Coughlin v. City of Milwaukee

• Decision Date: 12 April 1938
• Citation: 279 N.W. 62,227 Wis. 357
• Parties: COUGHLIN et al. v. CITY OF MILWAUKEE.
• Court: Wisconsin Supreme Court

227 Wis. 357

279 N.W. 62

COUGHLIN et al.

v.CITY OF MILWAUKEE.

Supreme Court of Wisconsin.

April 12, 1938.

Appeal from an order of the Circuit Court for Milwaukee County; Gustav G. Gehrz, Judge.

Reversed.

This appeal is from an order of the circuit court for Milwaukee county, entered on September 21, 1937, overruling defendant's demurrer to the complaint. Action commenced on June 7, 1937, by John J. Coughlin and seven others, individually and on behalf of all other individual members of the fire department of the city of Milwaukee whose names appear in a schedule attached to the complaint herein, it being alleged that all of said claimants were similarly situated. It is alleged that there are over six hundred claimants on behalf of whom the plaintiffs commenced this action as well as on their own behalf. In this action, plaintiffs seek to recover individually, on their own behalf, and on behalf of all others referred to in the complaint, for the amount of deductions from their pay, during the period from August 1, 1932, to December 31, 1935, pursuant to written waivers signed by all members of the fire department of the city of Milwaukee, which waivers it is alleged were made under duress and with the further understanding that they would receive time off equal in amount to the amount deducted from their pay pursuant to said waivers. A 10 per cent. deduction was made from the firemen's pay checks during the period from August 1, 1932, to December 31, 1934, and from January 1, 1935, to December 31, 1935, a 5 per cent. deduction was made.

It appears from exhibits attached to the complaint that on October 21, 1931, a special committee on unemployment of the common council of the city of Milwaukee met with the heads of various departments, bureaus, boards, and commissions under the jurisdiction of the common council; that the question of raising an unemployment relief fund by voluntary contribution from city employees was taken up and discussed at length. This meeting and discussion resulted in the appointment of a subcommittee of nine, consisting of the heads of various city departments, with instructions that the matter be taken up for further consideration and discussion and that such committee should make its recommendations to the special committee of the city council on unemployment. On November 10, 1931, the subcommittee submitted a report to the special committee of the common council on unemployment. The report of the subcommittee follows:

“*** reports that it has held meetings Thursday, October 22nd, and Monday, November 2nd, at which the question of raising an unemployment relief fund by voluntary contribution from city employees was considered and discussed. As a result of these discussions the subcommittee offers the following report which it unanimously approved:

“In view of the fact that a check of the funds available for unemployment relief discloses that there is a large sum in the city treasury available for the purpose of providing work at the present time, and

“In view of the fact that the chairman of the common council unemployment committee announced to the assembled department heads at the meeting of October 22nd that there might not be any necessity of calling upon city employes for a voluntary contribution for unemployment relief, especially if the state of Wisconsin makes a substantial allotment of funds to the city of Milwaukee for this purpose.

“The subcommittee recommends that no action be taken at the present time, but that the subcommittee be continued with instructions to consider the matter further after the adjournment of the special session of the state legislature.”

On July 11, 1932, Alderman Strehlow offered the following resolution:

“Resolution relative to voluntary contribution of city officials and city employes of 10% of their salaries to the unemployment fund:

“Whereas, over 29,000 families, a great number of which are residents of the City of Milwaukee, are receiving food, clothing and shelter from the city; and

“Whereas, such aid is being given because the head of the family is unemployed and without means of livelihood; and

“Whereas, if the heads of some of these families could be placed back in employment on public work or otherwise it would to a great degree relieve the City of Milwaukee from supplying such citizens with food and clothing; and

“Whereas, the City of Milwaukee during the year 1931 carried out a successful method of giving employment for short periods of time to large bodies of men; and

“Whereas, it is necessary in some way to raise a large amount of money for the purpose of creating a fund to give employment to thousands of unemployed; and

“Whereas, there is no provision in the budget or any other fund of the City of Milwaukee for this purpose, now, therefore, be it

“Resolved, by the Common Council of the City of Milwaukee, that all officials and salaried employes be and are hereby requested to voluntarily contribute 10% of their salaries to an unemployment fund to be administered by the Common Council Unemployment Committee for the purpose of employing labor and for such other purposes of unemployment relief as the Common Council from time to time may designate; and all employes working on an hourly or daily rate of compensation be employed not more than forty hours per week and the Unemployment Committee of the Common Council shall employ such additional men as shall be necessary to make up such shortening of employment time; and be it further

“Resolved that the fund so created shall be a special fund to be kept in the custody of the treasurer and to be used for no other purpose than to give employment to some of the many men now seeking such employment; and be it further

“Resolved that the head of each department shall certify to the Comptroller and the Treasurer the amount of such contribution by each official and employe, and such amount shall be deducted by the Treasurer from the compensation of each officer or employe in the city service, and the Comptroller and the Treasurer are hereby ordered to install all necessary system or systems to keep a proper and accurate account of such fund; and be it further

“Resolved that in return for such contribution all city officials and employes be given increasing time off by reducing their working time from forty-four hours per week to forty hours per week, or in such manner as may be deemed most efficient to the departments; the provisions of this resolution, however, shall not apply to any employe earning less than $1,000 per year; and be it further

“Resolved that each officer and employe be and is hereby requested to sign and file with the heads of the respective departments a pledge stating their willingness and giving authority to the Comptroller and the Treasurer to deduct the necessary contribution from their salary.”

It appears that the foregoing resolution was referred to the committee on finance and printing. It does not appear that the resolution was adopted by the city council. However, the firemen signed a written authorization, directed to the city of Milwaukee, authorizing John W. Mudroch, as city treasurer, to deduct and retain the percent of salary for each pay period during the years mentioned above.

It is alleged that the plaintiffs named and the other firemen on whose behalf this action was commenced were requested to sign certain purported illegal waivers and that it was represented to the plaintiffs and other firemen that if said waivers were not signed drastic action would be taken, in effect charging that it might mean a demotion in rank or even a dismissal from service; that the representations and threats were made by duly authorized representatives of the defendant city and duly authorized representatives of the defendant city common council; that many of the firemen were called in individually and informed that unless the purported waivers were signed drastic action would be taken. That different fire department heads were required to report to proper representatives of the defendant city and informed that it would be necessary for them to inform the firemen in their charge that it would be necessary for them to sign the waivers and that in the event they did not sign or any member of the department would not sign drastic action would follow against anyone refusing to sign said waivers.

It is further alleged that representations were made to the firemen: “That in consideration of the waivers being signed that the plaintiffs and other firemen would receive time off to equal the amount deducted from their pay; and that thereafter the plaintiffs and other firemen whom plaintiffs represent signed the waivers under duress and with the further understanding that provided they signed the waivers they would receive time off equal in amount to the amount deducted from their pay in form of waivers.”

It is further alleged that the deductions from the firemen's pay “were all done contrary to law and were done by the defendant city through force, duress, and compulsion, exercised upon and over the said plaintiffs herein and the other firemen herein; and that plaintiffs further allege that by reason of the numerous acts herein that the said deductions were not voluntary contributions on the part of the plaintiffs in fact or in law.” That there was no recommendation or action taken by the board of police and fire commissioners of the defendant city pertaining to the waivers or reductions in salary.

There is an appropriate allegation as to the filing of all claims with the city clerk on February 13, 1937, and that more than sixty days elapsed after the filing of said claims and the commencement of this action.

The defendant city demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The court below overruled said demurrer. The defendant city appeals.

Upon the oral argument in this court, because of the form in...