City of Las Vegas v. Ackerman

• Decision Date: 31 July 1969
• Docket Number: No. 5886,5886
• Citation: 85 Nev. 493,457 P.2d 525
• Parties: CITY OF LAS VEGAS, Nevada, a Municipal Corporation, Oran K. Gragson, Mayor, Philip M. Mirabelli, S. Grant Stewart, James Corey and Wesley G. Howery, Board Of Commissioners, Appellants, v. John ACKERMAN, Ronald Anderson, Ralph Arnts, Judith Ballew, Billy D. Barber, et al., Respondents.
• Court: Nevada Supreme Court

Page 525

457 P.2d 525

85 Nev. 493

CITY OF LAS VEGAS, Nevada, a Municipal Corporation, Oran K Gragson, Mayor, Philip M. Mirabelli, S. Grant Stewart, James Corey and Wesley G Howery, Board Of Commissioners, Appellants, v. John ACKERMAN, Ronald Anderson, Ralph Arnts, Judith Ballew Billy D. Barber, et al., Respondents.

No. 5886.

Supreme Court of Nevada.

July 31, 1969.

Sidney R. Whitmore, Las Vegas City Attorney, Las Vegas, for appellants.

I. R. Ashleman, Harry J. Mangrum, Las Vegas, for respondents.

OPINION

BATJER, Justice:

On July 11, 1968, five residents who were also electors in Las Vegas, Nevada, presented an affidavit stating that they would constitute the petitioners' committee for the purpose of circulating an initiative petition. Thereafter, a petition bearing approximately 11,500 signatures was submitted to the city clerk. On Sugust 30, 1968, the city clerk certified that there were the required number of signatures affixed to the petition, and on October 2, 1968, the board of commissioners designated that a special election be held November 5, 1968 for a public vote on the proposed initiative ordinance. At the election 18,205 electors voted for and 14,674 voted against the proposed ordinance. Both parties stipulated that all applicable statutes concerning the municipal initiative process were duly complied with and that the ordinance in issue is a validly enacted ordinance of the city of Las Vegas, Nevada, unless otherwise unlawful.

The initiative petition as enacted provides as follows: 'INITIATIVE PETITION--AN ORDINANCE PROVIDING FOR A WAGE INCREASE FOR FIREFIGHTERS OF THE CITY OF LAS VEGAS AND EQUALITY OF COMPENSATION OF FIREFIGHTERS AND PATROLMEN.

'The People of the City of Las Vegas, County of Clark, State of Nevada, do ordain that retroactive to the 1st day of July, 1968, the monthly wage of firefighters shall be increased by not less that $144.00.

'And further Ordain that in all cases firefighters shall be compensated at a monthly rate not less than that provided in the case of police patrolmen.'

This appeal presents several issues which the appellants claim constitute reversible error. Their primary contention is that the fixing of the salaries of municipal employees is an administrative rather than a legislative function and is outside the scope of the initiative. They further contend that the ordinance as enacted is constitutionally unsound as being vague, ambiguous and uncertain; that it is void because it authorizes the city of Las Vegas to expend money which has not been allocated for such purpose in violation of NRS 354.626; that it is void because it unites future salary increases for firemen with future salaries of police patrolmen, in violation of Article 19 of the Nevada Constitution; that it is void because the classification of 'firefighters' as against all other fire department personnel and all other classified employees is unreasonable and in violation of Article 1, Section 8 of the Nevada Constitution and the Fourteenth Amendment of the United States Constitution; that it is void because it is capricious, arbitrary, unfair and excessive in amount, and in violation of Article 1, Section 8 of the Nevada Constitution and the Fourteenth Amendment of the United States Constitution; and that the entire initiative ordinance is invalid because the invalid portions of such ordinance are inseparably connected to the remainder.

The respondents cross appealed from that portion of the judgment which declared void the retroactive effect of the initative ordinance and its applicability only to those employees subjecting themselves to the risk and hazards of combating fires.

We affirm the judgment of the district court save and except that portion which declared the retroactive effect of the initiative ordinance void, and as to that portion we reverse.

