Glaser v. City of Burlington
| Decision Date | 20 January 1942 |
| Docket Number | 45661. |
| Citation | 1 N.W.2d 709,231 Iowa 670 |
| Parties | GLASER v. CITY OF BURLINGTON. |
| Court | Iowa Supreme Court |
McCash & Bookin, of Ottumwa, and Hirsch, Riepe & Wright, of Burlington, for plaintiff-appellee.
Fred S. Holsteen, Robert T. Conrad, and Frederick M. Holsteen, all of Burlington, for defendant-appellant.
Count I of plaintiff's petition, filed on March 30, 1939, states that on April 19, 1926, the council of defendant city adopted Ordinance 1457, quoted in the petition, fixing the salaries of its firemen at amounts therein set out. That on December 6, 1926, the council adopted Ordinance 1498 providing a uniform allowance of not to exceed $120 a year for each fireman, to be expended by the Superintendent of Public Safety for uniforms, caps, etc., under such rules as he shall deem consistent with the interest of the fire department, title to all articles purchased to remain in the city. That both Ordinances 1457 and 1498 remained in full force. That on January 1, 1933, plaintiff was appointed a fireman at the salary fixed by ordinance and served for five years. That for one year commencing April 1, 1934, defendant wrongfully deducted each month $16.25 from plaintiff's salary.
Plaintiff's petition further alleges that he was required, by the rules of the Civil Service Commission of defendant, to wear the prescribed uniform at all times. That the Superintendent of Public Safety undertook to abrogate Ordinance 1498 by arbitrarily refusing to provide the firemen with uniforms who thereupon were forced to purchase them at their own expense. That to the extent that defendant city was relieved of its obligation to furnish uniforms under Ordinance 1498 it was unjustly enriched and is liable on quasi-contract to repay the sums advanced by the firemen for uniforms. That from April 1, 1934, to December 1, 1937, plaintiff was forced to spend $100.14 for uniforms. That plaintiff filed written claim, which defendant rejected, for the amount of his salary deductions and the amount spent by him for uniforms.
The petition contains 25 additional counts on behalf of 25 fellow firemen each substantially the same as Count I, but containing the additional allegation that the claims of the other firemen had been assigned in writing to plaintiff. The total of the salary claims is $4,950. The claims for uniforms total $2,904.22.
Defendant in its answer, after admitting the legal adoption of Ordinances 1457 and 1498, the service of plaintiff and his assignors as firemen, and the rules of the Civil Service Commission regarding firemen's uniforms, and denying all other allegations of the petition, pleaded as an affirmative defense that salaries of the firemen for the year commencing April 1, 1934, were reduced by Ordinance 1694, approved April 28, 1934. This ordinance, insofar as it has to do with the salaries of firemen, is set out in Division II of the answer. The material part reads substantially as follows:
Ordinance 1694 makes no reference to either Ordinance 1457 or 1498. Plaintiff moved to strike Ordinance 1694 from defendant's answer because it did not legally revise or amend either the salary ordinance, 1457, or the uniform allowance ordinance by reason of its lack of compliance with section 5715, Code, 1939, which, so far as material here, reads as follows:
A further ground of the motion is that the italicized portion of the ordinance renders it inapplicable to plaintiff and his assignors, who were subject to the pension laws. Other portions of the answer which were stricken by the court pleaded estoppel and acquiescence on the part of the firemen. These will be dealt with later. The court sustained plaintiff's motion to strike Ordinance 1694. The ruling presents the first error assigned by appellant city.
I. Ordinance 1694, which appellant claims reduced the salaries, does not profess to repeal, revise or amend either of the ordinances, 1457 and 1498, upon which appellee relies. No attempt is made at compliance with the plain provisions of Code section 5715. The statute is mandatory and limits the power of a city to enact ordinances. Tones v. Ind. School Dist., 190 Iowa 244, 247, 180 N.W. 157. Appellant, while conceding the elementary rule that repeals by implication of ordinances, as well as statutes, are not favored, argues that section 5715 has no application because Ordinance 1694 is so repugnant to the salary ordinance, 1457, that the two cannot be reconciled. Appellant relies principally upon City of Des Moines v. Hillis, 55 Iowa 643, 647, 8 N.W. 638, which recognized repeal of an ordinance by implication by a later enactment "plainly inconsistent and repugnant therewith." The cited case was decided in 1881, under section 489, Code, 1873, before the enactment in its present form of Code section 5715 requiring that the amending or revising ordinance "shall specifically repeal the ordinance or section amended or revised."
Even assuming, without deciding, that implied repeals of ordinances are recognized notwithstanding section 5715, we think Ordinance 1694 is not so repugnant to 1457 as to work its repeal. No. 1694 has a definite time limit. By its own terms its operation is restricted to one year commencing April 1, 1934. It can scarcely be claimed to be more than an amendment or revision of the salary ordinance for that limited period.
Furthermore, the quoted italicized provision of 1694 purports to render the ordinance inapplicable to employees "subject to the pension laws," who are to "be allowed the monthly basis of salary or wages paid in 1933." It would seem from the provisions of Code Ch. 322, § 6310 et seq., that appellee and his assignors were "employees subject to the pension laws" whose salaries, by the terms of Ordinance 1694, were to remain as in 1933. Appellant does not argue its version of the meaning of this exemption provision of 1694. In any event, the exemption of those subject to the pension laws renders the meaning of the ordinance uncertain and prevents any clear repugnancy between 1694 and the salary ordinance, 1457.
The above conclusions make it unnecessary that we determine whether Ordinance 1694 contains more than one subject, in violation of Code section 5715.
II. But, appellant argues, if No. 1694 is invalid as an ordinance, it is valid as a resolution. The contention is without merit. Appellant asserts, and appellee concedes, that when these salaries were fixed, it was not necessary to do so by ordinance. See Murphy v. Gilman, 204 Iowa 58, 61, 214 N.W. 679. (By an amendment to Code section 6519 by Ch. 168, Acts 48th G.A., approved April 26, 1939, compensation of firemen must now be fixed by ordinance.) However, the salaries of the firemen were fixed, in the first instance, by an ordinance, No. 1457, and could not be changed by resolution. Mart & Son v. Grinnell, 194 Iowa 499, 503, 187 N.W. 471, and cases cited; Ryce v. Osage, 88 Iowa 558, 561, 562, 55 N.W. 532; 2 McQuillin on Mun. Corps. 2d Ed., p. 348, sec. 548; 43 C.J., p. 564, sec. 889. It is not an avoidance of this rule that appellant might in the first instance have fixed the salaries by resolution.
For the above reasons we conclude that Ordinance 1694, in itself and considered apart from appellant's defenses of estoppel and acquiescence, did not comply with Code section 5715 and therefore did not change the salaries fixed by Ordinance 1457. Unless, therefore, the court erroneously struck from the answer the defenses about to be considered that appellee and his assignors are estopped from challenging No. 1694 and acquiesced therein, there was no error in striking it from the answer.
III. Appellant's answer alleges that Ordinance 1694 making appropriation for reduced pay of the firemen was adopted "in conformity with the wishes as expressed by the members of the Fire Department." The answer also contained substantially...
To continue reading
Request your trial