138 P. 859 | Or. | 1914
delivered the opinion of the court.
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
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
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.
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.