State ex rel. Fire Fighters Local No. 946, I. A. F. F. v. City of Laramie

Decision Date15 February 1968
Docket NumberNo. 3633,3633
Citation437 P.2d 295
PartiesThe STATE of Wyoming en the relation of FIRE FIGHTERS LOCAL NUMBER 946, I. A. F. F., and Thomas E. Hood, Plaintiffs, v. The CITY OF LARAMIE, Wyoming, a municipal corporation, Russell C. Keck, Mayor, and Leo F. Malody, Charles R. Fortman, William T. Ward, and Larry Deaver, CityCouncilmen of the City of Laramie, Defendants.
CourtWyoming Supreme Court

Alfred M. Pence, Laramie, for plaintiffs.

Thomas S. Smith, Laramie, for defendants.

Jack D. Emery, City Atty., Casper, and A. Joseph Williams, City Atty., Cheyenne, amici curiae.

Before HARNSBERGER, C. J., and GRAY, McINTYRE and PARKER, JJ.

Justice McINTYRE delivered the following opinion in which Justice GRAY concurs.

Fire Fighters Local No. 946, I.A.F.F., and its president, Thomas E. Hood, brought a mandamus action in the district court of Albany County to compel the City of Laramie to comply with Ch. 197, S.L. of Wyoming 1965 (Tit. 27, Ch. 14, W.S.1957, 1965 Cum.Supp.). The city defended on the ground that the statute sought to be enforced is unconstitutional and void.

Without resolving the case and entering a final judgment, the district court elected to reserve to us important and difficult constitutional questions, pursuant to authorization for such procedure contained in § 1-191, W.S.1957, and Rule 52(c), W.R.C.P.

This case is similar to the action which was before us in State ex. rel. Fire Fighters Local 279, v. Kingham, Wyo., 420 P.2d 254. In the Kingham case, we first inquired whether or not the reserved questions merited our consideration. We then decided the proceeding could be disposed of without answering the reserved constitutional questions, and on p. 257, we assigned as one of the reasons the fact that the City of Cheyenne in the Kingham case had taken advantage of benefits under the act and therefore ought not to be heard to question the validity of the legislation.

In the instant case, the city has not participated in any of the benefits of the act in question. Moreover, it is the second case of this kind to come before us, and we are persuaded there is a broad public interest in the constitutional questions presented. In view of this, we will undertake to answer each of the questions reserved.

It has been argued that our answers are essential because Oliver B. Knight, a citizen and taxpayer of Laramie, has petitioned to intervene and to assert the interest of taxpayers generally. His petition was denied by the district court. We need not consider whether the denial was proper, because the parties are agreed Knight's status in the case need not be considered if the reserved constitutional questions are answered without regard to his attempted intervention.

The questions reserved have been designated by letters in alphabetical order, A through F. We will state each question separately as the discussion of that particular question is commenced. In each question the court has referred to provisions of Title 27, Ch. 14, W.S.1957, as amended. It is apparent the citation in each instance is intended as a citation to W.S.1957, 1965 Cum.Supp. The provisions questioned in each instance are those of Ch. 197, S.L. of Wyoming 1965. Also, it appears the act in question has not at any time been amended.

Before entering into a discussion of the reserved questions, we should point out the act we are concerned with deals with the matter of wages, hours of service, and working conditions. It should be understood that our answers to the questions propounded necessarily deal with the principles involved and not precise questions which might arise in connection with the terms of a collective bargaining agreement, which the statute is designed to bring about.

'A. Do the provisions of Title 27, Chapter 14, Wyoming Statutes, 1957, as amended, violate Article 3, Section 37, of the Wyoming Constitution, by delegating to special commissioners the power to perform municipal functions delegated to the members of the City Council of the City of Laramie, Wyoming, or the power to make, supervise or interfere with municipal money and funds of the City of Laramie, Wyoming?'

Counsel for the city argues the weight of authority opposes the right of public employees to bargain collectively with their governing bodies. Annotation 31 A.L.R.2d 1142, 1155-1159, is relied on. Counsel then argues if Wyoming's collective bargaining statute for fire departments is permitted to stand, the police and other employees will immediately fall in line to request legislation of this type.

