Review Important 1943 Higher Court Firemen Decisions
DURING the year 1943 the higher courts in different localities rendered interesting and outstanding decisions involving municipal firemen. In this article we shall briefly review the most important of these decisions.
First, it is important to know that modern higher courts consistently adhere to the legal principle that an “officer” of a municipal corporation differs from an “employe” of such corporation. Therefore, very frequently it is important to determine whether a person is an officer or an employe.
For example, in Reed v. City of Peoria, 47 N. E. (2d) 863, reported May, 1943, it was shown that a law provided that the term “officers” includes all members of the fire department who shall have been employed as regular members for more than one year.
The important question presented the court was whether several municipal firemen were entitled to reinstatement after they were discharged. Since a state law prohibited discharge of municipal officers the higher court held the firemen entitled to reinstatement and said:
“It was the intention of the legislature, to give city firemen the status of municipal, or city officers, to the extent of making them eligible to apply to the courts for an examination and protection of their rights.”
The term “fireman” relates to a person engaged in the fighting and extinguishment of fires. Therefore, persons whose chief duties are not to extinguish fires cannot recover salaries, pensions, overtime payments, etc., specified by laws for “firemen.”
For instance, in City of Galveston v. Fredrickson, 174 S. W. (2d) 994, reported November. 1943, it was shown that a city fire marshal filed suit against a city to recover the reasonable overtime services alleged to have been rendered by him. He based his suit upon a state law that allowed “firemen” extra payment for Sunday work. However, the higher court refused to allow the fire marshal’s claim, and said:
“The duties of the fire marshal are clearly those of a separate and distinct administrative and investigative office which, while related to the fire department of the city in ultimate objectives, arc clearly not the duties of a fireman as such occupation is commonly known and understood.”
Fireman Cannot Waive Salary
Municipal firemen cannot waive their rights to collect wages specified by valid laws. Neither is a fireman deprived of the right to sue and recover legal wages although he accepts low wages without protest.
For instance, in McQuire v. City of Dallas, 170 S. W. (2d) 722, reported May, 1943, a higher court held valid a state law that provides maximum hours, minimum wages and overtime compensation for firemen in cities of more than 75,000 inhabitants. The state law provides that it shall be unlawful for any city of more than seventy-five thousand (75,000) inhabitants to require or permit any firemen to work more than twelve (12) hours per calendar day. A fireman sued a city to recover payment for overtime in virtue of being required to serve as a fireman on the night shift during the first half of each month, during which time he was required to work 14 hours per day.
The city counsel contended that the fireman waived his right to recover additional compensation because of his acceptance without protest of the amounts paid him semi-monthly by the city.
In holding the fireman entitled to receive overtime payments, the higher court said:
“It is now well settled that an officer or employe of a municipality whose compensation has been fixed by law cannot agree to accept a lesser sum than the salary or wages provided by law.”
Modern higher courts hold that compensation for the performance of the duties required of municipal firemen cannot be made a matter for traffic, bidding or trade, and any contract to accept any different compensation than that provided by state statute is contrary to public policy and void in every detail.
Firemen Recover Back Wages
For illustration, in George v. City of Danville, 50 N. E. (2d) 467, reported October, 1943, it was shown that in 1937 forty two members of a municipal fire department addressed petitions to the mayor and city council requesting that the city council do not reduce the number of employes on the fire department and pledging that they would not at any time claim or present any action with reference to the difference between their present salaries of $112 per month and the salary of $175 per month specified by a state law. By these petitions they recognized the inability of the city to pay the statutory salaries and recognized that it would be necessary for the city to reduce the number of employes on the fire department if they were to receive the full statutory salary. The city officials retained the firemen. However, in 1943 these firemen sued the city to recover the difference between the amount actually paid them for their services since July 13, 1937, and $175 per month being the minimum salary provided by the state law.
In holding the city bound to pay the firemen the back wages, the higher court said:
“It is conceded that the contracts violated the public policy of the state, and for that reason were invalid . . . The decisions of this court show that it is definitely committed to the conclusion that a contract made in violation of established public policy will not be enforced.”
City Official Not Liable
Modern higher courts hold that the inhabitants of a municipal corporation hold their property subject to a reasonable exercise of police power. Thus property may be destroyed by authorized officials to protect the public welfare when such property becomes a nuisance or dangerous to public safety.
With respect to fire protective regulations the higher courts consistently uphold the validity of such regulations. Moreover, public officials are not liable to property owners who sustain financial losses by enforcement of these regulations.
No Permit Issued
For example, in Miller v. Foster, 11 N. W. (2d) 674, reported December, 1943, it was disclosed that a property owner remodeled a building into a fivefamily unit building. No permit was ever issued by the city authorizing such alteration which resulted in a multiple family dwelling of less than ordinary construction. By “ordinary construction” is meant that all enclosing walls consist of incombustible material.
