Brightman v. Civil Serv. Com'n of City of Des Moines ( 1969 )

GARFIELD, Chief Justice.

Plaintiffs are 33 detectives on the Des Moines police force who appealed to the Civil Service Commission, herein called “commission,” of the city from what they claimed was an illegal demotion by the city. The commission by action of two of its three members sustained the city council’s motion to dismiss plaintiffs’ appeal on the ground it was without jurisdiction to hear it.

The district court issued a writ of certi-orari to determine whether the commission’s action exceeded its proper jurisdiction or it otherwise acted illegally. (See Rule 306, Rules of Civil Procedure). The matter was submitted to the court on the return to the writ made by the secretary of the commission and briefs and arguments for the detectives and the commission. The court held the commission did not exceed its jurisdiction or otherwise act illegally in dismissing plaintiffs’ appeal to it on motion of the city council and so denied relief to the detectives. They have appealed to us from the adverse judgment.

(For convenience we disregard the fact the members of the commission are made defendants along with the commission itself.)

The return to the writ on which the certiorari action was submitted to the court consists mainly of plaintiffs’ notice of appeal to the commission from the claimed illegal action of the city council in enacting ordinance No. 7427, effective December 26, 1966; the city council’s motion to dismiss the appeal on the ground the commission was without jurisdiction to hear it, and plaintiffs’ resistance thereto; ordinance 7427; a transcript of oral arguments to the commission by attorneys for the city and the detectives; a few documentary matters and a transcript of some informal discussion among members of the commission, attorneys for the parties and a few others who attended the meeting.

The petition for the writ of certiorari alleges and the commission’s answer thereto admits that without proceeding with an ordinary hearing on the merits the commission, by two votes, held it was without jurisdiction'to hear the appeal plaintiffs filed with it.

I. The errors plaintiffs have assigned here may be combined into the single claim the trial court erred in holding the commission properly decided it was without jurisdiction to entertain plaintiffs’ appeal.

There is little, if any factual dispute. For more than SO years prior to June 8, 1959 there was no civil service classification of "detective” in Des Moines. During that period, however, certain “patrolmen” were assigned specialized duties as detectives and were paid at a rate at least equal to that of police “sergeants.” By ordinance 6054 on the above date the city established the civil service classification of detective with slightly lower pay than that of sergeants. This difference in pay continued until August 26, 1963, when the city council by ordinance 6956 equalized the pay of detectives with that of sergeants.

By ordinance 7160 effective March 8, 1965 the city increased the pay of sergeants more than it did that of detectives. Twenty-nine detectives undertook to appeal to the commission from this action of the city, claiming it resulted in an illegal demotion. All but five of the 29 are appellants here along with nine additional detectives- — 33 in all. The commission held it was without jurisdiction to entertain the former appeal and this was upheld by the district court on review by certiorari. We affirmed the judgment of the district court on grounds hereinafter explained. Antrim v. Civil Service Comm, of City of Des Moines, Iowa, 154 N.W.2d 711.

As before stated, the claimed illegal action of the city from which the 33 detectives appealed to the commission was in the passage of ordinance 7427 effective December 26, 1966. It increased the pay of detectives five percent and of sergeants 10 percent. The detectives contend this resulted in another illegal demotion, like that resulting from ordinance 7160 effective March 8, 1965, in violation of their civil service rights, under chapter 365 Code 1966 and of soldiers’ preference rights, under chapter 70, of the many detectives who are ex-service men.

II. Plaintiffs rely upon sections 365.27 and 365.20 in chapter 365 dealing with civil service. So far as pertinent here 365.27 provides:

“The civil service commission shall have jurisdiction to hear and determine all matters involving the rights of civil service employees, and may affirm, modify, or reverse any case on its merits.

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“If the appeal is taken by a suspended, demoted, or discharged employee and reversed, he shall be reinstated as of the date of his suspension, demotion, or discharge, and shall be entitled to such compensation as the body having jurisdiction may determine.”

Before quoting section 365.20, it is well to refer to 365.18 and 365.19. The former reads: “No person holding civil service rights as provided in this chapter shall be removed, demoted, or suspended arbitrarily, except as otherwise provided in this chapter, but may be removed, demoted, or suspended after a hearing by a majority vote of the civil service commission, for neglect of duty, disobedience, misconduct, or failure to properly perform his duties.”

Section 365.19 is too long to quote. In pertinent part it provides the person having the appointing power under chapter 365 may peremptorily suspend, demote or discharge any subordinate under his direction for neglect of duty, disobedience of orders, misconduct or failure to properly perform his duties. .A report of such action shall be made to the city manager or, if the action is by him, to the city council who shall affirm or revoke it according to the facts and merits of the case.

It is our duty to construe these statutes liberally with a view to promote their objects and assist the parties in obtaining justice. Code section 4.2.

