IVAN CANNON, DARYL B. GARNER, and FORREST PURDY, Appellants, v. WILLIAM L. TAYLOR, C. R. CLELAND, and JOHN MYERS, Respondents
Cannon v. Taylor
Mowbray, L, and Compton, D. L, concur.
IVAN CANNON, DARYL B. GARNER, and FORREST PURDY, Appellants, v. WILLIAM L. TAYLOR, C. R. CLELAND, and JOHN MYERS, Respondents.
IVAN CANNON, DARYL B. GARNER, and FORREST PURDY, Appellants, v. WILLIAM L. TAYLOR, C. R. CLELAND, and JOHN MYERS, Respondents.
No. 6367
June 22, 1971
486 P.2d 493
[See opinion on Rehearing filed February 23, 1972]
L. Earl Hawley and Edward G. Marshall, of Las Vegas, for Appellants.
Carl E. Lovell, Jr., City Attorney of North Las Vegas, for Respondents.
OPINION
By the Court,
Zenoff, C. J.:
This appeal involves a dispute over salary levels which North Las Vegas officials established for themselves in April 1967. The officials in question, Mayor Taylor and Councilmen Cleland and Meyers, were elected to terms which were to run from May 11, 1965 to May 14, 1969. At the time of their election the compensation was set by the North Las Vegas Charter, Ch. 283 Statutes of Nevada 1953, as amended by Ch. 447 Statutes of Nevada 1963. The mayor's salary was established as $5,400 per year and the councilmen's salary as $3,600 per year. On April 15, 1967 the legislature amended these statutes so as to allow the salary levels to be determined by the city council.
Subsequently, on April 29, 1967 the North Las Vegas city council met and established salary levels of $750 per month ($9,000 per year) for the mayor and $500 per month ($6,000 per year) for the councilmen. These salaries were made effective retroactively from April 15, 1967.
This class action suit was instituted by the appellants, as taxpayers, on the day before the expiration of the respondents' term of office. The relief sought was repayment to the city of all sums paid these three officials in excess of the salary as it existed before the April 15, 1967 amendment of Ch. 283 Statutes of Nevada 1953. The basis for the relief sought was that the action of the council in establishing the new salary levels effectively amounted to the council members granting themselves a raise while in office. As such, appellants urged, this action was contrary to the mandate of the legislature.
The appellants and respondents agreed that there were no disputed fact issues to be tried and both moved for summary judgment. The lower court granted the officials' motion and denied that of the taxpayer-plaintiffs. The court thus in effect sustained the capacity of the officials to establish their own compensation at levels of their own choosing. This appeal follows.
1. Respondents argue that Ch. 400 Statutes of Nevada 1967 unambiguously vested in the North Las Vegas city council the blank-check power to establish its own and the mayor's compensation, effective upon passage of its own action. This assertion is based upon the fact that Ch. 400 states: "The compensation shall: (1) Be fixed by the city council . . ." and "Sec. 3. This act shall become effective upon passage and approval." (Emphasis added.) Respondents interpret the quoted portion as indicating that the former compensation authorization was repealed and mandating that if any compensation is to be paid thenceforth, it shall be by city council authorization.
We cannot agree that this statute unambiguously gives the power argued for. While on the one hand it says that the council shall fix the compensation, on the other hand the statute says the council may not increase an official's compensation during the term for which he has been elected. Thus, it seems to give immediate power to set any compensation level yet it also evidences the desire to prevent in-term raises.
Respondents' position rests upon the assumption that in amending the previous compensation scheme out of the charter the legislature thus repealed any authorization of compensation (cf. City of Reno v. Stoddard, 40 Nev. 537, 167 P. 317 (1917)), so that as of April 15, 1967 no compensation was payable to these officials. No compensation being authorized, respondents urge, there was no compensation to "increase," so the proscription of Ch. 400 was not violated.
