..”     .




                      THEATTORNEY       GENERAL
                              'OF TErvAs
                                    Ausnlv    66. TEXAS
        W’ILL WILSON
      A-rroRNEY aWERAt


                                    ~March 10, 1961


             Honorable George L. Preston, ~Chairman
             ~Municipal ,and Private Corporations
             House of Representative6
             Austin, Texas
                                         Opinion No. WW-1012

                                          Re: Constittitionality of House Bill
                                              14 of the 57th Legislature per-
                                              taining to settlement   of griev-
                                              ances and disputes concerning
                                              firemen’s slary,     hours of
             Dear Mr.    Preston:             wor’k and other emoluments.

                    You have requested an opinion on the constitutionality of
             House Bill, 14 of the 57th Legislature.

                      Section 1 of House Bill 14 declare6 a public policy that
             firemen are prohibited from striking or engaging in collective
             bargaining while claiming the right to strike as against the
             publics policy of the State of Texas, ~and~thatgrievance6 and
             disputes shall be submitted ‘to arbitration as provided by the
             Bill.

                      Sections 2, 3, 4, 5, 6, and 7~prercribe the me,thod and
             procedure of such arbitration.    Section 8 make6 it a penal of-
             fense for any city official in any city covered, by the Bill to will-
             fully violate the provision6 and terms of any decision made pur-
             suant to the Bill.  Section 9 is a severability clause, Section 10
             is a cumulative clause and Section 11 is the smergency clause.

                     Briefly, the Bill provide6 the procedure for submitting
             a grievance o* diEputs to a Commis6ion of Arbitration or to a
             Firemen’6 Hearing Commission and provide6 for the approval
             of the decirion or recommendation of such Commission by
                                                                        .   ” __




Honorable George L. Preston, .page 2 (WW-1012)




adoption of a city cedinance pursuant thereto or rejection of such
decision or recommendation by the governing body of the city and
an election to be submitted to qualified voter6 of the city to deter-
mine whether to approve or adopt such decision or recommenda-
tions and ordinance pursuant thereto.

         House Bill 14 contains but one subject, which i6 expressed
in its title and the body of the Bill conform6 to the caption and is,
therefore, in compliance with the provisions of Section 35 of Arti-
cle III of the Constitution of Texas.

       Article XVI,   Section 13 of the Constitution,    provides:

              “It rhall be the duty of the Legislature
       to pass such laws as may be necessary and
       proper to decide differences by arbitration
       when the parties shall elect the method of
       trial. ”

        Section 3 of House Bill 14 provide6 that upon receipt of
an appropriate request, the governing body of ,the city “may
elect-to participate in an arbitration proceeding . . . ” The    ‘~.
proposed legislation is accordingly authoriaed by the above quoted
provision of our Constitution.

         We presume that a constitutional question may also ,have
arisen as to whether this act would take from the governing body
of a city one of its governmental functions and in effect transfer
the city’s duties and responsibilities concerning wages and work-
ing conditions to 6ome other agency or group. The authority of
the Legislature with reference to municipal matter6 was well
stated in Hunt v. Atkinson, 18 S. W. 2d 594 (Tex. Comm. App. 1929),
as follows:

              “Their (city) charters must be ‘subject to
       such limitations as may be prescribed by the
       Legirlature. ’ This clearly 6hows that the legi6-
       lative power ir in all things 6upreme; that the
       power of the municipality is subject in all re-
       spects to ‘such limitations’ as may be prescribed
       by the Legislature,   without distinction as to those
Honorable George L. Preston,     page 3 (WW-1012)




       limitations then, existing or arising through
       subsequent~ legislative enactments.    We take
       it to be that the power of the municipaH!ty of
       home rule cities is not supreme in matters
       of legislation, but is at all times subject to
       any and all limitation6 that may be pre-
       scribed,by,the Legislature. I’

         In House Bill 14if is not mandatory that the city official6
accept the recommendations of either, the Arbitration Commi66ion
or the Hearing Commission and such recommendations.          not being
binding on the city, cannot, therefore, be considered an invalid
delegation of a governmental function. The authority of theelegis-
lafItretbpr&de     that issues relating to salaries of firement and
policemen be submitted to the vote of the qualified electors at an
election, as is provided in Article 1583-Z. Vernon’s Penal Code,
is well established and clearly constitutional.    City of Wichita
Falls v. Cox , 300 S. W. 2d 317 ,(Civ. App. 1957, error ref., n. r. e. )
and, Cases cited therein.   The authority of the Legislature to establish
the Firemen’s and Policemen’6 Civil Service, Article 1269m. Ver-
non’s &il    Statutes, dealing with working conditions and related
matter6 has similarly been held constitution&in numerous cases.
City of Wichita Falls v. Cox, supra, The authority of the Legisla-
ture in this field has in fact beenconsistently   upheld by the Courts.

