Chatfield v. Seattle , 198 Wash. 179 ( 1939 )

The trial to the court of three causes of action (which have been consolidated) brought by a number of employees of the park department of the city of Seattle to require the city to pay to them certain amounts of their respective salaries, which they alleged were unlawfully withheld from them, and to recover for time lost by reason of lay-offs, resulted in findings and judgments in favor of the plaintiffs. The city and its comptroller appealed.

The facts are summarized as follows:

The city council of the city of Seattle duly passed ordinance No. 61,908, which fixed the salaries, wages, and hours of all of the city's employees, including employees of the park department, for the year 1932, and provided (§ 3 (a)):

"Every municipal employe, upon appointment from a Civil Service eligible list to any position, shall receive not to exceed the minimum rate of compensation fixed for said position, and shall continue to receive such minimum rate until changed by the City Council by ordinance. Non-Civil Service employees shall receive not to exceed the minimum rate of compensation."

The ordinance further provided (§ 6): "Eight hours shall constitute a day's work."

Under an economy program, the park board of the city of Seattle, by formal resolution in June, 1932, reduced the salaries of employees of the park department. The first of the three causes of action involved in this appeal was commenced May 25, 1937, to recover the difference between the salaries fixed by the city ordinance and the reduced salaries under the resolution of the park board.

Ordinance No. 64,220, which fixed the salaries and established the working conditions of all of the employees of the city for the year 1934, was duly passed by the city council. That ordinance, like No. 61,908, provides that the city employees shall continue to receive the minimum rate of wages fixed by the ordinance until changed by ordinance, and also provides that eight hours shall constitute a day's work. By formal resolution in September, 1934, the park board provided that laborers in the park department shall work six hours, instead of eight hours, a day, and be paid accordingly. In December, 1934, the park board submitted to a vote of the employees of the park department the question whether they desired to continue the reduced time in 1935 or work full time and reduce the number of employees. A majority of the employees of the park department voted to continue the reduced time.

During 1935, the employees were permitted to work only four days a week, of eight hours, or thirty-two hours a week, and were paid accordingly. In 1935, some of the employees were laid off, out of order of seniority, on the ground of alleged inefficiency; that is, they were laid off and not given the benefit of their seniority rating under civil service rules. During the time these men were laid off from their work in 1935, men without civil service classification were employed in the park department.

Ordinance No. 65,082, duly passed by the city council, fixed the salaries, wages, and hours of work of all employees of the city for the year 1935, and provided that five days (a forty-hour week) would constitute a week's work. The ordinance also provided that all employees "shall continue to receive" the rate of pay fixed until changed by ordinance. The actions to recover for 1934 involve the Airth case and the Adams case, but not the Chatfield case. The action to recover for the period of 1935 involves only the Airth case.

The trial court found that the amounts deducted from the salaries of the respondents were illegally deducted, that no one who had legal authority to do so ever laid off the respondents, and that the respondents were forced to accept the illegal deductions. The court further found that, by reason of the intimidation, duress, and coercion on the part of the officials of the city of Seattle and of the park board of the city of Seattle, which continued and was in full force and effect until the first Monday in June, 1934, at the time of the expiration of the term of the then mayor, respondents were forced to accept the illegal deductions in pay during the year 1932.

The recovery allowed for 1932, 1934, and 1935 was the difference between the legal salaries fixed by ordinance and the amount paid. The rate of pay which is made the basis of recovery was never changed by the city council.

Counsel for appellants first contend that, under the following sections of Art. XIII of the Seattle city charter, the board of park commissioners has exclusive authority to fix salaries, conditions of employment, and the number of employees in the park department; therefore respondents are not entitled to recovery on account of the reductions in salary, reduction in working time, and lay-offs which were effected pursuant to formal action of the park board:

"Sec. 3. The management and control of all the public squares and parks of the city and of all park drives, parkways, boulevards, play or recreation grounds of the city are hereby vested in the board of park commissioners. . . ."

"Sec. 7. The board of park commissioners shall, subject to civil service regulations, have exclusive power to employ and pay all such superintendents, employes and other persons as it may deem necessary for maintaining, improving and controlling all park property, and it shall, on or before the tenth day of August of each year, prepare and submit to the city council for approval and adoption, an estimate of the amount of money which may be required for the improvement and maintenance of parks, parkways, public squares, boulevards and play or recreation grounds for the succeeding year.

"Sec. 8. The board of park commissioners shall alone have authority to expend the park fund, and the city clerk of the City of Seattle shall be clerk of the park board, and all expenditures on account of property or work designated in this article shall be made upon vouchers approved by the board of park commissioners through its president and secretary. Each voucher shall, when accompanied by a detailed statement of such expenditures, be certified to the city comptroller, who shall issue his warrants therefor to the city treasurer, and the same shall be paid by the treasurer out of any money in the park fund not otherwise appropriated."

