San Antonio v. Hahn, Tex.Civ.App., 274 S.W.2d 162, 163, was one of those cases. The opinion of the Court of Civil Appeals isolated and stated two controlling issues, one of which was: "Are such employees entitled to all the benefits of Article 1583, P.C., including all pay raises granted to patrolmen by the City Council?" The Court held that they were entitled to the benefits of that Article, and while the parties agreed upon the amount, there was no agreement that the Article applied. We are convinced that the refusal of the writ in that case, also decided this one.

City of Galveston v. Frederickson, Tex.Civ.App., 174 S.W.2d 994, does not hold to the contrary. That case held that the fire marshal who brought that suit, under the city ordinances, was not a member of the fire department. In that case he was not a member of the department. In this case, these plaintiffs were "members" of the department.

The motions for rehearing for appellees and appellants are overruled.

19571218

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