Belitz v. City of Omaha

• Decision Date: 31 March 1961
• Docket Number: No. 34889,34889
• Citation: 172 Neb. 36,108 N.W.2d 421
• Parties: Bernyce BELITZ, Appellee, v. CITY OF OMAHA, Nebraska, Appellant.
• Court: Nebraska Supreme Court

Page 421

108 N.W.2d 421

172 Neb. 36

Bernyce BELITZ, Appellee, v. CITY OF OMAHA, Nebraska, Appellant.

No. 34889.

Supreme Court of Nebraska.

March 31, 1961.

Syllabus by the Court

1. Article VII-A of the home rule charter of the city of Omaha, added to such charter in 1942, by vote of the electorate, did not repeal Article VI, section 2, of such charter.

2. When a matter is held in abeyance it is in a condition of being undetermined. It is not finally settled.

3. A final order within the meaning of section 25-1902, R.R.S.1943, is one which determines the action and prevents a judgment.

4. An order is final only when no further action is required to dispose of the cause pending, but when the cause is retained for further action the order is interlocutory.

5. In construing a statute, the legislative intention is to be determined from a general consideration of the whole act with reference to the subject matter to which it applies and the particular topic under which the language in question is found, and the intent as deduced from the whole will prevail over that of a particular part considered separately.

6. The purpose of pension laws is beneficial, and statutes of that character should be liberally construed in favor of those intended to be benefited.

7. Under Article VI, section 2, of the home rule charter of the city of Omaha, all rights to a fireman's pension are fixed at the date of his retirement, and his wife would be entitled to a pension upon his death in accordance with the charter provision as it then existed, and subject to the condition therein contained that if she remarried her pension rights would terminate.

8. Long-continued practical construction of a statute by the officers charged by law with its enforcement is entitled to considerable weight in interpreting that law.

Herbert M. Fitle, Bernard E. Vinardi, Irving B. Epstein, Frederick A. Brown, Benjamin M. Wall, Edward M. Stein, Steven J. Lustgarten, Omaha, for appellant.

Tesar & Tesar, Eugene F. Fitzgerald, Young, Holm, Miller & McEachen, Omaha, for appellee.

Heard before CARTER, MESSMORE, YEAGER, SPENCER and BOSLAUGH, JJ.

MESSMORE, Justice.

Bernyce Belitz brought this action in equity as plaintiff in the district court for Douglas County against the City of Omaha, a municipal corporation, defendant, to obtain a judgment directing the defendant to pay plaintiff a pension in the sum of $102.50 a month from May 16, 1954, to the date of plaintiff's death or remarriage. The trial court rendered judgment in favor of the plaintiff, granting a pension of $102.50 a month from and after May 26, 1954, so long as she remained unmarried. The defendant filed a motion for new trial. The trial court overruled the defendant's motion for new trial and defendant appealed to this court.

Michael J. Belitz, referred to in the record as M. J. Belitz, was appointed to the fire department of the city of Omaha on December 3, 1908, served in such department for 24 years, 9 months, and 23 days, and retired from such service on September 26, 1933. Upon his retirement, M. J. Belitz was placed on the defendant's pension list and was paid a pension of $102.50 a month from the date of his retirement until the date of his death, May 16, 1954. On September 12, 1939, M. J. Belitz married the plaintiff. On May 24, 1954, the plaintiff made application for a widow's pension. The city council of the city of Omaha, by resolution adopted June 8, 1954, awarded plaintiff, widow of retired fireman M. J. Belitz, a widow's pension effective May 16, 1954, the date of the death of M. J. Belitz. The city council, at a regular meeting held June 22, 1954, revoked and repealed the resolution granting the application of the plaintiff and ordered the application held in abeyance pending the result of pending litigation. The pending litigation referred to involved the question of whether or not widows, who were not married to firemen at least 1 year prior to the date of their retirement, were eligible to receive a widow's pension.

Subsequently, the plaintiff, by her attorneys, renewed her request that her claim for a pension be allowed, and the claim was denied by a resolution adopted by the city council March 19, 1957. All procedural steps were taken to appeal to the district court from the denial of the plaintiff's claim for a widow's pension as ordered by the city council on March 19, 1957, and a petition was filed in the district court on April 3, 1957.

The city of Omaha is a city of the metropolitan class and operates under a home rule charter. We will refer to the city of Omaha as the city.

