State Ex Rel. Kern v. Arnold

The most serious objection urged by respondents as to the constitutionality of Chapter 49 of the Laws of 1935 is based upon section 4 of Article XII of the Montana Constitution, which reads as follows: "The legislative assembly shall not levy taxes upon the inhabitants or property in any county, city, town, or municipal corporation for county, town, or municipal purposes, but it may by law invest in the corporate authorities thereof powers to assess and collect taxes for such purposes." By the language of this section it is clear that there is no restriction upon the power of the legislature to levy taxes upon the inhabitants of municipal corporations or the property therein for purposes other than municipal.

Since the legislature is prohibited from levying taxes for "municipal purposes" only, it necessarily follows that it may constitutionally levy taxes upon the inhabitants or property in any city or municipal corporation for any purposes not municipal. This is the law. (Hindman v. Boyd, 42 Wash. 17, 84 P. 609;State v. Burr, 65 Wash. 524, 118 P. 639; State v. Cityof Omaha, 112 Neb. 694, 200 N.W. 871, 46 A.L.R. 602; State v.Love, 89 Neb. 149, 131 N.W. 196, Ann. Cas. 1912C, 542, 34 L.R.A. (n.s.) 607; Board of Trustees v. Schupp, 223 Ky. 269,3 S.W.2d 606; Peterson v. Board of Supervisors, 65 Cal. App. 670,225 P. 28; Salt Lake County v. Salt Lake City,42 Utah, 548, 134 P. 560; State ex rel. Hawes v. Mason,153 Mo. 23, 54 S.W. 524; People ex rel. Cannon v. City ofChicago, 351 Ill. 396, 184 N.E. 610.) See also note in 46 A.L.R. 602, wherein the author says that the above rule has been generally followed and cites numerous cases to support the text.

The law is well settled in this state, and universally, that the functions of municipal government are dual in their nature, and include two classes of powers, and two classes of duties: one governmental, political and public, as an agency of the state, the other proprietary, private and semi-private or merely municipal, and exercised purely for the benefit of the municipality. (State ex rel. Brooks v. Cook, 84 Mont. 478,276 P. 958.)

This brings us to the crux of this proceeding. If the maintenance and operation of a fire department is a municipal purpose, as distinguished from a governmental purpose, Chapter 49 is unconstitutional; otherwise it is valid and fully enforceable.

It is our contention that the city in providing protection against fire, acts in its governmental capacity, and we believe that this proposition has been adopted in this state, in the case of State ex rel. Brooks v. Cook, supra. The holding in theBrooks Case has been almost universally followed by the American courts in cases involving the liability of the city for torts committed by its fire department, and it is held, almost without

dissent, that the fire department belongs to the city in a public or governmental capacity. The cases on this proposition are collected in notes in 9 A.L.R., page 143, and 33 A.L.R., page 143. It is to be noted that the proposition of law is established by more than one hundred cases from approximately thirty-three jurisdictions. (Welsh v. Rutland, 56 Vt. 228, 48 Am. Rep. 762; Brown v. District of Columbia, 29 App. D.C. 273, 25 L.R.A. (n.s.) 98; Peterson v. Wilmington, 130 N.C. 76,40 S.E. 853, 56 L.R.A. 959, 11 Am. Neg. Rep. 332.) The question has been answered by some courts in passing upon the problem of legislative control of municipal fire departments, and in all the following cases the courts held, either directly or impliedly, that fire departments were held by the cities in their governmental capacity, and that for that reason the legislature had plenary power over them: State ex rel. Simeral v. Seavey,22 Neb. 454, 35 N.W. 228; Redell v. Moores, 63 Neb. 219,88 N.W. 243, 93 Am. St. Rep. 431, 55 L.R.A. 740; State ex rel.Haberlan v. Love, 89 Neb. 149, 131 N.W. 196, Ann. Cas. 1912C, 542, 34 L.R.A. (n.s.) 607; State ex rel. Rea v. City Councilof City of Lincoln, 98 Neb. 634, 154 N.W. 217; State ex rel.Metropolitan Utilities District v. City of Omaha,112 Neb. 694, 200 N.W. 871, 46 A.L.R. 602; Smiddy v. City of Memphis,140 Tenn. 97, 203 S.W. 512; State v. Morris, 199 Ind. 78,155 N.E. 198; 43 Corpus Juris, Municipal Corporations, secs. 179, 1445; see, also, People v. Pinckney, 32 N.Y. 377. In view of the overwhelming weight of authority sustaining the proposition announced by this court in the Brooks Case, it cannot now declare that fire protection is a function purely municipal in nature.

