(dissenting).
I respectfully dissent.
I. As noted by the majority this is another action in certiorari which is very *619similar to Antrim v. Civil Service Commission of City of Des Moines, Iowa, 154 N.W.2d 711. The prior case turned on lack of jurisdiction in the Civil Service Commission due to failure to give notice of appeal. This was the only point raised and was decisive of the case.
In Antrim a special concurrence considered the question of Civil Service Commission jurisdiction even if the proper notice had been given, contended no jurisdiction over this type of case existed in the Civil Service Commission and contended this fact should have been made clear in the opinion, even though not raised and not reached. Largely on the reasoning of the special concurrence the commission in this case found it had no jurisdiction and the trial court affirmed.
II. It is submitted the findings of the commission and the trial court that the commission did not have jurisdiction was right but the question must be examined in more detail. It is axiomatic that the commission, a creature of statute and ordinance, has no power not given to it either expressly or by necessary implication by the instruments of its creation. 15 Am.Jur.2d, Civil Service, section 8, page 470.
The statutes providing for a Civil Service Commission are quoted at length in the majority opinion and will not be requoted here. The majority construes section 365.27, Iowa Code, 1966, very broadly without sufficient consideration of the impact of other sections in the chapter, especially section 365.19.
In O’Connor v. Youngblade, 250 Iowa 808, 812, 96 N.W.2d 457, 460, we said: “I. Chapter 365, Codes 1954 and 1958, I.C.A., pertains to appointment and removal of persons holding positions under civil service. In cities under the manager plan appointments, except of chief of police and fire chief, are made by the manager. Section 365.15. A person may be removed or suspended after a hearing by a majority vote of the (civil service) commission, for neglect of duty, disobedience, misconduct, or failure to properly perform his duties. 365.18. Upon any of these grounds the person having the appointing power, here the manager, may peremptorily suspend or discharge any subordinate. The manager shall report to the council any suspension or discharge he makes and the council shall affirm or revoke it ‘according to the facts and merits of the case.’ 365.19.”
If the concept of demotion is added to the above quote (which was unnecessary in the case from which the quotation is taken) the purpose of the civil service act is well stated. Two factors are immediately apparent. First, the matters to be controlled are administrative, not legislative, in nature and second, the city council, as a legislative body, is not considered an appointive person or body.
In Misbach v. Civil Service Comm., 230 Iowa 323, 326, 297 N.W. 284, 286, we said: “In appeal cases the commission has jurisdiction to hear and determine all matters involving the rights of civil service employees, and may affirm, modify or reverse any case on its merits.” But this jurisdictional base must refer to rights created in the statute. No one would contend, for instance, that the Civil Service Commission, without statutory authority, has jurisdiction over public employees’ claimed right to bargain collectively.
Another example is the situation illustrated in Wood v. Loveless, 244 Iowa 919, 58 N.W.2d 368 where, as part of an ordinance restructuring the police department, plaintiff’s job as inspector of police was eliminated. This was a “matter involving .the rights of a civil service employee” but the contest did not go to the commission ; it went directly to the courts. This was proper, for the commission is not designed to pass on the legislative actions of the council. It is designed to pass on the administrative acts of the city executives.
*620In this case the ordinance complained of deals entirely with pay scales for various classifications. To quote the majority: “By ordinance 7160, effective March 8, 1965, the city increased the pay of sergeants more than it did that of detectives.” Plaintiffs claim this constituted an illegal demotion. At the moment we are considering only the power of the Civil Service Commission to pass on the question.
III. The májority opinion fails to recognize the public policy aspect of the ordinance which takes it out of the class of actions reviewable by the commission. As said in Jenney v. Civil Service Comm., 200 Iowa 1042, 1044, 205 N.W. 958, 1959: “The civil service commission is a special tribunal created by statute, and is in no sense a court of record. Its jurisdiction is limited to a somewhat narrow field, but a wide discretion must necessarily be allowed in the performance of its duties. * * * ” Of course the chapter has been amended since 1925 but the broadened jurisdictional base has not been so wide as to allow the commission to overrule its creator on legislative public policy matters, as distinguished from personnel administrative matters.
This ordinance fixing salaries for an entire broad classification within the police department must be designated a legislative function. Some authorities supporting such a view are in order.
