Weisfield v. City of Seattle

• Citation: 40 P.2d 149,180 Wash. 288
• Decision Date: 04 January 1935
• Docket Number: 25410.
• Parties: WEISFIELD v. CITY OF SEATTLE et al. (MAXMILLIAN et al., Interveners.
• Court: United States State Supreme Court of Washington

40 P.2d 149

180 Wash. 288

WEISFIELD v. CITY OF SEATTLE et al. (MAXMILLIAN et al., Interveners.

No. 25410.

Supreme Court of Washington, En Banc.

January 4, 1935

Appeal from Superior Court, King County; James B. Kinne, Judge.

Action by Leo Weisfield against the City of Seattle and others, in which Max Maxmillian and others intervened. From a judgment of dismissal, plaintiff appeals.

Affirmed.

M. M Pixley, of Seattle, for appellant.

A. C Van Soelen and Glen E. Wilson, both of Seattle, for respondents City of Seattle and others.

Colvin & Rhodes, of Seattle, for respondents Maxmillian and others.

MITCHELL Justice.

Seattle a city of the first class, for some years had, and still has, an initiative ordinance fixing the salary rates of civil service employees or officers in class C of the police department and class D of the fire department. A large number of such officers were induced to give purported waivers of portions of their monthly salaries from July 1, 1932, to July 1, 1934. One of such officers was R. B. Wells of the fire department, the validity of whose waiver was litigated, wherein it was determined in State ex rel. Knez v. Seattle, 176 Wash. 283, 28 P.2d 1020, 33 P.2d 905, that the purported waiver was void.

Thereafter a number of such officers threatened to sue, and a great many of them have sued, the city to recover portions of monthly salaries appearing to have been waived by them. In this situation, the city council passed an Ordinance No. 64981, approved by the mayor on September 20, 1934, entitled: 'An ordinance relating to and authorizing the issuance and sale of general negotiable interest-bearing serial coupon bonds in the sum of Eight Hundred Fifty Thousand Dollars ($850,000.00) for corporate purposes, to-wit: The payment of certain back salary due members of the Police and Fire Departments; providing for a loan; providing for the levy and collection of taxes for the payment of principal and interest of said bonds, and creating and establishing a bond interest and redemption fund.'

Certain portions of the ordinance are especially pertinent to the points in the present case, portions of which, including what may be termed legislative findings of the city council, we have italicized, as follows:

'Whereas, Initiative Ordinance No. 47660 (Ordinance No. 48053 1/2) of the City of Seattle, approved by the voters at the November 1924 election, increased the then existing salary rates of members in Classes 'C' and 'D' in the police and fire departments, respectively, Twenty-five Dollars ($25.00) per month, effective January 1, 1925; and,

'Whereas, said salary rates have not since been changed in the manner provided by law; and,

'Whereas, the Supreme Court of the State has ruled, in the case of State ex rel. Knez v. City of Seattle et al., [176 Wash. 283, 28 P.2d 1020, 33 P.2d 905] 76 Wash. Dec. 201, case number 24732 (affirmed en banc on rehearing June 20, 1934) that the salary rates as fixed by said initiative ordinance are not subject to reduction by the City Council or waiver by the members of said departments; and,

'Whereas, under the rule laid down in said decision, an aggregate of approximately $400,000.00 is due certain members of the Police Department, and an aggregate of approximately $450,000.00 is due certain members of the Fire Department for back pay in connection with services rendered from July 1, 1932 to July 1, 1934, being the difference between the salaries paid said members and the salary lawfully payable; and,

'Whereas, the City is threatened with law suits by hundreds of said members, unless it voluntarily provides for payment thereof; and,

'Whereas, the City has no available funds lawfully applicable to the payment of said back salaries; and,

'Whereas, any attempt on the part of the City to pay said sums other than by the issue of bonds will disrupt the current and succeeding budgets and demoralize the City's finances and endanger the public safety because the City, if compelled to pay said back salaries in full out of current tax collections, will be compelled to drastically reduce the force in both the Police and Fire Departments and all other departments of the City government; Now, Therefore,

'Be it ordained by the City of Seattle as follows:

'Section 1. That public necessity requires that general negotiable interest bearing serial coupon bonds of The City of Seattle be, and they are hereby, directed to be issued for strictly corporate purposes as above set forth in an aggregate sum not exceeding Eight Hundred Fifty Thousand Dollars ($850,000.00), bearing interest at not to exceed six per cent (6%) per annum, payable semiannually, and dated and sold at such times and in such series or installments as the City Council shall by resolution direct, and that a loan in said amount be, and the same is hereby, authorized.'