As a matter of logic and common sense there can be no distinction made between police protection (which is everywhere recognized as governmental, 6 McQuillin on Municipal Corporations, 2d ed., 319; Helena Light Railway Co. v. Cityof Helena, 47 Mont. 18, 28, 130 P. 446) and fire protection.

The respondents will contend that authorities declaring fire departments to be governmental instrumentalities, in so far as tort liability is concerned, are not in point. We, however, are unable to discern how a fire department can be said to be governmental for one purpose and purely municipal for another. In determining the character of the particular function, we must determine whether or not the public at large is interested in the function, and whether or not the function is employed for the benefit of the public at large rather than the individuals within the municipality. This court has so done in the Brooks Case, and a majority of the courts have so done in cases in which the question was involved. When we determine that the function is governmental in character, then the incidents of that function should follow, no matter what the facts in any particular case may be.

The only authorities which may be cited by the resepondents are taken from four jurisdictions. They declare, contrary to the decision in the Brooks Case, that fire departments exercise purely municipal functions, and are a purely local concern. In the note in 9 A.L.R. 143, the editor cites the cases relied upon by the respondents; after citing them, however, he makes this very pertinent remark: "These decisions, so far at least as concerns the reason assigned for denying the right of control, are seemingly opposed not only to other cases involving the same question (see State ex rel. Simeral v. Seavey, 22 Neb. 454,35 N.W. 228, which was overruled in State ex rel. AttorneyGeneral v. Moores, (1898) 55 Neb. 480, 76 N.W. 175, 41 L.R.A. 624, which was in turn overruled, and the doctrine of State exrel. Simeral v. Seavey restored in Redell v. Moores, (1901) 63 Neb. 219, 88 N.W. 243, 55 L.R.A. 740, 93 Am. St. Rep. 431), but also to the decided weight of authority upon the specific question treated in the following subdivisions of this annotation."

Another consideration throws light on the problem here involved. Throughout the history of Montana as a state and a territory we find that the legislature has always exercised a jurisdiction over the matter of fire protection in the various cities of the state, and has always regarded fire protection as a matter of public rather than municipal concern. The legislatures in passing a number of enactments from 1874 to 1932 (enumerating them) have thus considered that regulation of a fire department was a governmental function and within their powers. As to the weight to be given to legislative construction, see State exrel. Wallace v. Callow, 78 Mont. 308, 254 P. 187.

Much attention has been given by respondents, in their brief, to the so-called home-rule doctrine, which has been adopted by the decisions in Montana. It is, of course, clear that there is no specific constitutional provision reserving in the municipality any right of home rule, and that the home-rule doctrine is based upon certain implied reservations which the courts have found in state Constitutions. Montana cases recognizing this doctrine are Helena C.W. Co. v. Steele,20 Mont. 1, 49 P. 382, 37 L.R.A. 367; State ex rel. Gerry v.Edwards, 42 Mont. 135, 111 P. 734, Ann. Cas. 1912A, 1063, 32 L.R.A. (n.s.) 1078; Hersey v. Neilson, 47 Mont. 132,131 P. 30, Ann. Cas. 1914C, 963.)

Let us call to the court's attention the fact that our state Constitution is a limitation and not a grant of power, and that anything not directly, or in the case of the home-rule doctrine, impliedly prohibited by the Constitution, constitutes a valid subject for legislative jurisdiction. The implied prohibitions of the Constitution relative to home rule do not go further than do the direct prohibitions of the Constitution as found in Article XII, section 4, and in Article V, section 36. In other words, the home-rule doctrine has no application where the express prohibitions of the Constitution have no application. Any discussion of home rule contained in respondents' brief is beside the point, for if the matters here under consideration are governmental, then that doctrine has no application. And if the doctrine of home rule has no application, it is clear that the legislature may go to any extent in regulating the functions and duties and operation of a fire department.

