Schryver v. Schirmer

• Decision Date: 22 October 1969
• Docket Number: 10711,Nos. 10708,s. 10708
• Parties: , 61 Lab.Cas. P 52,167 Don SCHRYVER and James H. McKelvey, Petitioners and Respondents and Cross Appellants, v. M. E. SCHIRMER, Earl McCart and Dave Witte, Mayor and City Commissioners for the City of Sioux Falls, South Dakota, and Manfred Szameit, City Auditor for the City of Sioux Falls, South Dakota, Defendants and Appellants and Cross Respondents.
• Court: South Dakota Supreme Court

Page 634

171 N.W.2d 634

84 S.D. 352, 61 Lab.Cas. P 52,167

Don SCHRYVER and James H. McKelvey, Petitioners and Respondents and Cross Appellants, v. M. E. SCHIRMER, Earl McCart and Dave Witte, Mayor and City

Commissioners for the City of Sioux Falls, South Dakota, and

Manfred Szameit, City Auditor for the City of Sioux Falls,

South Dakota, Defendants and Appellants and Cross Respondents.

Nos. 10708, 10711.

Supreme Court of South Dakota.

Oct. 22, 1969.

Willy, Pruitt & Matthews, Gene E. Pruitt, Sioux Falls, for petitioners and respondents and cross appellants.

Russell R. Greenfield, Sioux Falls City Atty., Sioux Falls, for defendants and appellants and cross respondents.

HOMEYER, Judge.

This appeal and cross appeal involves the constitutionality of an initiated salary ordinance ¹ passed by the electorate of the City of Sioux Falls at a municipal election held on April 9, 1968. The defendant city officials refused to comply with the ordinance and the present proceeding was brought by petitioners on behalf of themselves and all other members of the fire and police departments to compel the city by writ of mandamus to comply with such ordinance. Defendants have challenged the ordinance as unconstitutional and void in its entirety. The trial court found as unconstitutional that portion which provides for computing the basic monthly pay rates in the manner set forth in the ordinance subsequent to September 1, 1968, but held it valid for the pay rate to be determined as of that date. In these appeals the defendants again assert the total invalidity of the ordinance and petitioners contend the trial court erred in holding it void in part.

As grounds of unconstitutionality defendants assert (1) the initiated ordinance unlawfully delegates legislative power, (2) it delegates power in the area of salary determination contrary to the constitution and statutes of this state, and (3) it delegates legislative power without prescribing adequate standards making it invalid.

The doctrine that a legislative body may not abdicate its essential power to legislate or delegate that power to any other department or body is well established in this state. S.D.Const. Art. III, § 1, Brookings County v. Murphy, 23 S.D. 311, 121 N.W. 793; Boe v. Foss, 76 S.D. 295, 77 N.W.2d 1; State ex rel. Oster v. Jorgenson, 81 S.D. 447, 136 N.W.2d 870. While we have said a quasi legislative power and function can be delegated provided the legislature adopts adequate standards to guide its delegate, a purely legislative power cannot be constitutionally delegated. Boe v. Foss, supra.

A municipal corporation is a creature of the state and it has no power except such as granted by the constitution and the statutes or such as is incidental thereto. S.D.Const. Art. X, § 1, Robbins v. Rapid City, 71 S.D. 171, 23 N.W.2d 144. The fixing of salaries of municipal officers and employees is a legislative function, State ex rel. Martin v. Eastcott, 53 S.D. 191, 220 N.W. 613, and the rule against delegation of legislative power and authority is applicable whether the law is enacted by the legislature or arises through use of the initiative process. State of Washington ex rel. Everett Fire Fighters, Local No. 350 v. Johnson, 46 Wash.2d 114, 278 P.2d 662.

Counsel have cited no precedent directly in point and in our research we have found none. Attempts have been made to analogize this ordinance with prevailing wage laws enacted in some states requiring that workmen on public works be paid the prevailing or current rate of wages. The power of the state and its creations to enact such laws and ordinances has generally been upheld. See Annot., 18 A.L.R.3d 946. It is readily apparent that the object and intent of the ordinance is to require the municipality to pay its firemen and policemen a salary somewhat commensurate to that paid tradesmen in private employment and to annually readjust the salary scale to keep pace with changes therein. ² In our opinion the questioned ordinance cannot be constitutionally sustained.

