Altenberg v. City of Superior

• Decision Date: 21 June 1938
• Citation: 228 Wis. 272,280 N.W. 342
• Parties: ALTENBERG v. CITY OF SUPERIOR and three other cases.
• Court: Wisconsin Supreme Court

228 Wis. 272

280 N.W. 342

ALTENBERG

v.CITY OF SUPERIOR and three other cases.

Supreme Court of Wisconsin.

June 21, 1938.

Appeals from four judgments of the Circuit Court for Douglas County; W. R. Foley, Judge.

The Altenberg, Clark and Parsons judgments are reversed. The Allen judgment is reversed in part and affirmed in part.

In the four separate actions, commenced December 30, 1936, Frank Altenberg, Harry W. Clark, Thomas Allen and Fannie Parsons, as administratrix of the estate of Daniel Parsons, deceased, sought to recover from the city of Superior, certain sums asserted to have been unlawfully deducted from their salaries and that of decedent respectively, and unlawfully withheld by the city. The plaintiff Altenberg also sued to recover on a similar claim which had been assigned to him by Loretta Mangan, administratrix of the estate of M. J. Mangan, deceased. The plaintiff Allen sued to recover not only the amounts deducted from his salary but also the sum of $25 per month from March 1, 1933, to November 1, 1933, to which, he alleges, he was entitled as a full time motorcycle officer under the then existing salary schedule. The respective claims were duly filed with the city and constructively disallowed by failure of the council to pass upon them. The plaintiffs' claims are grounded upon the assertions that at the times hereinafter mentioned, the plaintiffs were subordinate members of the police department, and that their salaries were reduced by the common council without a recommendation of the board of police and fire commissioners, pursuant to the provisions of sec. 62.13(7), Stats. The city separately answered and denied a number of the allegations of the complaints which need not be specifically recited in view of the decisions we have reached. The city in its answers alleged that the plaintiffs had waived any rights that they had; that they had acquiesced in the salary reductions, and should be estopped to claim otherwise. Trial was had to the court without a jury. The four actions were consolidated for purposes of trial but separate findings of fact, conclusions of law and judgments in favor of the respective plaintiffs and against the city were entered. From those judgments, entered September 11, 1937, the city appealed. By stipulation of the parties, the appeals were heard together. Other facts will be stated in the opinion.Maynard Berglund and Claude F. Cooper, both of Superior, for appellant.

Crawford & Crawford, of Superior, for respondents.

NELSON, Justice.

In determining the questions presented on these appeals, the six policemen whose claims are here involved will be referred to as the plaintiffs without distinguishing between the living and the dead. During the times when the city deducted certain amounts from the plaintiffs' pay checks and which the plaintiffs now seek to recover, they were either members of the police force of the city of Superior or were acting and performing services as such.

[1] The city contends that certain of the plaintiffs, during the times mentioned, had not been duly appointed as policemen, as required by law and the rules of the fire and police commission of the city of Superior. Considerable evidence was adduced relating to that contention. We deem it unnecessary to discuss that evidence, for the reason that in our view, it is quite immaterial whether they were de jure or de facto members of the police force. State ex rel. Kleinsteuber v. Kotecki, 155 Wis. 66, 144 N.W. 200.

During the times when the claims are asserted to have accrued, the plaintiffs were all on the pay roll, and with the exception of Allen, were paid such salaries as were provided by the salary schedule applicable to policeman, less the amounts deducted pursuant to the action of the common council. The claim of the plaintiff Altenberg, which was allowed by the court, is for salary reductions or salary withheld during the period commencing June 1, 1932, and ending December 1, 1935, when he retired on a pension. The claim of Mangan, assigned to Altenberg, and which was allowed by the court, covers the period from June 1, 1932, to July 16, 1936. The claim of Clark, which was allowed by the court, covers the period from June 1, 1932, to December 1, 1935. The claim of Allen allowed by the court, covers the period from June 1, 1932, to April 1, 1936, as to deductions in salary, and a period from March 1, 1933, to November 1, 1933, as to his claim of $25 per month, asserted to be due him under the salary schedule. The claim of Parsons, which was allowed by the court, covers the period from June 1, 1932, to September 1, 1936.

Sec. 62.13 (7) provides in part, as follows:

“The salaries of chiefs and subordinates shall be fixed by the council. *** Such salaries when so fixed may be increased but not decreased by the council without a previous recommendation of the board ***.”

It appears without dispute that during all of the times mentioned, the city of Superior was in a serious financial condition because of the nation wide depression and the inability of so many of its taxpayers to pay their taxes. For some considerable time the city was compelled to pay the salaries and wages of its employees by issuing its own scrip. Lurye v. State, 221 Wis. 68, 265 N.W. 221. On June 8, 1932, the police and fire commission sent the following recommendations to the mayor and city council:

“A meeting of the police and fire commission was held Tuesday afternoon at which time representatives of the police department and fire department were present. The wage reduction was discussedfully and an amicable understanding reached. The following action was taken by the police and fire commission.

“‘Moved and seconded that the board of police and fire commissioners notify the city council that the members of the police and fire departments shall make a donation of 10% of their wages, in lieu of a 10% cut in scale, to the city for the period from June 1, 1932 to November 1, 1932, each member to sign a satisfactory contract similar to the form herewith attached.’ Motion carried.

“‘Moved and seconded that the secretary be instructed to send a copy of this motion to the city council.’ Motion carried.”

Each of the plaintiffs thereafter executed a formal writing, wherein and whereby, he appointed George Ostrom, city treasurer or his successor, as his attorney to deduct the equivalent of 10 per cent from all monthly pay checks due him up to the first of October, 1932, and further authorized him to pay the sums so deducted into a fund for the aid of the unemployed of the city and to execute and deliver complete receipts, releases, discharges and satisfactions to the city. Similar writings were duly executed and delivered to the city treasurer in the month of November, 1932, which covered the pay checks to which the plaintiffs would be entitled on November 15, 1932, and up to November 1, 1933.

On July 1, 1933, the common council, after having given a full hearing to its city employees, including its policemen, firemen and teachers, but without a recommendation of the police and fire commission, reduced the salaries of all city employees, 20 per cent. On December 14, 1933, by lump sum checks, the city reimbursed the plaintiffs and other employees so that the salaries which had been reduced in July were in part restored. The city thereafter continued to deduct from the pay checks of its employees certain equal percentages thereof. On November 20, 1934, the policemen's union petitioned the council for a restoration of the wage schedule of the members of the police department to within 5 per cent of the basic wage earned by members of the department during the year 1931. The petition was referred to the budget committee. It is very apparent that the mayor, the members of the common council and all of the city employees, including the plaintiffs, fully realized the serious financial condition of the city and the absolute necessity of curtailing city expenditures.

[2] It is clear that the 10 per cent reductions withheld by the city up to the month of July, 1933, were voluntary contributions by the plaintiffs to the unemployed relief fund and no part of the amounts withheld under the waivers executed and delivered can be recovered. While there is evidence to the effect that some of the plaintiffs did not like to have their salaries reduced, there is no evidence that approximates a showing of coercion or duress. Eck v. City of Kenosha, Wis., 276 N.W. 309. Several of the plaintiffs who testified realized the necessity of retrenchment and appreciated that, in the situation which confronted the city, either their salaries or the personnel of their department would have to be reduced.

[3] As to the salary reductions which were withheld...