Since the municipality in maintaining a fire department is acting in its governmental capacity, it follows that in so acting it is merely an agency of the state and as such agent of the state is absolutely and completely subject to legislative control and domination. Where the function is governmental, the state may regulate such matters as hours and wages, the method of selection of employees and any other details which may, in the judgment of the legislature, require legislation. The state of Michigan is one of those states wherein the home-rule doctrine applies. However, even in that state it is held that the home-rule doctrine has no application in those matters wherein the municipality acts in its governmental capacity. (See Davock v.Moore, 105 Mich. 120, 63 N.W. 424, 28 L.R.A. 783; also, Boardof Trustees of Policemen's Pension Fund v. Schupp, 223 Ky. 269, 3 S.W.2d 606; Board of Trustees v. Commissioners ofLincoln Park, 282 Ill. 348, 118 N.E. 746; State ex rel.Haberlan v. Love, supra, relating to firemen's pensions;State ex rel. Simeral v. Seavey, supra, regulating the appointment of policemen; Kenton Water Co. v. City ofCovington, 156 Ky. 569, 161 S.W. 988, regulating the police department.)

Where the function is a state function, the legislature has unlimited control over it. When the legislature has a right to assume such control it likewise has the right to compel the city to provide for the paying of the expenses thereof. (State exrel. Holt v. Denny, 118 Ind. 449, 21 N.E. 274, 4 L.R.A. 65;State v. Hunter, 38 Kan. 578, 17 P. 177; State ex rel.Faxon v. Owsley, 122 Mo. 68, 26 S.W. 659; Sangamon County v.Springfield, 63 Ill. 66; City of Newport v. Horton,22 R.I. 196, 47 A. 312, 50 L.R.A. 330.) Chapter 49 is a violation of section 4, Article XII of the Constitution, in that it attempts to levy a tax upon the inhabitants and property in a city or municipal corporation for municipal purposes. The establishment and maintenance of a local fire department is purely a local or municipal function.

While the Chapter does not by express terms levy a tax, the effect of its operation will be to do so. The operation of this law will involve an additional expense upon the city of Missoula amounting to approximately $7,500 per year. This money can come from one source only: that is, taxes on the persons and property within the city. (Helena Consolidated Water Co. v. Steele,20 Mont. 1, 49 P. 382, 37 L.R.A. 412; State ex rel. Gerry v.Edwards, 42 Mont. 135, 111 P. 734, Ann. Cas. 1912A, 1063, 32 L.R.A. (n.s.) 1078.) It is axiomatic that the law will not permit by indirection that which it directly prohibits.

In matters of purely private concern and local character it is the policy of the state to confide in the citizens of municipalities the right of local self-government to the utmost extent compatible with the general public interests. The doctrine of local self-government is one of the basic principles upon which the American political system is based. (43 C.J., p. 271, sec. 289.) The doctrine was declared in the Magna Carta (1 McQuillin on Municipal Corporations, sec. 70) and has been generally recognized in the United States. (City of Lexington v. Thompson, 113 Ky. 540, 68 S.W. 477, 101 Am. St. Rep. 361, 5 L.R.A. 775; State ex rel. Holt v. Denny, 118 Ind. 449,21 N.E. 274, 4 L.R.A. 65; People ex rel. Le Roy v. Hurlburt,24 Mich. 44, 9 Am. Rep. 103; People ex rel. Board of Park Commrs. v. Common Council of Detroit, 28 Mich. 228, 15 Am. Rep. 202;Blades v. Board of Water Commissioners of Detroit, 122 Mich. 366,81 N.W. 271; People ex rel. McCagg v. Mayor of Chicago,51 Ill. 17, 2 Am. Rep. 278; State ex rel. Attorney General v.Moores, 55 Neb. 480, 486, 76 N.W. 176, 41 L.R.A. 624.)

The doctrine was first recognized by this court in the SteeleCase, and followed in the Edwards Case, supra; State ex rel.Gerry v. Edwards, supra; Hersey v. Neilson, 47 Mont. 132,131 P. 30, Ann. Cas. 1914C, 963; State ex rel. Corry v.Cooney, 70 Mont. 355, 225 P. 1007; Weber v. City ofHelena, 89 Mont. 109, 297 P. 455, 464.) It is here worthy of note that, as pointed out in State ex rel. Quintin v.Edwards, 38 Mont. 250, 99 P. 940, the duties of firemen are purely local, but the legislative declaration that they should not be deemed officers of the municipalities in which the fire department is established has never been modified. (Sec. 5110, Rev. Codes 1921; see, also,State ex rel. Driffill v. Anaconda, 41 Mont. 577,111 P. 345.)

