State, ex rel. Haberlan v. Love

• Decision Date: 24 April 1911
• Docket Number: 16,762
• Citation: 131 N.W. 196,89 Neb. 149
• Parties: STATE, EX REL. JOHN HABERLAN, APPELLANT, v. DON L. LOVE, MAYOR, ET AL., APPELLEES
• Court: Nebraska Supreme Court

131 N.W. 196

89 Neb. 149

STATE, EX REL. JOHN HABERLAN, APPELLANT, v. DON L. LOVE, MAYOR, ET AL., APPELLEES

No. 16,762

Supreme Court of Nebraska

April 24, 1911

APPEAL from the district court for Lancaster county: ALBERT J CORNISH, JUDGE. Reversed.

REVERSED.

W. C Frampton, Price & Abbott and Lysle I. Abbott, for appellant.

C. C Flansburg and Leonard Flansburg, contra.

ROOT, J. REESE, C. J., and LETTON, J., not sitting.

OPINION

ROOT, J.

This is a mandamus proceeding to compel the officers of the city of Lincoln "to place plaintiff upon the retired list of firemen in said city and pay him a pension of $ 50 a month, and that said pension be dated from April 1, 1904." No alternative writ was issued, but the respondents filed a general demurrer, which was sustained by the district court, and the relator's application was dismissed. The relator appeals.

In 1895, the legislature, by chapter 39, laws 1895, provided: "That all metropolitan cities and cities of the first class having a paid fire department, shall pension all firemen of the paid fire department whenever such firemen shall have first served in such fire department for the period of twenty-one years, and shall elect to retire from active service and go upon the retired list. Such pension shall be paid by the city in the same manner as firemen upon the active list are paid, and such pension shall be twenty-five per cent. of the amount of salary such retiring fireman shall be receiving at the time that he goes upon such pension list." The act also directs that pensions shall be paid to firemen permanently disabled while in the line of duty, and that pensions shall be paid to the widows and the orphans of firemen whose death shall have been caused by injuries received while in the line of duty. By the amendment of 1909 the pension is increased to 50 per cent. of the fireman's salary at the time "he goes upon such pension list," provided the pension shall be at least $ 50 a month. Comp. St. 1909, ch. 30, sec. 11 et seq. The respondents' counsel contend that the statute is void because repugnant to section 7, art. IX, section 16, art. III, and section 3, art. XII, of the constitution.

Among other things, section 7, art. IX of the constitution, declares: "The legislature shall not impose taxes upon municipal corporations, or the inhabitants or property thereof, for corporate purposes." State v. Wheeler, 33 Neb. 563, 50 N.W. 770, is cited to sustain the proposition that a tax for the support of a fire department is levied for a corporate purpose, and from this statement and declarations subsequently made in German-American Fire Ins. Co. v. Minden, 51 Neb. 870, 71 N.W. 995, Aachen & Munich Fire Ins. Co. v. City of Omaha, 72 Neb. 518, 101 N.W. 3, State v. Moores, 55 Neb. 480, 76 N.W. 175, and Lincoln Street R. Co. v. City of Lincoln, 61 Neb. 109, 84 N.W. 802, the conclusion is reached that a city in maintaining a fire department exercises private and corporate rather than governmental power. The opinion in State v. Wheeler, supra, did turn upon the thought that the tax sought to be exacted from foreign insurance companies for the benefit of the fire department in metropolitan cities was a tax for corporate purposes, but the subject was not discussed in the briefs upon the theory that a municipality may exercise governmental duties distinct from private or corporate functions, or that any distinction should be made between them, but rather it was assumed that, if the exaction should be classified as a tax, it was laid for a corporate purpose, and so the court following the arguments of counsel, said that the money demanded was a tax laid for corporate purposes.

In German-American Fire Ins. Co. v. Minden, supra, the decision rests solely upon the principle that the ordinance considered was void because no procedure for the collection of the tax, other than by a criminal prosecution, was provided.

