Local No. 8 Intern. Ass'n of Fire Fighters v. City of Great Falls

• Decision Date: 30 August 1977
• Docket Number: No. 13616,13616
• Citation: 34 St.Rep. 991,568 P.2d 541,174 Mont. 53
• Parties: , 96 L.R.R.M. (BNA) 2581 LOCAL # 8 INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, Plaintiff and Appellant, v. CITY OF GREAT FALLS, Defendant and Respondent.
• Court: Montana Supreme Court

Page 541

568 P.2d 541

174 Mont. 53, 96 L.R.R.M. (BNA) 2581

LOCAL # 8 INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, Plaintiff and Appellant, v. CITY OF GREAT FALLS, Defendant and Respondent.

No. 13616.

Supreme Court of Montana.

Submitted June 2, 1977.

Decided Aug. 30, 1977.

McKittrick & Duffy, Great Falls, Joseph W. Duffy (argued), Great Falls, for plaintiff and appellant.

Howard C. Burton and Leslie S. Waite (argued), Great Falls, for defendant and respondent.

HASWELL, Justice.

This is an appeal from an order entered by the district court, Cascade County, dismissing two counts of a complaint filed by Local # 8, International Association of Firefighters against the City of Great Falls. Local # 8 brought the action for declaratory judgment to determine the rights of the parties with respect to longevity pay of firemen employed by the City. Counts I and II of Local # 8's complaint were dismissed by the district court for failure to state a cause of action under which relief could be granted. Count III, concerning an unrelated matter, is still pending for trial.

Local # 8 is a labor organization and the certified collective bargaining agent for firemen employed by the City. The City is a municipal corporation and is the employer bargaining agent for collective bargaining purposes. The City and Local # 8 entered into numerous collective bargaining agreements which cover all years material to this case. These agreements cover all matters of wages, hours and working conditions affecting the firemen.

Since 1937, section 11-1932, R.C.M.1947 (and its predecessors) has established minimum wages to be paid to firemen employed by first class cities such as Great Falls. In 1957, section 11-1932 was amended to provide for a higher minimum wage and also longevity pay. A fireman thereafter was entitled to a minimum salary equal to the statutory base wage plus 1% of the base wage for each year he served up to 20 years. Thus, in 1957, when the statutory base wage was $350, a fireman who had served for one year was entitled to a minimum salary of $353.50 ($350.00 k 1% of $350.00 = $353.50). It is important to note the 1% longevity pay was a percentage of the statutory minimum base wage rather than of the actual wage being received by the employee. Thus, if the employee's actual wage was higher than the statutory minimum wage, section 11-1932 had no effect upon his actual salary. Subsequent amendments to section 11-1932 in succeeding years increased the statutory base wage.

A 1975 amendment of section 11-1932 allowed accumulation of longevity beyond 20 years and increased the minimum salary to $700. Likewise, the collective bargaining agreement executed by the firemen and the City provided for an increase in salary for the firemen. At all times relevant herein the salary paid by the City to each fireman exceeded the statutory base salary plus longevity pay.

In 1956, the Council of the City of Great Falls passed Resolution No. 4973 dealing with longevity pay for firemen. The Resolution granted longevity pay of 1% per year of service (up to a maximum of 5%) to those firemen who served more than 20 years. This longevity pay is calculated by computing a percentage of the actual wage received by the fireman rather than the statutory minimum wage. The purpose and intent of the Resolution is clearly stated in its opening paragraph, which reads:

"THAT WHEREAS it is deemed wise by the Council to reward faithful Firemen and Policemen who have served said City a full period of at least 20 years by an increase of pay so as to induce a longer tenure of service by the same * * *."

This Resolution continued in full force and effect for some twenty years and was incorporated in the collective bargaining agreements executed by the parties during this period. Several firemen have served the full period and have become entitled to the additional longevity pay. These long-tenured firemen have been paid longevity pay by the City in accordance with the Resolution.

In May 1975 the City Commission passed Resolution No. 6759 which repealed Resolution No. 4973 effective July 1, 1975. The stated reason for the repeal of the longevity pay resolution was to eliminate "double compensation for firemen and policemen" in light of the 1975 legislative action removing the 20 year limitation on longevity pay for firemen and policemen.

At the time the City repealed Resolution No. 4973, there was an existing collective bargaining agreement in effect. There were no negotiations with the firemen or Local # 8 to delete the 20 year longevity provision from the contract.