        Article 1583, Vernon’6 Penal C,ode. providing a wage and
hour law for members of any fire department or police department
in certain cities and making it a penal offense for the city official
having charge of the fire depart-n-ent or police department to vio-
late any provision ~of Article 1583, was held to begconstitutional in
Dry v. Davidson, 115 S. W. 2d 689 (Civ. App., 1938, error ref. ) and
McGuire v. City of Dallas , 141 Tex. 170, 170 S. W. 2d 722 (1943).
In Dry v. David~son it was held that under Section 5 of Article XI’
of the Constitution of Texas:

              “Thus upon its face the provision of giving
       such citi& the right to adopt or amend their own
       charters accord6 that privilege only with these
       two string6 tiM&o:it:   (1) They may do so ‘subject
       to such limitations as may be prescribed by the
       Legislature;’ and.( 2) provided no charter ‘shall
Honorable Geoige L.    Preeton. ~page 4 (WW-1012)




       contain any provision inconsistent with ~the
       Constitution of the State, or of the general
       laws enacted by the Legislature;’ thi6 phrase,
       ‘as may be prescribed’ can only mean that
       future legislation may also limit whatever
       action a city may take, as well as that exist-
       ing at the time it first takes out or amends
       its charter. ”

        The Court further pointed out that Article 1583, ‘Uassifies
cities according to their population at the pr eceding census and
makes the salary provision here involved applicable to cities of
more than 75, 000, to which growHouston belongs” and held that
the classification constituks a general law and not a special one
within the meaning of Section 56 of Article III of the Constitution
of Texas.

       In construing the provisions of Article 1583 of the Penal
Code, the Court in McGuire v. City of Dallas, supra, pointed
out:

              “It is clear therefore’ that the legislature
       by the grant of additional compenaation’:to’those
       who were required or permitted to work over-
       time hours did not intend to render the prohi-
       bited work void, but rather to prevent it. The
       statute does not undertake to penaliie the fire-
       men but penalizes the municipality by the exac-
       tion of time and one-half for overtime for the
       ovettime hour6 required or permitted.         The
       penal offense provided,by the statute is applica-
       ble to ’the. city official having charge of the
       fire department 4: * *’ and not to the municipali-
       ty or firemen.     . . . ‘I

       On the constitutional question, ,the Supreme Court atated:

              “The city attack6 the quoted statute,
       particularly Section 7 thereof, on constitu-
       tional grounds. This court settled that ques-
       tion by the. refusal of the writ of error in
Honorable George L. Preston, .page 5 (WW-1012)




       thencacle of Dry v. Davidson, Tex. Civ. App. ,
       115 S. W. 2d 689, writ refu6ed. ”

       The Court further pointed out:

               ‘1. . . There is~no relation between the
       pension law and Article 1583. They are supk=
        ate and independent legislative enactments.
        A comprehensive pension system for incorpor-
        ated cities and towns has been authorized by
        rrtatute. Article6 6229-6243; 6243a a6 amended,
       44th Legislature,     Vernon’s Ann. Civ. Sts. arts.
        6229-6243,    6243a.   The constitutionality of
       ~the act was sustained by thi6 court in the case
        of Byrd v. City of Dallas, et al., 118 Tex. 28,
        6 S. W. 2d 738, upon the theory that contributions
       made by the municipality and the employee to
        the pension fund were a part of ,the agreed com-
       pensation, hence, not a grant of public funds to
       private purposes. etc. as prohibited by our
        6tate constitution. ”

        The case of Gong ress of Indu6trial Grgknizations v. City
of Dallas , 198 S. W. 2d 143 (Civ. App. 1946, error ref., n. r. e. )
involved~the validity oft a city ordinance prohibiting any city em;
ployee from organieing or becoming a member of a labor union;
In sustaining ,the validity of such ordinance, the Court pointed out
that the a6atukof government employee6 is radically different
from that of employees in private business in industry, and quoted
with approval the following from Railway Mail Ass’n. v. Murphy,
180 Misc. 868, 44N. Y. S. 2d 601:

