176 Called Meeting of the City Council Austin Texas June, 20th 1885 Hon J. W. Robertson, Mayor, Presiding Present aldermen Schneider, Metz, Hancock, Wells Campbell, Schubert, Underhill, Warren, Deels, Carrington Holman, Hill, Platt, Brush & Brennens 15 Absent Aldermen Pillow, Maas, Driskill Crooker and Ervin 5 Mayors Office Austin Tex June 20th 1885 Call of council To the Members of the City Council of the City of Austin Gentlemen - I hereby call a special meeting of the city council to meet this evening, Saturday June 20 1885 at 8.00 P. M. to consider the mayors objections to an ordinance passed June 15, 1885 making an appropriation to pay certain amounts against the City and to consider an ordinance making necessary appropriations for July intrest and for other purposes Yours rect. J. W. Robertson, Mayor. The following veto message was received from his Honor the Mayor Mayors Office Austin Texas June 20th 1885 Gentlemen of the City Council: There are two items in the ordinance making appropriations to pay approved accounts against the city, passed at the regular meeting of the city council, June 15. 1885, to which I cannot give my approval, The items referred to are the following, W. J. Burt, services rendered at small pox camp $200.00; and Mrs Horner, payment of time lost by hack $50.00, The claim of Dr. W. J. Burt is thus stated in his account filed: --- Page break --- 177 " City of Austin to W. J. Burt, M. D., Dr May, 1889 to amount to reimburse him for losses incurred by reason of exposure to small pox, under orders of the City council - $200.00 (By way of explanation I will state that I have lost almost all my private and paying practice by my friends refusing to send for me by reason of my exposure to Small pox, and who will not send for me for many days to come. In addition I have run the risk of having varioloid myself as any man may who is exposed after vaccination. The City Council heretofore have paid the physician at one time $500.00, and at another $1000.00 for this loss and exposure, I therefor ask the above amount to reimburse me for actual loss under your orders. (Signed) W. J. Burt. The claim of Ned Green is stated in his account as follows: The City of Austin Dr to Ned Green, $40.00 Time of hack laid off from work by order of the City Physician, to be disinfected after transporting A. H. Crow, to his home - Ten days @ $4.00 per day $40.00 This account is also approved and its payment by the City Physician. Dr W. J. Burt is the City Physician, and was elected to this office, under the provisions of the amended charter, December 8. 1883 to serve for a term of two years. The salary of the City Physician is fixed under said amended charter, Art. 9, Section 1, as follows: The salary of the City Physician shall not exceed Six hundred dollars per annum. The said amended charter, in the same article, further provides, that' after every election of City officers by the Council, the council shall immediately proceed to fix the salarie of such officers, etc. In obedience to this requirement of the City charter, the City Council, on December 10th 1883 passed an ordinance fixing the compensation of all officers and employees of the City for the term of two years from that date, and the --- Page break --- 178 (June 20th 1885 Continued) salary of the City Physician was fixed, as follows: "The City Physician shall receive an annual salary of $600.00", The third section of said ordinance reads as follows: Section, 3 - "No officer, agent, or employe of this City shall receive any salary, fees, commissions or compensation for his services, directly or indirectly, except as provided in Sec. 1, of this ordinance." The maximum limit of the salary or compensation of the City Physician, as provided in the charter, is $600.00 per annum, and this amount was fixed by the ordinance. There is no authority given in the charter for the allowance of extra compensation to any officer for any services to the city, and the constitution of the state forbids the legislature from making such grants of power to municipal corporations, Art. III, sec. 56 reads as follows: "The Legislature shall have no power to grant or to authorize any county or municipal authority to grant any extra compensation, fee or allowance to a public officer, agent, or servant or contractor, after service has been rendered, or a contract has been entered into, and performed in whole or in part, nor pay or authorize the payment of any claim created against any county of municipality of the State, under any agreement or contract made without authority of law". This is a positive prohibition against this character of legislation, and applies directly to municipal corporations, But independent of all these restraining provisions, the allowance of this claim would be without authority, illegal and against a settled public policy, Judge Dillon, in his work on municipal corporations, Vol. 1, Page 236-237, treating this identical question, use this language. Sec 233 - It is a well settled rule that a person accepting a public office, with a fixed salary, is bound to perform the duties of the office --- Page break --- 179 for his salary, he cannot legally claim additional compensation for the discharge of these duties, even though the salary may be a very inadequate remuneration for the services, Nor does it alter the case that a subsequent statute or ordinance his duties within the scope of the charter powers pertaining to the office are increased, and not his salary. Whenever he considers the compensation inadequate, he is at liberty to resign. The rule is of importance to the public, To allow changes and additions in the duties belonging, or which may properly be attached to an office, to lay the foundation for extra compensation, would soon introduce intolerable mischief. The rules, too, should be very rigidly enforced, the statutes of the legislature and the ordinances of our municipal corporations seldom prescribe with much detail and particularity the duties annexed to public offices, and it requires but little ingenuity to run nice distinctions between what duties may, and what may not, be considered strictly official; and if these distinctions are much favored by courts of justice, it may lead to great abuses. 