Feavel v. Appleton , 234 Wis. 483 ( 1940 )

I cannot agree with the decision of the court in the instant case. The city clerk filed his certificate of the sufficiency of the petition on February 15th. This was more than forty days preceding the April election. Under sec. 10.43(4), Stats., the council was required to pass the ordinance or submit the ordinance to the electors at that election. They submitted the ordinance, the majority of the electors voted for its adoption, and thereby the salaries of the plaintiff aldermen were fixed at $250 per year. Sec. 10.43, Stats., is quoted in the opinion of the court.

The fixing of the salaries of city officers is within the purview of that section. The coverage of that statute is in no way limited by its terms. It would seem, a priori, that the coverage includes any sort of an ordinance of a legislative nature which the city may adopt, and that it therefore covers an ordinance fixing salaries. It is stated in 2 Lewis' Sutherland, Statutory Construction (2d ed.), § 705, that "where the legislature has made no exception the courts of justice can make none." Sec. 10.43, Stats., contains no exceptions of subjects to which it applies. It therefore applies to all subjects upon which cities may legislate.

The only case called to the attention of the court that bears directly on this question is State ex rel. Leo v. Tacoma,184 Wn. 160, 49 P.2d 1113. It was there held under a statute for direct legislation similar to sec. 10.43, Wis. Stats., that salaries of city officers might be fixed by such legislation.

It was held in State ex rel. Elliott v. Kelly, 154 Wis. 482,143 N.W. 153, that sec. 10.43, Stats., authorized the creation of an office pursuant to its provisions. It would seem that the fixing of a salary of an officer is no more subject to exclusion from the purview of the statute than the creation of an office, and that if an office may be created under the statute the compensation of an officer may be fixed under it.

It therefore seems to me that sec. 10.43, Stats., authorizes salaries to be fixed by direct legislation. As I understand the majority opinion, the court agrees with this but holds that the authorization exists only unless the council takes action to pass the ordinance at its first regular meeting in February or then refuses to pass it and submits it to the electors. With this I cannot agree.

To require the action of the council to be taken at its first regular meeting in February entirely prevents the fixing of salaries under sec. 10.43, Stats. The opinion of the court, in effect, limits the filing of a petition so that the council may take its action on a single day, and that day must be just thirty days before the clerk files his certificate. The clerk has fifteen days in which to file his certificate. He may file it on any one of fifteen days, and the day he will file it cannot be determined until he does file it. The council may take thirty days in which to act on the ordinance. If a council does as it did in the instant case — takes its full time — the filing of the petition can never be so timed as to permit action at the February meeting. The statute places no restrictions upon the time when a petition may be filed. The only restriction as to time relates to when the election shall be held if the council does not pass the ordinance. As the statute does not fix a definite time for the filing, the court cannot fix one.

The court's view that the action of the council must be taken at the first meeting in February is based on the provisions of sec. 62.09(6) (b), Stats., quoted in the majority opinion, and what the court has heretofore said in considering that statute. But all these statements were made long before sec. 10.43 was enacted and said without thought of direct legislation. The two sections, 10.43 and 62.09 (6) (b), provide two distinct methods for fixing salaries of city officers, one by direct legislation, that is by referendum, and the other by action of the common council alone. The one provides that they may be changed by an ordinance initiated by a petition signed by the electors and adopted by electors, the other that they may be fixed by an ordinance enacted by the council. When two distinct statutory methods are provided for accomplishing the same thing, each statute applies to the proceeding under that statute, and neither applies to the proceeding under the other. Thus, a city in providing for acquisition of a public utility may proceed under sec. 66.06(8), Stats., to acquire an existing utility by contract with the utility at a price agreed upon between the city and the utility, or under ch. 197, Stats., at a valuation determined by the public service commission. The statutes relating to the one method of acquisition apply to that method and to that method only. No one would contend otherwise. So here. The statute requiring a city council to change salaries not later than the regular meeting in February applies only to a change adopted by the council itself. It has no application to a change adopted by the people.

It is stated in a recent English work, Crane on Construction of Statutes, page 312, that where a new act is couched in general affirmative language and a previous law can well stand with it both statutes stand. Sec. 10.43, Stats., was not in existence when the statute, now sec. 62.09(6) (b), was enacted. Both are in affirmative language. By limiting each statute to the matter to which it applied when enacted, and to which each by its terms inferentially applies, the one to fixing salaries by the council of its own motion and the other to the fixing of salaries by direct legislation, both may stand and be enforced. I think the statutes here involved should be so limited and that each applies to the matter with which it deals.

If the council instead of submitting the ordinance to the people had passed the ordinance, I could see some reason in holding that the ordinance if passed by the council had to be passed at the first regular February meeting. The ordinance would then have been enacted by the council and due deference to sec. 62.09(6) (b), Stats., not unreasonably requires that it be passed at the time therein prescribed. But the council had nothing to do with the enactment of the ordinance. It was enacted by the people. And the only restriction placed upon the people's adoption of it is that the election shall be held not less than forty days after the filing of the certification of sufficiency of the petition.

The opinion of the court states: "It is our opinion that the legislature did not intend thereby [by the enactment of sec. 10.43] to confer power upon the electors which was denied to the common council." I take it that nobody would contend that it did so intend. But the question is not one of power. It is one of when power shall be exercised. The purpose of requiring the council to fix salaries at the February meeting is that the officers to be elected will know previous to their election what their salaries shall be. They knew in the instant case on February 15th that their salaries would be either $500 or $250. That is definite enough to subserve all purposes of the statute requiring the council to fix salaries at the first meeting in February. It prevented the outgoing council either from increasing or diminishing the salaries for the ensuing term after the nomination of the officers to be elected at the April election, or after their election and before the commencement of the term. And as for the time element involved, there is no material difference between the forty days prior to the April election prescribed by the direct-legislation statute and the time between the first meeting in February and the April election, which is always around sixty days. The legislature may as reasonably prescribe forty days in the one statute as about sixty in the other.

The trial court considered that the language of the proposed ordinance that the salaries of aldermen "shall hereafter be changed" renders the ordinance inoperative, because it does not say what it manifestly means, which is that the salaries "shall hereafter be." This seems sufficiently covered by the. Kelly Case, supra. The ordinance there named the office created by the direct legislation as superintendent of trade and commerce. The tickets voted at the election named the office as chamber of commerce. The court held that as the electors knew what they were voting for the ordinance was duly enacted. So here. As the electors knew that they were voting to change the salary of aldermen from $500 to $250, the salary by their vote was so changed. The intent of the ordinance is plain enough, and it should be given force according to its plan intent.

For the reasons above given I think the judgment of the municipal court should be reversed with directions to enter judgment establishing the salaries involved at $250 a year.

I am authorized to state that Mr. Justice FRITZ concurs in this opinion.