So far as applicable here, section 365.20 states: “If there is an affirmance of the suspension, demotion, or discharge of any person holding civil service rights, he may, within twenty days thereafter, appeal therefrom to the civil service commission. * * * ”

Plaintiffs have not challenged the procedure of the city council in enacting ordinance 7427. They have not alleged the ordinance was not legally enacted and published. Their claim before the commission was that it resulted in an arbitrary demotion upon a ground not set out in section 365.18, supra, in violation of their rights under the civil service chapter. As stated, the commission decided it was without jurisdiction to hear the matter and dismissed the detectives’ appeal on that ground.

The return to the writ on which the certiorari action was submitted to the district court shows the commission heard or decided no other question. The last thing attorneys for the city told the commission was that its jurisdiction to hear the appeal was the matter submitted to it. Earlier in the hearing counsel for the city admitted the commission had jurisdiction in matters of alleged suspensions, demotions or discharges of civil service employees but argued plaintiffs had not alleged any demotion.

III. As stated in Division I hereof, most of these plaintiffs were also plaintiffs in Antrim v. Civil Service Comm, of City of Des Moines, supra, Iowa, 154 N.W.2d 711, in which they claimed ordinance 7160 effective March 8, 1965 resulted in their illegal demotion. Like ordinance 7427 effective December 26, 1966, it increased the pay of other police more than it did that of detectives. Antrim and 28 other detectives undertook to appeal to the commission from their claimed illegal demotion; the commission sustained the city’s special appearance on the ground it was without jurisdiction to hear the appeal because notice thereof was not given within the 20 days provided by section 365.20, supra; the district court upheld the commission in certiorari and we affirmed the holding.

We think it is implicit from our opinion in Antrim that if timely notice of appeal to the commission were given it would have had jurisdiction to entertain it. In the present case plaintiffs gave such notice of their appeal to the commission.

The summary of the opinion, preceding the headnotes, states we held the “statute providing that if there is a demotion of any person holding civil service rights he may within 20 days thereafter appeal to the Civil Service Commission was applicable in regard to right of municipal employees to appeal to Commission on basis that their reclassification by city had constituted a demotion, and therefore Commission lacked jurisdiction where notice of appeal from municipal action was not given by employees until more than six months after challenged municipal action had been taken.”

Excerpts from the opinion are: “It is to us evident section 365.20 * * * is here applicable and controlling. * * *

“Since the premise upon which they sought administrative review is adoption of the alleged offending ordinance, the effective date of that municipal enactment is the commencement point of the statutory period within which their appeals could be lawfully taken.

“Under the circumstances we are satisfied, if there was an invasion of plaintiffs’ rights, it occurred on the effective date of the ordinance. Their lawful right of appeal then accrued, and they manifestly failed to pursue the remedy provided within the twenty days prescribed by law.”

A concurring opinion in Antrim, after stating the writer concurs in the court’s opinion, expresses the view that appeal to the commission would not lie even if notice thereof had been timely filed and that since the city council can create and abolish such a commission any challenge to the ordinance must be by direct resort to the courts. The concurring opinion concludes: “While this point was not sufficiently raised by the parties it should not be overlooked. To do so creates the impression the commission has jurisdiction. This would be a false impression.” Two other justices joined in the special concurrence.

In deciding the present certiorari action the trial court adopted the view expressed in the concurring opinion in Antrim, quoted much of it apparently with approval and the commission seeks to uphold the decision on such ground here. Of course the concurring opinion is not a precedent for the view there stated. It is to be noted it recognizes the court’s opinion creates the impression the commission had jurisdiction in Antrim. And, as stated in Division II hereof, counsel for the city, in the hearing before the commission on its motion ⅛ dismiss plaintiffs’ appeal, admitted it had jurisdiction in matters of alleged demotion of civil service employees.

It is true that whenever the city council appoints a commission, it may by ordinance abolish it and in such event the powers and duties of the commission shall revert to the city council. Code section 365.3. However, we are not pursuaded it follows that the impression created by our opinion in Antrim is false. It is not suggested the city council has any thought of abolishing the commission. No authority has been cited which supports the view expressed in the special concurrence in Antrim.

We find nothing in chapter 365 or any other statute which precludes an appeal to the commission from what plaintiffs contend is their demotion in violation of their rights under the chapter. One such right is that they shall not be demoted arbitrarily except as otherwise provided in the chapter. Section 365.18, quoted supra. As in Antrim v. Civil Service Comm., supra, 154 N.W.2d 711, 714, plaintiffs’ “attempted appeal to the commission is unavoidably based upon a claim the ordinance served in effect to demote them.” (emphasis not added)

To preclude such an appeal would, in effect, read an exception or limitation, not there expressed, into the broad terms of section 365.27, supra: “The civil service commission shall have jurisdiction to hear and determine all matters involving the rights of civil service employees, and may affirm, modify, or reverse any case on its merits.” See Rule 344(f), par. 13, Rules of Civil Procedure; Wendelin v. Russell, 259 Iowa 1152, 1159, 147 N.W.2d 188, 192; Bergeson v. Pesch, 254 Iowa 223, 228, 117 N.W.2d 431, 433, and citations.

