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Court of Appeal, Second District, Division 4, California.

Carol J. KUGLER et al., Petitioners and Respondents, v. Norma YOCUM et al., Defendants and Appellants.

No. 30426.

Decided: December 11, 1967

Don D. Bercu, Alhambra City Atty., for defendants and appellants. Weinstein & Shelley, and Robert C. Proctor, Jr., Alhambra, for petitioners and respondents.

The respondents, in this mandamus proceeding, have appealed from the judgment which peremptorily commanded that they, as members of the city council of the City of Alhambra, call an election at which a proposed initiative ordinance was to be submitted to the voters of the city. The effect of the proposed ordinance would be to determine the compensation to be paid the city firemen each year partly by that found to be the average pay of the firemen of the County of Los Angeles an the City of Los Angeles. We are persuaded that the ordinance is not one that may, if adopted, be lawfully given effect and, for that reason, we are reversing the judgment.

Alhambra is a city with a charter, and of interest to us are three of its sections. Section 81 contains this sentence: ‘The council, subject to the provisions of this charter, shall have power to organize the fire division and change the same * * * establish the number of its members and the amount of their salaries * * * and do all other acts necessary to the efficient equipment and operation of the fire division of the city.’ (The emphasis, of course, is ours.)

Section 78 of the Alhambra charter, is word for word the same as section 81, with the exception that it refers to the ‘police division’ of the city.

Section 176 of the Alhambra City Charter provides:

‘The electors of the city shall have the right to propose, by petition, and to adopt at the polls, any ordinance which the council might enact.’

No change in the Alhambra charter provisions of significance to us has taken place since the decision in Spencer v. City of Alhambra (1941) 44 Cal.App.2d 75, 111 P.2d 910. There it was held that the minimum compensation of the members of the police department was properly established by an initiative ordinance adopted by its voters. We do not doubt the soundness of the conclusion or that, so for as that is the effect of the proposed ordinance before us, the same conclusion would be reached.

Also, we point out, that there were many steps taken by those seeking to have the Alhambra city council either adopt the ordinance handed to it or call an election and put the proposed ordinance before the voters, and we have no fault to find with any of those steps. But for the defect which we shall clearly identify, we entertain no doubt that a favorable majority would have resulted in a valid ordinance. We do see this defect, however, and believe it to be fatal.

The proposed ordinance would specify: ‘From and after the effective date of this ordinance, each person employed in the Fire Department shall be entitled to receive as salary the applicable respective rate or rates of compensation prescribed for the class in which his position is allocated. * * * Except as otherwise provided for herein the monthly salaries of the members of the Fire Department in classification shall not be less than an amount computed as follows:

‘Beginning January 1, 1965, and the first day of each succeeding year thereafter, the City Manager of the City of Alhambra shall determine the then existing monthly salaries of each classification of like or comparable grades or ranks of the Fire Departments of the City of Los Angeles and the County of Los Angeles. The average of the salaries for the comparable grades or ranks of the members of the Fire Departments of the City of Los Angeles and the County of Los Angeles shall be the minimum salaries payable by the City of Alhambra to the members of the Fire Department of the same or comparable grades or ranks.

‘Any necessary adjustments in salaries shall be put into effect on February 1, 1965, and on the first day of February of each succeeding year thereafter.’

Had the ordinance provided no more than that the minimum salaries to be paid the Alhambra firemen should be the average of that found to be paid the firemen of Los Angeles county and city at the time the ordinance was adopted, the vice we see in it would not be present. But, patently, more than that is provided. Had the ordinance become law, as proposed, then on January 1 of this year, for example, the manager would have had to fine out ‘the then existing monthly salaries' of the firemen of the two legal entities, and the average of the two would determine the minimum monthly salary of Alhambra's firemen. What that average world be could not be known when the ordinance was adopted by the voters. What it would be would depend not on the judgment of the Alhambra voters as to what should be the compensation paid their firemen, but upon the result of the combined judgments of the supervisors of the county and of the members of the Los Angeles city council, each group weighing its own data and considering its own problems, from time to time. And the same method would determine the minimum compensation for Alhambra's firemen in November of 1968, unless, by another initiative ordinance, a change was made.

The city of Monrovia is not operating under a charter but under the general law provisions. Nevertheless we find the principle upon which Mitchell v. Walker (1956) 140 Cal.App.2d 239, 295 P.2d was decided, is governing here. In that case it was sought by mandate to compel the city council to submit to the electorate an initiative ordinance respecting the compensation of the city's firemen and policemen. A peremptory writ was denied because the ordinance had a defect in it like the one before us has. Its section 4 provided ‘that the basic salaries * * * shall, commencing on July 1, 1956, and on the first day of each fiscal year thereafter, be increased or decreased by the city council in an amount equal to the percentage of increase or decrease that is paid or approved for payment to members of like or comparable, grade or rank of the Los Angeles County Sheriff's Office and the Los Angeles County Fire Department for that current fiscal year.’

‘The effect of the proposed ordinance’ the opinion in Mitchell v. Walker states (140 Cal.App.2d 244, 295 P.2d 93) ‘is to delegate to the governing body of another political subdivision of the state, to wit: the Board of Supervisors of the County of Los Angeles, the power vested in the council to fix the salaries in question; under it the council would abandon that power and the duty placed upon it by the statute and take that power and duty away from any future council. This the council could not do by an ordinance initiated and enacted by it, and therefore, as we have shown, the ordinance is not one which may be adopted by means of the initiative.’

The ordinance proposed for the city of Alhambra does not go quite as far as did that considered in Mitchell v. Walker but it violates the principle there controlling. It does not yield to the Los Angeles county supervisors and the city council of Los Angeles full control over the firemen's compensation in the years ahead, but if enacted and observed, thereafter the minimum salaries to be paid Alhambra's firemen would not be subject to the control of the city's council; it would rise each year if the average of that fixed by the supervisors and Los Angeles councilmen rose, and there would be no remedy in the hands of the Alhambra councilmen other than to initiate a new ordinance and persuade the voters to adopt it. We respect Mitchell v. Walker as an authority in point, even though it dealt with a city organized under the general law and the city of Alhambra operates under a charter. And we are persuaded that a city council, armed with the power and the duty of setting the salaries of its firemen, cannot validly do it by adopting, in advance, a rate, even for the minimum to be paid, that it does not itself determine.

The judgment is reversed with directions to deny the application for a peremptory writ of mandate.

BISHOP, Associate Justice Pro Tem.

JEFFERSON, Acting P. J., and KINGSLEY, J., concur.

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