Evans v. City of St. Paul

• Decision Date: 16 January 1942
• Docket Number: No. 32928.,32928.
• Parties: EVANS v. CITY OF ST. PAUL.
• Court: Minnesota Supreme Court

2 N.W.2d 35

211 Minn. 558

EVANS v. CITY OF ST. PAUL.

No. 32928.

Supreme Court of Minnesota.

January 16, 1942.

Appeal from District Court, Ramsey County; Clayton Parks, Judge.

Action by Nathaniel A. Evans against the City of St. Paul to recover "back pay" benefits as a city fire fighter for a period during which plaintiff, due to disability resulting from no injury received in the service of the city, performed no services as such fire fighter. From an adverse judgment, plaintiff appeals.

Judgment affirmed.

Samuel Lipschultz and Melvin L. Lipschultz, both of St. Paul, for appellant.

Harry W. Oehler, City Atty., and Hilary J. Flynn, Asst. City Atty., both of St. Paul, for respondent.

JULIUS J. OLSON, Justice.

Plaintiff's action to recover "back pay" benefits "as a city fire fighter" under the provisions of § 52 of the St. Paul charter met with an adverse verdict. His blended motion for judgment or a new trial was denied. Judgment was entered, and he appeals.

The portion of the charter section upon which plaintiff relies provides: "In case of disability through * * * sickness * * *, in case of firemen, such firemen shall, notwithstanding such sickness * * *, receive his salary, less the amount paid a substitute, if any substitute is employed, for a period not exceeding 12 months." (Italics supplied).

Two causes of action are pleaded. The first involves "back pay" from February 1, 1938, to January 15, 1939, wherein $1,389.95 is claimed, being the difference between $1,782.50 which plaintiff would have earned if drawing full pay, less $392.55, the amount received by him after monthly deductions from his salary for substitutes. The second cause is for the period from January 1 to and including May 31, 1936, for which recovery of $858 is sought upon a like basis.

The record establishes the following facts: From January 1, 1918, until January 31, 1938, plaintiff was in the continuous service of defendant as a member of its fire department, except that from August 31, 1918, until the spring of 1919 he was absent on leave, duly granted, while he was in military service in World War No. 1. In 1924 he was promoted to the position of engineer of company 9, consisting of colored men only.

Some time prior to January 31, 1938, he was suffering from glaucoma in both eyes to such an extent as to be almost totally blind in one eye and nearly so in the other. This ailment was not caused by, nor was it the result of, any injury received while in the service of the city. Some time prior to this date, defendant, having learned of plaintiff's condition, notified him that he could no longer continue as a member of the fire department. Accordingly, he was placed on sick leave as provided by § 52. From then on until January 15, 1939, he was carried on defendant's payroll as a disabled engineer of his company. The amount of his compensation was $155 per month, less authorized deductions made for a substitute. In substance and effect, the other cause of action is similarly founded.

Plaintiff's claim has for its foundation— "that in truth and in fact defendant did not employ a substitute in place of the plaintiff during any part of the period of time aforementioned, and that the sums paid by the defendant to the plaintiff during the entire period of time * * * was not in accordance with the charter provision hereinbefore referred to, and that the deductions made each month by the defendant from the plaintiff's pay were unauthorized" and "in clear violation of plaintiff's rights under the charter provision hereinbefore referred to."

So the issue presented, as gathered from the facts, is largely, if not wholly, one of law, and its solution depends upon the interpretation (if interpretation is needed and permissible) to be given the charter provisions and the civil service rules and regulations applicable to plaintiff, who concededly was within the classified service of the city.

In State ex rel. Gillis v. Goodrich, 195 Minn. 644, 645, 264 N.W. 234, 235, the city government of St. Paul is characterized as "unique in that its six elective commissioners and mayor constitute the city council. The mayor assigns the commissioners as administrative heads of the several departments of city government, among the latter being that of public safety, which includes the bureaus of police and fire protection." The issue in that case related to the powers of the comptroller. We reached the conclusion that he (195 Minn. 650, 264 N.W. 237) "was intended to be, ex officio, the budget commissioner, with the power to limit expenditures of any department," subject to review by the city council as permitted by the charter and as stated in that opinion. The importance of the comptroller's power as there determined will be apparent here as we enter upon the phase having to do with retrenchment when and as ordered by the comptroller in conducting the affairs of the city. By reason thereof, it became necessary from time to time to reduce the personnel of various departments, among them the bureau of fire protection. Between 1922 and the time of trial, it had become necessary to reduce the number of these employes to between 160 and 170 men. During the early part of 1935, the chief of the fire bureau ascertained that the amount fixed by the budget would not permit the continued employment of the number of men then engaged in that branch of the service. To carry on within budget limitations, he found it necessary to lay off at least eight firemen, and this he did on March 31, 1935. It is clear that there is need for capable and efficiently trained men who can be called into active service to take the places of those who may become incapacitated in the active force on account of sickness, accidental injuries, and the like; and so the chief named, as substitutes, for active duty as of April 1, these eight men who had been retired from the active duty list on March 31, 1935. On the new list they were named in the order of their seniority. As need arose, he would "requisition" the civil service bureau on the form prescribed for regular appointments, but would indicate thereon that the appointee was "to perform substitute fire fighter work as needed and as assigned," or as "fire fighter on substitute duty." When and as needed, these substitutes were appointed to the regular force, and in their places on the substitute list would be placed the names of other men who had passed the physical and mental examinations of the civil service bureau requisite to their placement on the eligible list in the order of their respective priorities.

As we have seen, the eight men so laid off were at once placed upon the substitute list. With full knowledge of the facts, they accepted their reemployment and received their pay from the "payroll for substitutes" in place of the "regular" payrolls. The department records show what sick men the substitutes represented. The regulars so off duty received the difference in salary between their regular pay and that paid the substitutes. All...