State ex rel. Leo v. City of Tacoma
| Decision Date | 18 October 1935 |
| Docket Number | 25669. |
| Parties | STATE ex rel. LEO v. CITY OF TACOMA et al. |
| Court | Washington Supreme Court |
Department 1.
Appeal from Superior Court, Pierce County; F. G. Remann, Judge.
Mandamus proceeding by the State, on the relation of W. P. Leo against the City of Tacoma and others. From a judgment defendants appeal.
Affirmed.
Howard Carothers, Hilton B. Gardner, and Bartlett Rummell, all of Tacoma, for appellants.
G. F Vanderveer, of Seattle, and L. B. Sulgrove, of Tacoma, for respondent.
W. P Leo, who was for many years a captain in the Tacoma fire department, instituted this action against the city of Tacoma, its mayor and city controller, seeking a writ of mandate requiring the issuance and delivery to him of warrants for a balance which he alleged was due him on account of his salary as an officer of the fire department, pursuant to the provisions of an ordinance which had been by the city council passed and referred to the electors of the city for their consideration. This ordinance (No. 8677), which upon the council's reference was adopted by the voters, fixed Captain Leo's salary at $190 a month, at which rate he was paid until May 15, 1932.
By ordinance No. 10835, adopted May 4, 1932, the city council expressly repealed the ordinance above referred to, and readjusted the pay of members of the fire department, including that of Captain Leo, whose salary was fixed at $171, at which rate payment was made until December 31, 1932.
December 30, 1932, by ordinance No. 10893, ordinance No. 10835 was repealed, and Captain Leo's salary fixed at $150.50 per month. This last ordinance was later amended, but the amendment did not change Captain Leo's salary, which he received at the rate of $150.50 per month until May 7, 1934, when he voluntarily retired on pension.
May 1, 1934, at a special election, ordinance No. 8677 was repealed by the voters. By this action, plaintiff sought to compel the issuance to him of salary warrants in the sum of $783.87, less 4 per cent. thereof to be paid to the pension fund, representing the difference between the salary which plaintiff would have received under ordinance No. 8677 and the amount which he actually received pursuant to the later ordinances above referred to.
To plaintiff's application for a writ of mandate, defendants made due return, setting forth the facts hereinabove stated, and pleading payment of all sums due. To the affirmative defenses contained in defendants' answer, plaintiff replied, and in due time the cause came on regularly to be heard Before the court, the trial resulting in judgment in plaintiff's favor directing the issuance of a writ of mandate as prayed for. From this judgment, defendants have appealed.
The Charter of the city of Tacoma, by section 12 thereof, fixes the salaries of elective officers, and then provides that 'all other officers, clerks, assistants and employes shall be paid such compensation as the council shall by ordinance fix.' By section 25, the council is empowered to create any department, board or commission, office, position, or employment which it may deem necessary or expedient in connection with the administration of the city's affairs, to fix the duties pertaining thereto and the salaries to be paid. By section 27, it is provided that the fixing of salaries of appointive officers, clerks, etc., shall be by ordinance, 'which shall require a vote of at least four members for passage.' Section 18 of the charter reads as follows:
By section 23, it is provided that 'every legislative act of the council shall be by ordinance.'
Article XVII of the Charter refers to the initiative and referendum. By section 113 (), it is provided that 'any proposed ordinance may be submitted to the council by petition,' to be signed by a specified number of voters. By section 117, it is provided that 'any ordinance initiated or referred may...
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