The building was located in a fire zone. Such an alteration in a fire, zone violated the city ordinance and state code. Due and proper notice of these violations was given to the property owner and he continued to permit the violations to exist. Thereafter, an official of the city fire department caused notices to be delivered to four tenants of the building. These notices advised the tenants that the building violated the Building Code of the city and notified them to cease occupancy of the premises within ten days from the receipt of the notice. The tenants vacated the premises and the property owner sued the city official for damages. In holding the official not liable, the higher court said:
“The purpose of the ordinance is to provide reasonably fire-proof buildings for the safety of tenants in multiple family dwellings. Some method of enforcement of this ordinance is necessary . . . The city, under its police power, had authority to prohibit the use or occupancy of a building or portion thereof for failure to comply with the requirements of the ordinance where the owner or occupant failed to make the building comply after notice of its violation of provisions of the ordinance. It is undisputed that his (official) acts were within the scope of his official authority and in the line of his official duty, which relieves him from personal liability.”
When a fireman dies suddenly and mysteriously the burden of proof that his death was an accident arising out of his employment rests upon the claimant for compensation, and such proof must amount to something more than mere guess.
Fireman Dies Suddenly
For example, in Mook v. City of Lincoln, 9 N. W. (2d) 184, the testimony proved that a man named Mook fell while he was engaged in the performance of his duties as a city fireman. There was no doubt that he died at least within the space of a few minutes, if not instantly. The question for determination was whether he died as a result of the fall or fell as the result of his death. Since an autopsy was performed on the body disclosed no external evidence of skull or other bony injury, the higher court refused to grant compensation to Mook’s widow. This court said:
”It may be stated here with regard to the fall that the evidence as the manner thereof is unsatisfactory and uncertain.”
Pension Fund Deficient
Generally, a deficiency in a pension fund is primarily due to the insufficiency of a pension tax as limited by statute. The use of an emergency fund usually is discretionary with the municipal officials. A majority of state legislatures have passed laws authorizing public officials to enact taxation for making up deficiencies in pension payments, and officials must comply with these laws.
For example, in Mathewson v. City of Shenandoah, 11 N. W. (2d) 571, reported December, 1943, it was shown that a city did not have sufficient funds from which to pay pensions to retired firemen. The court held that the establishment and use of an emergency fund to pay the pensions is discretionary with the governing body of the municipality, and subject to the approval of the state board, but the exercise of such direction should be completed in view of providing funds for payment of these pensions. This court said:
“Appellant (fireman) is entitled to receive payment of his pension and there is a duty resting upon the city to provide a fund sufficient to make the payments accruing thereon.”
State Law Invalidates City Ordinance
Any and all city ordinances are void which contradict a state law.
For example, in State ex. rel. Daly v. City of Toledo, 50 N. E. (2d) 338, reported August, 1943, it was shown that a city ordinance was passed requiring retirement of deputy fire chiefs on reaching the age of 65 years. However, a state statute provides that tenure of every officer in classified service shall be during good behavior and efficient service. Therefore, the higher court held the ordinance void and of no legal effect. This court said:
“The ordinance here in question provides compulsory retirement of members of the police and fire divisions at the age of 65 years. The sole question for determination is the validity of the ordinance . . . We are of opinion that this ordinance is inconsistent with State law 468-17a. General Code, and therefore invalid.”
In Jenkins v. City of Los Angeles, 140 Pac. (2d) 45, it was shown that a city charter required payment of pensions to “child” or “children” of deceased retired member of the fire department until the child or children should attain the age of eighteen years.
The legal question presented the court was: Are children born after the fireman is in retirement included by this law?
In holding in the affirmative, the higher court said:
“No good reason has been suggested to us why the plan of the charter should have embraced a purpose to discourage the birth of children to city firemen after their retirement by depriving them of the right to receive their father’s pension or to share it with the children born before his retirement.”
In Reed v. Board of Police and Fire Commissioners of City of Peoria, 43 N, E. (2d) 849, reported January, 1943, it was shown that certain firemen were discharged for alleged political activity, but no charges in writing were made and the only political activity was by the Trades and Labor Assembly and its affiliate, a fire fighters union, to which the firemen belonged.
The higher court promptly ordered reinstatement of the firemen.
In State ex. rel. Russ v. Fire Department Relief Ass’n of City of Missoula, 136 Pac. (2d) 989, reported June, 1943, it was shown that a person named Russ was temporarily employed as a fireman in a municipal Fire Department, beginning on September 1, 1918. His employment was discontinued about April 30, 1919. On April 20, 1920. when lie was past 45 years of age he was appointed by the city council to the position of auto mechanic. He was reappointed year after year until June 15, 1941, when the position was abolished and he was, at his own request, granted leave of absence without pay by the city council. He was carried on the pay roll of the city as an auto mechanic and his yearly appointment designated him as auto mechanic.
Russ filed an application for membership in the Fire Department Relief Association of the city.
Since Russ was not eligible to the position of city fireman and never complied with the statutes relating thereto and was never appointed fireman, the higher court held that he was not entitled to membership in city Fire Department Relief Association, though he occasionally performed some of duties of fireman, particularly in connection with large fires. This court said:
“Linder these circumstances it cannot be said that he was a regularly confirmed member of the fire department as required by the statute. The qualifications for membership in the association being statutory, and the association itself being a creature of the statute, this court is bound by the provisions of that statute and cannot disregard it.”