On August 7, 1975, Local # 8 made formal protest to the City of the repeal of the longevity pay provision. On August 21, the City denied and rejected the protest. On or about September 8 the parties agreed the issues relative to this case should be pursued through the courts to determine the rights of the parties. It was agreed the signing of a new collective bargaining agreement in September 1976 would not constitute a waiver of protests and disputes relative to the repeal of the longevity pay provision.

Four issues are before this Court upon appeal:

1. Whether the City, by virtue of Resolution No. 4973 created contractual rights enuring to the benefit of its firemen.

2. Whether the repeal of Resolution No. 4973 was an unconstitutional breach of the collective bargaining agreement then in effect.

3. Whether the repeal of Resolution No. 4973 was necessary to eliminate double compensation to the firemen.

4. Whether the dismissal by the district court of Counts I and II of plaintiff's complaint was error.

The first issue concerns the question of whether a contract was created for the benefit of the firemen by the City's adoption of Resolution No. 4973 concerning longevity pay. A companion question to be answered in resolving this issue is whether the City had the authority to repeal the ordinance in light of the possible contract created?

This precise issue is a matter of first impression in this jurisdiction. The parties cite Bartels v. Miles City, 145 Mont. 116, 399 P.2d 768 (1965); State ex rel. Evans v. Fire Dept. Relief Assn., 138 Mont. 172, 355 P.2d 670 (1960), and Clarke v. Ireland, 122 Mont. 191, 199 P.2d 965 (1948), as controlling precedent in regard to this issue. This line of authority is clearly distinguishable from the instant case. In all these cases, the employees had contributed moneys into a fund of a certain nature with the expectation of receiving a benefit therefrom. Such is not the case here and therefore, we do not rely on these cases.

We further hold that Stephens v. City of Billings, 148 Mont. 372, 422 P.2d 342 (1967) is not controlling. In Stephens we held that a seniority rule enacted by a city ordinance could be repealed and no vested contract right was created for the benefit of certain city employees. The fact situations in Stephens and the instant case are admittedly similar; however, the seniority rule, as adopted by the ordinance, expressly provided for alteration by appropriate action of the city council. For this reason, Stephens is distinguishable.

The long standing general rule is that the body which enacted an ordinance has the power to repeal such ordinance. Wright v. City of Florence,229 S.C. 419, 93 S.E.2d 215 (1956); City Council of Charleston v. Wentworth Street Baptist Church, 4 Strob. 306 (S.C.1850). A specific grant of authority is not necessary to repeal ordinances as the general rule implies that power unless otherwise provided. Wright v. City of Florence,supra; 6 McQuillin, Mun.Corp. (3rd Ed.), § 21.10.

This area of law is summarized in 6 McQuillin, Mun.Corp. (3rd Ed.), § 21.10, p. 208:

"The power of repeal extends, generally speaking, to all ordinances. Indeed, a municipal corporation cannot abridge its own legislative powers by the passage of irrevocable ordinances. The members of its legislative body are trustees for the public, and the nature and limited tenure of their office impress the ordinances enacted by them with liability to change. One council may not by an ordinance bind itself or its successors so as to prevent free legislation in matters of municipal government. Accordingly, in the absence of a valid provision to the contrary, a municipal council or assembly having the power to legislate on, or exercise discretionary or regulatory authority over, any given subject may exercise that power at will by enacting or repealing an ordinance in relation to the subject. Thus, the power of repeal extends to legislative enactments and, a fortiori to ordinances of an administrative character, as, for example, an ordinance fixing the fiscal year of a municipal corporation. The power does not extend, however, to authorize impairment of a contract or deprivation of property without due process of law."

In addition to the limitation upon the right of repeal which impairs a contract or deprives one of property without due process of law, a third exception is generally recognized. This exception exists where an ordinance has been enacted under a narrow limited grant of authority to do a single designated thing in the manner and at the time prescribed by the legislature. In effect, no right of repeal exists as to an ordinance that constitutes the exercise of municipal power which is exhausted by its single exercise.

Clearly an implied contract between the City and Local # 8 was created by Resolution No. 4973. An offer to pay longevity was made by the resolution. This offer was accepted by the firemen as evidenced by both the many years of diligent service provided and the incorporation of this provision into subsequent collective bargaining agreements. The stated purpose of the resolution was "to induce a longer tenure of...