Yokley, Municipal Corporations, Vol. 2, section 347, page 180 states: “The fixing of the wages of municipal employees is a legislative function. Where the salaries of municipal employees are prescribed by charter, they may not be changed by ordinance or resolution of the legislative body of the municipality.
“Where a city council acts in good faith in fixing the compensation for an office or a position, its decision is final and not subject to review by the courts.”
Antieau, Municipal Corporation Law, Vol. 3, section 22.13, pages 276, 278, which states: “Usually the compensation of municipal officers and employees can be fixed, increased or decreased by the governing body of the municipal corporation as it deems proper, * * *.
“ * * * Ordinarily, state civil service commissions have no power to order particular municipal workers’ wages to be increased. ⅜
The question of whether an ordinance fixing salaries is a legislative or administrative function comes up most often where validity of a claimed referendum vote is challenged. Such a case is State ex rel. Pike v. City of Bellingham, 183 Wash. 439, 48 P.2d 602, 605. The Washington court’s analysis is interesting: “While we think the provisions of the charter are sufficiently broad to enable the voters of the city, through initiative, to deal with any matter within the realm of local affairs or municipal business, whether strictly legislative or not, as that term is generally used, it is obvious that the fixing of salaries is always at some stage in the process a legislative function. Of course, the legislative authority could, unless restrained by constitutional or charter provision, make an appropriation in lump for specified governmental purposes, leaving it to administrative officers to fix the salaries. But the legislative authority is not required to do so, and may itself establish the salaries to be paid. We know that this is almost universally so in practice and that no other incident of municipal government engages more legislative attention.” 1
It must be admitted there are situations where fixing of salary might be construed as an administrative function. Where a formula is set by the statute or ordinance and the salary fixing authority does nothing but follow the formula, the legislative character might well be lost. See Miller v. City *621and County of San Francisco, 174 Cal.App. 2d 109, 344 P.2d 102. But where, as here, the council fixes salaries by classification for a wide range of employees, with no regard as to whether any individual is to be punished or preferred, it is submitted the action is legislative in nature.
IV. Citation of Murphy v. Gilman, 204 Iowa 58, 214 N.W. 679, by the majority poses a problem. The majority notes the case for the proposition that we have held the fixing of salaries of employees such as firemen is an administrative, not a legislative, act. The case was, in large part, based on the absence of a requirement in the statute that firemen’s salaries must be fixed by ordinance. Since the salaries could be fixed by resolution only, reasoned this court, the fixing of salaries should be held to be administrative, not legislative. As we noted in Glaser v. Burlington, 231 Iowa 670, 675, 1 N.W.2d 709, the statute was changed after the Murphy v. Gilman opinion and fixing of salaries for firemen and policemen by ordinance, was mandated by legislature. Then section 6519, Code, 1924, has since been entirely repealed and replaced by chapters 363, 363A and 363B. Much of the rationale upon which Murphy v. Gilman was based was destroyed by later amendment of the statute being considered.
The authority of Murphy v. Gilman is weakened by another factor. The municipal salary structure was being subjected to initiative and referendum under section 6556, Code, 1924 (later known as section 416.80, Code, 1946). This was the real core of the case. The section was repealed by the 1951 legislature and no new general enabling statute re initiative and referendum has taken its place.
Thus Murphy v. Gilman, supra, is a case based on one statute, section 416.13, which was radically changed and then repealed, and on another, section 416.80, which was also repealed. The case should not be taken as authority for the construction of the statutes as we now have them. If it still be considered the law that fixing of an entire department’s salary structure is administrative rather than legislative, I submit Murphy v. Gilman, supra, should be expressly overruled. The complexities of municipal government (and municipal financing) are not the same now as they were in 1927 when the Murphy- case was decided. This is borne out by legislative action revamping many of the municipal statutes in 1951.
