Opinion
May 3, 1911.
Appeal from Bell County Court; W. S. Shipp, Judge.
Action by J. H. Head against the City of Belton. From a judgment for plaintiff, defendant appeals. Reversed.
John B. Durrett, for appellant.
A. L. Curtis and Winbourn Pearce, for appellee.
The city of Belton is a municipal corporation, duly incorporated as such under title 18 of the general laws of Texas (Rev.St. 1895) applying to cities having more than 1,000 and less than 10,000 inhabitants. The city council of said city, on the 9th of December, 1908, at a regular session, fixed the mayor's salary at $40 per month. On the 15th day of January next thereafter, said city council rescinded its said action of December 9th, and passed an order that the mayor should receive a salary of $60 per annum. At the ensuing regular election, held April 6, 1909, appellee was elected mayor of said city, and qualified as such April 14, 1909, since which time he has been acting as mayor of said city. The city council having refused to pay him the sum of $40 per month claimed by him as his salary under said first order, he brought this suit against the city on the 21st of July, 1910, for the sum of $600, claimed to be the full amount due him up to said time. Appellant denied liability, on the ground that it did not owe appellee the sum of $40 per month, because said first order had been rescinded as above stated, and his salary fixed at $60 per year by subsequent action of the city council. A jury being waived, the matters of law and fact were submitted to the court, who rendered judgment for appellee for the full sum of $600, from which judgment this appeal is prosecuted. So that the only question for our consideration is that presented by appellant's second assignment of error, urging that the court erred in holding that the city council of said city did not have the power at its January term, 1909, to repeal the order passed at the December, 1908, session, fixing the mayor's salary at $40 per month.
The statute governing this matter reads as follows: "The city council shall, on or before the first day of January next preceding each and every election after the first under this title, fix the salary and fees of office of the mayor to be elected at the next regular election, and shall at the same time establish the compensation or salary to be paid to the officers elected or appointed by the city council, and the compensation or salary so established shall not be changed during the term for which said officer shall be elected or appointed." It is laid down in Vol. 20 (2d Ed.) Am. Eng. Ency. Law, p. 1215, that "the governing body of a municipal corporation has, as a general rule, the power, if vested rights are not thereby interfered with, to reconsider and rescind action previously taken." It is said in 28 Cyc. 383, discussing the subject of municipal corporations, that the "power to enact implies power also to repeal ordinances, unless the right is limited or abrogated by a higher law. All ordinances, too, are subject to repeal, except such as are contractual in their character." We think it follows from this rule that unless some vested right had accrued, or the statute itself precluded the enactment of the second ordinance repealing the first, that it must be held that the power to do so in the municipality existed. Appellee, however, contends that this statute requires the city council, on or before the 1st day of January, to fix by ordinance the salaries of the mayor and other officers, and that it cannot be done at any subsequent term, and, further, that, having fixed the same in obedience to said requirement, the city council is without power to repeal the same at any subsequent session. In discussing the time when salaries should be fixed by municipal corporations, it is said in 28 Cyc. 457, that "the rule is that the compensation must be established before the commencement of the term of office; and it is well settled that, in the absence of any prohibition or restriction, the compensation of a municipal officer may be changed by the proper authorities, and such change may apply to officers then in office, as well as to those thereafter selected." See, also, McFall v. City of Austin, 1 White W. Civ.Cas.Ct.App. § 451, p. 207, and authorities there cited. It is said in Cyc. vol. 36, p. 1160, that "the statute specifying a time within which a public officer is to perform an official act regarding the rights and duties of others is directory merely, unless the nature of the act to be performed, or the phraseology of the statute, or of other statutes, relating to the same subject-matter, is such that the designation of time must be considered a limitation upon the power of the officer." "And the word 'shall' is to be construed as merely permissive, where no public benefit or private right requires it to be given an imperative meaning." Id. p. 1161.
In the present case appellee contends that, the time named in the act for fixing the salary of the mayor and other officers being mandatory upon the city council, they were compelled to perform this duty at the time named in the statute. He further contends that the latter clause of the statute, declaring that the compensation or salary so established shall not be changed during the term for which said officer shall be elected or appointed, precluded the city council from repealing or in any way changing at its January term the order entered fixing the salary at its previous December term. We believe that the word "shall," as used in the statute above quoted, is merely directory, and that, if the city council should fall to fix the salary and compensation of the mayor in accordance with this direction prior to the 1st day of January, it could do so at any time before the commencement of the term of office of such officer. We are strengthened in this belief by the latter clause thereof, which declares that the compensation or salary so established shall not be changed during the term for which said officer shall be elected or appointed. This last clause clearly indicates that said salary or compensation might be changed at any time, provided it is not done during the term for which said officer should be elected or appointed. There was no effort in the present case to change or alter the salary during the term for which the mayor was elected; but, on the contrary, the change was made in January, and the election did not occur until April thereafter. Suppose that the city council had wholly failed to fix any salary on or before January 1st preceding a general election; could it be held that this failure would preclude it from fixing the salary of its mayor and other officers at any time thereafter, provided it was not done during their respective terms? We think not, but that the power would, still remain to fix the salaries of said officers within the time indicated. Our present Constitution required the first Legislature held thereunder to pass laws on certain subjects, to wit: Article 3, § 43, providing for revising, digesting, and publishing the laws; section 46, art. 3, for the enactment of effective vagrant laws; section 20, art. 16, for the passage of local option laws; article 16, § 35, for laws protecting laborers' liens upon public buildings, etc.; article 16, § 36, for laws providing for the payment of past-due indebtedness to public school teachers, etc. Certainly the failure on the part of the first Legislature to pass laws upon the subjects enumerated would not prevent subsequent Legislatures from carrying out the commands of the Constitution in these respects; but they would still have power to legislate upon the subjects indicated.
In the case of Collingsworth County v. Myers, 35 S.W. 414, the commissioners' court at its February term, 1893, entered an order fixing the ex officio salaries of its county judge, sheriff, and county and district clerk at a certain amount for the next two succeeding years; but said court at its November term thereafter, by an order duly entered in its minutes, reduced the salaries of each of said officers, who instituted suit against the county to recover the amount first named. It was held that the commissioners' court had the authority to reduce the ex officio salaries previously fixed for such officers. We do not think that the case of City of Oak Cliff v. Etheridge, 76 S.W. 602, cited by counsel for appellee, sustains his contention, because in that case the city council undertook to change the salary of the city marshal after the commencement of his term of office, which is clearly prohibited by the statute, for which reason said case is distinguishable from the case at bar
Believing that the city council had the authority to repeal the ordinance passed at its December term, 1908, by the one passed at its January session thereafter, we therefore think that the trial court erred in rendering judgment for appellee for the amount sued for, and that he was only entitled to recover the salary fixed by the January order, to wit, $60 per annum. We therefore reverse and remand the case, with instructions to the trial court to render judgment for appellee for the time the proof may show that he served, at the rate of $60 per annum.
Reversed, with instructions to render; costs to be taxed against appellee.