Montana labor news., 1936-08-13
OPEN LETTER IN
REPLY TO FIREMEN
Judge Matthews Explains Pow
ers of Cities in Respect to
Policemen and Firemen.

In the primary campaign | ignored
the attack made upon the Supreme
Court by the Fire Fighters Organ
i%zation" in your issue OF July 10; l still
refuse to make it a campaign issue, but,
in the interest OF maintaining respect
for the court, so necessary to the well
fare of the state, | desire to correct,
if possible, the impression the article
may have made on your readers minds.
Knowing your fairmindedness, | trust
you will give to this letter the publicity
given to the attack.
In 1885 the legislature passed two
acts Of similar import, the M in favor
OF firemen, the other in favor Of police
men; while the court declared the fire
mans act unconstitutional (Kern v.
Arnold, 100 Montana 346), it upheld
the policeman's act (Gebhardt V. Hell
ena, IS Pac. (2) CD.
I wrote neither opinion but both
were unanimous. The latter decision
should refute the insinuation that the
cour was in an unholy alliance with
the city fathers as they fought that
case harder than they did the fireman's
case. Certain it is that no member Of
the court attended a meeting Of mayors,
as minated.
A consideration of the law relative
to the two city departments should
make plain to any fair-minded reader
the reason for the differentiation. Ali
courts agree hat a city has a dual
capacity: governmental and pro
prietary," In the dicharge of duties
imposed upon it for the benefit Of the
state at large and which it cannot
evade, a city acts in its government
tai capacity and is subject to regula-
ton by the legislature, but when it acts
only for the benefit of the inhabitants
OF the city, voluntarily, or at its dis
erection, it acts in its proprietary ca
pacity" and is exempt to a large ex
tent from legislative interference,
(Helena Water Co. v. Steele, 20 Mon
tana ~
At the time the above acts were
passed the law declared that every city
must maintain a police department
which must be organized, managed
and controlled as provided by the
legislature (Section 5095 Rev. Codes,
and that the police must enforce all
state laws within a radius of three
miles outside the city limits, (Section
5000 Rev. Codes.)
By these provisions, police are made
state officers" the city acts in the
maintenance OF the department in its
governmental capacity" and, conse-
quently the legislature could regulate
it. (Gebhardt case.)
On the other hand the law merely
provides that a city "has power to
maintain a fire department" and pre-
scribe its duties. (Section 500 Rev
Codes and that the Compensation"
shall be fixed by Ordinance" (Sec-
ton 5110); it specifically declares
that firemen are not Officers" Of the
city, much less state officers"
Thus it is made optional with a city
as to whether it will maintain a fire
department; it maintains such a de-
partment for the protection of its in
~habitants, but might abolish the de-
partment if it saw fit and maintains it
in its proprietary capacity" there
fore the legislature cannot interfere in
the manner attempted. (Kern case.)
When the legislature, without a
change in the existing law, attempted
to regulate the hours of labor and com
pensation of firemen, it clearly ex-
ceeded its constitutional power and the
court had no choice but to so declare,
If the firemen would enjoy like benefit
OF legislation with the policemen, they
must first secure legislation placing
them on equal footing with the latter.
Thanking you for your consideration,
am, Respectfully yours,
JOHN A. MATTHEWS,
Associate Justice of the
Supreme Court.