The foregoing did not vest in the board of park commissioners the right to fix salaries. The city charter (Art. XVII, § 2) clearly, specifically vests only in the city council authority to fix the salary or compensation of all employees or officers of the city unless the compensation of such employees or officers is prescribed by the city charter. By the adoption of Art. XVII, § 2, of the city charter, reading as follows, the people of the city of Seattle legislated upon a specific subject — what authority in the city should fix the compensation of all city officers and employees — and vested that authority in the city council:

"No officer or employe of the city shall receive any compensation for his service as such officer or employe except by salary, which, when not prescribed by this charter, shall be fixed by the city council by ordinance. All salaries shall be paid at such times and in such manner as may be prescribed by ordinance. The salary of an appointive or elective officer shall not be increased after his appointment or election, or during the term for which he shall have been appointed or elected."

The charter vests solely in the city council the power to fix salaries and working conditions of employees and officers of the city. The authority so vested in the city council is exclusive and must be observed. As the salaries of respondents were fixed by the city council and were never changed by the city council, respondents are entitled to recover the difference between the legal salaries fixed by city ordinance and the reduced salaries paid to them pursuant to resolution of the board of park commissioners, as such resolution was invalid.

We have consistently held that, where salaries or wages are fixed by the legislative or governing body of a municipal corporation, a regular employee can look to that salary as fixed by the legislative or governing body, and recover for any reduction not authorized or approved by the legislative body of the municipal corporation. See Rhodes v. Tacoma, 97 Wn. 341,166 P. 647; State ex rel. Knez v. Seattle, 176 Wn. 283,28 P.2d 1020, 33 P.2d 905; Rudnick v. Pierce County,185 Wn. 289, 54 P.2d 409; State ex rel. Ross v. King County,191 Wn. 340, 71 P.2d 370.

The charter gives no right to the board of park commissioners to nullify the ordinances fixing the compensation and hours of service of the employees or officers of the city. Quite the contrary. Only in the city council is there authority to fix the compensation and working conditions of the employees and officers, and the salaries or wages once fixed by the city ordinance may not be changed other than by the city council.

Counsel for appellants next contend that respondents' claims for June, July, and August, 1932, are barred by the statute of limitations, which provides that an action of the character of those before us must be commenced within three years after the cause of action shall have accrued (Rem. Rev. Stat., § 159 [P.C. § 8166]), and these actions were not commenced until May 25, 1937, almost five years after the date of accrual of the cause of action.

As sustaining authority, State ex rel. McMillan v. Miller,108 Wn. 390, 184 P. 352, is cited. In that case, we held that, upon the rendition of services by a county official for which the law fixed an unchanged compensation during the whole period, there arises an implied obligation of a contractual nature to pay such compensation, governed by the three-year statute of limitations, Rem. Rev. Stat., § 159, for actions on contracts, express or implied; and that, under the statute providing that the salary of such officers shall be paid monthly, a right of action therefor accrues each month, notwithstanding the salary is fixed by statute at a certain amount "per annum."

See, also, 37 C.J. 786, § 126, and the cases there cited, on the question whether an action to recover an official salary definitely fixed by ordinance or statute is regarded as an action on a liability in writing within the meaning of the statute of limitations.

The trial court held that the three-year statute of limitations applied but was tolled by duress; that respondents were forced to accept the illegal deductions in pay during the year 1932 as the result of duress, coercion, intimidation, and threats on the part of officials of the city of Seattle, which continued until June, 1934, when the term of office of the then mayor expired.

"That the city officials of the city of Seattle were determined to reduce the city expenses of the City of Seattle and the Park Department; that the officers of the City of Seattle and the officers and agents of the Park Department threatened the plaintiffs herein that if said plaintiffs did not submit to said deductions that said plaintiffs would be in danger of losing their positions and that their civil service rating would be affected and that by reason of said intimidations, threats and coercion actions were not brought to recover the amounts herein sued for until after the second Monday in June, 1934; . . ."

Appellants have not sustained the burden that is theirs of showing that the trial court's finding was contrary to a preponderance of the evidence. Townsend v. Rosenbaum, 187 Wn. 372,60 P.2d 251.

The statement of facts is replete with testimony to the effect that, in 1932, a mayor was inducted into office with a program to reduce expenses of the city. In his endeavor to approximate that program, the compensation of employees was reduced below the scale established by city ordinance, and civil service employees were discharged and their places filled by employees who did not have civil service classification, and the victims of that program were warned that they would be required to submit to the treatment accorded or else they would be deprived of their positions. The acceptance of the reduced pay was not in law a voluntary one.

Respondents labored under the fear, which was well founded, that, if they brought action to recover the amounts illegally withheld from them, they would be discharged. Duress such as that tolls the statute of limitations until cessation of the duress or intimidation, which did not cease until the expiration in June, 1934, of the term of the mayor who was intimidating respondents and preventing them from commencing their actions. 37 C.J. 949. See, also, Eureka Bank v. Bay, 90 Kan. 506, 135 P. 584;Allen v. LeFlore County, 78 Miss. 671, 29 So. 161; Aldrich v.Steen, 71 Neb. 33, 98 N.W. 445, 100 N.W. 311; Bither v.Packard, 115 Me. 306, 98 A. 929; Durazo v. Durazo, 19 Ariz. 571,193 P. 350.

