Connor v. City of Chippewa Falls

• Decision Date: 17 May 1938
• Citation: 228 Wis. 102,279 N.W. 640
• Parties: CONNOR v. CITY OF CHIPPEWA FALLS.
• Court: Wisconsin Supreme Court

228 Wis. 102

279 N.W. 640

CONNOR

v.CITY OF CHIPPEWA FALLS.

Supreme Court of Wisconsin.

May 17, 1938.

Appeal from a judgment of the Circuit Court for Chippewa County; James Wickham, Judge.

Affirmed in part and reversed in part.

Action begun September 21, 1937, by Henry J. Connor against the City of Chippewa Falls to recover back salary alleged to be due certain employees of the city who assigned their claims to the plaintiff. Judgment was in favor of the plaintiff.

The policemen and firemen who are named in the complaint were in the service of the City of Chippewa Falls. The following facts appear from the pleadings and are not in dispute. During the depression, the matter of salaries was considered at a regular meeting of the board of police and fire commissioners, on February 8, 1933. At this meeting the mayor was present and requested the board to recommend a decrease of $10 per month in the salaries of these men. Informal discussion took place. Some commissioners indicated a willingness to comply with the request as a temporary measure, but the minutes contain no record of official action by the board on this particular matter. However, on February 15 the common council of the city adopted an ordinance which was duly approved and published, modifying the salaries as suggested by the mayor to the board of police and fire commissioners, the change to take effect after May 1, 1933. From that date, the men were paid the reduced salary until May 1, 1936, when full salaries were restored.

The complaint alleges the usual formal and material facts showing the relation between the men and the city, and claims a balance due of $2,880 on unpaid salaries. The answer of the city describes the procedure before the board of police and fire commissioners as above outlined, sets up the defense of acquiescence by the men, and makes a counterclaim for overpayments due to vacations and leaves of absence.

The case was tried to the court without a jury and the findings of fact are that the named policemen and firemen were in the service of the city, and that a meeting of the police and fire commissioners was held on February 8, 1933, at which occurred the proceedings described above. With relation to the counterclaim based on vacations and accommodations to the men, the court made the following findings: “Since the year 1922, each policeman and fireman was allowed an annual vacation without deduction in compensation and without being subject to call during vacation time. The times of vacation of each officer was arranged by their respective chiefs. The usual period of each annual vacation was ten days. The period of vacation for policemen for one year was seven days and each year from 1925, to 1932, was fifteen days. Most of the officers took their vacations according to this practice. None were absent without leave. The practice was continued with the knowledge of the members of the Board and Police Commission and the members of the Common Council of the City. The defendant paid said officers for their services without deduction on account of absence during the periods of vacation. In view of the nature of the services performed by said officer and the hours spent each day when on duty, the vacations were reasonable and necessary. In taking these vacations the officers were not guilty of any violation of duty.”

The conclusions of law were:

“1. That the right of the plaintiff to recover, including the facts relied on to indicate an acquiescence on the part of the officers in the reduction of their salaries, is controlled by the decision of Van Gilder vs. Madison, 222 Wisconsin, 58.

“2. That the plaintiff is entitled to judgment. ***”

From judgment entered accordingly, the city appeals.

P. J. Murphy, of Chippewa Falls, for appellant.

W. H. Stafford and Harold E. Stafford, both of Chippewa Falls, for respondent.

FAIRCHILD, Justice.

The strain on community resources, which was so general during the years included in the period under consideration, prompted the mayor of the City of Chippewa Falls to seek a reduction in the city's expenditures. He met with heads of various departments and with the boards controlling disbursements, and discussed with them the financial situation of the city. He was present at a meeting of the board of police and fire commissioners on February 8, 1933, and there discussed this matter of a $10 reduction in the salary of the men in the departments. The mayor was of the opinion that this reduction was recommended and he so reported to the council. However, the recommendation was not included in the minutes of the board and the trial court ruled that the board had not taken official action on the subject.

[1] It is settled in this state that a common council cannot decrease a fixed salary of a policeman or fireman below an amount recommended by the board of police and fire commissioners, Van Gilder v. Madison, 1936, 222 Wis. 58, 267 N.W. 25, 268 N.W. 108, 105 A.L.R. 244, but there are circumstances under which an...