State ex rel. Bintz v. Nebraska State Bd. of Examiners for Professional Engineers and Architects, 33030

• Decision Date: 04 January 1952
• Docket Number: No. 33030,33030
• Citation: 155 Neb. 99,50 N.W.2d 784
• Parties: STATE ex rel. BINTZ v. NEBRASKA STATE BOARD OF EXAMINERS FOR PROFESSIONAL ENGINEERS AND ARCHITECTS et al.
• Court: Nebraska Supreme Court

Page 784

50 N.W.2d 784

155 Neb. 99

STATE ex rel. BINTZ v. NEBRASKA STATE BOARD OF EXAMINERS FOR PROFESSIONAL ENGINEERS AND ARCHITECTS et al.

No. 33030.

Supreme Court of Nebraska.

Jan. 4, 1952.

Syllabus by the Court

A court has no power by mandamus to control the decision of those matters which are left by statute to the discretion of the governing body of a governmental agency.

Matthews, Kelley, Fitzgerald, Matthews & Delehant, Omaha, for appellant.

Clarence S. Beck, Atty. Gen., Walter E. Nolte, Deputy Atty. Gen., for appellees.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

CHAPPELL, Justice.

This is a mandamus action wherein plaintiffs sought to require 'defendants, and each of them, to execute, issue, and deliver to your relator, Wesley Bintz, a Certificate of Registration to practice professional engineering in the State of Nebraska.' Defendants demurred generally to the petition for the reason that it did not state a cause of action upon which the court could issue a writ of mandamus. Their demurrer was overruled and defendants answered, wherein, among other defensive grounds they renewed their contention that plaintiff's petition did not state a cause of action. Plaintiff's reply was a general denial.

After a lengthy hearing upon the merits, the trial court rendered its decree, denying the relief prayed and dismissing plaintiff's petition. Plaintiff's motion for new trial was overruled, and he appealed, assigning, insofar as important here, that the judgment was contrary to law. We conclude that the assigment should not be sustained.

It appears from the record that on January 16, 1945, plaintiff filed an application for a certificate of registration. However, after full inquiry, and in the exercise of its discretion based upon the facts presented, defendant board of examiners denied plaintiff's application on August 2, 1945. Plaintiff did not prosecute error therefrom, and such denial became final. Whether or not such denial was an abuse of discretion cannot be determined in this mandamus action. Plaintiff alleged that subsequently, on September 7, 1949, defendants refused to accept the filing of another application, but in this action he does not pray that defendants should be required to do so. Rather herein plaintiff asked the district court, and upon appeal asks this court, to require defendants to issue a certificate of registration, thereby controlling defendant board's discretion. In other words, plaintiff has undertaken in this action to require the courts to administer the law and exercise a discretion committed by law to defendant board of examiners. It well established that such a mandamus action cannot be maintained.

In support of his action, plaintiff relied upon Downs v. Nebraska State Board of Examiners, 139 Neb. 23, 296 N.W. 151. An examination of that opinion discloses that such action was in mandamus to require the Nebraska State Board of Examiners for Professional Engineers and Architects to issue plaintiff Downs a certificate of registration without an examination. In such case this court affirmed the issuance of a peremptory writ in the light of an applicable 'Grandfather Clause' contained in section 71-3309, C.S.Supp., 1939, same being section 9 of Legislative Bill No. 14, enacted by the 1937 session of the Nebraska State Legislature, which specifically provided that in such case '* * * the Board shall issue a certificate of registration, without written or oral examination, in Engineering or Architecture, * * *.' It is apparent that such case is not in point here, and has no application under applicable statutes. Plaintiff here makes no claim that he was entitled to a certificate under such a 'Grandfather Clause' as a matter of right. Rather, he is prosecuting this mandamus proceeding to control discretion as distinguished from ministerial action.

In State ex rel. Smith v. Nebraska Liquor Control Commission, 152 Neb. 676, 42 N.W.2d 297, relied upon by plaintiff, we allowed a writ of mandamus because the statute sought to be enforced left 'open no area for the exercise of a discretion. It requires the performance of a purely ministerial duty.' It was specifically held therein that: 'When a specific duty is made plain by statute, and the officer is not given any discretion in the matter, one for whose benefit the...