Of course, all of this is argument which should be directed to the legislature and not to the courts. To say that most states do not permit public employees to bargain collectively with their governing bodies is not to say that Wyoming cannot do so, if the legislature considers it advisable. See Professional Fire Fighters, Inc. v. City of Los Angeles, 60 Cal.2d 276, 32 Cal.Rptr. 830, 384 P.2d 158, 169.

As far back as 1933 a legislative policy with respect to union principles was announced for our state in what is now § 27-239, W.S.1957, these words being used:

'It is hereby declared to be the policy of the State of Wyoming that workers have the right to organize for the purpose of protecting the freedom of labor, and of bargaining collectively with employers of labor for acceptable terms and conditions of employment, and that in the exercise of the aforesaid rights, workers should be free from the interference, restraint or coercion of employers of labor, or their agents in any concerted activities for their mutual aid or protection.'

Under the 1933 statement of policy, there is no exclusion of public employees. Were it not for the subsequent enactment of Ch. 197, S.L. of Wyoming 1965, we might nevertheless find it necessary to join what the city calls the weight of authority, which in essence is simply a rule of statutory construction, and hold public employees do not have a right to bargain collectively. Indeed, that may even now be the situation for all public employees, except city firemen. We are not called upon to decide that question in this case and it would be improper to do so on reserved constitutional questions. Consequently, nothing we say should be construed as a decision with respect to the right of public employees, other than city firemen, to bargain collectively.

The pertinent language in Art. 3, § 37, Wyo.Const. is this:

'The legislature shall not delegate to any special commissioner * * * any power to make, supervise or interfere with any municipal improvements, moneys, property or effects, * * * to levy taxes, or to perform any municipal functions whatever.'

The constitutional prohibition against delegation of power is intended to protect against the exercise of the taxing power and other purely municipal functions by officials not subject to the people's control. Evans v. West Norriton Tp. Municipal Authority, 370 Pa. 150, 87 A.2d 474, 479; Wilson v. School Dist. of Philadelphia, 328 Pa. 225, 195 A. 90, 99, 133 A.L.R. 1401; Board of County Commissioners of Albany County v. White, 79 Wyo. 420, 335 P.2d 433, 442.

Matters which are administrative only may be delegated without violating the constitutional prohibition against the legislature delegating to a special commissioner power to supervise or interfere with any municipal function. Stewart v. City of Cheyenne, 60 Wyo. 497, 154 P.2d 355, 356; Kleiber v. City and County of San Francisco, 18 Cal.2d 718, 117 P.2d 657, 659. Indeed it is not at all unusual to have boards and commissions performing governmental functions as long as the taxing power and other purely municipal functions are not involved.

We need to point out that the statute under consideration in this case has to do with collective bargaining of firemen and with the arbitration of unresolved matters. No delegation of power is involved with respect to collective bargaining. The city does its own bargaining and performs whatever municipal functions are involved in this process. But, there could be no collective bargaining if the bargaining necessarily had to end with terms and conditions dictated by the city.

Therefore, if the legislature sees fit to provide for a genuine collective bargaining, an essential adjunct to the bargaining is a provision for unresolved matters to be submitted to arbitration or determined in some other manner. In State ex rel. Fire Fighters Local 279 v. Kingham, Wyo., 420 P.2d 254, 257, we pointed out that a city, as a creature of the legislature, has only such powers as have been granted to it by the state. Thus, the legislature could authorize a city to employ and pay firemen, and it could place limitations upon the manner in which pay and working conditions shall be arrived at.

Recognition of the principle of compulsory arbitration, when collective bargaining fails, is quite common in business and industrial affairs. We have seen contracts between labor and management wherein provisions for arbitration of unresolved disputes were contained. It has never been suggested that the carrying out of such arbitration is the performance of a 'municipal function.'

Even though one of the parties in the arbitration provided for in Ch. 197 is a city, the act of arbitration is no different from the act of arbitration in business and industrial affairs. It is nothing more than the performance of arbitration, and it cannot be said to be the performance of a municipal function.

In Division 85, Amalgamated Transit Union v. Port Authority of Allegheny County, 417 Pa. 299, 208 A.2d 271, 273-274, the Supreme Court of Pennsylvania considered a statutory provision for compulsory arbitration similar to the one we are concerned with. With a constitutional provision substantially the same as Art. 3, § 37, of our constitution, it was being claimed there was an unlawful delegation of power to a special commission in violation of the Pennsylvania constitution.

The Pennsylvania court said of the contention,...

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