While the pressure of the duress continued, the statute of limitations did not commence to run. The mayor's term expired June, 1934. The actions were commenced in May, 1937. The actions were brought within time.

A part of the recovery allowed to respondents in the Airth case was on account of alleged wrongful lay-offs, or separation from their employment, in 1935.

The trial court found that, in 1935, between May 31st and November 10th, that respondents were separated from their employment in disregard of their civil service rating and seniority rights; that respondents were separated from their employment "not" as a matter of discipline or a matter of suspension, and were laid off indefinitely and not for any specified time. The respondents were given a hearing before the civil service commission and objected to the separation and sent a communication to the board of park commissioners immediately following their separation from employment, objecting to that separation. They reported for duty and were ready, able, and anxious at all times to work during the period they were separated from employment. By the provisions of the city charter, authority is vested in the board of park commissioners to separate from their employment employees in the park department, but no action was taken by the board of park commissioners ordering the employees to be separated from their employment in 1935, and contrary to the provisions of the city charter and rules of the civil service commission, the notice served upon the respondents advising them of their separation from employment did not state the reasons therefor; and that the separation from employment was illegal, as it was contrary to the provisions of the charter of the city of Seattle and the rules of the civil service commission.

Not only is there a failure to show that the evidencepreponderates against the foregoing findings, but the evidenceoverwhelmingly supports the findings.

The city charter provides that an employee in the classified civil service may be removed by the appointing power (the board of park commissioners in the case before us) only upon filing with the commission of a statement in writing of the reasons therefor, and the employee so removed may within ten days after the removal demand an investigation. On May 29, 1935, the chief clerk of the board of park commissioners made written request of the civil service commission for permission to lay-off, out of regular order, twelve laborers whom "we consider the least efficient in the department." In that letter, it is stated that the budget of the park board has been greatly reduced in the past three years, and it would be of great assistance to the department if it could keep the more efficient men.

The testimony does not establish the fact that that action was taken by order of the board of park commissioners; in fact, the testimony refutes any such presumption. The one charged with the duty of keeping the minutes of the board of park commissioners brought the minutes of the park board into court for the period commencing May, 1935, up to and including October, 1935. He testified that, in the minutes between those dates, he could not find any reference to the separation from employment or the lay-offs of Airth and others. That is, the minutes of the board of park commissioners failed to disclose any action by the board, as a board, authorizing the lay-offs or suspension from employment of the respondents in the Airth case. There is testimony to the effect that the members of the park board did not know anything about the lay-off of one of the respondents, who, quite incensed, telephoned a number of the members of the park board concerning the matter. No action was taken by the board of park commissioners ordering the respondents to be separated from their employment in 1935.

There was, also, a violation of the charter's provisions and the rules of the civil service commission in that the notice served upon the respondents advising them of their separation from employment stated no reasons therefor. The suspension was illegal and of no effect whatsoever, as no one in authority ever removed or laid off the respondents. Larson v. Civil ServiceCommission, 175 Wn. 687, 28 P.2d 289.

Under the civil service rules, the respondents could not be laid off out of order without being given an opportunity for a hearing and also after a showing by the park board of the necessity therefor. The appointing power may remove, but it is required to file with the commission a statement in writing of the reasons for such removal. Respondents were notified of their lay-off out of order and also informed that they would be given a hearing. All of them, with the exception of Airth, who went to the hearing and was sent away, attended the hearing and resisted this lay-off out of order. Airth was told he would not be given any hearing. The demand of the attorney of respondents for specification of the charges was refused. Airth's attorney was informed that it was not necessary that charges be filed, as the commissioners intended, in any event, to "lay off" respondents. The request of respondents in July for reinstatement was denied. When the civil service commission notified respondents of their separation from employment and of the date fixed for a hearing, respondents did all that was required of them when they, represented by counsel, attended that hearing and afterward through their counsel protested to the park board. There is no question of laches in these cases. The actions were brought within the period of the statute of limitations.

The author of this dissent wrote the foregoing when the causes were assigned to him for opinion following the hearing to Department One in the September term.

Re-examination of the record convinces him of the correctness of the statement that the evidence overwhelmingly supports the findings, one of which — "a question of fact to be determined from all of the surrounding circumstances and personal characteristics of the parties involved in each particular case" (State ex rel. Bradford v. King County, 197 Wn. 393,85 P.2d 670) — was that the respondents were forced to accept the illegal deductions in pay as the result of duress, intimidation, and threats on the part of officials of the city of Seattle.

That being so, the rule that, where the party submits to an illegal exaction because of some necessity which amounts to compulsion, the victim may recover the amount paid as having been obtained by duress or business compulsion, applies. Ramp Buildings Corp. v.Northwest Building Co., 164 Wn. 603, 4 P.2d 507, 79 A.L.R. 651. See, also, dissenting opinion in State ex rel. Bradford v.King County, 197 Wn. 393, 85 P.2d 670, which, by reference, is made a part of this dissent.

The judgment should be affirmed.

MAIN and STEINERT, JJ., concur with MILLARD, J.