Fred E. PARRACK, George Brown, and James H. Guinn, individually and as members of a class similarly situated, Petitioners,
CITY OF PHOENIX, a municipal corporation; Jack Williams, Mayor of the City of Phoenix, a municipal corporation; V. A. Cordova, Joseph Madison Greer, John B. Haldiman, David P. Jones, Faith I. North and Dick Smith, Councilmen of the City of Phoenix, a municipal corporation; John L. Williams, Finance Director of the City of Phoenix, a municipal corporation; Frances J. Killius, Auditor of the City of Phoenix, a municipal corporation, Alice Mosier, Treasurer of the City of Phoenix, a municipal corporation, and John E. Burke, City Clerk of the City of Phoenix, a municipal corporation, Respondents.
[84 Ariz. 383] C. A. Muecke, phoenix, for petitioners.
William C. Eliot, City Atty., and Merle L. Hanson, Anis Mitchell, Charles A. Filler, Asst. City Attys., Phoenix, for respondents.
Petitioners as employees of the Phoenix Fire Department petitioned this court on behalf of all other such employees to issue an alternative writ of mandamus commanding respondents as officers of the City of Phoenix to comply with and pay salaries to the employees of the Phoenix Fire Department in accordance with ordinance number G-245, or in lieu thereof to show cause why the alternative writ requested should not be made peremptory. This court granted the alternative writ of mandamus and after considering the propositions filed by all parties must now determine whether the alternative writ shall be made permanent.
The electors of the City of Phoenix initiated the ordinance in question by submitting
it to the council with a petition in proper form signed by the requisite number of qualified electors and certified by the city clerk under the provisions of Chapter XV, § 4 of the Phoenix Charter, which reads as follows:
'If the petition accompanying the proposed ordinance be signed by electors equal in number to fifteen (15) per cent of the entire vote case for all candidates for mayor at the last preceding[84 Ariz. 384] general municipal election at which a mayor was elected, and contains a request that said ordinance be forth-with submitted to the vote of the people at the special election, then the council shall either:
'(a) Pass said ordinance without alteration within twenty (20) days after the attachment of the city clerk's certificate to the sufficiency of the accompanying petition (subject to a referendary vote, under the provisions of Chapter XVI of this Charter), or
'(b) Within twenty-five (25) days after the city clerk shall have attached to the petition accompanying such ordinance his certificate of sufficiency, the council shall proceed to call a special election at which said ordinance without alteration shall be submitted to the vote of the people.
The city council chose to pass the ordinance rather than submit it to a vote of the people according to the provisions of said Chapter XV, § 4 of the Phoenix Charter. This action was taken under a mandate of this court affirming a judgment of the superior court in Williams v. Parrack, 83 Ariz. 227, 319 P.2d 989. Therein this court held that the initiation of an ordinance fixing fire department employee salaries falls within the category of a legislative rather than an administrative function and that the validity of such an ordinance properly initiated by the electors may not be questioned prior to its enactment.
After passing the ordinance the officers of the City of Phoenix ignored its provisions and continued to pay the salaries of fire department employees according to the provisions of the salary ordinance in effect prior to the passage of ordinance G-245. Petitioners brought this action in mandamus after the lapse of thirty days from the time of final passage of ordinance G-245, the time when a valid ordinance initiated by the electors and passed by the council would become effective under the provisions of Chapter XVI, § 1 of the Phoenix Charter which, insofar as material reads as follows:
'No ordinance passed by the council shall go into effect before thirty (30) days from the time of its final passage, except as otherwise provided in this Charter.'
Petitioners and respondents agree that the only question now before this court is whether the ordinance conflicts with specific provisions of the Phoenix Charter. If it does, it is void; City of Phoenix v. Yates 69 Ariz. 68, 208 P.2d 1147; Paddock v. Brisbois, 35 Ariz. 214, 276 P. 325; and we should not grant mandamus to force a compliance with it.
The gist of respondents argument appears to be that Chapter III, § 9 of the charter hereinafter set forth verbatim specifically gives to the city manager and [84 Ariz. 385] city council or the city council alone under certain conditions, the power to fix the salaries of fire department employees, and an ordinance initiated by the electors which fixes those salaries and does not qualify as a charter amendment is invalid because it contravenes the power specifically given to the city manager and city council by the charter. Chapter III, § 9 provides that:
'The salaries of the mayor and councilmen, as herein provided, shall commence on the first day of the first month after the adoption of this Charter amendment. The salaries applicable to all other positions in the classified and unclssified civil service may be fixed, increased, decreased or modified by the council only ...