concurring.
When this case was being heard before the district court, the judge suggested to the attorney for the city that he supposed “that you would introduce testimony as to the reason or motive for the discharge of plaintiff by the city,” and the city attorney answered: “We do not intend to introduce any testimony. It is .our desire to have a square decision of the law in this case of the right and power of the city to discharge the plaintiff without notice or opportunity to be heard, and without hearing or charges being filed.” Whereupon counsel for the relator said: “With that statement the plaintiff rests.” No formal return was made to the alternative writ, but the city filed an answer to the application for the writ, which I think the court may properly consider in the nature of a general demurrer and determine the precise and only question so presented.
. The question is whether section 13 of the so-called Banning act confers upon the city council of Lincoln the power to discharge a member of the fire department arbitrarily without stating any cause therefor, and without a hearing. Of course section 13 is to be construed in the light of the other sections of the act and in the light of other'provisions of the statute which are still in force. The precise question is whether the whole of section 13 after the word rtprovided” is to be construed to apply only to cities of the metropolitan class, or whether that part of the proviso which provides that charges must be filed against such officer before he can be discharged; and regulates the procedure thereon, applies to all cities that may become governed by the act. The legislation from which this question is to be *65determined is not as specific and clear as might be desired. The clause that “no member or officer of the police or fire department shall be discharged for political reasons, nor shall a person be employed or taken into either of such departments for political reasons,” is taken from the act of 1905 (Rev. St. 1913, sec. 4200) which applies only to cities of the metropolitan class, and in that act those words were followed with the provision that, “before a policeman or fireman can be discharged, charges must be filed against him,” etc. In section 13, which we are considering, the expression is “before any such officer or employee can be discharged” The fact that the provision for filing charges and having a hearing before removal is borrowed from the statute covering metropolitan cities, and is not found in any of the statutes covering cities of other classes, indicates that the legislative intent was that this provision should apply only to cities of the metropolitan class as contended by the city. In cities of the first class, having over 40,000 and less than 100,000 inhabitants, there is a provision that “any such officers so appointed may be removed at any time by a vote of three-fourths of all the members of the council.” 'Rev. St. 1913, sec. 4483. And in cities from 25,000 to 40,000 inhabitants it is provided that the mayor “shall have power in like manner to remove from office, by and with the consent of a like majority of the council, any person or persons by him appointed thereto.” Section 4654. These facts furnish some indication that in these two classes of cities it was not intended by section 13 of the Banning act to require that charges should be filed and a hearing had before appointed officers were removed. If, however, we examine the provisions of the statutes governing the cities of the respective classes, we find also indications that the legisláture intended that this provision in regard to formal charges and hearing should also apply to other cities than of the metropolitan class. In cities of over 5,000 and less than 25,000 inhabitants it is provided that police officers “may be removed by the mayor at pleasure;” that other appointive officers may be removed for cause. Section 4874. This *66would of course require a statement of the cause and a hearing thereon. We see therefore that the internal evidence of the act itself, in the light of existing statutes upon the same general subject now in force, is conflicting and somewhat uncertain. To determine the intention of the legislature it is therefore very important to consider the nature of the office from which the relator was discharged, and the fact that by his discharge he is deprived of the benefit of the firemen’s pension law. If the city can discharge him without cause and without stating or having any reason therefor, it can be done of course at one time as well as another; and, when he has served for nearly the length of time to entitle him to a pension upon withdrawing from the service, he may be arbitrarily discharged and be deprived of his expected pension. It is argued that a fireman has no vested right in a pension under the statute, but whether or not he has a vested right, that is, a contract right, of which he cannot be deprived without compensation, it must be conceded that a competent and efficient fireman who has conscientiously and strictly performed his duties for a term of years has an interest in his prospective pension by which he may support his family and himself in his declining years. “The' pension forms an inducement to the individual to enter and remain in the service of the fire department, and the pension in a sense is part of the compensation paid for those services. * * * The state is under the same moral obligation to its injured firemen that it owes to the citizen who is injured while assisting in the capture of a criminal. The legislature may transform that duty into a legal obligation, and