Schuh v. City of Waukesha

• Decision Date: 03 March 1936
• Citation: 265 N.W. 699,220 Wis. 600
• Parties: SCHUH v. CITY OF WAUKESHA.
• Court: Wisconsin Supreme Court

220 Wis. 600

265 N.W. 699

SCHUH

v.CITY OF WAUKESHA.

Supreme Court of Wisconsin.

March 3, 1936.

Appeal from a judgment of the County Court for Waukesha County; Roscoe R. Luce, Judge.

Modified and affirmed.

This action was begun on July 10, 1934, by Arthur Schuh, plaintiff, against the city of Waukesha, defendant, to recover the amount of $1,202.50, unpaid salary. The city defended on the ground that the amount claimed had been voluntarily paid to the city as a contribution to its relief fund. The court found for the plaintiff and judgment was entered accordingly on November 7, 1934, from which the defendant appeals.

From the findings of fact, it appears that plaintiff was appointed city engineer of the defendant city on May 1, 1926, and acted as such until April 30, 1934. By ordinance adopted on February 16, 1932, the city engineer was to receive the sum of $3,900 per annum; that the plaintiff was paid his full salary of $325 for the month of May, 1932; that plaintiff received his salary of $325 for the months of June, July, August, September, October, November, December, 1932, and for January and February, 1933; that upon request of the city, pursuant to resolution adopted by the common council, the plaintiff issued his check to the city for the sum of $32.50 for each of said months, that being 10 per cent. of his salary; that on February 21, 1933, the common council by resolution assessed a contribution of 40 per cent. upon plaintiff's salary, which was to be deducted from his salary by the city clerk; that the plaintiff refused to consent to the 40 per cent. reduction; that his salary was withheld until September, 1933, when a compromise was entered into as a result of which 20 per cent. of the salary was withheld; that plaintiff received from March, 1933, to and including April, 1934, salary at the rate of $260 per month; that after his term of office had expired, plaintiff filed a claim against the city amounting to the difference between the legal salary and the amount which he actually received, the amount of the claim being $1,202.50.

The court also found that “during the period involved in this action the city of Waukesha was suffering from a financial depression general to it and to the country at large. That its poor relief expenditures and its delinquent taxes had largely increased and that the action of the common council in attempting to reduce salaries was for the purpose of lessening the operating expenses of the city without resorting to further taxation.”

The court also found: “The contributions made by the plaintiff were made at the command of the defendant and did not constitute voluntary reductions of salary on his part.”

The court concluded that as a matter of law the plaintiff was entitled to a salary of $3,900 per year, payable monthly; that he received $2,697.50 and was entitled to recover $1,202.50 with costs and disbursements.

Vincent J. Collins, City Atty., and Harvey J. Frame, Sp. City Atty., both of Waukesha, for appellant.

Jacobson & Malone, of Waukesha, for respondent.

ROSENBERRY, Chief Justice.

In response to the plaintiff's claim for the amount which in part had been withheld and in part refunded to the city, the city contends that (1) no salary reduction was involved; (2) that full compensation was paid; (3) that plaintiff, after receipt of compensation, voluntarily contributed to the city for poor relief; (4) that in any event the office of city engineer is not a constitutional office and salary may be decreased during term if desired; (5) that plaintiff could be removed from his office at any time; (6) that the contributions made were voluntary and that there was no legal coercion. The principal contention of the defendant is that there was no coercion of the plaintiff by the defendant; that the amounts paid to and retained by the city were voluntary contributions; and that there is no evidence to support the findings of the court to the contrary.

Section 62.09 (1) (b) provides: “The council by a two-thirds vote, may dispense with the offices of street commissioner, engineer * * * and provide that the duties thereof be performed by other officers or board, by the council or a committee thereof.”

It is the contention of the defendant that under the provisions of this section the office of city...