Dearborn Fire Fighters Ass'n v. City of Dearborn , 323 Mich. 414 ( 1949 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] Plaintiffs filed their petition in the circuit court for Wayne county, asking for a peremptory writ of mandamus requiring the defendants, the city of Dearborn, the common council, the civil service board, and individual officers of the city, to proceed to raise and appropriate necessary funds to meet the salaries and wages of the individual plaintiffs and other employees of the city during the fiscal year beginning July 1, 1947, and ending June 30, 1948, and to make payments thereof, in accordance with the municipal pay plan. The charter of the city of Dearborn, adopted on November 3, 1942, made it the duty of the civil service board to represent the public in the personnel administration of the city service, to certify payrolls as prescribed by the charter, and, specifically, "to prepare or cause to be prepared, a salary plan for the positions of the city service together with regulations for the administration of such plan. This suggested plan shall be submitted by the civil service board to the city council for approval and shall when adopted constitute the official salary plan for positions of the city service." Dearborn Charter, § 9.6(8).

In accordance with the provision quoted, the civil service board prepared a plan for the fixing of salaries and wages of employees of the city, which plan was adopted by the council in April, 1943. Section 1 of the resolution contained a schedule, setting forth classes of employees, and salaries thereof, including cost-of-living adjustments. The following sections are material in the present case:

"SEC. 2. The salary or rate of pay for each employee in the classified service for the fiscal year beginning July 1, 1943, and annually thereafter, shall be in accordance with the classifications in the rates of compensation as set forth in section 1; that said salary or rate of pay shall be the base pay as hereinafter defined, and shall be subject to the minimum, service increment, maximum, and cost-of-living adjustment as herein specified; that said service increment shall be the sum designated after each classification in section 1, and shall be added to the base pay annually received by each employee in the classified service, until the maximum salary for the classification has been reached; provided, that a new employee, who has served the probationary period of six months, and who has been certified as a permanent employee, shall be entitled to receive the service increment in the sum designated for said classification beginning with the date of said certification and continuing annually thereafter until the maximum salary for the classification has been reached; provided, further, that the service increment shall be added to a permanent employee's salary only in the event the appointing authority indicates the work of the employee is satisfactory so as to merit the service increment.

"SEC. 5. In addition to the compensation and service increment as set forth in the preceding sections, for the fiscal year beginning July 1, 1943, each employee in the classified service on said date and each employee added to said service during said fiscal year, shall receive for said fiscal year (1) a cost-of-living adjustment in the sum of $100 or $150 as indicated in section 1 above, depending on the classification; (2) an additional 10 per cent. cost-of-living adjustment computed upon his base pay, as herein defined; provided, the 10 per cent. cost-of-living adjustment herein designated shall not in any event exceed $300 to any one employee; (3) an additional 3 per cent. cost-of-living adjustment to all employees in the classified service who are now on an hourly rate computed on said base pay.

"SEC. 6. The term base pay as herein used, is hereby defined to mean the salary including all annual service increments received by the employee, less any and all cost-of-living adjustments.

"SEC. 7. The percentage for cost-of-living adjustments in salaries shall be determined from the reports published by the United States department of labor, bureau of labor statistics, on the cost-of-living, as determined for Detroit, Michigan, as of December 15th of each year, and such percentage shall be the basis for determining whether or not cost-of-living adjustment in salaries shall be made in the budget for the coming fiscal year; provided, that where such percentage does not show a variation in cost of living of more than 2 per cent. as compared with the preceding year, the cost-of-living adjustment shall not be disturbed, provided further, that when there is a variation in the cost of living in excess of 2 per cent. since the last adjustment was made, in that event an adjustment shall be made in accordance with the variation for the following fiscal year."

A number of resolutions modifying details of the plan were subsequently adopted by the council, most of them, and perhaps all, on the recommendation of the civil service board. Several such modifications were limited to specific years, and none made any material change in the plan. Appellants suggest, however, that their making indicated a practical interpretation placed by the council and the civil service board on the provisions of the plan as originally adopted, and supports the theory that changes in compensation of employees from year to year could be brought about only by agreement on the part of the board and council.

It does not appear that any material differences of opinion with reference to the salary schedule arose between the civil service board and the council until the matter of fixing salaries for the fiscal year beginning July 1, 1947, came up for consideration. The board recommended increases for cost of living adjustments on the basis of the report published by the United States department of labor, bureau of labor statistics, referred to in section 7 of the salary plan, above quoted. It appears that the cost of living percentage so reported for the Detroit area as of December 15, 1946, taking as a basis the average for the years 1935 to 1939, inclusive, was 153.1. The council failed to approve the recommendation.

The defendant civil service board filed an amended answer in the case, admitting the material averments of plaintiffs' petition and the right to the relief sought. The other defendants by their answer challenged the interpretation placed by plaintiffs on pertinent provisions of the salary plan, asserted that such interpretation was at variance with the manner in which such plan had been administered for over 4 years following its adoption, and denied that plaintiffs were entitled to the relief sought by way of a peremptory writ of mandamus.

Plaintiffs contended before the trial court that the salaries paid to employees for the fiscal year beginning July 1, 1947, should be determined under the official salary plan on the basis of the base pay, as defined in the plan, plus the cost-of-living adjustment indicated by the report of the United States department of labor. The trial court, in a written opinion filed in the case, accepted the plaintiffs' theory. Thereafter, and before the filing of an order based on the opinion, the civil service board proposed a new salary plan which the council approved, effective January 7, 1948. The plan involved in the instant case, adopted in April, 1943, was superseded thereby. The action taken having been called to the attention of the trial court, on motion for rehearing, the order entered was directed to the compensation of city employees subject to the salary plan for the period beginning July 1, 1947, to and including January 6, 1948. The motion for rehearing was denied; and defendants, other than the civil service board, have taken an appeal in the nature of certiorari on leave granted.

