State ex rel. Kern v. Arnold

• Decision Date: 05 July 1935
• Docket Number: 7455.
• Parties: STATE ex rel. KERN et al. v. ARNOLD, Mayor, et al.
• Court: Montana Supreme Court

49 P.2d 976

100 Mont. 346

STATE ex rel. KERN et al. v. ARNOLD, Mayor, et al.

No. 7455.

Supreme Court of Montana

July 5, 1935

Rehearing Denied Oct. 7, 1935.

Original proceeding by the State of Montana, on the relation of C. P Kern and others, against Ralph L. Arnold, Mayor of the City of Missoula, and others for a writ of mandate to compel the respondents to comply with state statute relating to fire departments. On respondents' motion to quash.

Petition dismissed and writ denied.

Ralph L. Arnold and Donovan Worden, both of Missoula, George S Smith, of Billings, and Warren Toole, of Great Falls, for respondents.

Pope & Smith, Donovan Worden, and Ralph L. Arnold, all of Missoula George S. Smith, of Billings, Warren Toole, of Great Falls Harry Meyer, of Butte, for Butte fire dept., J. B. C. Knight, of Anaconda, for Anaconda fire dept., Toomey, McFarland & Chapman, of Helena, for Helena fire dept., and Speer & Hoffman, of Great Falls, amici curiae.

ANDERSON Justice.

Relators, individually and as members of the fire department of the city of Missoula, brought this action as an original proceeding in this court, seeking a writ of mandate to compel the mayor and councilmen of the city to comply with the provisions of chapter 49 of the Laws of 1935.

It is alleged in the petition that the city of Missoula was incorporated under the laws of the territory of Montana as a municipal corporation in 1889; that it has a population in excess of 10,000, and less than 25,000, and is operating under the commission form of government; that the respondents are, respectively, the mayor and councilmen of the city of Missoula; that the personnel of the city fire department is composed of the relators; that the fire department is divided into two platoons, pursuant to the provisions of chapter 91 of the Laws of 1917 and acts supplementary thereto; that eight of the members of the fire department are receiving a salary of less than $150 per month; that the respondents have refused to obey the provisions of chapter 49, supra, and have announced that they will continue to maintain the 2-platoon system and require the relators to work in excess of 8 hours per day; and will continue to refuse to pay those members of the fire department the sum of $1,800 per year, who are now receiving a lesser sum.

The pertinent portion of chapter 49, Laws of 1935, provides: "On and after July 1st, 1935, in cities of the first and second classes, the City Council, City Commission, or other governing body, shall divide all members of the paid Fire Department, except the chief thereof, into platoons of three shifts. The members of each shift shall not be required to work or be on duty more than eight (8) hours of each consecutive twenty-four hours, except in the event of a conflagration or other similar emergency when such members or any of them may be required to serve so long as the necessity therefor exists. Each shift shall be changed once every two weeks. (Each member shall be entitled to at least one (1) day off duty out of each eight-day period of service without loss of compensation.) No member of a paid Fire Department of a city of the first or second class shall engage in any occupation of any other kind whatsoever. Members of paid Fire Departments of cities of the first class shall each receive a minimum salary of Eighteen Hundred Dollars ($1,800.00) per annum, payable in equal monthly installments. Members of paid Fire Departments of cities of the second class shall suffer no reduction in salary on account of the operation of this Act, provided that this Act shall not be operative as to cities of the second class unless the City Council, City Commission or other governmental body thereof shall by ordinance adopt same." Section 1.

The respondents have appeared by motion to quash and by answer. The motion to quash is based upon the ground that the petition fails to state facts sufficient to constitute a cause of action. The answer admits the facts detailed, supra. It is also alleged that chapter 49 violates certain constitutional provisions, which we will presently notice so far as may be necessary.

The first question presented is whether a city in owning and operating a fire department is exercising a governmental or proprietary function. By the provisions of section 5039 of the Revised Codes of 1921, as amended by chapter 20 of the Laws of 1927, the following powers, among others, are granted to the city or town council: "27. To establish a fire department, and prescribe and regulate its duties; to maintain a fire alarm and police telegraph. 28. To erect engine, hose, and hook-and-ladder houses, and provide engines and other implements for the extinguishment of fire. 29. To inspect chimneys, flues, fire places, stove pipes, ruins, structures, and boilers, and, when dangerous, to require the same to be removed or put in order, and prohibit the use thereof until safe."

