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; V. A. Cordova, Joseph Madison Greer, John B. Haldiman, David P. Jones, Faith I. North, and Dick Smith, Councilmen; John L. Williams, Finance Director, Frances J. Killius, Auditor, Alice Mosier, Treasurer, and John E. Burke, City Clerk; all of City of Phoenix, a municipal corporation, Respondents.
[86 Ariz. 89] C. A. Muecke, Phoenix, for petitioners
William C. Eliot, City Atty., and Merle L. Hanson, Anis Mitchell, Charles A. Filler, Asst. City Attys., Phoneix, for respondents.
On September 30, 1958 this court, in an original proceeding, made permanent an alternative writ of mandamus requiring the officers of the City of Phoenix to pay salaries to employees of its fire department in accordance with Ordinance G-245 theretofore adopted by the City Council. See, Parrack v. City of Phoenix, 84 Ariz. 382, 329 P.2d 1103, and the earlier case of Williams v. Parrack, 83 Ariz. 227, 319 P.2d 989. A voluminous motion for rehearing, raising innumerable questions, was filed and, after oral argument, denied.
To date the firemen have received no benefits from the raise in pay provided for in said ordinance--which was adopted because of an initiative petition submitted to the council by the firemen. Even though
the firemen 'won this battle' for higher wages they 'lost the war' in the end because at a special municipal election held on November 25, 1958, the electors of the city of Phoenix overwhelmingly voted to [86 Ariz. 90] repeal Ordinance G-245. However, the ordinance was in force and effect from March 6, 1958 to December 2, 1958, and it is the amounts due thereunder to its hundreds of employees for this period of time that is unresolved.
The parties being apparently unable to agree on the matter, the petitioners on February 17, 1959 obtained from this court an order to show cause why the city should not comply with the peremptory writ of mandamus theretofore issued. A response was filed to such order, wherein the city again seeks to raise many of the same questions already determined and in addition is pressing the issue that the ordinance is so vague and ambiguous as to be unenforceable and hence--is void in its entirety. Considering the over-all picture we are not impressed with this contention nor are we disposed to again review any of the issues heretofore decided. In the latest Parrack opinion, supra, we stated:
'* * * Being satisfied that ordinance G-245 is not wholly, void, we decline to pass upon every phrase or sentence therein and postpone judgment on any severable portion of the ordinance until specific circumstances are presented which may directly call a specific provision into question.' 84 Ariz. at page 387, 329 P.2d at page 1107.
The instant controversy not having been tried in the lower court, we have in the main only general queries and not specific circumstances to deal with insofar as the rights of individual employees or groups are concerned. If such details are to be settled by judicial action it would necessitate either relegating the parties to another superior court action or the appointment of a special master to hear testimony and settle all questions of fact. Such action, in fairness, we feel is not warranted. A further cogent reason for not attempting a minute analysis of the ordinance is that it has been repealed and the City of Phoenix will not have to operate under it in the future.
To aid the City in carrying out our mandate, and to enable the parties in effecting a settlement of the amount due the firemen, we find there are certain questions of law now presented that can properly be determined on the record before us, viz.: the applicable 'basic wage', the budgetary problem and the effective date: Minimum Basic Wage
The first section of the ordinance is devoted to definitions. Section 1(h) reads:
'Definitions. (h) 'Basic Wage' shall mean not less than $2.05 per hour, or the contract rate provided for common laborers in the construction industry in and adjacent to the City of Phoenix as determined by collective bargaining contracts between the Associated Building Contractors and Construction, Production and Maintenance Laborers' [86 Ariz. 91] Union Local No. 383, A. F. of L., whichever sum be the greater.' (Emphasis supplied.)
and section 3 provides:
'Provision for increases of basic wage in accordance with increases in prevailing wage of common laborers. The basic wage herein provided for shall not be less than $2.05 per hour, plus such additional amount as to equal the hourly pay rate of common laborers in the construction industry in and adjacent to the City of Phoenix on June 1 of each year hereafter.' (Emphasis supplied.)
The City contends that under these provisions it is impossible (a) to ascertain the 'minimum basic wage', and (b) that the italicized portions thereof is an unauthorized delegation of legislative power and therefore void. We agree with this latter contention. The courts throughout the nation have universally condemned attempts to delegate municipal ...