The action of the city council which we upheld in Wood v. Loveless, 244 Iowa 919, 58 N.W.2d 368, was expressly authorized by section 365.28. The real contention there relied upon was that the office in question was not in fact abolished by the council, (pages 925-926 of 244 Iowa, pages 371-372 of 58 N.W.2d.) See Murphy v. Gilman, 204 Iowa 58, 60-61, 214 N.W. 679.

It should be noted that the municipal action here in controversy was apparently initiated by the city manager. Section 363C.7 provides “He shall have power to employ, reclassify, or discharge all employees of the city, as the occasion requires, and to fix the compensation to be paid to such employees, except as otherwise herein provided, subject, however, to the provisions of chapters 70 and 365.” (paragraph 7) (emphasis added) Thus the power the quoted statute confers on the city manager is expressly made subject to the provisions of chapters 70 and 365. The manager is an administrative or executive official.

Presumably the city manager complied with the requirement of section 365.19, summarized in Division II supra, that he report his action to the city council and it in turn affirmed it by passage of Ordinance 7427. Plaintiffs appealed to the commission from the affirmance.

IV. It has been suggested the fixing of salaries of detectives and other members of the police department is a legislative, not an executive, function but the view expressed in the special concurrence in An-trim, accepted by the trial court here, is adhered to, (i. e. that if plaintiffs desire to challenge the act of the council the proper forum is a court of law, citing Wood v. Loveless, supra, 244 Iowa 919, 58 N.W.2d 368, to which we have previously referred).

We have held the fixing of salaries of city employees such as firemen is an administrative, not a legislative, act. Murphy v. Gilman, supra, 204 Iowa 58, 60-62, 214 N.W. 679.

The annotation in 122 A.L.R. 769, 782, contains this under the heading “Salary ordinances. Logically, it would seem that as a general proposition ordinances dealing with the fixing of salaries of municipal officers and employees other than those specifically provided for by law are merely administrative in character * * *. However, the decided cases are in confusion on the subject, and it seems impractical to attempt to reconcile them, * * Our opinion in Murphy v. Gilman, supra, is summarized at page 784 of the annotation as supporting the view that fixing salaries of city employees is an administrative function.

If fixing compensation of city employees were legislative, not an administrative, function it would not support the view that appellant’s remedy would be by direct resort to the courts rather than by appeal to the commission. Courts have no greater power to review legislative action of a city than does the commission. See Article III, Iowa Constitution; State ex rel. Klise v. Town of Riverdale, 244 Iowa 423, 430-441, 57 N.W.2d 63, 67-73, which quotes the constitutional provision; City of Des Moines v. Lampart, 248 Iowa 1032, 1033, 1036, 82 N.W.2d 720, 721-722.

We have already quoted the provisions of section 363C.7, subd. 7, that the city manager “shall have power * * * to fix the compensation to be paid to such employees (of the city), except as otherwise herein provided, subject, however, to the provisions of chapters 70 and 365.”

The provision of section 363.3, “All legislative and other powers granted to municipal corporations shall be exercised by the council, except those conferred upon some officer by law or ordinance.” does not prevail over section 363C.7, subd. 7 for at least two reasons: (1) Because of the expressed exception in 363.3 italicized by us, and (2) 363C.7, subd. 7 is a special statute conferring power on the city manager in cities under the manager form of government, while 363.3 is a general statute applicable to all cities and towns.

It is a fundamental rule that where a general statute, if standing alone, would include the same matter as a special statute and thus conflict with it, the special act will be considered an exception to or qualification of the general statute and will prevail over it. State v. Halverson, Iowa, 155 N.W.2d 177, 181, and citations; State v. Flack, 251 Iowa 529, 534-536, 101 N.W. 2d 535, 538-539, and citations. See especially Gade v. City of Waverly, 251 Iowa 473, 477, 101 N.W.2d 525, 528, and citations.

V. We think plaintiffs were entitled to a hearing before the commission on their appeal and it acted illegally, within the meaning of Rule 306, R.C.P., in dismissing the appeal on the city council’s motion asserting the commission was without jurisdiction to hear it. See City of Sioux City v. Civil Service Comm., 247 Iowa 1254, 1258, 78 N.W.2d 833, 835, and citations; Butler v. Pension Board of Police Dept., 259 Iowa 1028, 1034-1035, 147 N.W.2d 27, 30-31; Sueppel v. Eads, Iowa, 156 N.W.2d US, 116-117.

It follows the trial court was in error in holding the commission was without jurisdiction to hear plaintiffs’ appeal, in quashing the writ of certiorari and dismissing their petition.

We express no opinion on the merits of plaintiffs’ appeal to the commission. We hold only they were entitled to a hearing thereon.

We need not consider any rights those plaintiffs who are ex-service men may have under the Soldiers Preference Law, Code chapter 70.

The trial court’s judgment is reversed and the cause is remanded for entry of judgment sustaining the writ of certiorari to the extent the civil service commission dismissed plaintiffs’ appeal without granting them a hearing.

Reversed and remanded.

LARSON, RAWLINGS and LeGRAND, JJ., concur. SNELL, J., concurs specially. MOORE, J., takes no part. BECKER, STUART and MASON, JJ., dissent.