The conflict in the cases concerning the question as to whether a state has the right to control a municipal fire department is probably, to a large extent at least, due to the two views, diametrically opposed to each other, which the courts have taken in regard to the general question of legislative control over municipalities. According to the courts of some jurisdictions, cities and towns are completely under the control of the state legislature unless otherwise provided in the Constitution. According to the other view, towns and cities have certain inherent powers that have never been surrendered to the state, and with which the legislature cannot therefore interfere, even though the Constitution be silent on the subject. According to the cases of the latter class, among these powers is the power of local self-government, in regard to questions which are purely of a local character, and which in no way can affect the state. In those states which uphold, as does Montana, the rights of local self-government of cities, it has uniformly been held that a state cannot control through its legislature functions which are purely local, extending this theory to the control of a city fire department. (State ex rel. Holt v. Denny, (1889), supra;City of Evansville v. State ex rel. Blend, 118 Ind. 426,21 N.E. 267; 4 L.R.A. 93; State ex rel. Geake v. Fox,158 Ind. 126, 63 N.E. 19, 56 L.R.A. 893; Lexington v. Thompson, (1902), 113 Ky. 540, 68 S.W. 477, 101 Am. St. Rep. 361, 57 L.R.A. 775; McDonald v. City of Louisville, (1902), 113 Ky. 425,68 S.W. 413; Campbell v. Board of Trustees, 235 Ky. 383,31 S.W.2d 620; Davidson v. Hine, 151 Mich. 294, 115 N.W. 246, 123 Am. St. Rep. 267, 14 Ann. Cas. 575, 15 L.R.A. (n.s.) 575;Simpson v. Gage, 195 Mich. 581, 161 N.W. 898; Popper v.Broderick, 133 Cal. 456, 56 P. 53; note in 15 L.R.A. (n.s.) 575; San Francisco v. Liverpool L. G. Ins. Co., 74 Cal. 113,15 P. 380, 5 Am. St. Rep. 425; People ex rel. Stevenson v. Illinois C.R. Co., 310 Ill. 212, 141 N.E. 822, relating to taxes for firemen's pension funds.)

The case of State ex rel. Brooks v. Cook, 84 Mont. 478,278 P. 958, is distinguishable from the matter under consideration. In that case, the court was merely called upon to determine the validity of the Act creating the office of state fire marshal, and which gave such office power to obtain court orders condemning property constituting a fire hazard. Dangerous structures, considered from the point of being a fire hazard, have always been considered public nuisances (45 C.J. 700, notes 51-55), and as such the police power of the state could be lawfully exercised in respect to the same. Counsel likewise has no doubt but that the interest of the state in the growth and welfare of its cities and the maintenance of taxable values from which it derives revenue would permit it to operate and maintain its own fire department in the cities of this state, defraying the expense thereof out of state-wide revenues, but for the state to practically step in and take over the operation of municipal fire departments, supported by local taxation, is quite another thing. To do so would constitute an unwarranted meddling with local affairs. It was not at all necessary for the court in this case to state that "the maintenance of fire protection" constituted a "governmental function." As a matter of fact, the authority cited by the court for this proposition (43 C.J. 183) is supported only by two cases, viz.: Wilcox v. Chicago,107 Ill. 334, 47 Am. Rep. 434, and Smiddy v. Memphis, 140 Tenn. 97,203 S.W. 512. Clearly the court in the Brooks Case, in saying that the maintenance of fire protection was a governmental function, did not intend to have it inferred that the management of a paid municipal fire department was a state function. This latter function may be a "governmental function," but if so, it pertains to local government and not state government.