234 - Not only has an officer, under such circumstances, no legal claim for extra compensation, but a promise to pay him an extra fee or sum beyond that fixed by law is not binding, though he may render services and special to a degree of diligence greater than could legally have been required of him". This statement of the law by Judge Dillon is supported by authorities cited from almost every State in the Union. The rule is a safe one and cannot be violated without producing evil consequences. But it is asserted that this allowance to Dr. Burt is not in the nature of extra salary or compensation, but only an allowance for losses incident to a faithful discharge of public duties. This position is equally untenable. --- Page break --- 180 June 20th 1885. called It is just as well to call it extra salary, or extra compensation. It is precisely the same thing in effect. The officer's salary is $600.00, and $200.00 is added to it, and that is all you can make out of it. Call it by what name you may, the result is precisely the same. In this case Mr. A. H. Crow, who had small pox, came into the City on the evening of May 22nd 1885, and as I understand summoned Dr. Burt as his private physician. The council took action on Saturday following, and on Monday May 25th 1885, Mr Crow was moved across the Colorado river under your instructions. The City Physician had been in contact with the disease twentyfour hours before any action by the city council, and the danger of infection was certainly as great at that period as subsequently. The city physician made no objections to the performance of the duties imposed upon him in your order to remove the patient beyond the limits of the City. His duties in such cases are prescribed by ordinance passed March 9, 1878, and reads as follows "Art 274 - It shall be the duty of the Health Physician whenever he is informed of the existence of any pestilential, contagious or infectious disease within this city, to cause the person or persons so diseased to be taken to such place as he may designate, away from all probable danger of communication, for treatment; and such place shall become a pest-house, and shall be under the exclusive control of the Health Physician, who shall issue such orders as will, if possible, prevent the spread of such disease." Dr. Burt was attending the patient as a private physician, and no duties were imposed upon him by the city council not coming strictly within his official duties as defined by the ordinance quoted. So far as I am informed Mr. Crow continued a private patient until his recovery, and the only interference by the city was to provide for his removal. --- Page break --- 181 It is said that physicians have been employed on other similar occasions at heavy salaries. This I doubt not is true, but the physicians so employed were not officers of the city at the time and even if it were shown that such extra-allowance had been made to city officers, I would regard it as a dangerous precedent and one not to be followed. I do not doubt that the performance of this duty has been attended with inconvenience and loss, but we must remember that he who receives the emoluments of office much likewise bear its burdens. There was no duress or force in this matter, and there is no fact or circumstance connected with it to relieve it of the general rule in such cases. As to the claim of Mr. Green, I understand these to be the facts. He is a hack driver and hauled Mr. Crow from the depot to his home, on the evening of his arrival in the city. This was a private employment for which he was paid his proper hire. No one then knew of the existence of small pox, when this fact was discovered the city physician, in the discharge of his duties to the public, ordered the hack quarantined and disinfected. This was a necessary precaution, and resulted from a voluntary act on the part of Green, which the city had nothing to do, and for which it is in no manner responsible. When Mr. Crow was moved across the river on Monday, I offered Mr. Green $30.00 for the use of his hack to remove him, and proposed to have it disinfected and returned to him in a reasonable time. He declined this offer. His claim against the city is entirely without merit, it is no more nor less than a donation or gift for a private purpose, and this cannot be allowed. To other matters in the ordinance I have no objections, I cannot disapprove of a part, and approve the remainder. It, therefore, becomes my duty, under my view of the law to disapprove the ordinance under consideration. --- Page break --- 182 June 20th, 1881. carried for the reasons I have stated, and return the same to you for reconsideration. Very Respectfully J. W. Robertson Mayor Reconsider vote Alderman Pluth moved that the vote by which the vetoed ordinance passed be reconsidered Motion to reconsider carried Pass not withstanding veto of mayor Alderman Warren moved that the ordinance pass notwithstanding the veto of the mayor Motion lost by the following vote Yeas alderman Metz & Nays aldermen Schneider, Hancock, Wells Campbell, Schubert, Underhill, Warren, Odell, Carrington Holman, Hill, Pluth, Brennan & Brush 14. Ordinance $9,792.50. Alderman Odell introduced an ordinance appropriating the sum of $9,792.50 for payment of July interest on public debt, and for payment of other claims and salaries The ordinance was read second and third times under suspension of the rules and passed by the following vote yeas Aldermen Metz, Schneider Hancock, Wells, Campbell, Schubert, Underhill, Warren, Odell, Carrington, Holman, Hill, Pluth, Brush & Brennan. Ordinance [illegible] Bankrupts Alderman Odell introduced an ordinance providing for the collection of taxes against persons becoming bankrupt, or making an assignment The ordinance was read second and third times under suspension of the rules and passed by the following vote yeas Aldermen Schneider, Metz, Hancock, Wells, Campbell, Schubert, Underhill, Warren Odell, Carrington, Holman, Hill, Pluth, Brush & Brennan.