The Wichita daily eagle., 1894-02-04
WORSTED THE CITY
JUSTICE KEENAN, DECIDES AN I'M
PORTANT LAWSUIT.
He Holds That the City Must Pay
Its Second.Class Firemen First
Class Kates-The Decision,
if Upheld, Will Para
lyze the Treasury

Justice keenan, rendered decision yes
terday in the case that interests the city as
| well as all the fremeu.
The case was brought by B. E. Fisher. q
discharged fireman, against the city for
Sl95, balance which he claimed tc be Tie
him for thirteen mouths services as fire
man. In other words, it is the difference
between $45 per monch and $50 per month
for that length OF time.
| 1T appears from the evidence that the
plaintiff occupied the position of fireman
| for thirteen months upon the fire force OF
tue city; that he was recommend To the
| position as a second class fireman by the
| fire marshal; that the fire commit ee
recommended his appointment pursuant
| to the fire marshaFs recommendation;
that tine council adopted the recommend
| tion OF the fire marshal and the. report of
the fire committee which proceedings
were approved by the mayor; that the
marshal was S45 month; that the plain
tiff has been paid said sum of s45 which
was by him accepted as his salary.
The plaintiff contends:
! "a That the position of fireman is tha ct
of An officer and not that of emplOye or
| servant. that the ordinance fixes his salary,
that any contract to diminish this salary is
|
the acceptance of less amount than that
fixed by law would not estop the plaintiff
| from recovery.
| 2. Whether the position is one of officer
| or empicye or servant, the rule would be
the same as to the salary, and as the ordi-
| nance fixes the salary, contract would be
| equally VOID to vary the compensation SO
| fixed by law.
| The ordinance provides that the mayor
shall appoint. by aud with the advice and
| consent OF the city council, a sufficient
number OF experienced firemen to fill the
| positions upon the fire, hose aud hook and
| ladder companies as they may be organized
| by the fire committee under the direc-
tion of the city council. which
salary of $50 per month. With the ex-
ception of the lire marshal and assistant
| fire mashal this is all the city legislation
as to the question of salary. There is no
| authority anywhere given the fire mar
| shall TO make any contracts as to salary or
even to employ hremen on behalf Of the
city as laborers.
1t is argued at great length by the plain
tiff and many authorities. from New York,
Connecticut, Iowa, Massachusetts, and
other states are cited to show that fremen
are officers; that they are responsible for
their own acts, and that the city is not
liable on account of their negligent acts as
servant existed. 1t seems to be the rule in
tile states referred to, to regard fireman as
officers and not servants, and there being
nothing cited to the contrary the court is
to presume that the statutes of those states
are the same as that of Kansas.
1t is contended on the part of the de-
fendant.
First, That the plaintiff was not ap-
pointed by the mayor and council and that
the proceedings of the council relied upon
by him are insufficient to warrant find
ing that he has beenso appointed.
Second, That the ordinance provides
only for tho appointment of experienced
firemen by the mayor and city city council
at a salary OF $50 per month; that this i'll
no way provides for the appointment of
inexperienced firemen at lower salary.
And should the appointment of firemen
not experienced be ultra wires they would
only be entitled to what their services are
reasonably worth snd an acceptance. of
any amount as his salary would conclude
any after recovery.
Third, That the appointments of the
plaintiff as second class fireman is an
evidence that he was not to be considered
ar experienced fireman and therefore not
within the ordinance referred to.
This" said Justice Keenan,, ''substan-
italy states the contention between the
parties, except to state that the evidence
! showed that the plaintiff had small ex-
perience when appointed to his place as
fireman."
1t is not contended by the defendant
that a contract would have any validity to
vary the salary OF au officer nor would the
acceptance OF "A less sum than the salary
fixed estop the claimant from recovering
the balance 1t therefore follows that if
the plaiffnti were duly appointed officer
there could be 40 question as to his right
of recovery.
Let US dispose of the question of the ap-
polntment under the evidence and the or
dinance. While the appointment may
not be strictly regular and while "Che
mayor shall appoint, by aud with the al
vice aud consent of the uncil' may re-
uuire that the mayor nominate and the
council confirm to make the appointment
absolutely regular yet / am inclined to
think that the facts as heretofore set forth
constitute an appointment aud as the
plaintiff took and occupied his position
he did so de Jure and most certainly de
facto. And as de facto appointment is
attended with the same legal consequences
while the plaintiff occupies the position rs
though his appointment were de Jure, the
question of the appointment must be dis
posed of in favor of the plaintiff.
The defenCant contends that the plain
tiff was not appointed as an experienced
fireman." and that the report of the fire
marshal upon which the fire committee
and council acted. CHASING the plaintiff AS
second class fireman." is 10 be taken as
evidence that the council did not intend to
give him position as experienced fire
man." and therefore not within the ordi-
nance In the same report 1t is to be noted
that "a. K. Clark be enrolled as first
class fireman" which is urged as further
indication that Mr. Clark is to be classed
rs an experienced fireman, while the
- 1apa
perienced fireman. am unable to See any
force in this position. w hile the
word experienced" i, 10 be given a
Significance. it is simply direction to the
mayor and council to appoint men of
qualifications as indicated by the word
experience" to fill the places i'll the fire
department. This direction if not observ
ed on the part of the appointing power
cannot be taken advantage of oy the ap-
pointing power when the appointee claims
his compensation The ordinance provides
for the appointment OF experienced"
men as fremeu and when man is
appointed by she proper authority It Is to
be presumed that he comes within the
qualifications provided BY the ordinance;
it is the duty of the appointing power TO
appoint experienced" and only expert
enced" men ard it will not he hard TO
say il has not done in its duty IN this
respect.
This disproves OF the question OF the
appointment aud that the appointment Is
within the ordinance for appointing Eek
periraced" mea to the position OF firemen,
for which position the ordinance provides
salary of SEQ per month GAG this
salary be diminished by contract express
or implied: Ii the plaintiff is an officer as
the weight OF authority cited
indicates assuredly this question must be
answered in the negative. Even II tie
contention OF the defendant that the
plaintiff Is TO be regarded rs an employe
not b. different. In kehn VS. State Of