In Aachen & Munich Fire Ins. Co. v. City of Omaha, supra, at page 530, in the commissioners' opinion, which the court adopted, it is said: "It is admitted by the demurrer that the assessment complained of was made by the tax commissioner of the city of Omaha for municipal purposes only." Upon this hypothesis the opinion was rendered.

On the other hand, in Gillespie v. City of Lincoln, 35 Neb. 34, 52 N.W. 811, in an exhaustive and well-reasoned opinion by Judge POST, this court held that firemen should be placed in the same classification as policemen and health officers; that they are public or state officers vested with such powers as the statute confers, and that the duties they perform do not relate to the corporate functions of the municipality. This opinion is sustained by the overwhelming weight of authority. 2 Abbott, Municipal Corporations, sec. 700; Cunningham v. City of Seattle, 40 Wash. 59, 4 L. R. A. n. s. 629, 82 P. 143, and note; Brown v. District of Columbia, 29 App. D.C. 273; Phoenix Assurance Co. v. Fire Department, 117 Ala. 631, 42 L. R. A. 468, 23 So. 843; Firemen's Benevolent Ass'n v. Lounsbury, 21 Ill. 511.

Gillespie v. City of Lincoln, supra, has not been criticised or in any manner discredited by this court, and must be held to state the correct general principle of law. In sustaining the right of the legislature to authorize the governor to select commissioners who shall appoint and control members of the police force and of the fire department in metropolitan cities, the functions of firemen are recognized as governmental rather than proprietary. Redell v. Moores, 63 Neb. 219, 88 N.W. 243. So, therefore, while the city of Lincoln has the right, and in its charter is given specific authority, to assemble appliances for the extinguishment of fires, to employ firemen, and to levy and collect taxes to pay the expense of the fire department, and while that purpose is a public one, it is not a corporate purpose within the prohibition in section 7, art. IX of the constitution.

We do not understand that by enforcing the provisions of the statute the credit of the state is given or loaned in aid of any individual or corporation. Section 3, art. XII of the constitution, was intended to prevent the state from extending its credit to private enterprises. Oxnard Beet Sugar Co. v. State, 73 Neb. 66, 105 N.W. 716.

Section 16, art. III of the constitution, provides: "The legislature shall never grant any extra compensation to any public officer, agent, servant, or contractor after the services shall have been rendered or the contract entered into." The respondents insist that the statute under consideration offends against this part of the fundamental law. A fireman's pension may be classified as part of his compensation for services rendered, or it may be said that it is paid to him for the purpose of stimulating all those engaged in a like public duty to prevent and suppress the destruction of property and the loss of human life incident to those conflagrations which the utmost vigilance may minimize, but cannot entirely prevent in populous cities. Within whichever class the pension may fall, public funds may be appropriated in conformity with legislative authority to pay the fireman, and the money is thereby expended for a public purpose. Gray, Limitations of Taxing Power and Public Indebtedness, sec. 336; Trustees of Exempt Firemen's Benevolent Fund v. Roome, 93 N.Y. 313; Phoenix Assurance Co. v. Fire Department, supra; Firemen's Benevolent Ass'n v. Lounsbury, supra. And a pension granted to a fireman, who has served since the law became effective, cannot be said in reason to be a gratuity, nor the grant of extra compensation. Commonwealth v. Walton, 182 Pa. 373, 38 A. 790; Commonwealth v. Barker, 211 Pa. 610, 61 A. 253. The statute, therefore, does not contravene section 16, art. III of the constitution.

Finally the respondents contend that, inasmuch as the relator did not serve as a fireman for 21 years subsequent to the enactment of chapter 39, supra, he is not entitled to a pension, and cite State v. Ziegenhein, 144 Mo. 283, 45 S.W. 1099. In that case the statute construed provided: "That any person who shall serve as a policeman * * * for twenty years," etc., whereas, our statute directs that cities of a certain class shall pension "all firemen of the paid department whenever such firemen shall have first served in such fire department for the period of...