# Axberg v. City of Lincoln > Nebraska Supreme Court · February 20, 1942 · 141 Neb. 55 URL: https://www.frixlaw.com/law-library/cases/8038057 ## Case - **Full name:** George Axberg v. City of Lincoln - **Court:** Nebraska Supreme Court - **Decided:** February 20, 1942 - **Citations:** 141 Neb. 55; 2 N.W.2d 613; 141 A.L.R. 894; 1942 Neb. LEXIS 89 - **Precedential status:** Published - **Opinion:** Dissent by Messmore - **Judges:** Both, Carter, Eberly, Messmore, Paine, Rose, Simmons, Yeager - **Cited by:** 47 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8038057 ## Opinion text Messmore, J., dissenting. The majority opinion states the general rule, supported by many foreign decisions, that the matter of firemen’s pensions is of state-wide, rather than of local, concern. This holding does not conflict with our decision in Munch v. Tusa, 140 Neb. 457 , 300 N. W. 385 , for the reasons given in such opinion, and the cases are distinguishable. I am fully convinced that the broad language used in the decisions of this court with reference to home rule charters dictates a different rule to be made in this state than that formulated in the majority opinion. I quote from a few of the Nebraska decisions: In Consumers Coal Co. v. City of Lincoln, 109 Neb. 51 , 189 N. W. 643 , the court held: “The purpose of the consti *67 tutional provision is to render cities independent of state legislation as to all subjects which are of strictly municipal concern; therefore, as to such matters general laws applicable to cities yield to the charter.” In Schroeder v. Zehrung, 108 Neb. 573 , 188 N. W. 237 , the following language appears in the opinion: “If a city, after having adopted a home rule charter, was still to be subject to all the provisions of the former legislative charters, there could be no object or purpose in adopting a home rule charter.” It is apparent that the foregoing broad language is indicative that this state definitely intended home rule charters to place the government of the city in the hands of the people, who are most concerned about its development in fire and police protection, and other matters. A pension to be paid to firemen must, by necessity, be paid by the taxpayers of the city where the fireman is employed. This is a matter of compensation allowed on the basis of meritorious service as a fireman. The best judges of that meritorious service are those who have the authority to employ the personnel of the fire department and to watch their work through the period of time, to determine their competency and their right to compensation and a pension. Suffice it to say that the people of the state generally, residing without the jurisdiction of a home rule charter city, should have nothing to do with the selection of the personnel of a fire department or the right to discharge any member thereof for inefficiency, .and, further, should have no right to determine the necessary qualifications of such personnel, as far as their rights to pensions are concerned, and who, in fact, are not taxed in any manner to provide pensions; are not taxed in any manner to provide for even a portion of the salary of a fireman while employed, and assuredly are not entitled to a voice in the matter of pensions or compensation. That is to say, whether the city of Lincoln shall pay its policemen or firemen all they earn currently, or shall pay them part of their salary as it currently accrues, and the balance in the form of pensions, is certainly not such a matter of *68 general concern to the people of the state as to involve a public need or policy. If the people of the state are concerned with that question, they can be only indirectly or remotely affected. Therefore, I am convinced that the most logical and reasonable rule to adopt in this state would be that a pension to be paid to firemen in the service of a home rule charter city, and, — to repeat, — to be paid by the taxpayers of such city, is a matter of purely local, and not of state-wide, concern. I concur in that part of the majority opinion which holds that chapter 151, Laws 1923 (Comp. St. 1929, secs. 35-201 to 35-204), is unconstitutional and void. Even though the majority opinion reflects the general rule and is adequately supported by authority, I am convinced, under the circumstances, that a rule, such as I have suggested', meets the requirements of this state and should be the law. ■ ■ Rose, J., concurs in both of the above dissents.' --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8038057. Public record. Not legal advice.