Since the fixing of salaries of municipal officers and employees is a legislative function, and the people through the initiative process may fix such salary, State ex rel. Hooper v. Hahn, 69 S.D. 275, 9 N.W.2d 502, we must look to the ordinance to ascertain if what has been enacted is within constitutional limitations. The ordinance was approved by the electorate on April 9, 1968, and manifestly on that date there were trade scales for the labor groups named from which through mathematical computation a salary could be ascertained for firemen and policemen by employing the formula set forth in the ordinance. Assuming without deciding that the electorate acting in a legislative capacity could on that date fix such salaries in that manner, nevertheless, such is not the purport of the ordinance. It fixes the determinative date as September 1, 1968, and each September 1st of succeeding years.

In State of Washington ex rel. Kirschner v. Urquhart, 50 Wash.2d 131, 310 P.2d 261, the matter in issue was the validity of legislation requiring an applicant for a license to practice medicine to be a graduate of a medical school approved by the American Medical Association. At the time of applicant's graduation from a foreign medical school, there was no such list of approved foreign medical schools in existence and such list did not come into being until three years after enactment of the requiring legislation.

The Washington court opined it would have been proper for the legislature to have enacted that accredited schools were only those on a list then in being whether prescribed by the American Medical Association or some other learned society, but it was not constitutionally permissible to define accredited institutions on a list to be compiled in the future irrespective of the standing of the society making the list. It said:

'Legislative power is nondelegable. When the legislature declares that schools on an existing list are accredited schools and those not on an existing list are not, it is legislating; but when it declares that accredited schools shall be those on a list thereafter to be promulgated, irrespective of the authority promulgating such list, it is attempting to delegate legislative power and such an act is unconstitutional.

'The vice in the statute is not that it adopts a standard of accreditation fixed by recognized medical societies, but that there was no such list in existence at the time of the enactment in question.'

Statutes adopting laws or regulations of other states, the federal government, or any of its agencies, effective at the time of adoption are valid, but attempted adoption of future laws, rules or regulations of other states, or of the federal government, or of its commissions and agencies generally have been held unconstitutional as an unlawful delegation of legislative power. Dawson v. Hamilton, Ky., 314 S.W.2d 532; Nostrand v. Balmer, 53 Wash.2d 460, 335 P.2d 10; Seale v. McKennon, 215 Or. 562, 336 P.2d 340; Cheney v. St. Louis S.W. Ry. Co., 239 Ark. 870, 394 S.W.2d 731.

In the instant case, four months and twenty days intervened between the passage of the salary ordinance and the date to be used in computing the salaries for the officers therein named. The electorate may have known the trade scales on the date of election and assuming arguendo that it could have enacted legislation fixing salaries in the manner prescribed by the ordinance on that date, this was not done. By setting September 1, 1968, as the date to be used, it unlawfully delegated, in this instance, to the trade unions and those who employ the tradesmen, the future determination of what is a purely legislative power and function and in our opinion this rendered the entire ordinance invalid.

The trial court appears to have reasoned that the ordinance provided for payment of a prevailing wage at the time it was enacted. We seriously doubt if it could be sustained on such theory since in cases where prevailing wage laws have been upheld we find the statutes and ordinances generally provided that public employees were to be paid wages commensurate to what nonpublic employees were paid For like services or work of a similar character. See Metropolitan Water District of Southern California v. Whitsett, 215 Cal. 400, 10 P.2d 751; City of Albuquerque v. Burrell, 64 N.M. 204, 326 P.2d 1088; City of Joplin v. Indus. Comm., Mo., 329 S.W.2d 687; Bradley v. Casey, 415 Ill. 576, 114 N.W.2d 681; City of Monmouth v. Lorenz, 30 Ill.2d 60, 195 N.E.2d 661, 18 A.L.R.3d 937; Baughn v. Gorrell & Riley, 311 Ky. 537, 224 S.W.2d 436; Union School District of Keene v. Commissioner of Labor, 103 N.H. 512, 176 A.2d 332. We see very little or no similarity between the character of the work performed by city firemen and policemen and that...