Chapter 49, even though constitutional, has no application to cities managed and governed under the commission form of government. The commission form of government was established by Act of the Legislative Assembly of 1911 and the provisions relating to it are found in sections 5366 to 5399, Revised Codes, 1921. We respectfully urge that the Act creating the commission form of government is a special Act, granting a charter in the nature of a special one to those cities which elect to come within its provisions. Section 5399 is a provision which has for its purpose the adaptation to the commission form those parts of the general law relating to cities not inconsistent therewith and to prevent the repeal by anything short of direct enactment, of any of its provisions. It is obvious that the effect of Chapter 49, if applicable to the city of Missoula, is to repeal by implication a large part of the powers and functions of the city council and in view of the express language of Chapter 49, we submit that such was not the intent of the legislation. The law in regard to repeals by this process is so well settled in this state as to render citations unnecessary. On motion for rehearing, Mr. Harry Meyer, Messrs. Speer Hoffman, Messrs. Toomey McFarland, Mr. John W. Chapman, andMr. J.B.C. Knight, Amici Curiae, and representing, respectively, the Butte, Helena, Great Falls and Anaconda Associations of Firemen, submitted briefs. Relators, individually and as members of the fire department of the city of Missoula, brought this action as an original proceeding in this court, seeking a writ of mandate to compel the mayor and councilmen of the city to comply with the provisions of Chapter 49 of the Laws of 1935.

It is alleged in the petition that the city of Missoula was incorporated under the laws of the territory of Montana as a municipal corporation in 1889; that it has a population in excess of 10,000, and less than 25,000, and is operating under the commission form of government; that the respondents are, respectively, the mayor and councilmen of the city of Missoula; that the personnel of the city fire department is composed of the relators; that the fire department is divided into two platoons, pursuant to the provisions of Chapter 91 of the Laws of 1917 and Acts supplementary thereto; that eight of the members of the fire department are receiving a salary of less than $150 per month; that the respondents have refused to obey the provisions of Chapter 49, supra, and have announced that they will continue to maintain the two-platoon system and require the relators to work in excess of 8 hours per day; and will continue to refuse to pay those members of the fire department the sum of $1,800 per year, who are now receiving a lesser sum.

The pertinent portion of Chapter 49, Laws of 1935, provides: "On and after July 1st, 1935, in cities of the first and second classes, the City Council, City Commission, or other governing body, shall divide all members of the paid Fire Department, except the chief thereof, into platoons of three shifts. The members of each shift shall not be required to work or be on duty more than eight (8) hours of each consecutive twenty-four hours, except in the event of a conflagration or other similar emergency when such members or any of them may be required to serve so long as the necessity therefor exists. Each shift shall be changed once every two weeks. (Each member shall be entitled to at least one (1) day off duty out of each eight-day period of service without loss of compensation.) No member of a paid Fire Department of a city of the first or second class shall engage in any occupation of any other kind whatsoever. Members of paid Fire Departments of cities of the first class shall each receive a minimum salary of Eighteen Hundred Dollars ($1,800.00) per annum, payable in equal monthly installments. Members of paid Fire Departments of cities of the second class shall suffer no reduction in salary on account of the operation of this Act, provided that this Act shall not be operative as to cities of the second class unless the City Council, City Commission or other governmental body thereof shall by ordinance adopt same." (Sec. 1.)

The respondents have appeared by motion to quash and by answer. The motion to quash is based upon the ground that the petition fails to state facts sufficient to constitute a cause of action. The answer admits the facts detailed, supra. It is also alleged that Chapter 49 violates certain constitutional provisions, which we will presently notice so far as may be necessary.

The first question presented is whether a city in owning and[1] operating a fire department is exercising a governmental or proprietary function. By the provisions of section 5039 of the Revised Codes of 1921, as amended by Chapter 20 of the Laws of 1927, the following powers, among others, are granted to the city or town council: "27. To establish a fire department, and prescribe and regulate its duties; to maintain a fire alarm and police telegraph. 28. To erect engine, hose, and hook-and-ladder houses, and provide engines and other implements for the extinguishment of fire. 29. To inspect chimneys, flues, fire places, stove pipes, ruins, structures, and boilers, and, when dangerous, to require the same to be removed or put in order, and prohibit the use thereof until safe."

By the provisions of section 5109 it is declared that the council of cities and towns "shall have power to establish a fire department, and prescribe and regulate its duties," and to provide equipment for the extinguishing of fires. Section 5110 provides the method of selecting firemen, the fixing of their salaries by ordinance, and that the firemen, including the chief and assistant chief, "shall not be deemed officers of the municipal corporation in which such fire department is established."

