Continental Hose Company No. 1, a Corp. v. The City of Fargo, a Municipal Corporation
| Citation | 114 N.W. 834,17 N.D. 5 |
| Decision Date | 13 January 1908 |
| Court | United States State Supreme Court of North Dakota |
Appeal from District Court, Cass county; Pollock, J.
Action by the Continental Hose Company against the City of Fargo. Judgment for plaintiff, and defendant appeals.
Reversed.
W. C Resser, City Attorney, and Engerud, Holt & Frame, for appellant.
Barnett & Richardson, for respondent.
This action was brought by Continental Hose Company No. 1, a corporation, against the city of Fargo, to recover the sum of $ 1,060, and interest, claimed to be due it from said city under the provisions of article 9, c. 32, Pol. Code 1905 being sections 2966 to 2971, inclusive, Rev. Codes 1905. It is claimed this is due as its share of the 2 per cent of the insurance premiums collected within the city of Fargo, under the provisions of the law referred to on the 7th day of June, 1904, and the 7th day of June, 1905. It is unnecessary to set forth the pleadings. The case was tried before the court without a jury, and the court found that the plaintiff was a corporation, and that more than five years prior to the commencement of this action the plaintiff was a volunteer fire company and offered its services to the city, which were accepted, and during all the time since has performed and rendered to the city of Fargo its services as a volunteer fire company, and has had the management and control of one steam engine, one hook and ladder truck, and one hose wagon, and that it is a member in good standing of the North Dakota Firemen's Association; that it, with two other companies, for more than eight months prior to the 31st of October, constituted the fire department of the city of Fargo, and other facts which are not material to the consideration of the case in this court. As conclusions of law the trial court found that the fire department of the city of Fargo up to the 20th of July, 1904, was an organized volunteer fire department, composed of three volunteer fire companies, of which the plaintiff was one, and that it was entitled to receive its proportionate part of the insurance premium moneys apportioned to the city of Fargo, under and by virtue of article 9, c. 32, Rev. Codes 1905, and entered judgment for the amount claimed in the complaint. From such judgment the defendant appeals.
Under this appeal only two questions are necessary to be determined: First, did the plaintiff during the time in question have the management and control of at least one steam, hand or fire engine, hook and ladder truck, or hose cart? Second, was the fire department of the city of Fargo, during such time, a paid fire department? If either of these questions cannot be answered in the affirmative on the evidence submitted, the plaintiff is not entitled to recover. Before referring to the evidence it may not be improper to consider the evident, and, we think, conceded, object of the statute in question. It is known by every one that in villages and small towns public-spirited citizens, and particularly public-spirited young men, unite together and form fire companies or fire departments for the purpose of protecting and saving property in case of fire. In the smaller places the individuals composing them almost invariably contribute their services without compensation from the municipality. In some places the municipality owns any equipment or apparatus used, while in others the fire department owns it. The men constituting the fire department in such cases almost invariably have control, care and management of the engines, trucks and other apparatus provided for used in the extinguishment of fires. As the municipality increases in size, and the interests become more varied, exposure to fire greater, and the number of risks greatly increased, there is a corresponding increase in the number of fires, until service as firemen requires so frequent attendance at all times of day and night as to interfere with their avocations, and renders such service burdensome. If the municipality continues to increase in size, it finally reaches a point where service becomes so burdensome that the taxpayers conclude that they should not be rendered without compensation, and that the property owners should contribute thereto. When this point is reached, and the city pays the firemen for their services, the department is said to be a paid fire department. Prior to that time it matters not what it is called. The plaintiff in this case assumes that prior to that time, and even afterward, the department may be a volunteer fire department, and that a volunteer department cannot be a paid fire department, even though paid for its services; but the statute nowhere mentions a volunteer fire department or volunteer firemen, so we are not called upon to decide the meaning of the term "volunteer," when applied to this department. On this phase of the case it is only necessary to determine whether the fire department of the city of Fargo, during the time in question, under the ordinance hereinafter to be referred to, was a paid fire department. We shall, however, refer later to the meaning of the term "volunteer." Article 9, c. 32, Pol. Code (Rev. Codes 1905, sections 2966-2971), provides that on compliance with certain conditions an amount equal to 2 per cent of the premiums received upon the policies issued on property in any city, town or village, and when received by the treasurer of the same, shall be paid over to the treasurer of each separate, organized fire companies, or company, in equal proportion, having the management of at least one steam, hand or fire engine, hook and ladder truck, or hose cart, but with this proviso, that in cities, towns and villages having a paid fire department, the amount so received shall be retained by the municipal treasurer to be disbursed by the governing power in maintaining said fire department. We are unable to see but one purpose in requiring this contribution from insurance companies. It is important to all such companies that all property possible be saved from fire, and that the greatest possible effort be exerted in the prevention of fires, and in preventing them from spreading, and in other ways, and it may be assumed that the state, and the insurance companies as well, have recognized as a fact that compensation for the time spent in fighting fires will increase the interest of the firemen, and serve as an incentive to them to exert themselves to their utmost in such capacity, and that it is wise policy on the part of both the state and the companies to make provision for compensating them for services, and to this end the law in question was enacted.
It appears that prior to the approval of the ordinance of the city of Fargo, approved February 17, 1903, there had existed in that city a board of control, composed of members of the different fire companies, which board had the control of all the fire apparatus and machinery of the city, and that since that date it has been housed in a building provided by the city and has been under the control and management of salaried members of the fire department, and that the companies composing such department have nothing to do with the control and management of the apparatus, neither have the members of the different companies anything to do with it. Their duty has been to obey the orders of the chief when at fires. The officials of the fire department, it is true, have been taken from the members of the different companies, but we are unable to discover or conclude that that gives the company or any of them the control of the apparatus. The officials are in control and...
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