The majority seems to say the courts have no power, beyond that of a quasi-judicial commission, to review the legislative action of the council, citing Article III, Iowa Constitution; State ex rel. Klise v. Town of Riverdale, 244 Iowa 423, 430-441, 57 N.W.2d 63, 67-73; City of Des Moines v. Lampart, 248 Iowa 1032, 1037, 82 N.W.2d 720. The Klise case deals with annexation and denominates it a political legislative function which cannot be delegated. City of Des Moines v. Lampart, supra, deals with the same subject matter (after statutory amendment). Both cases hold the courts can, and do, have jurisdiction to accomplish a measure of review. In City of Des Moines v. Lampart, supra, we find :
“It is carefully pointed out in Riverdale opinion at page 429 of 244 Iowa, page 66 of 57 N.W.2d: ‘The prohibition against the delegation to the courts of power of creation, enlargement and diminution of municipalities, does not mean that the legislature cannot provide for some court function in the proceedings.’ And that opinion (page 430, 57 N.W.2d 63, 67) quotes from Denny v. Des Moines County, 143 Iowa 466, 472, 121 N.W. 1066, 1069: ‘It is well settled in this state that the Legislature may provide for the exercise by a court of the power to judicially determine facts which are made the conditions on which authority may be exercised by officers to whom is delegated the exercise of legislative and executive power.’ ”
The power of the courts to interpret the Constitution and construe ordinances and statutes, even as against a governmental body, would seem to have been firmly *622settled in Pierce v. Green, 229 Iowa 22, 294 N.W. 237, 131 A.L.R. 335.
V. Reference to Article III, section 1 of the Iowa Constitution brings the whole problem into sharp focus. The article reads: “The powers of the government of Iowa shall be divided into three separate departments — the Legislative, the Executive, and the Judicial: and no person charged with the exercise of powers properly belonging to one of these departments shall exercise any function appertaining to either of the others, except in cases hereinafter expressly directed or permitted.” This article is often ignored in connection with cities and towns. Without a long dissertation the rationale seems to be that cities are at best only quasi-governmental bodies. Yet, as time passes, they assume ever increasing portions of modern government. “Home rule” is now constitutionally mandated. Direct dealings between cities and the federal government are the rule, not the exception. Most of our citizens are subject to city government. The separation of powers clause must be increasingly kept in mind when passing on municipal enabling statutes.
Here we have a statute which creates a quasi-administrative or quasi-judicial body, not a part of the court system, to review the actions of the city administrative officers. With this I have no quarrel. But if the review is extended to jurisdiction over the actions of the legislative body, I submit, Article III, section 1, is violated in both its letter and its spirit.
VI. The majority quotes 363C.7(7) relative powers of the city manager. Section 363C.7(8) is also pertinent. The two sections read:
“7. He shall have power to employ, reclassify, or discharge all employees of the city, as the occasion requires, and to fix the compensation to be paid to such employees, except as otherwise herein provided, subject, however, to the provisions of chapters 70 and 365.
“8. He shall have power to suspend or to discharge summarily any officer, appointee, or employee that he has power to appoint or employ, subject, however to the provisions of chapters 70 and 365.”
These sections do not bring the ordinance in question within the purview of the Civil Service Commission. Under section 363C.7 (16), the manager must prepare and submit an annual budget. This involves the rights (and pay) of civil service employees. But such fiscal matters are not within the purview of the Civil Service Commission.
Sections 363C.7(7), (8) and (16) must all be interpreted within the purview of section 363.3 which reads: “The governing body of all municipal corporations shall be the mayor and council, chosen by the electorate as provided by this chapter. All legislative and other powers granted to municipal corporations shall be exercised by the council, except those conferred upon some officer by law or ordinance. All executive functions and powers shall be exercised by the mayor and other officers and boards, and neither the council nor the members thereof shall exercise any executive functions unless expressly conferred by law.”
One would hardly suppose the city manager could fix salaries different from those fixed by the council by ordinance. The manager could override the council if such power is read into the statute. But section 363C.8 provides: “The manager shall be under the direction and supervision of the council and shall hold office at its pleasure.”
This is the point of the foregoing analysis. When a city council fixes the salaries, especially of an entire classification, it acts legislatively. This action cannot be reviewable by the Civil Service Commission without disrupting the entire municipal form of government.
The commission should be held to be without jurisdiction both from the standpoint of statutory construction (because the city council is simply not an appointing authority under the statute) and from the *623standpoint of governmental structure (because a subordinate authority should not have the power to overrule the legislative body, at least on a matter of public policy). The question is similar to the right of the city council to abolish a job altogether. If plaintiffs desire to challenge the act of the council the proper forum is a court of law. See Wood v. Loveless, 244 Iowa 919, 58 N.W.2d 368.
STUART and MASON, JJ., join in this dissent.
. There is some conflict as to whether fixing of salaries is an executive or administrative function but the better view seems to be that it is legislative. See Annotation, 122 A.L.R. 782.