Mitchell v. Walker
| Decision Date | 26 March 1956 |
| Citation | 295 P.2d 90,140 Cal.App.2d 239 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Donald Y. MITCHELL et al., Plaintiffs, v. Joseph H. WALKER et al., as Members of the Council of the City of Monrovia, a municipal corporation et al., Defendants. Civ. 21632. |
Howser, Coughlin & Schmitt, Fred N. Howser, Arcadia, for plaintiffs.
Homer H. Bell, City Atty. of City of Monrovia, Monrovia, and O'Melveny & Myers, Pierce Works, Howard J. Deards William D. Moore, Los Angeles, for defendants.
The plaintiffs, as residents and taxpayers of the City of Monrovia, a city of the sixth class, seek a writ of mandate to compel the defendants, as the council of that city, to submit to a vote of the electorate of the city an initiative ordinance which by proper petition had been submitted to the defendants and which they have refused to adopt.
On filing of the petition, we issued an alternative writ and the defendants have made return to that writ by demurrer and by answer. In view of the conclusion that we have reached, that the general demurrer must be sustained, it is unnecessary for us to consider the issues of fact tendered by the answer and the stipulation of facts filed by the parties.
The petition here alleges that prior to the filing of the initiative petition the City Council duly adopted a resolution, which is now in effect, providing for a systematic classification and a standardization of the salaries of appointive officers and employees of the city; that on the 6th day of December, 1955, there was submitted to the City Council a petition requesting that they adopt or submit to the electorate of the city an ordinance entitled 'An Ordinance of the People of the City of Monrovia, California, Establishing a Basic Salary Schedule for use in Fixing the Salary for City Policemen and City Firemen, not Otherwise Provided for by Charter, Ordinance, Resolution, and Amending all Present Existing Resolutions or Ordinances.' The form of the ordinance is attached to the petition. The petition further alleges that the council has refused to adopt the ordinance or to submit the same to a vote of the people.
Defendants do not question the sufficiency of the petition, but claim (1) that the act of the council in fixing salaries is administrative rather than legislative in character, and (2) that the proposed ordinance would constitute a delegation by the council of its powers and an abandonment of those powers, and that therefore the ordinance is not one which might be enacted by the people through the initiative process.
Sections 3 and 4 of the ordinance contain the basic salary schedule referred to in the title of the ordinance, the remaining sections of the ordinance being entirely dependent upon and explanatory of these two sections, with the exception of a purported savings clause contained in section 9.
Section 3 of the proposed ordinance provides first that the basic salary plan for 'Police Department and Fire Department' is adopted. It then fixes the basic salaries to be paid to all officers and employees of the Police and Fire Departments, and provides a five-step plan for advancement in pay for patrolmen and firemen.
Section 4 of the proposed ordinance provides that the basic salaries fixed by section 3 shall, commencing on July 1, 1956, and on the first day of each fiscal year thereafter, be increased or decreased by the City Council in an amount equal to the percentage of increase or decrease that is paid or approved for payment to members of like or comparable grade or rank of the Los Angeles County Sheriff's Office and the Los Angeles County Fire Department for that current fiscal year. 1
Section 36506 of the Government Code provides, [Emphasis added.]
There can be no doubt but that the section just quoted not only gives the City Council power to fix the compensation of the appointive officers and employees of the city but makes it its duty so to do.
There is some question as to whether or not in exercising this power and performing this duty the council acts in an administrative or executive capacity rather than in a legislative one. In Spencer v. City of Alhambra, 44 Cal.App.2d 75, 111 P.2d 910, and in Collins v. City and County of San Francisco, 112 Cal.App.2d 719, 247 P.2d 362, it is held that a City Council, in fixing salaries of officers and employees, acts in a legislative capacity. In both of these cases, however, the court was considering action taken by the City Council in adopting ordinances and fixing salaries under the provisions of the charters of the cities concerned, and it appears to have been unnecessary in view of the charter provisions involved to decide whether or not the fixing of salaries was a legislative matter rather than an administrative one. On the other hand, in Simpson v. Hite, 36 Cal.2d 125, 222 P.2d 225, the Supreme Court held that the supervisors of the County of Los Angeles, in performing a duty placed upon them by the Legislature, were acting in an administrative rather than a legislative capacity and in the performance of that duty were not subject to control by the electorate through the initiative.
It is unnecessary for us to decide here whether the act of the council of a city of the sixth class in fixing the salaries of appointive officers and employees is legislative or administrative in character; for in the case here, if such an act on their part is administrative in character then it is not the subject of an initiative proceeding, Simpson v. Hite, supra, 36 Cal.2d at page 129, 222 P.2d 225; Housing Authority of City of Eureka v. Superior Court, 35 Cal.2d 550, 557, 219 P.2d 457; Essick v. City of Los Angeles, 34 Cal.2d 614, 624-625, 213 P.2d 492. On the other hand, if the council, in fixing salaries, acts in its legislative capacity, the proposed ordinance would not constitute a valid exercise of that power and therefore could not be exercised by the electorate through their reserve power to initiate legislation.
It is only legislation that may be enacted by the legislative body itself which may be the subject of an initiative proceeding. That is to say, an initiative law must constitute such legislation as the legislative body to which it is presented for adoption might itself initiate and enact. Hurst v. City of Burlingame, 207 Cal. 134, 140,...
To continue reading
Request your trial
-
Kugler v. Yocum
...Department. That such a delegation of legislative power and responsibility is illegal was the holding of the court in Mitchell v. Walker, 140 Cal.App.2d 239, 295 P.2d 90, in which case this court denied a hearing. The majority opinion erroneously, I submit, disapproves the Walker decision (......
-
Byre v. City of Chamberlain
...power extends to all types of legislation. Id. at 119 citing Dawson v. Tobin, 74 N.D. 713, 24 N.W.2d 737 (1946); Mitchell v. Walker, 140 Cal.App.2d 239, 295 P.2d 90 (1956); State ex rel. Andersen v. Leahy, 189 Neb. 92, 199 N.W.2d 713 (1972). As a general rule, all legislative matters in whi......
-
Maese v. Snowden
...that may be enacted by the governing body itself may be the subject of an initiative proceeding. Mitchell v. Walker, 140 Cal.App.2d 239, 243, 295 P.2d 90, 92 (D.C.App.1956), disapproved in part for an unrelated reason in Kugler v. Yocum, 69 Cal.2d 371, 71 Cal.Rptr. 687, 445 P.2d 303 Actuall......
-
Baldwin Park Police Officers Association v. City of Baldwin Park, B215477 (Cal. App. 9/25/2009), B215477
...Government Code section 36506 specifically grants a city council the power and duty to fix city employee compensation. (Mitchell v. Walker (1956) 140 Cal.App.2d 239, 242, disapproved in other respects by Kugler v. Yocum, supra, 69 Cal.2d at p. 379, fn. 6.) Government Code section 36506 stat......