Plaintiff’s action to recover “back pay” benefits “as a city fire fighter” under the provisions of § 52 of the St. Paul charter met with an adverse verdict. His blended motion for judgment or a new trial was denied. Judgment was entered, and he appeals.
*559 ■ The portiоn of the charter section upon which plaintiff relies provides:
“In case of disability through * * * sickness * * * in ease of firemen, such firemen shall, notwithstanding such sickness * * *, receive his salary, less the amount paid a substitute, if any substitute is employed, for a period not exceeding 12 months.” (Italics supplied.)
Two causes of action are pleaded. The first involves “back pay” from February 1, 1938, to January 15, 1939, wherein $1,389.95 is claimed, being the difference between $1,782.50, which plaintiff would have earned if drawing full pay, less $392.55, the amount received by him after monthly deductions from his salary for substitutes. The second causе is for the period from January 1 to and including May 31, 1936, for which recovery of $858 is sought upon a like basis.
The record establishes the following facts: From January 1, 1918, until January 31,1938, plaintiff was in the continuous service of defendant as a member of its fire department, еxcept that from August 31, 1918, until the spring of 1919 he was absent on leave, duly granted, while he was in military service in World War No. 1. In 1924 he was promoted to the position of engineer of company 9, consisting of colored men only.
Some time prior to January 31, 1938, he wаs suffering from glaucoma in both eyes to such an extent as to be almost totally blind in one eye and nearly so in the other. This ailment was not caused by, nor was it the result of, any injury received while in the service of the city. Some time prior to this date, defеndant, having learned of plaintiff’s condition, notified him that he could no longer continue as a member of the fire department. Accordingly, he was placed on sick leave as provided by § 52. From then on until January 15, 1939, he was carried on defendant’s payroll as a disabled engineer of his company. The amount of his compensation was $155 per month, less authorized deductions made *560 for a substitute. In substance and effect, the other cause of action is similarly founded.
Plaintiff’s claim has for its foundation—
“that in truth and in fact defendant did not employ a substitute in place of the plaintiff during any part of the period of time aforementioned, and that the sums paid by the defendant to the plaintiff during the entire period of time * * * was not in accordance with the charter provisiоn hereinbefore referred to, and that the deductions made each month by the defendant from the plaintiff’s pay were unauthorized” and “in clear violation of plaintiff’s rights under the charter provision hereinbefore referred to.”
So the issue рresented, as gathered from the facts, is largely, if not wholly, one of law, and its solution depends upon the interpretation (if interpretation is needed and permissible) to be given the charter provisions and the civil service rules and regulations аpplicable to plaintiff, who concededly was within the classified service of the city.
In State ex rel. Gillis v. Goodrich,
As we have seen, the eight men so laid off were at once placed upon the substitute list. With full knowledge of the facts, they accepted their reemployment and received their pay from the “payroll for substitutes” in place of the “regular” payrolls. The department rеcords show what sick men the substitutes represented. The regulars so off duty received the difference in salary between their regular pay and that paid the substitutes. All were treated alike, plaintiff with the rest of them.
No one can doubt that by this system the city was better served than by any other plan theretofore devised. Protection was afforded by having the services of qualified men always available. It *562 was but the application of good and sensible business administration. Plaintiff does not assail the system as such. Rather and only, his complaint goes to what he thinks are controlling rules and regulations adopted to safeguard the rights of St. Paul’s civil service employes. And he points to the following provisions of the charter and the rules and regulations of the сivil service bureau as conclusively establishing his right to “back pay”:
By virtue of § 101 of the charter, the commissioner of civil service was “authorized and empowered to frame and submit to the council for its approval rules and regulations for the Classified Service.” In conformity therewith, from time to time, such rules and regulations were duly adopted. (See St. Paul Civil Service Rules and Classification, 1933 and 1938.) In the fire department bureau there, were “regular appointees.” These included all those who wеre not within the “temporary,” “provisional,” or “emergency” appointments. Our attention has been directed to §§ 31, 32, and 33 of the 1933 rules and regulations. Under § 31 the commissioner — •
“may grant authority to the officer or body making such requisition to make provisionаl appointment to fill said position, such appointment to remain in force not longer than ten days after certification is made from an appropriate eligible list. Within sixty days after the granting of such provisional appointment permit, thе Commissioner shall, if practicable, schedule an examination for such position.”
By § 32, provision is made for “temporary” employment. It provides that upon the request of the appointing officer the commissioner may “grant authority to the sаid officer to make temporary appointment to fill a vacancy in an employment of an essentially temporary and transitory nature.” That section was later amended (1938 rules, p. 47) to read as follows:
“No person shall receive more than two temporary employments in any one calendar year, nor shall the second temporary employment begin within thirty days of the termination of any preceding temporary or provisional employment.”
*563 By § 33, provision is made for “emergency” employment. Under it, “employing officers may employ persons without requisition to fill positions in any class of service; provided, however, that such employment shall not continue more than five days without the approval of thе Civil Service Bureau.”
Plaintiff points to all of these as positive proof that “all the substitutes” referred to as being plaintiff’s substitutes “were illegally employed,” since in none of the quoted sections of the regulations is provision made for the appointment of “substitutes.” Therefore, he concludes, the provision in § 52, in which he places abiding faith, has not been complied with, and hence “back pay” follows as a matter of course. And he repeatedly points to the fact that as to engine company No. 9, to which he was assigned, no substitute “performed any work” at said station.
The practice of the department was to place in active service a substitute for a regular fireman who had become ill, giving the latter 30 days’ full рay and thereafter during his illness the difference between his regular pay and that of his substitutes. And this Avas done in plaintiff’s case. A substitute so assigned to take the place of a sick man would be directed to render service when and where the need existed. The substitutes really constituted a reserve force to be placed whereArer the fire chief deemed their presence needed. This practice, so defendant maintains, was permissible and proper under § 351 of the charter, which рrovides “that- nothing therein [ordinances relating to civil service] shall prevent the said commissioner [of public safety] from using the officers and employes of one bureau temporarily for work in another, or the performance of work сonnected Avith the city business Avhich the said commissioner may direct them to perform.” And plaintiff concedes as much, for at pages 111 and 112 of his brief he says:
“That the employes of one bureau may temporarily be used in another is too clear to admit of argument. And it avouM no doubt follow that a fire fighter сould be transferred from one unit to another — temporarily or permanently.”
*564
That plaintiff rendered no service during the times for which he now seeks recovery is conceded. Nor is there any doubt that his designated substitutes were paid out of the money that otherwise would have gone to him if he had remained in service. If instead of a “substitute” plaintiff’s work had been done by a “temporary,” “provisional,” or “emergency” employe, would his claim to “back pay” be tenable? Of what importance, then, is the mere name given the one who took his place? We should look to the substance rather than to the label, since ascertainment of the legislative intent is the aim, 6 Dunnell, Dig. & Supp. § 8940; Spokely v. Haaven,
Other errors assigned have been considered, but we do not find them deserving of special treatment.
The judgment is affirmed.