State ex rel. Russ v. Fire Department Relief Ass'n of City of Missoula

• Decision Date: 05 May 1943
• Docket Number: 8359.
• Parties: STATE ex rel. RUSS v. FIRE DEPARTMENT RELIEF ASS'N OF CITY OF MISSOULA.
• Court: Montana Supreme Court

136 P.2d 989

114 Mont. 430

STATE ex rel. RUSS v. FIRE DEPARTMENT RELIEF ASS'N OF CITY OF MISSOULA.

No. 8359.

Supreme Court of Montana

May 5, 1943

Appeal from Fourth Judicial District Court, Missoula County; C. E Comer, Judge.

Proceeding by the State, on the relation of John D. Russ, against the Fire Department Relief Association of City of Missoula to compel the defendant to accept relator's application for membership in such association. From a judgment for the defendant, the plaintiff appeals.

Affirmed.

Ralph L. Arnold, of Missoula, for appellant.

Fred W Schilling and Murphy, Garlington & Pauly, all of Missoula for respondent.

ERICKSON Justice.

Application was made by the plaintiff to the district court for Missoula county for an alternative writ of mandate, requiring the defendant, the Fire Department Relief Association of the city of Missoula, a corporation, to accept his application for membership in that association or to show cause for its failure to do so. Motion to quash and an answer were filed by the defendant and, after hearing, judgment was entered for the association. The court reporter having died between the time of the hearing and the perfection of this appeal, the facts, under stipulation of the parties, are before this court on the various exhibits and the resume of the testimony as recalled by counsel. This appeal is from the judgment.

Plaintiff was temporarily employed as a fireman in the Missoula Fire Department, beginning on September 1, 1918. His employment was discontinued about April 30, 1919. On April 20, 1920 when he was past 45 years of age he was appointed by the city council to the position of auto mechanic. He was reappointed year after year until June 15, 1941, when the position was abolished and he was, at his own request, granted leave of absence without pay by the city council. He was carried on the pay roll of the city as an auto mechanic and his yearly appointment designated him as auto mechanic. He received a slightly higher rate of pay than regular firemen and worked only day shifts. He was carried by the city on its Industrial Accident Commission list and payments were made to the Board for him, whereas no such payments were made for the regular firemen. On occasion he served as pump man, hose man and truck driver, and occasionally was called out for service while off shift to help fight large fires. In performing his services as auto mechanic he took care, not only of the equipment of the fire department but of other automotive equipment of the city, including the equipment of the street department and police department. While other members of the fire department were carried on a civil service list of the city, this was not the case of plaintiff. He did not qualify by application, examination or otherwise, for a place on that list. He did not take the physical examination provided for in section 5113, Revised Codes 1935, for firemen; he did not serve the required probationary period; his name was never entered on the registry of eligibles for the fire department; he was not confirmed as a fireman under the civil service regulations; he did not make written application or tender a fee for membership in the Missoula Fire Department Relief Association, nor did he pay any of the required dues to the Relief Association; nor was his salary subject to deduction required by law as were the salaries of the regular, confirmed firemen. He did, subsequent to 1930, discuss the matter with members of the Relief Association, city council, city attorney and city mayor. He did not, prior to filing this action, take any legal steps to establish his claim as a qualified applicant for membership.

The single question upon this appeal is whether or not plaintiff's application and the agreed statement of facts show that he is entitled to membership in the Relief Association. Qualifications for membership in the association are fixed by statute. The association itself is a creature of the statute and supported by statutory levy, and the state may enforce such qualifications for membership in the association as it chooses. It is admitted by plaintiff here that he did not comply with the statutory requirements for membership, but he relies upon the fact that he has done the work of a fireman, and, in fact, is one.

Before plaintiff's petition for the writ can be granted, he must show a clear legal right in himself to membership in the association. We said in the recent case of State ex rel Blenkner v. Stillwater County, 102 Mont. 130, 56 P.2d 1085, 1086: "The rule is well established that before a person is entitled to a writ of mandamus, he must establish a clear legal right in himself and a violation of a duty by the person or officer sought to be coerced. State ex rel. Peterson v. Peck, 91 Mont. 5, 4 P.2d 1086; State ex rel. Brink v. McCracken, 91 Mont. 157, 6 P.2d 869. Such a writ will issue only to compel the...