In the case of State ex rel. City of Missoula v. Holmes, ante, p. 256, 47 P.2d 624, speaking with reference to the powers of cities, we said: "The powers granted to a municipal corporation are of two classes. ``The first including those which are legislative, public, or governmental and import sovereignty; The second are those which are proprietary, or quasi private, conferred for the private advantage of the inhabitants and of the city itself as a legal person.' (Campbell v. City of Helena,92 Mont. 366, 16 P.2d 1, 2; State ex rel. Brooks v.Cook, 84 Mont. 478, 276 P. 958; Griffith v. City ofButte, 72 Mont. 552, 234 P. 829; Milligan v. City of MilesCity, 51 Mont. 374, 153 P. 276, L.R.A. 1916C, 395.) * * * In the case of Hersey v. Neilson, supra [47 Mont. 132, 131 P. 30, Ann. Cas. 1914C, 963], this court, speaking with reference to the power of the legislature over municipal corporations, said: ``Because of its autonomous character — its enjoyment of a large measure of organic independence — the municipal corporation is relieved to a considerable extent from officious, meddlesome legislation which seeks to interfere with its private or proprietary functions. The theory of local self-government for municipal corporations is firmly established in this state. (Helena Con. Water Co. v. Steele, 20 Mont. 1, 49 P. 382, 37 L.R.A. 412; State ex rel. Gerry v. Edwards, 42 Mont. 135,111 P. 734, Ann. Cas. 1912A, 1063, 32 L.R.A. (n.s.) 1078.)' As to the first class of powers of a city enumerated above, the power of the legislature is supreme except as limited by express constitutional prohibitions; but as to the powers of the second class wherein the city is acting in a proprietary capacity, as distinguished from a governmental capacity, the theory of local government controls."

If in owning the equipment and property used in a fire department and in employing firemen the city is acting in its proprietary capacity, then the Act in question, which of necessity requires the city to employ additional firemen at additional expense and to pay others additional compensation, operates to deprive the city of property without due process of law in contravention of the provisions of section 27 of Article III of the Constitution. If, on the other hand, when engaged in these activities the city is exercising a governmental function, the will of the legislature is supreme. (State ex rel. City ofMissoula v. Holmes, supra.)

In behalf of relators it is contended that the case of Stateex rel. Brooks v. Cook, 84 Mont. 478, 276 P. 958, is decisive of this question. It was there said that maintenance of fire protection is within governmental functions as applied to cities. The precise question there under consideration was whether, on the order of the state fire marshal as against the owner, the removal of a dilapidated building especially liable to fire, was a valid police regulation. The validity of the Act was sustained. In enforcing a statute or ordinance valid as an exercise of the police power, a city is of necessity acting in behalf of the sovereign state and performing a governmental function.

It is argued that by the great weight of authority a fire department maintained by a municipal corporation is classified as the exercising of a governmental function in cases where it was sought to hold the municipality liable for failure to secure proper equipment to extinguish fires and to maintain an adequate water supply for that purpose, and where it was sought to hold the city responsible for the negligence of firemen in the operation and use of equipment while attempting to extinguish fires, or in testing apparatus maintained for that purpose.

The authorities are practically unanimous in holding that a city may not be held liable for damages in tort actions of the character indicated, and are collected in the notes in 9 A.L.R. 143, 33 A.L.R. 688 and 84 A.L.R. 514. All of them agree that in the circumstances considered in these various cases the city may not be held responsible in damages. Those courts, however, have based their conclusions upon varying reasons.