The city assigns as error that the trial court was without jurisdiction to render a judgment, and that the trial court's judgment was not supported by sufficient evidence and was contrary to law.

Article VI, section 2, of the city charter of the city of Omaha is a part of the original home rule charter of the city adopted July 18, 1922, pursuant to Article XI, section 5, of the Constitution of Nebraska, and is a verbatim adoption of the language now contained in section 14-705, R.R.S.1943. It provides in part: 'All metropolitan cities having a paid fire department, shall pension all firemen of the paid fire department, whenever such firemen shall have first served in such fire department for the period of twenty-one years, and shall elect to retire from active service and go upon the retired list. Such pension shall be paid by the city in the same manner as firemen upon the active list are paid, and such pension shall be at least fifty per cent of the amount of salary such retiring fireman shall be receiving at the time he goes upon the pension list; Provided, in no case shall the amount of such pension be less than fifty dollars per month. At the death of any retired fireman the same rate of pension as herein provided shall be paid to the widow of such deceased fireman during such time as the shall remain the widow of such deceased fireman * * *.' (Emphasis supplied.)

Article VII-A of said city charter was added to the city charter by ordinance adopted by the electorate of the city, and became effective June 30, 1942. Sections 2, 8, and 15 of Article VII-A are the only sections pertinent here. On the date of the death of M. J. Belitz, they provided in part: 'Section 2. Notwithstanding the provisions of Sections 13 and 13A of Article V and Section 2 of Article VI of the existing City Charter of the City of Omaha, and the provisions of any other section, or any amendment or supplement thereto, when any member of the Police or Fire Department of the City of Omaha shall have served twenty-five (25) years, or over, in the aggregate, as a member, in any capacity or rank whatever, of the regularly constituted Departments of the City of Omaha, being of the age of fifty-five (55) years, or over, such person shall have the absolute right and be entitled, on his application made in writing to the City Council, to retire from active service on such Departments and shall be allowed a pension of Seventy ($70.00) Dollars per month; PROVIDED, that any such applicant must be a member of either of said Departments at the time of making such application in order to be entitled to the benefits of this act, and PROVIDED, further that when any member shall have served twenty-six (26) years he shall be entitled to an additional dollar of pension per month, and for each additional year of service, such member shall be entitled to an additional dollar of pension per month, but in no case shall a member receive a pension in excess of a total of Eighty ($80.00) dollars per month. If, upon the death of any such retired member of the Departments, he leaves surviving him a widow who was legally married to said member at least one (1) year before his retirement, a pension of Forty ($40.00) Dollars a month shall be paid to such widow for the benefit of herself and minor children, so long as she shall remain the widow of such retired member, * * *.' (Emphasis supplied.)

'Section 8. This Act shall apply to all members of the Departments of the City of Omaha who are members at the time this Act becomes effective or who are thereafter appointed, except such members who are eligible to retire, at the time this Act becomes effective, under the provisions of Section 13 of Article V or Section 2 of Article VI of the City Charter of Omaha, but who have not retired, under either of the foregoing Charter provisions and they shall be allowed a pension as provided by Section 13 of Article V for members of the Police Department, and Section 2 of Article VI for members of the Fire Department, at anytime thereafter, on application in writing to the City Council in accordance with said Sections. Members who have retired on a pension, and widows and minors receiving a pension, prior to the effective date of this Act, shall not be affected by any of its provisions. * * *'

'Section 15. This Act shall become effective at 12:00 midnight of June 30, 1942.'

Article VI, section 2, of the city charter was not repealed by the amendment adding Article VII-A, and Article VI, section 2, remained a part of the city charter.

The city contends that the trial court did not have jurisdiction of the subject matter because the action of the city council taken on June 22, 1954, revoking and repealing the previous action and holding the granting of the pension in abeyance pending other litigation, was a final order; and that a jurisdictional question may be raised at any stage of the proceedings.

The question of filing the appeal out of time was not raised by the city in the trial court.

In Anania v. City of Omaha, 170 Neb. 160, 102 N.W.2d 49, this court held that the want of jurisdiction may be taken advantage of during any stage of the proceedings. See, also, Barney v. Platte Valley Public Power & Irr. Dist., 144 Neb. 230, 13 N.W.2d 120.

The city asserts that in the action taken by the city council on June 22, 1954 wherein it...