The principal question at issue is the interpretation of section 7 of the salary plan. Plaintiffs insist that its provisions are mandatory, and possess such clarity as to leave no doubt as to the intent of the civil service board and the council at the time of adoption in April, 1943. On behalf of appellants it is argued that section 7 must be construed in connection with section 5, and that in practical effect it is modified thereby. It will be noted, however, that section 5 has reference to the compensation of city employees in the classified service during the fiscal year beginning July 1, 1943. Section 7 contains no specific reference to the prior section.

An analysis of section 7 does not disclose any ambiguity. There is nothing therein to suggest that the plan, as outlined, was not intended to be operative unless the civil service board and the council were in accord as to adjustments in compensation to employees for any fiscal year. Apparently, as noted, there was no material disagreement prior to the fiscal year beginning July 1, 1947. There is no inconsistency between operation under the plan and amendments thereto, from year to year, by the concurrent action of the civil service board and the council, and an interpretation of section 7 leading to the conclusion that its specific provisions govern any period of time as to which there has been no modification of the plan. This applies to the period in question here, from July 1, 1947, to January 7, 1948.

In construing the provisions of the resolution setting forth the salary plan, it is a basic requirement that the intent shall be ascertained and given effect. When the language used is clear and unambiguous, as in the instant case, the intent manifested thereby must be recognized. City of Grand Rapids v. Crocker,219 Mich. 178; Boyer-Campbell Co. v. Fry, 271 Mich. 282 (98 A.L.R. 827); Gardner-White Co. v. State Board of TaxAdministration, 296 Mich. 225; Board of Education of the Cityof Detroit v. Superintendent of Public Instruction, 319 Mich. 436.

So long as the plan remained in operation, employees of the city in the classified service list were entitled to have their compensation determined on the basis fixed in the resolution as existing at time of the rendition of their services. Failure on the part of the civil service board and the council to agree as to the salaries to be paid for any fiscal year could not deprive employees of their rights as fixed by such plan. If, as appellants suggest, an interpretation has been placed on the language of section 7 of the resolution at variance with its clearly expressed intent, such interpretation must be disregarded. Appellants' claim, as to the construction of section 7 of the resolution, is not well founded.

It is also claimed that the trial court was in error in granting the writ of mandamus sought by plaintiffs. Such claim is predicated on the theory, above referred to, that employees were not entitled to a cost-of-living adjustment in salaries except on action by the civil service board, approved by the council. Attention is called to the decision of this Court in Local 321,State, County Municipal Workers of America v. City ofDearborn, 311 Mich. 674. There the plaintiffs sought by mandamus to compel compliance with a resolution of the city council of Dearborn with reference to the pay of city employees, adopted March 2, 1943, and intended to operate for the balance of the fiscal year. Such action had not been approved by the civil service board, and this Court, construing the same provisions of the charter that are involved in the instant case, held that the resolution was not effective, and that the charter provisions in question were valid as against objections based on constitutional grounds. No question as to the operation of section 7 of the salary plan as adopted in April, 1943, was involved in the case.

The rule is well established that mandamus will not lie to direct or control a discretionary act. Toan v. McGinn,271 Mich. 28; Rupert v. Van Buren County Clerk, 290 Mich. 180;Solo v. City of Detroit, 303 Mich. 672; McLeod v. StateBoard of Canvassers, 304 Mich. 120. In the case at bar, however, we are not dealing with discretionary acts. The language of the resolution, which the trial judge concluded ought to be enforced, was certain and definite. It fixed a standard by reference to which the annual cost-of-living adjustment should be made in salaries of city employees in the classified service list. So long as it remained in effect it was controlling with reference to the course to be followed. The right of the plaintiffs was clear and specific, and the duty of the defendants, ministerial in character, was likewise clear. There was no adequate remedy other than mandamus, and the trial court did not abuse his discretion in granting the relief sought. Chemical Bank TrustCo. v. County of Oakland, 264 Mich. 673; National Bank ofDetroit v. State Land Office Board, 300 Mich. 240; Bitonti v. Wayne County Auditors, 311 Mich. 322.

It is further claimed by appellants that the showing before the trial court did not justify the specific order made. The order referred to an affidavit filed in the cause on behalf of plaintiffs, the affiant being the secretary of the civil service board. Said affidavit set forth the cost-of-living increase, for the Detroit area, reported by the Federal department of labor as of December 15, 1946, and indicated the adjustments necessary to be made in the compensation of different classes of city employees, in order to comply with the salary plan. Appellants' claim is, in effect, that the order of the trial court as made should be set aside because the showing did not justify it. By way of argument, objections are made to certain averments in the affidavit. It cannot be said, however, that the trial court was in error in relying on facts that were not in dispute and on the proofs offered by plaintiffs, and in entering an order accordingly. The record shows that there was sufficient proof, of the requisite degree of certainty, to support the findings of fact on which the order rested.

The order of the trial court is affirmed. The issues involved in the case being of public interest, no costs are allowed.

SHARPE, C.J., and BUSHNELL, BOYLES, REID, NORTH, DETHMERS, and BUTZEL, JJ., concurred.