An examination of the initial cases in various jurisdictions which have passed on the question of the liability of a city reveals the reasons impelling the conclusions attained other than the axiomatic statement of nonliability; they may well be classified as follows: (1) The city is required by the legislature to establish and maintain a fire department. (Greenwood v. Louisville, 13 Bush (Ky.), 226, 227, 26 Am.Rep. 263; Wild v. Paterson, 47 N.J.L. 406, 1 A. 490.) (2) Powers conferred upon municipalities are public in their nature and they are but the instrumentalities of the state. (Black v.Columbia, 19 S.C. 412, 45 Am. Rep. 785.) (3) If the city is not bound to furnish a facility, that ends all question of liability for failure to furnish it. (Vanhorn v. Des Moines,63 Iowa, 447, 19 N.W. 293, 50 Am. Rep. 750; Boyd v. Insurance Patrol,113 Pa. 269, 6 A. 536.) (4) Firemen in performing their duties are public officers and not agents of the city. (Burrill v.Augusta, 78 Me. 118, 3 A. 177, 57 Am. Rep. 788; Heller v.Mayor etc. of Sedalia, 53 Mo. 159, 14 Am. Rep. 444; Dodge v.Granger, 17 R.I. 664, 24 A. 100, 33 Am. St. Rep. 901, 15 L.R.A. 781.) (5) The city receives no compensation for the use of a fire department which is maintained by taxation for the benefit of the city. (Mafford v.New Bedford, 16 Gray (Mass.), 297; Brink v. Grand Rapids,144 Mich. 472, 108 N.W. 430; Welsh v. Rutland, 56 Vt. 228, 48 Am. Rep. 762; Hayes v. Oshkosh, 33 Wis. 314, 14 Am. Rep. 760.) (6) Considerations of a sound public policy, which would relieve municipal corporations from the disadvantages and embarrassments of responsibility for those inevitable miscarriages which attend the performance of duties at once so difficult, so urgent, and so important. (Long v. Birmingham,161 Ala. 427, 49 So. 881, 18 Ann. Cas. 507; Wilcox v.Chicago, 107 Ill. 334, 47 Am. Rep. 434; Brinkmeyer v.Evansville, 29 Ind. 187; Foster v. Water Co., 3 Lea (Tenn.), 42; Mendel v. Wheeling, 28 W. Va. 233, 57 Am. Rep. 664.)

In the case of Wilcox v. Chicago, supra, speaking on the ground of public policy, it was said: "If liable for neglect in this case, the city must be held liable for every neglect of that department, and every employee connected with it, when acting within the line of duty. It would subject the city to the opinions of witnesses and jurors whether sufficient dispatch was used in reaching the fire after the alarm was given; whether the employees had used the requisite skill for its extinguishment; whether a sufficient force had been provided to secure safety; whether the city had provided proper engines and other appliances to answer the demands of the hazards of fire in the city; and many other things might be named that would form the subject of legal controversy. To permit recoveries to be had for all such and other acts would virtually render the city an insurer of every person's property within the limits of its jurisdiction. It would assuredly become too burthensome to be borne by the people of any large city, where loss by fire is annually counted by the hundreds of thousands, if not by the millions. When the excitement is over and calm reason assumes its sway, it may appear to many where other methods could have been adopted to stay destruction, that appear plausible as theories, and their utter fallacy cannot be demonstrated by any actual test. To allow recoveries for the negligence of the fire department would almost certainly subject property holders to as great, if not greater, burthens than are suffered from the damages from fire. Sound public policy would forbid it, if it was not prohibited by authority."

The rule of nonliability of the city in tort does not apply to every act of its fire department, as the construction and maintenance of a door of a fire station (Walters v. Carthage,36 S.D. 11, 153 N.W. 881); repairing an electric fire alarm system (Wagner v. Portland, 40 Or. 389, 60 P. 985, 67 P. 300); or maintaining a fire station (Bowden v. Kansas City,69 Kan. 587, 77 P. 573, 105 Am. St. Rep. 187, 1 Ann. Cas. 955, 66 L.R.A. 181), although in the two latter jurisdictions the courts have subsequently adopted the rule of nonliability of the city for the negligent acts of firemen in going to fires or in extinguishing them, without limiting the effect of their former decisions. (Barcus v. Coffeyville, 129 Kan. 238,282 P. 698; Johnston v. City of Grants Pass, 120 Or. 364,251 P. 713, 252 P. 1118.) The question has not arisen before the Dakota court.

It is urged that if we hold that members of a fire department[2] are exercising governmental functions when proceeding to fires, engaged in the extinguishment of fires, testing equipment of the department, etc., then we may not distinguish other acts as being proprietary or ministerial in character. The difficulty is no greater than determining when the acts of the agent are those of the principal, or when the acts of an employee create liability on the part of the employer. Courts are confronted with the difficulty of distinguishing between proprietary and governmental activities, as such, and have been put to all sorts of expedients. The fact that the determination of the problem may be difficult does not render it incapable of solution.