1. The fixing of the salaries of municipal employees in the City of Las Vegas is a legislative function. The people have the power through the initiative process to enact legislation fixing such salaries. Parrack v. City of Phoenix, 84 Ariz. 382, 329 P.2d 1103 (1958). We reach this conclusion because the charter of that city grants to the board of commissioners the power to fix by ordinance the salaries of its employees. When the board of commissioners, pursuant to the provisions of the Las Vegas City Charter created the civil service board, the office of personnel director, and city manager, it reserved the right to fix the salary of municipal employees by ordinance. The personnel director, civil service board and the city manager only recommend to the board of commissioners the salary schedule. The City of Las Vegas Civil Service rules, section 220 provides: 'The City Manager shall recommend a uniform and equitable pay plan to be approved by the City Commission which shall consist of minimum and maximum rates of pay for each grade and such intermediate rates as are necessary and equitable.'

Here the board of commissioners could have passed a valid ordinance in the exact words of the initiative ordinance. If the board of commissioners could so act a fortiori a majority of the electors of the city of Las Vegas, deriving their power not from the city charter but from the Nevada Constitution, could validly pass the initiative ordinance. State ex rel. Davies v. White, 36 Nev. 334, 136 P. 110, 50 L.R.A., N.S., 195 (1913).

Article 1, Section 2, of the Nevada Constitution reads in part: 'All political power is inherent in the people. Government is instituted for the protection, security and benefit of the people; and they have the right to alter or reform the same whenever the public good may require it. * * *' Article 19, Section 4, of the Nevada State Constitution reads: 'The initiative and referendum powers provided for in this article are further reserved to the registered voters of each county and each municipality as to all local, special and municipal legislation of every kind in or for such county or municipality.'

In Spencer v. City of Alhambra, 44 Cal.App.2d 75, 111 P.2d 910 (1941), that court wrote: 'It is a basic principle inherent in the American system of representative government, as declared in article 1, section 2, of our state Constitution, that 'all political power is inherent in the people. Government is instituted for the protection, security and benefit of the people, and they have the right to alter or reform the same whenever the public good may require it.' From the foregoing, it follows that the legislative power of the municipality resides in the people thereof. By writing into the charter initiative and referendum laws, the people of the city have simply withdrawn from the legislative body and reserved to themselves the right to exercise a part of their inherent political power. We must therefore look to the provisions of the city charter to ascertain whether therein the people have excluded from the operation of the initiative the determination and fixing of salaries for members of the city police department.

'The initiative ordinance here in question does more than fix salaries of members of the police department. It establishes a scale of minimum salaries. Manifestly the ordinance sought to declare a public policy or purpose, to the effect that in the police department, concededly a vital arm of the public service, and the medium through which personal and property rights are protected, the salaries paid the members of such department must not be fixed below a certain minimum, lest thereby the public interest and welfare might be adversely affected. That acts which constitute a declaration of public purpose and ways and means for the accomplishment thereof, are generally classified as calling for the exercise of legislative powers, was the holding in McKevitt v. City of Sacramento, 55 Cal.App. 117, 203 P. 132.

'When, therefore, the people phrased the foregoing sections pertaining to these powers in such broad, general and unambiguous language, the conclusion seems inevitable that thereby it was intended that legislation on every municipal subject should, unless expressly or by clear and necessary implication excluded by other sections, be subject to initiative action through the adoption of ordinances by the people. After all, the people through their charter have a right to vest in the voters of the city the right and power to deal through initiative action with any matter within the realm of local affairs or municipal business, whether strictly legislative or not, as that term is generally used (Hopping v. City of Richmond, 170 Cal. 605, 150 P. 977); and as heretofore noted, the consensus of authority is to the effect that the fixing of salaries of public officers is a legislative function. Certainly no other incident of municipal government engages more legislative attention.'

2. In the declaratory judgment the district court said: 'The Court defines a firefighter as one who subjects himself to the risks, dangers and hazards inherent in the defense of persons and property by his active engagement in the fighting of fires.'

This definition and classification is not violative of Article 1, Section 8 of the Nevada Constitution or the Fourteenth Amendment of the United States Constitution because it rests upon reasonable grounds and substantial distinctions. Boyne v. State ex rel. Dickerson, 80 Nev. 160, 390 P.2d 225 (1964). We sanction and approve the district courts' definition of a firefighter and reject the respondents' contention that the lower court erred when it limited the applicability of the initiative ordinance to those subjecting themselves to the risks and hazards of combating fires.

In Washington v. City of Boston, 345 Mass. 356, 187 N.E.2d 802 (1963), fire apparatus repairmen, motor equipment repairmen and carpenters in the maintenance division of the city fire department were determined not to be 'fire fighters' within statute granting salary increases to fire fighters and...