Kurth v. City of Lincoln, 33945
| Decision Date | 18 May 1956 |
| Docket Number | No. 33945,33945 |
| Citation | 76 N.W.2d 924,162 Neb. 643 |
| Parties | Herman R. KURTH and Albert P. Schwarz, Appellees, v. CITY OF LINCOLN, a Municipal Corporation, et al., Appellants. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. In order to justify the issuance of a peremptory writ of mandamus against public officers it must appear that the duty is imposed by law, that the duty exists at the time the writ is applied for, and that the duty to act is clear.
2. The discretionary powers of public officers cannot be controlled by mandamus.
3. The acts of public officers which are to be performed in a ministerial as distinguished from a governmental or discretionary capacity may be controlled by mandamus.
4. Where public officers are required to examine facts and law in order to make a determination, action to be taken on that basis is not ministerial but is governmental and judicial, and mandamus will not lie to control the action.
Jack M. Pace, Wayne R. Douce, Lincoln, for appellants.
Homer L. Kyle, Lincoln, for appellees.
Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE and BOSLAUGH, JJ.
This is an action in mandamus by Herman R. Kurth and Albert P. Schwarz, plaintiffs and appellees, against the City of Lincoln, a municipal corporation, the Mayor and the respective members of the City Council of the City of Lincoln, defendants and appellants.
For cause of action the plaintiffs pleaded in substance that they and their predecessors in title were the owners in fee simple during all of the times involved of certain real estate described as Lot 52 of Irregular Tracts in the southeast quarter of Section 14, Township 10, Range 6, in Lincoln, Lancaster County, Nebraska; that on or about May 21, 1937, the city of Lincoln instituted proceedings to condemn a part of this land for street and highway purposes (apparently the land was situated in what was at that time described as Lot 38, Irregular Tracts); that the proceeding was heard and award rendered thereon from which award the plaintiffs herein appealed to the district court; that after appeal an agreement was reached whereby the matter was settled; that by the settlement, among other things, the city agreed to zone the east 194 feet of the property remaining in Lot 38 of Irregular Tracts lying north of the Cornhusker Highway Cut-off for local business (this area appears to be the area lying to the north of the Cornhusker Highway Cut-off in what is now described as Lot 52 of Irregular Tracts); that in 1939 in performance of the agreement the city did zone this area for business; that in 1953 while the area was zoned for business the plaintiffs negotiated a lease agreement for the lease of a part of this area for the erection of a filling station; that thereafter a building permit was requested but denied by the defendant city; that it was denied for the reason that it had been rezoned for park purposes (presumably it was rezoned between the time the agreement was entered into and the building permit requested); that the rezoning and repeal of the ordinance classifying the real estate for local business purposes was contrary to and in violation of the terms of the agreement entered into by the city and the plaintiffs in 1939; that it was done without notice to plaintiffs; that it was confiscatory and in violation of the provisions of the Constitutions of the United States of America and of the State of Nebraska in that it was the taking of private property for public use without just compensation and without due process of law; and that it was arbitrary and unreasonable.
On the facts as alleged the relief prayed for was that a peremptory writ of mandamus be issued requiring the defendants to revoke and annul the present zoning classification; requiring that the defendants zone the area for local business purposes; and requiring that a permit be issued to the plaintiffs and their successors in interest and title to erect a filling station and other buildings suitable and proper for the operation of small business enterprises.
To the petition the defendants filed a general demurrer. This was overruled. Thereafter an answer was filed. The answer admitted the alleged capacity of the defendants, the ownership of the real estate in question, and the alleged condemnation proceeding. Otherwise it was a general denial.
A trial was had to the court at the conclusion of which a decree was rendered by the terms of which the relief prayed by the plaintiffs was granted. The defendants duly filed a motion for new trial which was overruled. From the decree and the order overruling the motion for new trial the defendants have appealed.
The brief of the defendants contains three assignments of error which they contend constitute grounds for reversal. The first one is that the court erred in ordering the issuance of a peremptory writ of mandamus to the defendants commanding them to annul the present zoning, to restore the former zoning, and to grant permission for the erection of filling stations and the conduct of other business on the area.
In this assignment inheres a question which, in the light of plaintiffs' pleaded cause of action, is fundamental and must receive first consideration. The question apparently was never presented to the trial court and it has not been presented here by the briefs of the parties except to the extent that it inheres in this assignment of error. Nevertheless in the interest of legal and judicial integrity and understanding it may not be ignored.
From the petition with its prayer, which has been abstracted in considerable detail herein, it becomes clear that the action is neither nominally nor in substance injunctive in character. It is an action in mandamus. In the action is sought a peremptory writ of mandamus requiring the governing body of the city of Lincoln to repeal a part of a zoning ordinance, to re-enact an effectually previously repealed zoning provision, and to issue general authority for the construction of unnamed structures on the described area. The decree of the district court responded affirmatively to the petition and its prayer.
No historic or contemporary rule of law or equity has come to our attention...
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...City of Crawford v. Darrow, supra; State ex rel. Kelley v. Ferguson, 95 Neb. 63, 144 N.W. 1039, 50 L.R.A., N.S., 266; Kurth v. City of Lincoln, 162 Neb. 643, 76 N.W.2d 924. As stated in State ex rel. Moore v. Chicago, St. P., M. & O. R. R., 19 Neb. 476, 27 N.W. 434, 437: 'Mandamus is not a ......
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