(dissenting).
In so far as the majority holds that officials of the City of Austin are violating Penal Code art. 1583 — ^2, V.A.P.C., and are subject to fines of $100 a day for the past year or so, I respectfully dissent.
The undisputed record shows:
According to the 1940 Federal Census Austin had a population of 87,930.
In 1947, the Legislature amended art. 1583 of the Penal Code 'by adding art. 1583 — 2, which, so far as pertinent here, provides:
“It is provided further, that in all cities in this state with inhabitants thereof between ten thousand (10,000) and one hundred seventy-five thousand (175,000) according to the last preceding Federal Census, each member of the Fire Department and of the Police Department shall receive and be paid the following sums per month according to the population of each such city * * *; in all such cities with inhabitants of forty thousand and one (40,-001) to one hundred thousand and one (100,001) inhabitants, such minimum salaries shall be One Hundred Eighty ($180-00) Dollars per month; * * * and in all such cities the additional sum of Ten ($10.00) Dollars per month for each five (5) years of service in such Fire or Police Department up to and including fifteen (15) years of service in such Department as a minimum wage for the services so rendered ; * * *.
“Any city official, or officials, who has charge of the Fire Department or Police Department, or who is responsible for the fixing of the wages herein provided in any such city, who violates any provision of this Act, shall be fined not less than Ten *342($10.00) Dollars nor more than One Hundred ($100.00) Dollars; and each day on which such city official, or officials, shall cause or permit any violation of this Act shall constitute and be a separate offense.”
The lowest salary paid any fireman or policeman of the City of Austin is $190 per month. Every fireman and policeman with five years of service is paid more than $190 per month; every fireman and policeman with ten years service is receiving more than $200 per month; and every fireman and policeman with fifteen years service is receiving more than $210 per month.
The law, quoted above, requires that every fireman and policeman of the City of Austin 'be paid “minimum salaries” of $180 per month and “the additional sum of $10 per month for each five years of service * * * as a minimum wage for the services so rendered.”
A minimum wage certainly means that an employee could not be paid less than the amount stipulated. The highest minimum wage that any fireman or policeman of Austin, with less than five years service, is entitled to under the plain ordinary language of the statute is $180 per month, with five years service $10 is added to make the minimum wage $190 per month, with ten years service $20 is added to make the minimum wage $200 per month, and with fifteen years service $30 is added to make the minimum wage $210 per month.
The firemen and policemen and the majority of this court say (by inference at least) that because the City of Austin pays a fiat salary (more than required 'by law) without breaking it down into so much for base pay and so much for longevity, that the longevity payment must be added to the flat salary. Art. 1583 — 2 contains no such requirement and it should not be read into the statute.
They also say that while each fireman and policeman is receiving at least $180 per month base pay and at least an additional $10 per. month for each five years of service, that this does not satisfy the mandate of art. 1583 — 2, supra, because some firemen and some policemen receive more than this amount. The warrant for this holding is not to be found in such statute. Such statute contains no restriction upon the maximum salary which the city may pay to a fireman or policeman. There are other considerations, besides length of service, which determine the value of a man’s hire — ability, dependability, loyalty, demeanor — just to mention a few. Yet, the majority necessarily holds that the city must forego any reward for these attributes.
The majority relies upon certain language, set out in its opinion, of an amendment to the Firemen’s and Policemen’s Civil Service Act by the 51st Legislature, Acts 1949, p. 1114.
This language, to me, is not controlling, nor even persuasive, because:
1. The provisions of art. 1583 — 2, supra, before the court for construction, are not in the least ambiguous or uncertain.
2. Such amendment does not purport to amend Penal art. 1583 — 2.
3. Such amendment is not in pari ma-teria with art. 1583 — 2.
4. The 51st Legislature, which amended the Firemen and Policemen’s Civil Service Act, also amended the very statute which is before the court in this case. See Chap. 522, Act 51st Leg., p. 951, which amends P.C. art. 1583 — 2.
This Act raises the minimum wage of firemen and policemen, but provides: “Section 1-a: The provisions of this Act shall not apply to those cities which are paying on the effective date hereof salaries in excess of the mínimums provided for herein so long as such cities continue to pay the minimum salaries designated in Section 1 hereof.”
Another new section has also been added which reads: “Provided further, that all municipal governments affected by this Act shall, within thirty (30) days following enactment, set up classifications in Police and Fire Departments providing for duties under such classifications and specifying salary for each classification; and thereafter any member of any Fire and Police Department who is called upon to perform the duties under any such classification shall ■be paid the salary provided therefor for such period as he performs such duties.” §3.
*343No attempt by me is made to construe any of the provisions of the 1949 Minimum Wage Act for Firemen and Policemen, but it is cited to show that when the Legislature changes the law as to minimum wages for firemen and policemen it does so by amending the very statute which not only prescribed the minimum wage but provided a penalty for its violation, and does not, as indicated by the majority, bring about such change by a statement made in some extraneous act.
Furthermore, the probability is, as it seems to me, that the 51st Legislature in making the recitation, relied upon by the majority, was giving its interpretation of the Minimum Wage Law enacted by it only nineteen days previously and was not thinking of the statute now before the court.
In my opinion no rules of construction are needed to understand the meaning of, and legislative intent found in, the language of this statute, but if so the rule to apply is one of strict construction since the statute is penal and because it invades the orbit of local self government of cities which are popularly called Home Rule Cities.
As I view the statute the minimum wage is definite and is the one fixed by the Legislature. As the majority views the statute, the minimum wage is so indefinite that the maximum minimum wage is limitless, and is not the minimum wage set by the Legislature but is one established by the city.
The trial court’s judgment in this respect should be affirmed.