impose it upon the municipalities by statutes general in their application to the class of cities affected thereby, and, so long as the law is not repealed, that obligation will be enforced by the courts.” State v. Love, 89 Neb. 149, 156. We cannot consider that the legislature would authorize the city authorities to deprive him of this right without cause, and without reason, and without a hearing, unless it has so declared plainly and in unequivocal language. A similar question was presented to the supreme court of Michigan *67(Pulford v. Fire Department, 31 Mich. 458), and it was there decided: “There can be no power to impose forfeitures unless granted by clear legislative enactment. * * * It is abhorent to all reason to allow a forfeiture to be enforced on an alleged default without notice and a hearing, or an opportunity to be heard.” And in the opinion it is said: “Summary means and methods unknown to the common law must be authorized by express authority.” In State v. Love, 89 Neb. 149, the opinion says that in Gillespie v. City of Lincoln, 35 Neb. 34, it is said that firemen are all “public or state officers vested with such powers as the statute confers, and that the duties they perform do not relate to the corporate functions of the municipality.” If we conclude that the law is that appointed officers may ordinarily be removed by the appointing power, still when such removal destroys a very valuable right of the officer removed, expressly given him by statute, if we should say that the legislature might authorize such removal, it will not be considered that the legislature has done so, unless it is by the most clear and explicit terms.
It may be true, as contended by the city, that if we look only to the language of the Banning act, under which the city was being administered, the city might have authority to act upon its arbitrary will in employing or discharging its employees. But this other provision of the statute applying to the city of Lincoln gives to firemen, who have served the city for 21 years a right to a pension. In considering the rights of the relator, it seems that these two acts must be construed together. If the pension law is to be effectual for the purposes intended, it must be that an employee cannot be discharged on purpose to save the city from paying the pension provided for. Nor could the city adopt any method of employing or discharging such employees which would tend to defeat the purposes of the pension law. On the other hand, in legal contemplation, the employee has no vested or contractual right in the anticipated pension until its contingency has arisen. This, however, is an indisputable fact that employees will enter the service and remain in *68it with such a promise held out to them, when otherwise they would not. This mere expectancy of theirs is intended by the pension law itself for better and longer-continued service. In regarding the pension law, we must regard that. The question we have to consider is what should be the rule as to discharging employees so as not to do violence to either of the laws above mentioned. If the city council can discharge such employees without giving a reason therefor, then it might do so arbitrarily and with the intention of defeating his pension, leaving him somewhat helpless as to the proof of the real nature of his discharge, and thereby creating a situation which would render the pension law inoperative for the purposes for which it was intended.
On the trial of this case, the respondent declined to offer any testimony or give any reasons for the discharge of the employee. The trial court placed the burden of proof upon the employee to show that he was discharged for the purpose of defeating him of a pension, or under a system of discharging employees which would render inoperative the purposes of the pension law. In this I think the trial court erred. I think the better rule would be, if the spirit and intention of the Banning act and the pension law are both to be carried out as near as may be, that, before such an employee can be discharged, the substantial reason therefor should be stated, and that, if the reason given therefor is untrue, or if the reason given is one which, if acted upon, would go contrary to the purposes of the pension law, as designed, then such a discharge should not be permitted. Mere arbitrary or capricious discharge would operate to defeat the pension law. The burden of showing the reason for the discharge should be upon the city council. By this I do not mean that the city is powerless to discharge such employee for any reason that appears good to it, acting as reasonable men. It has full power to do whatever, in the exercise of its discretion, is reasonably necessary for the betterment of the service. The trial court heard evidence of relator apparently upon the theory that it was proper and necessary that the relator should show that his discharge *69was for the purpose of depriving him of his pension right. Of course upon the same theory the relator would sustain his case hy proving that he was discharged for any unlawful or insufficient reason. This theory virtually concedes the relator’s claim that he could only be discharged for cause. The most natural and regular way to prove that he was not discharged for any insufficient or improper cause would be to show that he was discharged for sufficient cause. And this burden should be placed upon the authorities who discharged him.
While the general question in this case is not free from serious doubt, I am inclined to agree with the opinion that the judgment of the district court should be reversed.