By the provisions of section 5109 it is declared that the council of cities and towns "shall have power to establish a fire department, and prescribe and regulate its duties," and to provide equipment for the extinguishing of fires. Section 5110 provides the method of selecting firemen, the fixing of their salaries by ordinance, and that the firemen, including the chief and assistant chief, "shall not be deemed officers of the municipal corporation in which such fire department is established."

In the case of State ex rel. City of Missoula v. Holmes, 47 P.2d 624, decided June 27, 1935, speaking with reference to the powers of cities, we said: "The powers granted to a municipal corporation are of two classes. 'The first including those which are legislative, public, or governmental and import sovereignty; The second are those which are proprietary, or quasi private, conferred for the private advantage of the inhabitants and of the city itself as a legal person.' Campbell v. City of Helena, 92 Mont. 366, 16 P.2d 1, 2; State ex rel. Brooks v. Cook, 84 Mont. 478, 276 P. 958; Griffith v. City of Butte, 72 Mont. 552, 234 P. 829; Milligan v. City of Miles City, 51 Mont. 374, 153 P. 276, L. R. A. 1916C, 395. *** In the case of Hersey v. Neilson, supra [47 Mont. 132, 131 P. 30 Ann. Cas. 1914C, 963], this court, speaking with reference to the power of the legislature over municipal corporations, said: 'Because of its autonomous character--its enjoyment of a large measure of organic independence--the municipal corporation is relieved to a considerable extent from officious, meddlesome legislation which seeks to interfere with its private or proprietary functions. The theory of local self-government for municipal corporations is firmly established in this state. Helena Con. Water Co. v. Steele, 20 Mont. 1, 49 P. 382, 37 L. R. A. 412; State ex rel. Gerry v. Edwards, 42 Mont. 135, 111 P. 734, 32 L. R. A. (N. S.) 1078, Ann. Cas. 1912A, 1063.' As to the first class of powers of a city enumerated above, the power of the legislature is supreme except as limited by express constitutional prohibitions; but as to the powers of the second class wherein the city is acting in a proprietary capacity, as distinguished from a governmental capacity, the theory of local government controls."

If in owning the equipment and property used in a fire department and in employing firemen the city is acting in its proprietary capacity, then the act in question, which of necessity requires the city to employ additional firemen at additional expense and to pay others additional compensation, operates to deprive the city of property without due process of law in contravention of the provisions of section 27 of article 3 of the Constitution. If, on the other hand, when engaged in these activities the city is exercising a governmental function, the will of the Legislature is supreme. State ex rel. City of Missoula v. Holmes, supra.

In behalf of relators it is contended that the case of State ex rel. Brooks v. Cook, 84 Mont. 478, 276 P. 958, is decisive of this question. It was there said that maintenance of fire protection is within governmental functions as applied to cities. The precise question there under consideration was whether, on the order of the state fire marshal as against the owner, the removal of a dilapidated building especially liable to fire, was a valid police regulation. The validity of the act was sustained. In enforcing a statute or ordinance valid as an exercise of the police power, a city is of necessity acting in behalf of the sovereign state and performing a governmental function.

It is argued that by the great weight of authority a fire department maintained by a municipal corporation is classified as the exercising of a governmental function in cases where it was sought to hold the municipality liable for failure to secure proper equipment to extinguish fires and to maintain an adequate water supply for that purpose, and where it was sought to hold the city responsible for the negligence of firemen in the operation and use of equipment while attempting to extinguish fires, or in testing apparatus maintained for that purpose.

The authorities are practically unanimous in holding that a city may not be held liable for damages in tort actions of the character indicated, and are collected in the notes in 9 A. L. R. 143, 33 A. L. R. 688, and 84 A. L. R. 514. All of them agree that in the circumstances considered in these various cases the city may not be held responsible in damages. Those courts, however, have based their conclusions upon varying reasons.

An examination of the initial cases in various jurisdictions which have passed on the question of the liability of a city reveals the reasons impelling the conclusions attained other than the axiomatic statement of nonliability; they may...