Hunter v. Quick
| Decision Date | 17 May 1938 |
| Docket Number | 28091. |
| Citation | 79 P.2d 590,183 Okla. 19,1938 OK 343 |
| Parties | HUNTER et al. v. QUICK et al. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. Under the provisions of article 5, chapter 33, section 6082 et seq., O.S.1931, 11 Okl.St.Ann. § 331 et seq., paid members of the fire department of a city of the first class are appointed by the mayor and approved by the city council and by the chief of the fire department and hold such position until removed for a good and sufficient cause.
2. Where a member of the fire department of a city of the first class is not recommended for reappointment by the fire chief and is not appointed by the mayor and council, and is notified that his services are discontinued, and, in compliance with such notification, the fireman delivers his equipment to the fire department, such action constitutes a removal from office within the contemplation of the law.
3. The increased discipline and efficiency of a city fire department, where the selection is made on recommendation of the fire chief and on appointment by the mayor with the approval of the city council, is a good and sufficient cause under section 6085, O.S.1931, 11 Okl.St.Ann. § 334, providing for the removal of a city fireman.
Appeal from District Court, Kiowa County; John B. Wilson, Judge.
Action by Roy Quick and Doss M. Kutch, for themselves and others similarly situated, against J. J. Hunter and others composing the Board of Trustees of the Firemen's Relief and Pension Fund of the Fire Department of the City of Hobart, Okl., and Kay Turner, to enjoin the Board from paying out to Kay Turner, and to enjoin Kay Turner from receiving any pension or money from the Firemen's Pension Fund. From a judgment in favor of the plaintiffs, the defendants appeal.
Judgment affirmed.
J. G Hughes, of Hobart, for plaintiffs in error.
R. Place Montgomery, of Hobart, for defendants in error.
The appeal is from a judgment enjoining the plaintiffs in error, defendants below, as a board of trustees of the Firemen's Relief and Pension Fund of the fire department of the city of Hobart, and their successors in office, from paying out to Kay Turner, and enjoining Turner from receiving, any pension or money from the firemen's pension fund of said city.
The essential facts in the case are substantially as follows: The city of Hobart, a city of the first class, maintains a paid fire department with equipment exceeding in value the amount of $1,000. The defendant Kay Turner was a regularly appointed fireman and served as such from April 1, 1916, to May 9, 1933. On May 1, 1933, the fire chief submitted to the mayor a list of persons for appointment as firemen. Turner's name was not included among those recommended. On May 9, 1933, the mayor submitted to the council for its approval a list of appointees as firemen, which persons were those recommended by the fire chief. The city council, by resolution, approved the appointments. The resolution, among other things, provided: "That said appointive officers and employees above named shall hold their respective offices and positions until their successors are chosen, appointed and qualified and shall receive for their services the compensation now provided by ordinance."
On May 10, 1933, the city clerk addressed the following letter to the defendant Turner:
In response to the foregoing communication Turner delivered his equipment to the fire department. Intermittently thereafter Turner responded to some fire alarms, for which he filed claims which were disallowed by the mayor and the city council "for the reason that claimant is not a member of the fire department." Turner took no action on the claims and the persons recommended for firemen by the fire chief and appointed by the mayor and approved by the city council on May 9, 1933, served as firemen, and were paid as such.
In February or March, 1936, under a succeeding administration, and on advice of the city attorney, Turner's name was placed on the records in the office of the city clerk as a fireman and was paid as such officer from March, 1936, to April 2, 1936. On or about the latter date Turner presented his resignation to the then mayor and city council and made application for a service pension of $25 per month as a retired fireman, stating in his application that he had served as a paid fireman continuously from April 1, 1916, to April 2, 1936. The application for pension was allowed and ordered paid.
The defendants appeal from the judgment of the trial court, enjoining the payment of the pension, and present their assignments of error under two propositions, as follows:
"That the term of office of Kay Turner, as a paid fireman of the City of Hobart, did not expire on the first Monday in May, 1933, and, the attempted removal of Kay Turner as a fireman was made without cause and not in the manner provided for by law, was a nullity, and the injunction should have been denied."
The statutory provisions, and the ordinances of the city of Hobart, applicable to the case, are as follows:
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