Albee v. Weinberger

Mr. Justice Moore delivered the opinion of the court. 1. Based on the foregoing statement, the truth of which is admitted, it is contended, by counsel for the mayor, that the facts thus detailed are not sufficient in law to prove a violation of the provisions of the statute alleged to have been disobeyed, for that the classes of persons referred to are officers of the City of Port [337] land; that neither firemen nor policemen labor more than eight hours per day, except on rare occasions in cases of emergency, when no other competent official is available, and that, such being the case, the petitioner is entitled to be discharged. The statute in question (Chapter 61, Gen. Laws Or. 1913), as far as thought to be material herein, reads: Section 4. “In all cases where labor is employed by the state, county, school district, municipality, or municipal corporation, or subdivision, either directly or through another, as a contractor, no person shall be required or permitted to labor more than eight hours in any one day, or forty-eight hours in any one week, except in cases of necessity, emergency, or where public policy absolutely requires it, in which, event the person or persons so employed for excessive hours shall receive double pay for the overtime so employed; and no emergency, necessity, or public policy shall be presumed to exist when other labor of like skill and efficiency which has not been employed full time is available. ’ ’ Section 5. “Eight hours shall constitute a day’s labor in all cases where the state, county, school district, or any municipality, municipal corporation or subdivision is the employer of labor, either directly or indirectly, by contract with another.” Section 6. “All contractors, subcontractors, or agents, or persons whatsoever in authority or in charge, who shall violate the provisions of this act as to the hours of employment of labor as herein provided, shall be deemed guilty of a misdemeanor and upon conviction shall be fined,” etc. Giving to the term “laborer,” as used in the enactment quoted, the most extensive definition applicable, it is not believed that a fireman or a policeman, employed by the City of Portland, or the services which he is ordinarily required to perform for it, makes either a laborer within the meaning of that word. It will be remembered that by law of that municipality [338] all officers and members of the fire and police departments are required to take and subscribe tbeir names to an oath of office. In Collins v. Mayor etc., 3 Hun, 680, tbe common council of New York passed a resolution authorizing the appointment of an assistant clerk of the board of aldermen. Pursuant to such order the plaintiff was duly appointed to the position, took the official oath, entered upon a discharge of the duties, and, payment of his compensation having been denied, brought an action to recover the salary, and it was held that he was entitled thereto, the court saying: “We see no reason to doubt that the plaintiff was an officer. * # He was required by ordinance to take, and did take, the official oath. * * Probably the true test to distinguish officers from simple servants or employees, is in the obligation to take the oath prescribed by law. ’ ’ The same conclusion seems to have been inferentially reached in the case of David v. Portland Water Committee, 14 Or. 98 (12 Pac. 174), where it was ruled that the persons constituting the water committee of Portland were agents of the city and not officers, because they were not required to take an oath of office: See, also, upon this subject, State ex rel. v. George, 22 Or. 142 (29 Pac. 356, 29 Am. St. Rep. 586,16 L. R. A. 737). The firemen and policemen of the City of Portland, when once selected, are not subject to dismissal upon the whim of the appointing power, or at the command of some political boss. Governed by the civil service rules, a member of the fire or police department can hold his public position as long as he pleases, provided his physical ability continues, and -he remains faithful to the trust. The appointing power being thus unable permanently to discharge a fireman or a policeman, he is neither a servant nor an employee, but, having-taken an oath faithfully to perform the duties de [339] volving upon him, he is an officer, and therefore not a laborer within the meaning of Chapter 61, Glen. Laws Or. 1913. 2. The conclusion thus reached necessarily determines these proceedings, hut if it were conceded that the members of the fire and police departments were unquestionably laborers and not officers, which admission is not harbored, the facts hereinbefore stated do not, in our opinion, show a violation of any of the provisions of the statute in question. An examination of that enactment will convince any disinterested person that it was designed to conserve the energy of mankind, and thus to secure the best application of human endeavor to the accomplishment of some beneficial purpose, with a view to prolong the life of the employee and thereby to promote his welfare and happiness, and that a persistent and constant service under the directions of a superior, in any branch of activity of more than eight hours in any one calendar day, is detrimental to the laborer and unremunerative to the employer. The services required to be performed by the firemen, though. arduous and dangerous at times, requiring vigor and courage, the work so demanded is not constant; and, while the members of the fire department must at all times he ready to respond to alarms whenever given, they are not subject to active toil 8 hours in any 24, except in cases of emergency which the statute recognizes as a deviation from the prescribed rule. 3. Policemen, however, must, during the time limited for a performance of their duties, persistently and constantly patrol their beats, except when entering a building in the interest of the service, or answering an inquiry or protecting, delivering, or committing a person when arrested. While on duty they are not [340] permitted a moment’s rest, but are actively engaged in the execution of tbeir work as guardians of tbe peace and safety of tbe community. In tbe case at bar, as tbe members of tbe police department are divided into three shifts of eight hours each, the changes of the watch relieve those who have been on duty from performing more than the prescribed number of hours of service, except in cases of emergency. Therefore, on both grounds referred to here, there has been' no violation of the provisions of the statute. It follows from these considerations that the petitioner should be discharged; and it is so ordered. Writ Granted: Petitioner Discharged.