State ex rel. Ausburn v. City of Seattle

• Citation: 190 Wash. 222,67 P.2d 913
• Decision Date: 03 May 1937
• Docket Number: 26561.
• Parties: STATE ex rel. AUSBURN et al. v. CITY OF SEATTLE et al.
• Court: United States State Supreme Court of Washington

67 P.2d 913

190 Wash. 222

STATE ex rel. AUSBURN et al. v. CITY OF SEATTLE et al.

No. 26561.

Supreme Court of Washington, En Banc.

May 3, 1937

Appeal from Superior Court, King County; Calvin S. Hall, Judge.

Mandamus by the State, on the relation of James Ausburn and others against the City of Seattle and H. W. Carroll, city comptroller and ex officio city clerk. From a judgment for relators, the City and its comptroller appeal.

Reversed and remanded, with directions.

GERAGHTY and BEALS, JJ., dissenting.

A. C. Van Soelen, of Spokane, and Glen E. Wilson of Seattle, for appellants.

Colvin & Rhodes, of Seattle, amici curiae.

Stuntz & Burns and Hazel & Hazel, all of Seattle, for respondents.

MILLARD Justice.

James Ausburn, and other firemen of the city of Seattle, sought, by mandamus proceedings, to require the city of Seattle to pay to them certain amounts of their respective salaries which they alleged were unlawfully withheld from them. From judgment entered in favor of the relators, the city and its comptroller appealed.

In 1924, an initiative measure was passed by the voters of Seattle increasing the salary of the firemen of the class of the respondents in the sum of $25 monthly. The effect of that ordinance was to fix the salary of the respondents, and others of that grade, at the rate of $180 monthly. The initiative ordinance is still in force.

In 1933, the reduced revenues of the city necessitated the strictest economy in all departments of the city government. It was thought that a radical reduction of the fire department force, in order to make the necessary proportionate saving, would increase the hazard to public safety and property from fire and would also be unfair to those members of the department who would be deprived of their positions entirely. To meet the emergency presented the chief of the fire department (deeming section 12, article 16 of the City Charter authorized him to do so) suspended without pay the respondents and all other members (not now complaining) of the same class of the fire department for two periods of not more than twenty-five days at a time. The men concerned made no protest to the civil service commission or otherwise indicated any objection to the method employed by the city to meet the situation.

Article 16, section 12, of the City Charter, which contains a provision that the article shall not limit the power of any officer to suspend without pay a subordinate for a period not in excess of thirty days, reads as follows: 'Every officer or employe in the classified civil service shall hold office until removed or retired. Any officer or employe in such service may be removed by the appointing power only upon the filing with the commission of a statement in writing of the reasons thereof. Any officer or employe so removed may within ten days after his removal demand an investigation. The commission shall forthwith make such investigation and its finding and decision shall be certified to the appointing officer, and if the removal is not sustained thereby, the officer or employe so removed shall at once be reinstated. Nothing in this article shall limit the power of any officer to suspend without pay a subordinate for a period not exceeding thirty days. In the course of any investigation each member of the commission shall have power to administer oaths, and the commission shall have the power to require the attendance of any officer or employe or other person and the production of books and papers relevant to such investigation. The provisions of this section shall not apply to the removal of the chief of police.' (Italics are ours.)

In 1934, 1935, and 1936, the city of Seattle was confronted with an economic emergency like that met by the city in 1933. The legislative authority of the city joined the administrative authority in the solution of the problem. An ordinance, which granted to the firemen one day off in eight with pay, was suspended by an ordinance enacted by the city council for each of the three years 1934 to 1936, inclusive. The suspension ordinance for the years 1934, 1935, and 1936 required the members of the fire department to take one day off in eight without pay and directed the chief of the fire department to take the necessary steps to effectuate that policy. Pursuant thereto, the chief of the fire department promulgated a general order suspending each member of the department one day in each eight without pay.

