98 Neb. 634 | Neb. | 1915
The relator, a citizen and taxpayer of the city of Lincoln, a city of the first class having more than 40,000 and
Appellants contend that relator did not have capacity to maintain the action. In State v. City of Kearney, 25 Neb. 262, this court said: “The rule that, when the question presented is one of public right, and the object of the action is to enforce the performance of a public duty, it is sufficient for the relator to show that he is a citizen, and as such is interested in the execution of the laws, applies more particularly to cases where the failure to perform the duty affects all the members of the community alike.” The matter of fire protection being a matter in which all members of the community are interested, it follows that all citizens and taxpayers within the city have an interest in the equipment and management of the fire department, and, the relator having shown that he is a citizen and taxpayer, this assignment of error is not well taken.
The statute relied on is an amendment of an older statute, and one that -Avas in force before the city of Lincoln adopted the commission form of government. When the amendment was adopted no reference was made to any of the sections of the statute bringing about this change in the form of government, and it is contended by respondent that, because of the adoption of the commission form of government by the respondent, the section amended does not apply to the city of Lincoln. This assignment is not well taken. When, by the adoption of the provisions of the Banning Act, the city changed its form of government, it still remained subject to the statutes applicable to cities of its class, not only as they then existed, but subject to such changes and amendments as future legislatures might make. The section amended is the only one dealing with the question of a fire department, and in providing for the “double shift” for firemen it was the only section necessary to amend.
Again, we are asked to hold that the statute is special and class legislation, because it exempts the chief and assistant chief from its provisions, and. that it is therefore void. There seems to be good reason for dividing the fire department into classes, placing the chief and his assistant in one class, and the men who do the manual labor in another class. There may be, and undoubtedly is, good reason for this classification, and, as the legislation is uniform as to the class sought to be affected, it cannot be said to come within the inhibition of the constitution.
Affirmed.