               ,‘I. . . ‘Much as we all recognize the
       value. and the necessity of collec,tive bargain-
       ing in industrial and social life, nonetheless,
       ruch bargaining is impossible between the
       Government and its employees. by reason
       of the very nature of Government itself.     The
       formidable and familiar weapon in industrial
       strice and warfare -- the strike -- is? without
       justification when used against the Government.
Honorable George   L. Preston.   page 6 (WW-1012)




       When so used, it is rebellion against consti-
       tuted authority. 6 * *’ The Court themcna-
       eluded, a6 follows: ‘To hold otherwise would
       be to sanction control of governmental fune-
       ,tions not by,laws but by men. Such policy if
       followed to its logical conclusion would
       inevitably lead to chaos, dictator6 and the
       annihilation of representative government!”

        After a thorough review of the authorities in this State
and numerous authorities in other jurisdictions,   the Court con-
cluded:

              “Appellants main contention seems to be
       that the ordinance in question is unconstitutional
       and void because it would deprive them of cer-
       tain freedoms. rights and privileges granted by
       both the Federal and State Constitutions.      We
       do not ,think 60; these rights and privileges are
       purely personal and may be waived. Appel-
       lants overlook the fact that by voluntarily ac-
       cepting employment with the City of Dallas,
       they assumed the obligations incident to such
       employment; impliedly agreed to accept same
       under the conditions as they existed; agreed to
       accept the employment and compensation there-
       for as regulated and controlled by existing laws;
       especially did they obligate themselves not to
       organize a labor union or affiliate with one.
       These employees of the City may assert their
       constitutional rights andprivileges if they choose
       to do 130, but it is quite clear that to assert them
       under the circumstances would be inconsistent
       with the duty as employees of the City, and sub-
       ject them to discharge from the service.       While
       they have the right to these constitutional privi-
       leges and freedoms, they have no constitutional
       right to remain in the service of the City.”

        Since government . em p 1 b-yees,: such as city firemen. do
not have the authority to strike, the Legislature ha6 the authority
.




    Honorable George L. Preston,      ,page 7 (WW-1012)




    to prescribe the method ubereby peaceable settlements of
    grievances and disputes involving city firemen may be accom-
    plished without the governmental opexations of the city being
    interfered with.

            Summarizing the foregoing authorities and the authorities
    contained in such cases, it is not settled that the Legislature has
    the authority to prescribe by general law salary, wages, compensa-
    tion, emoluments, hours of employment and working conditions
    of city employees atd to presc.ribe,penalties for violation of such
    acts by city officials.

            It is our opinion that House Bill 14 as submitted with your
    request is a general law prescribing the conditions of employment
    of firemen in,cities of 10, 000 inhabitants or more and it is, there-
    fore, constitutional.  Dry v. Davidson, 115 S. W. 2d 689 (Civ. App.
    1938, error ref. ); McGuire v. City of Dallas, 141 Tex. 170. 170 S. W. 2d
    722 (1943); Congress d Industrial Organizations v. City of Dallas,
    198 S. W. 2d 143 (Civ. App. 1946, error ref., n. r. e. ).

                             SUMMARY

             House Bill 14 of the 57th Legislature,  as sub-
             mitted with your request, pertaining to settle-
             ment of grievances and disputes concerning
             firemen’s salary, hours of work, conditions
             of work and other emoluments, is constitution-
             aALpDly3fv. ~Davidson, 115 S. W. 2d 689 (Civ.
                       3, error ref. ); McGuire v. City of
             Dallas, 141 Tex. 170, 170 S. W. 2d 722 (1943);
             Congress of Industrial Organizations v. Gity
             of Dallas. 198 S. W. 2d 143 (Civ~.ADD.
                                                _.  1946.. error
             ref., n. r. e. )*

                                 Yours very truly,

                                 WILL WILSON
                                 Attorney General of Texas




    JR:mfh
Honorable George L. Preston,   page 8 (WW-1012)




APPROVED:

OPINION COMMITTEE
W. V. Geppert. Chairman

W. E. Allen
w. Ray Scruggr
Raymond V. Loftin

REVIEWED FOR THE ATTORNEY         GENERAL
BY: MORGAN NESBITT
