Murphy v. Gilman

• Decision Date: 01 July 1927
• Docket Number: 38311
• Citation: 214 N.W. 679,204 Iowa 58
• Parties: RAY P. MURPHY, Appellee, v. W. S. GILMAN et al., Appellants
• Court: Iowa Supreme Court

214 N.W. 679

204 Iowa 58

RAY P. MURPHY, Appellee, v. W. S. GILMAN et al., Appellants

No. 38311

Supreme Court of Iowa, Des Moines

July 1, 1927

Appeal from Woodbury District Court.--ROBERT H. MUNGER, Judge.

Mandamus to compel officers of a city under the commission form of government to pay the salary of a fireman, as fixed by an ordinance adopted under initiative and referendum statutes. From a judgment for plaintiff the defendants appeal.

Reversed.

Paul M Hatfield and E. G. Smith, for appellants.

Joe P Shoup and Jepson, Struble, Anderson & Sifford, for appellee.

OPINION

VERMILION, J.

The city of Sioux City is under the commission form of municipal government, as provided by statute, now Chapter 326, Code of 1924. The plaintiff and appellee is a member of the paid fire department of the city. The appellants are the mayor, the members of the council, the auditor, and the treasurer of the city.

Prior to the general city election in 1926, the city council had by ordinance fixed the number of members of the city fire department and the annual salaries to be paid them. The salaries varied according to the rank and length of service of the members. At the general city election on March 29, 1926, there was submitted to the voters of the city a proposed ordinance providing for an increase in the annual salaries to be paid the members of the fire department. Such increase, in the case of appellee and firemen of his rank and class, amounted to $ 360 per annum.

The relief sought and granted below was a peremptory writ of mandamus, requiring appellants to take the necessary steps and to pay to plaintiff the salary provided for in the initiated ordinance.

The appellants admitted that the ordinance in question had been initiated, submitted, and adopted in accordance with the statutes relating to the adoption of ordinances by a vote of the electors in cities under the commission form of government,--a method of enacting laws referred to as the initiative and referendum. Sections 6556 to 6563, inclusive, Code of 1924. They also admitted that the appellee and other members of the fire department had not been paid the salaries provided for in the initiated ordinance, and that they did not intend to comply therewith. Justification for their refusal is to be found, if at all, in the inherent invalidity of the ordinance.

The contention of appellants is that the subject-matter of the ordinance is not one that is within the purview of the initiative and referendum statutes, because (1) the fixing of salaries of firemen is not required to be by ordinance, and (2) it is an administrative act, and those statutes apply only to legislative acts of the city.

I. By Section 6517, Code of 1924, the salaries of the mayor and councilmen are required to be fixed, within certain prescribed limits, by ordinance. Section 6519 provides that:

"Every other officer or assistant shall receive such salary or compensation as the council shall by ordinance provide, payable in equal monthly installments. The salary or compensation of all other employees of such city shall be fixed by the council and shall be payable monthly or at such shorter periods as the council shall determine."

It is the claim of appellee that a fireman is such an "other officer or assistant" as that his salary is by the foregoing statute required to be fixed by ordinance. He calls attention to the definition of "employee," as found in Section 1421 in the chapter of the Code on workmen's compensation, as sustaining his contention that a fireman is not an employee. That section provides that, in that chapter and the following related chapters on the subjects of the industrial commission and industrial liability insurance, a person holding an official position, or an official elected or appointed by a municipal corporation or a city under the commission form of government, shall not be deemed an employee. But by Section 1361 of the same chapter it is expressly provided that the Workmen's Compensation Act shall not apply to any person receiving, or who may be entitled to, benefits from any firemen's pension fund of any municipal corporation. By Section 6310, all cities having a paid fire department are required to make an annual levy for a firemen's pension fund. The definition of "employee" found in the Workmen's Compensation Act does not aid appellee, especially in view of the express exclusion of firemen entitled to the benefits from a firemen's pension fund from the operation of the act. If firemen were not employees, they were excluded without such express provision. Nor do cases dealing with the relation of firemen to compensation acts in other jurisdictions throw light on the subject.

Firemen are under the protection of the civil service statutes. Section 5694. By Section 5712 it is provided that, whenever the public interest requires a diminution in the number of employees under civil service, the number may be reduced by resolution of the city council. It cannot be doubted that this statute is applicable to firemen. Lyon v. Civil Service Com., 203 Iowa 1203, 212 N.W. 579.

We are of the opinion that the statute does not expressly require the salaries of firemen to be fixed by ordinance. The fact that the initiated ordinance is an amendment to an existing ordinance adopted by the council is entirely immaterial to the present inquiry. The mere fact that the city council saw fit to do by ordinance what was not required to be done by ordinance did not bring the act within the scope of the initiative and referendum statutes. Hopping v. Council of City of Richmond, 170 Cal. 605 (150 P. 977).

II. Nor do we think that the fixing of the salaries of firemen was such an act as, in the absence of express statutory requirement, must be taken by ordinance. The distinction between an ordinance and a resolution by a city council is discussed in City of Burlington v. Putnam Ins. Co., 31 Iowa 102; Cascaden v. City of Waterloo, 106 Iowa 673, 77 N.W. 333; Martin v. City of Oskaloosa, 126 Iowa 680, 102 N.W. 529; and Sawyer v. Lorenzen & Weise, 149 Iowa 87, 127 N.W. 1091. Nothing need be added to what is there said on the general subject.

"An ordinance is a local law. The distinction between such acts and those acts that relate to daily administration of municipal affairs is obvious. * * * Executive and administrative duties are such as concern the execution of existing laws." Oakman v. City of Eveleth, 163 Minn. 100 (203 N.W. 514).

In 2 McQuillin on Municipal Corporations, Section 636, it is said:

"The general rule is that, where a charter commits the decision of the matter to the council or legislative body alone, and is silent as to the mode of its exercise, ordinarily the decision may be evidenced by resolution. But it does not necessarily follow that, because the charter does not, in express terms, require an act to be done by an ordinance, it may, therefore, be effected by a mere resolution. On the contrary, where the requirement that the corporate act should be done by ordinance is implied by necessary inference (as where it is a clear legislative act), a resolution is not sufficient, but an ordinance is indispensable. Under particular charter provisions, resolutions have been held sufficient in the following instances: For the purchase of fire department apparatus; construction of a sewer; acceptance of a dedication; prescribing salary of officer; fixing the amount of a license previously authorized to be imposed; fixing a license fee from time to time, under general ordinance; ordering street improvements; * * *"

The establishment of a fire department is doubtless a legislative act, and such as is required to be by ordinance. It is legislatio...