As pointed out, supra, this state, along with the courts of some others, has adhered to the theory of local self-government, or home rule, which has had the effect of classifying the functions of a municipal corporation as being proprietary to a greater degree than has been observed by the courts of other jurisdictions not applying this rule. In general, in those states which have applied the theory of local self-government to the same extent as we have, it is held that Acts of the legislature attempting to fix the amount of compensation to be paid firemen, to direct the levy of a compulsory tax for a firemen's pension fund, and attempts to regulate the hours of employment of firemen which would not be valid as an exercise of the police power, are an undue invasion of the rights of the municipalities on the theory that the establishment and maintenance of a fire department is a proprietary function. (City of Lexington v.Thompson, 113 Ky. 540, 68 S.W. 477, 101 Am. St. Rep. 361, 57 L.R.A. 775; Campbell v. Board, 235 Ky. 383, 31 S.W.2d 620;City of Evansville v. State, 118 Ind. 426, 21 N.E. 267, 4 L.R.A. 93; State ex rel. Geake v. Fox, 158 Ind. 126,63 N.E. 19, 56 L.R.A. 893; Davidson v. Hine, 151 Mich. 294,115 N.W. 246, 123 Am. St. Rep. 267, 14 Ann. Cas. 352, 15 L.R.A. (n.s.) 575; Simpson v. Paddock, 195 Mich. 581, 161 N.W. 898.)

As disclosed by our statutes, the establishment of a fire department is voluntary on the part of the city, and likewise it is there declared that the firemen are not officers of the city. The apparatus and equipment used by a fire department are the property of the city. The greater portion of the time of firemen when on duty is devoted to holding themselves in readiness to answer a call if the necessity arises, and during such waiting periods they are not exercising any function on behalf of the city, but rather the city is exercising its proprietary right over their time.

It is argued that we are not permitted to make the foregoing[3, 4] assertion, since no allegation of facts to support it are found in the pleadings, and that we are thereby unduly extending our powers of judicial notice beyond the scope of section 10532, Revised Codes 1921. No attempt was made in the pleadings to meet or enumerate any or all of the duties performed by the members of the fire department; therefore, unless recourse is had to our powers of judicial notice, we would be unable to determine whether the members of the fire department are performing governmental or proprietary functions.

In 15 R.C.L. 1057, it is written: "It may be stated generally with regard to the question as to what matters are properly of judicial cognizance that, while the power of judicial notice is to be exercised with caution, courts should take notice of whatever is or ought to be generally known, within the limits of their jurisdiction, for justice does not require that courts profess to be more ignorant than the rest of mankind."

As to the value of precedents in cases of this kind, Professor Wigmore, in the second edition of his work on Evidence, section 2580, makes the following observation: "Applying the general principle (ante, section 2565), especially in regard to the element of notoriousness, courts are found noticing, from time to time, a varied array of unquestionable facts, ranging throughout the data of commerce, industry, history, and natural science. It is unprofitable, as well as impracticable, to seek to connect them by generalities and distinctions; for the notoriousness of a truth varies much with differences of period and of place. It is even erroneous, in many if not in most instances, to regard them as precedents. It is the spirit and example of the rulings, rather than their precise tenor, that is to be useful in guidance."

The truth of our statement, supra, is well known by every resident of a municipality maintaining a paid fire department, and therefore properly within the realm of judicial knowledge.

We conclude that a city operates a fire department in its[5, 6] proprietary capacity, except when the fire department is engaged in the extinguishment of fires, going to and from the scenes of such conflagrations, or in testing equipment for use on such occasions, etc.; then it may be said on the ground of public policy based largely upon grounds of necessity, as demonstrated by the quotation, supra, from the case of Wilcox v. Chicago, supra, that it is exercising governmental functions.

If the legislature had made it compulsory on cities of the first and second class to maintain a fire department, then legislation such as here under consideration would not be subject to some of the existing constitutional objections.

Therefore, when the legislature attempts to set up a compulsory three-platoon system and dictates the compensation to be paid by the municipality to the firemen so employed, the proprietary rights of the city are invaded in a manner which cannot be justified under the police power of the state, and on the authority of State ex rel. City of Missoula v. Holmes, supra, it is deprived of its property without due process of law.

Accordingly, we must hold that the Act in question is unconstitutional and void.

The petition is dismissed and the writ denied.

ASSOCIATE JUSTICES MATTHEWS, STEWART and MORRIS concur.

MR. CHIEF JUSTICE SANDS, absent on account of illness, takes no part in the foregoing decision.

Rehearing denied October 7, 1935.