
    John W. Percival, Water Commissioner of the City of Lincoln, appellant, v. Austin H. Weir, Mayor, et al., appellees.
    Filed October 6, 1897.
    No. 7411.
    Municipal Corporations: Water Commissioner: Removal oe Employes. The water commissioner of the city of Lincoln has not the power to remove a subordinate employe in the water department of the city, or to make appointments to fill .vacancies occurring therein.
    Appeal from the district court of Lancaster county. Heard below before Hall, J.
    
      Affirmed.
    
    
      E. H. Wooley and W. S. Hamilton, for appellant.
    
      N. O. Abbott, contra.
    
   Norval, J.

John W. Percival was elected water commissioner for the city of Lincoln at the general election held in said city on April 3, 1894, duly qualified and entered upon the discharge of the duties of his office. On May 6,1894, he appointed one P. W. Worthington as fireman for a certain station of the water-works department of the city, known as the . Antelope or Rice station, and pursuant to such appointment Worthington entered upon the discharge of his duties and continued therein until the 9th day of said month, when he was removed from his position by the defendant Wier, the mayor of the city, who at the same time appointed tire defendant A. L. Quay to said position of fireman. This action was instituted by Percival in the court below in 1894 to restrain the removal of Worthington from said position and to prevent the installation of Quay therein. From a decree dismissing the action, plaintiff appeals.

T'he sole question presented is whether at the time this action was instituted in the court below authority or power was lodged in the water commissioner to appoint employes in the water department of the city of Lincoln. Section 13, article 1, chapter 13», Compiled Statutes, 1893, provides for the election of a water commissioner. Section 89 of the same article, as it existed in 1887, after enumerating his duties and powers, declared that “said water commissioner shall perform such other duties as may be required of him by ordinance, and upon his recommendation the mayor and council may employ such laborer's and clerks as it may appear necessary.” But so much of said clause as reserved to the water commissioner the right to recommend persons for employment in his department was taken away by the legislature in 1889. (Compiled Statutes, 1889, ch. 13», art. 1, sec. 89.) When this suit was brought no authority to appoint subordinate employes was conferred by statute upon the water commissioner, nor did there exist any legislative enactment fixing the number of employes in the water department.

The following are the only provisions contained in the Municipal Code of the City of Lincoln, 1889, which have any bearing upon the question:

“Section 202. The mayor shall appoint such number of employes in the fire and water departments of the city as the council may provide by ordinance or resolution.
“Section 203. Such number of clerks and assistants as the council shall authorize by ordinance or resolution may be appointed by the mayor to assist the various city officers; Provided, That such persons only may be appointed as shall be recommended by the respective officers and be satisfactory to a majority of the council.
“Section 315. The water commissioner, under the direction of the mayor and council, shall have control and management of the water-works system of the city.
“Section 319. Subject only to the direction of the mayor and council, the water commissioner shall have control of all engineers, firemen, tappers, and other employes of the water department, and they shall obey his orders.
“Section 321. The water commissioner shall not purchase any material for the use of, or employ any.laborers in Ms department except upon the authority of the council or water committee thereof, unless it be repairs in case of emergency.”

No authority is contained in any of the foregoing provisions for the appointment of employes in the water department by the head of that department, although the water commissioner, under the direction of the mayor and council, has control of the water-works system of the city and the employes in Ms department. They are required to obey Ms orders, but the power to remove'any of them or to appoint others in their places does not devolve upon him. Whether such authority exist in the mayor alone, or is vested solely in the mayor and city council, it is unnecessary to determine, inasmuch as the appointment of Worthington being illegal, this action cannot be maintained, irrespective of whether the appointment of Quay by the mayor was legal or not. It is obvious that section 203 of the MuMcipal Code, quoted above, has no application to employes in the fire and water departments of the city. That section has no reference to the employes in either of said departments^, but applies to clerks and assistants in the other branches of the city government. The conclusion reached by tbe trial court was right and its judgment is

Affirmed.  