Nelson v. City of Superior

• Citation: 109 Wis. 618,85 N.W. 412
• Parties: NELSON v. CITY OF SUPERIOR.
• Decision Date: 19 March 1901
• Court: United States State Supreme Court of Wisconsin

109 Wis. 618

85 N.W. 412

NELSON

v.CITY OF SUPERIOR.

Supreme Court of Wisconsin.

March 19, 1901.

Appeal from circuit court, Douglas county; James O'Neill, Judge.

Action by Fred Nelson against the city of Superior. From a judgment dismissing the action, plaintiff appeals. Affirmed.

Action to recover a balance said to be due plaintiff from defendant for services rendered as a fireman. The cause was tried by the court. The evidence disclosed, without dispute, the following: From 1893 to May 1, 1897, plaintiff was a fireman for defendant city, by appointment by the common council thereof. In February, 1896, such council passed an ordinance in form fixing the salaries of all officers and employés of the city for the ensuing year, that of plaintiff being named at $65 per month. September 29, 1896, the council, by resolution, determined to reduce the compensation of the employés in the police and fire departments of the city and to decrease the monthly pay roll of the fire department to $1,500 per month, either by reducing the rate of wages or the number of employés, or both. When the resolution was adopted, and as a part of the proceedings, the mayor of the city was requested to call before him all the men on the police force and in the fire department of the city and acquaint them with the nature of the resolution reducing their compensation and to request them to sign an agreement providing that in consideration of their further employment they would accept as full compensation for future services the wages fixed in accordance with said resolution. September 30, 1896, pursuant to such determination and request, the mayor called before him the policemen and firemen of the city, at which time plaintiff signed the following agreement:

“Whereas, the city of Superior, owing to the lack of money in its treasury, has found it necessary to curtail and lessen its expenses and for that purpose the common council of said city has, by resolution, passed September 29th, 1896, provided, among other things, that the monthly pay roll of the fire department of said city, be reduced to $1,500 per month, said reduction to be effected by reducing the number of men employed in said department or the rate of wages paid, or both, and desiring to be continued in the employ of said city in said department; now, therefore, the undersigned severally and each for himself proposes and offers that in consideration of being retained in the service of said city in said department, I will accept and receive as full compensation for such services from and after October 1st, 1896, per month the sum set opposite my respective name. It being understood that my acceptance of the reduced rate of wages as herein provided does not insure my continued retention in such service or in any way affect the right of the mayor of said city to discharge me at any time.”

The sum set opposite plaintiff's name was $42. Thereafter from and inclusive of October, 1896, to and inclusive of February, 1897, he received $42 per month, and for the two following months $60 per month.

On such facts the trial court decided that, notwithstanding the charter of the defendant required the common council, in the month of March, each year, to fix the amount of salary incident to every city salaried office, whether elective or appointive, for the ensuing year, and prohibited such council from changing any salary so fixed for such year, plaintiff was not entitled to recover more than the amount he had received, because he was not an officer within the meaning of the charter, but was a mere employé; that his salary was legally reduced by the action of the common council on the 29th day of September, 1899; that he had no fixed term of office, and was subject to be discharged at the pleasure of the mayor, and that by signing and fully executing the agreement to receive $42 per month for his services as full compensation therefor, he was estopped from claiming any additional amount. Judgment was rendered pursuant to such decision, dismissing the action, and for costs in favor of defendant.

Crownhart & Foley, for appellant.

Archibald McKay and George B. Hudnall, for respondent.

MARSHALL, J. (after stating the facts).

Was appellant an officer of the city of Superior within the meaning of its charter, chapter 124, Laws 1891? It seems to have been overlooked that such question must be tested by the charter, and that it was decided on general principles governing who is an officer and who an employé of a municipality. If the same line could be followed here, support could be easily found for the conclusion of the trial court, but it cannot, since the charter unmistakably includes firemen among the appointive city officers. That appears by implication by section 9, and expressly by sections 11 and 21. By section 13, the term of all officers of the city is fixed at two years and until their successors are elected or appointed and qualified. By section 11, the power of appointment of firemen is placed with the mayor, as is also the power of removal at his pleasure by section 21. Section 15--following section 11 which recognizes firemen as officers, and section 13 fixing the term of office of all officers--provides that every officer of the city, except supervisors, aldermen, school commissioners, justices of the peace and constables, shall be paid an annual salary, and that the common council, in the month of March, shall fix the amount of salary that shall be received by every city officer entitled to a salary, who may be elected or appointed in the city during the ensuing year, which salary shall not be increased or diminished during the term of office for which said officer may be elected or appointed.

The conclusion must follow that appellant was a city officer and entitled to the salary, regularly fixed,...