Silgen v. City of Fond Du Lac

• Decision Date: 21 June 1937
• Parties: SILGEN et al. v. CITY OF FOND DU LAC et al.
• Court: Wisconsin Supreme Court

225 Wis. 335

274 N.W. 256

SILGEN et al.

v.CITY OF FOND DU LAC et al.

Supreme Court of Wisconsin.

June 21, 1937.

Appeal from a judgment of the Circuit Court of Fond du Lac County; C. F. Van Pelt, Judge.

Affirmed.

Mandamus by James J. Silgen and others against the City of Fond du Lac and others to require payment of amounts by which their salaries were reduced pursuant to action of the board of fire and police commissioners and the city commissioners of the city, commenced July 24, 1936. From a judgment dismissing the petition entered November 14, 1936, the plaintiffs appeal.

The action is mandamus to compel the proper city officers of the city to pay the petitioners, members of the fire and police departments of Fond du Lac, some $80,000 as salaries alleged to have been wrongfully deducted since January, 1933, when proceedings were taken as a result of which percentages were deducted from the amounts they were then receiving under the existing ordinance of the city fixing their salaries.

The city has adopted the commission form of government. The commission consists of the mayor and two councilmen. The fire and police departments of the city are under the general administration and control of the board of fire and police commissioners, which consists of five citizen members appointed by the mayor and the mayor. Sections 62.13, 63.05 (6), Stats. On January 17, 1933, the members of the department were being paid salaries fixed by an ordinance passed in 1926. On the date first stated the mayor and council by ordinance reduced the salaries of the chiefs of the departments by 12 1/2 per cent. and of the other members of 20 per cent. Thereafter to date of commencement of the action the members have been paid at the reduced rate.

There was a motion to quash the alternative writ which the court denied, saying that the case should be disposed of on the merits. Return to the alternative writ was made and testimony was taken before the court. The court ordered the deduction for the month of January, 1933, to be restored to each member of the respective departments on the ground that the ordinance was retrospective to January 1 of that year and void so far as retrospective and denied relief to the petitioners otherwise. The defendants do not complain of the restoration of the deduction for January, 1933. The plaintiffs appeal from the portion of the judgment denying them restoration after January, 1933. The defendants by motion to review attack the denial of their motion to quash the alternative writ. Other material facts are stated in the opinion.Hill, Beckwith & Harrington, of Madison, and Evrard & Evrard, of Green Bay, for appellants.

Allan L. Edgarton, City Atty., of Fond du Lac, for respondents.

FOWLER, Justice.

The plaintiffs' contentions may be stated as that the ordinance reducing salaries is void (1) because not pursuant to a “recommendation” of the board of fire and police commissioners; (2) because not made at the first meeting of the council in February; (3) because the board of fire and police commissioners was not legally constituted. The defendants contend by motion to review that (4) their motion to quash the alternative writ should have been granted. This contention of the defendants will be first considered.

[1][2][3] (4) The defendants claim that mandamus will not lie to compel the issuance of orders upon the city treasury unless it appears that there are funds in the treasury to pay them, and as the petition did not allege the existence of such funds, their motion to quash should have been granted. The premise of the defendants is correct. State ex rel. Brown v. Slavin, 11 Wis. 153, 160;State ex rel. Gericke v. Mayor and Common Council of City of Ahnapee, 99 Wis. 322, 327, 74 N.W. 783;State ex rel. Redenius v. Waggenson et al., 140 Wis. 265, 268, 122 N.W. 726, 133 Am.St.Rep. 1075;State ex rel. Van Lyssel v. Scheuring, 154 Wis. 93, 96, 141 N.W. 1001. However, it does not necessarily follow because the remedy of mandamus was invoked, that the court is precluded from granting such relief to the parties as the allegations of the petition and proofs upon trial show them to be entitled. We recently granted relief as upon a complaint for a declaratory judgment in a case wherein the remedy invoked was mandamus. State ex rel. Young et al. v. Maresch (Wis.) 273 N.W. 225. Without approving the use of the remedy of mandamus except in cases where it clearly lies, we consider that in the instant case the public interests will be better, because more quickly served, by following the course adopted in the Young Case, supra.

(1) The petitioners' main assignment of error is that the ordinance reducing their salaries is void because section 62.13 (7), Stats., provides that while the city commissioners may fix the salaries of the members of the fire and police departments, they cannot reduce them except on the recommendation of the board of fire and police commissioners, and they claim, that the action of the latter board in that respect did not recommend and therefore did not confer authority to make the reduction.

[4][5] The final action of the board in that respect was to pass a resolution on November 2, 1932, by a vote of five to one that the “council be permitted to reduce the salaries of the Police and Fire Department by such percent. as the council shall deem proper after careful study and survey.” The petitioners claim that this resolution did not confer authority to reduce, because it made no recommendation, and because it fixed no amount below which the council could not go. It was held in Van Gilder v. Madison, 222 Wis. 58, 267 N.W....