The ordinance then provides further description of the bonds to be issued, as to serial numbers, and annual maturities from the second to the tenth year, reserving the right to redeem after 5 years any or all unmatured bonds at any interest payment date upon 30 days' notice. The ordinance sets out in full the form in which the bonds and coupons shall be issued. Section 3 of the ordinance provides the manner in which the bonds shall be signed under the seal of the city and the manner in which the attached coupons shall be executed and signed. Section 4 of the ordinance creates and establishes a special fund, as follows: 'Section 4. That there be, and is hereby, created and established a fund to be known as 'Police and Firemen's Back Salary Fund', into which shall be paid all moneys derived from the sale of said bonds, and out of which shall be paid the indebtedness herein referred to in such manner as the City Council shall provide by ordinance.'

Other sections are as follows:

'Section 5. The corporate authorities of the City of Seattle hereby acknowledge an indebtedness to certain members (Classes 'C' and 'D', as classified by the Civil Service Commission of the City of Seattle) of the Police and Fire Departments for services rendered between July 1, 1932 and July 1, 1934, which were and are essential for protection of the City government, as such services are shown to have been performed by each of said members of said departments, as certified under oath by the Chiefs of said Departments, respectively, and checked and found to be correct by the City Comptroller of the City of Seattle with respect to the amount due each of such members, being the difference between the salaries paid such members between July 1, 1932 and July 1, 1934, and the lawful rate of salary applicable to such service as provided by Initiative Ordinance No. 47660 (Ordinance No. 48053 1/2), approved by the voters at the November, 1924, election and held to be due each of said members under the principle of the ruling of the Supreme Court of the State of Washington in the case of State ex rel. Knez v. City of Seattle et al., reported in [176 Wash. 283, 28 P.2d 1020, 33 P.2d 905] 76 Wash. Dec. 201, case number 24732 (affirmed en banc on rehearing June 20, 1934).

'Section 6. That no part of the proceeds from the sale of the bonds hereby authorized shall be used for any purpose whatsoever other than the foregoing.

'Section 7. That there shall be levied each year by the City Council of The City of Seattle, in its annual tax levy, a tax upon all of the property in said City subject to taxation, sufficient to pay the principal and interest upon said bonds as the same mature and accrue, and the amount of such tax so collected shall be by the City Treasurer paid into a special fund, which is hereby created and established, to be known as the 'Police and Firemen's Back Salary Bond Fund,' and no part of such tax so collected shall be devoted to any other purpose than the payment of such principal and interest, and the faith, credit and resources of The City of Seattle are hereby pledged to and for the annual levy and collection of such tax and the regular payment of such principal and interest. Such tax shall become due and collectible as other taxes in said City.'

The ordinance was not submitted to a popular vote.

Plaintiff, a resident taxpayer within the city, brought this action, on his own behalf as a taxpayer and on behalf of all others similarly situated, against the city, its mayor and comptroller, for the purpose of having the ordinance declared void, and to enjoin the issuance and sale of the bonds.

Omitting certain formal matters, the complaint alleges, in substance, that at the date of the ordinance the city was indebted more than 1 1/2 per centum of the value of its taxable property, as determined by the last assessment for city purposes, after giving credit for uncollected taxes, and that its indebtedness exceeds 5 per centum of the value of the city's taxable property, as defined and limited by article 8, § 6, of the state Constitution.

Allegations are made with respect to waivers by policemen and firemen of portions of their monthly salaries from July 1, 1932, to July 1, 1934, and to the decision in the Knez Case, by reason of which 1,214 such employees of the police and fire departments now claim the right to recover back pay in the approximate sum of $850,000; that certain of the claimants have sued the city; that the city has already passed Ordinance No. 64981, and that no warrants have been issued to any of the officers for back pay.

Paragraph 9 of the complaint is as follows:

'That said ordinance number 64981 is invalid and beyond the powers of the City of Seattle for the following reasons:

'(a) Said ordinance creates an indebtedness in excess of the limitations prescribed by article 8, § 6, of the Constitution of the State...