We need only note in considering this argument that there is considerable respectable authority for the proposition that the fixing of a salary where there was formerly none is, indeed, a proscribed "increase." C. Rhyne, Municipal Law, § 8-21 (1957); Gay v. City of Glendale, 16 P.2d 971 (Ariz. 1932); Murphy v. Page, 136 N.E. 70 (Mass. 1922); State v. Ritzville, 132, P.2d 737 (Wash. 1942). See also Annot., 144 A.L.R. 685 (1943). Contra, 4 E. McQuillin, The Law of Municipal Corporations, § 12.198 (1968); Gwynn v. McKinley, 158 P. 1059, 1063 (Cal.App. 1916); and State v. M'Dowell, 27 N.W. 433 (Neb. 1886). Since there has not been previous construction of the term "increase" by this court, and since it is not defined by the legislature we cannot know for certain which line of authority the legislature meant to follow. Therefore, this statute must at least be said to be ambiguous with respect to whether, assuming the former compensation scheme was impliedly repealed and no compensation was payable after April 15, 1967, the later fixing of compensation was an "increase."
Another ambiguity arises under the respondents' assumption that because of the April 15, 1967 effective date of this statute no compensation was payable thereafter until fixed by the council. That ambiguity is whether the legislature intended the council to be empowered to establish and pay compensation from April 15, 1967 no matter when it met. The legislature must have foreseen that the council would not meet immediately upon passage and approval of this act, yet it failed to empower the council to make the fixing of its salary retroactive to April 15, 1967. Though in certain situations retroactive payments of compensation may be allowable (City of Las Vegas v. Ackerman, 85 Nev. 493, 457 P.2d 525 (1969)), in others, such as where a body is empowered to establish its own compensation, it has been said such power will be withheld in the absence of a specific grant. Pugnier v. Ramharter, 81 N.W.2d 38 (Wis. 1957).
2. In light of these ambiguities it can only be said that the statute on its face does not clearly spell out the intent of the legislature — if, indeed, the problems described here were even foreseen by this statute's draftsmen. Did the legislature intend that no compensation be paid these officials during the remainder of this term; that the previous compensation continue; or that a new compensation level, of the officials' own choosing, be paid? The statute being ambiguous, we may only construe it in line with what reason and public policy would indicate the legislature intended.
Clearly it would be unreasonable to conclude that the legislature intended that compensation was to cease April 15, 1967 and possibly resume at the beginning of the next term for these offices in 1969.
It would also be unreasonable to conclude that the legislature intended that the council have blank-check authority to establish its own compensation, effective immediately. First, changes in compensation during terms of office are not favored. Cf. Nevada Constitution Art. 4 § 28 and Art. 15 § 9; and NRS 266.450. If a statute delegating authority to fix compensation is ambiguous, power to effect in-term changes will be denied. Busch v. Turner, 161 P.2d 456 (Cal. 1945); Regan v. San Mateo County, 97 P.2d 231 (Cal. 1939); see also Riley v. Carter, 25 P.2d 666, 669-671 (Okla. 1933). Second, and more importantly here, "To permit a public officer without restriction to fix his own compensation is to give him an extraordinary power . [B]efore charter provisions are given this effect the intent to do so should be expressed in language the meaning of which is clear and unmistakable." Meeks v. Fink, 89 So. 543, 544 (Fla. 1921). See also 4 E. McQuillin op cit. § 12.178 and McFarland v. Gordon, 41 A. 507 (Vt. 1898).
3. It thus seems most likely that the legislature did not intend to give so broad a power as is contended for. Nor, however, did it intend to require these officials to serve without the compensation they had received earlier in their terms and which those serving later terms could receive.
Rather, we construe this statute as merely evidencing the legislature's intent to divest itself of the task of establishing compensation levels for officials succeeding those in question. The delegation of this task is what became effective April 15, 1967. The specification of compensation embodied in the North Las Vegas charter was not intended to be abrogated until the effective date of valid establishments of compensation by the council. Under this statute, such date could be no sooner than the first day of the succeeding terms for these offices.
Any compensation received by the respondents in excess of the compensation schedule established by the city charter as amended in Ch. 447 Statutes of Nevada 1963 was thus improperly paid, and must be repaid to the city.
Reversed, with direction to enter judgment in accordance with this opinion.
Mowbray, L, and Compton, D. L, concur.
Ch. 400 Statutes of Nevada 1967:
Sec. 2.....
The compensation of the mayor, councilmen and judge of the municipal court shall:
1. Be fixed by the city council; and
2. Not be diminished or increased as to any such officer during the term for which he has been elected or appointed.
Sec. 3. This act shall become effective upon passage and approval.