The order of the chief of the fire department in 1934, which order is substantially the same as the orders issued subsequent thereto, provides (in accordance with the city ordinance under which the firemen are required to take one day off duty in eight without pay) that:

'* * * one day off duty without pay every eight days, instead of one day off in every eight with pay, will be effective for the members of the 'D' service of the department.

'The monthly rate of pay will be in accordance with Initiative Ordinance No. 47660 or so called $180.00 scale for firemen.

'Members will retain present off numbers assigned them in their respective positions. Regular members of the 'D' service not assigned off numbers at present because of detail assignments, etc., are hereby assigned off No. 1 for pay roll purposes.

'Reliefmen working in positions of regular members will take the offs of members they are relieving and in all cases, of course, will not draw pay for such days.

'Without special orders from Chiefs office regular members and reliefmen will not be permitted to work or draw pay during regular offs assigned positions. This for the reason that no funds are available for salaries during offs.'

In the salary ordinances, the working time of the officers, the respondents, and all members of their class in the fire department, was accordingly modified to ten and one-half months during each of the years in question, a total of one and one-half months each year 'being time off' without pay. At all times involved, the basic salary rates of $180 monthly for members of respondents' class in the fire department were maintained as fixed by the initiative ordinance. As a result of this plan, there was no reduction of the fire department force--no one was deprived of his position. None of those affected by it protested against, or objected to, the plan until this action was instituted in 1936.

Substantially, the argument of counsel for respondents is as follows: The city council is powerless to alter, amend, or repeal the initiative measure which fixed the salary of the respondents. The appointing officer may suspend, only for disciplinary purposes, any employee without pay for a period not exceeding thirty days, in view of article 9, section 5, of the civil service rules adopted pursuant to section 4, article 16, of the City Charter. The city council was without power to adopt the method which fixed the term of office of respondents at ten and one-half months a year. The council's attempt to reduce the force by the method adopted constituted a violation of Civil Service Rule 10, sections 5, 6, and 7, governing the order of 'lay-off because of reduction of force.'

Section 4, article 16 of the City Charter, reads as follows: 'The commission shall make rules to carry out the purposes of this article, and for examinations, appointments, promotions and removals in accordance with its provisions, and the commission may, from time to time, make changes in the existing rules.'

Article 4, section 18, sub. 40, of the Charter of the city of Seattle, provides:

'The city council shall have power by ordinance and not otherwise----

'To ordain, establish, modify and abrogate from time to time, as the needs of the city shall require, all proper offices and bureaus, subordinate and auxiliary to the departments and heads thereof constituted by this charter, and to provide for the conduct and government of such offices and bureaus, and the appointment, removal, duties and compensation of officers to fill the same, except as in this charter otherwise provided.'

Article 11, section 1, of the Charter provides: 'There shall be a fire department, which shall consist of a chief of the fire department, and as many subordinate officers and firemen as the city council shall from time to time by ordinance prescribe.'

Rule 9, section 5, of the civil service rules, invoked by counsel for respondents, provides: 'For disciplinary purposes, the appointing officer shall have exclusive authority to suspend any employe without pay for a period not exceeding thirty days.'

Rule 10, sections 5, 6, and 7, of the civil service rules, reads as follows:

'Sec. 5. Lay-off because of reduction of force shall be in the following order: (1) Those who have no civil service standing; (2) probationary appointees not entitled to veteran preference; (3) probationary appointees entitled to veteran preference; (4) regular civil service employes not entitled to veteran preference; (5) regular civil service employes entitled to veteran preference.

'As between employes in groups (4) and (5) the following shall control the order of lay-off: To the average efficiency rating for the last two rating periods add one-half per cent for each of the first ten years of regular service in the position in question, and one-eighth per cent for each full year of service thereafter. The person serving in the designated position having the lowest average thus obtained shall be the first of the regular employees to be laid off; except that, between employes in Class 'K', Transportation Service, lay-off shall be in inverse order of length of continuous service. In lay-off of Laborers from service outside the city each location may be considered separately.

'Sec 6. There shall be a...