State, ex rel. Gaddis v. Bryan
| Decision Date | 17 May 1918 |
| Docket Number | 20367 |
| Citation | 167 N.W. 783,102 Neb. 506 |
| Parties | STATE, EX REL. EVAN R. GADDIS, APPELLANT, v. CHARLES W. BRYAN, MAYOR, ET AL., APPELLEES |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Lancaster county: WILLIAM M MORNING, JUDGE. Affirmed.
AFFIRMED.
B. F. Good, W. G. Hastings and A. W. Richardson, for appellant.
C Petrus Peterson and Charles R. Wilke, contra.
Appeal from an order of the district court for Lancaster county denying a writ of mandamus. Relator brought this action to compel respondents to place him upon the pension list of the city of Lincoln under the following provisions of section 2518, Rev. St. 1913:
"In case any fireman in a paid fire department in any metropolitan city, or city of the first class, shall become permanently and totally disabled from accident or other cause, while in the line of his duty, such fireman shall forthwith be placed upon the roll of pensioned firemen, at the rate as provided for retired firemen in the second preceding section: Provided, * * * in case of partial disability of a fireman received while in the line of duty, he shall receive his salary during the continuance of such disability for a period not to exceed twelve months: Provided, further, if it shall be ascertained by the board of fire and police commissioners or other proper municipal authorities within twelve months that such disability has become permanent, then his salary shall cease, and he shall be entitled to the benefits of the provisions with reference to pensions referred to in this article."
It was alleged that relator, a fireman in the employ of the city of Lincoln, had been permanently disabled by injuries received while placing some calks in the shoes of one of the horses of the department. Application had been made to the city commission for a pension, but that body, after a hearing, rejected the application on the ground that the evidence failed to show such a disability as the statute required. Action was thereupon brought in the district court for a writ of mandamus. That court denied the writ on the ground that mandamus would not lie to review the decision of the city commission.
The rule is well established that mandamus will lie against a public board to compel the performance of purely ministerial duties, but not to control the exercise of judicial functions. State v. Churchill, 37 Neb. 702, 56 N.W. 484. A duty is deemed to be of a judicial nature when it calls for the determination of a question of fact involving the examination of evidence and the passing on its probative force and effect. 18 R. C. L. 125; Secretary v. McGarrahan, 76 U.S. 298, 9 Wall. 298, 312, 19 L.Ed. 579.
The section of the statute under which this action is brought contemplates a hearing, the presentation of proof, and a decision based thereon by a board of city officials as a condition precedent to right of pension. The case is easily distinguishable from that of State v. Love, 89 Neb. 149, 95 Neb. 573.
The majority opinion, in the syllabus, declares the law to be that the city council will be held to have exercised "a judicial discretion" whenever the law "contemplated the presentation of proof," "a consideration thereof, and a decision thereon." This radical change in our law is of so much importance that it ought not to be announced without referring to our former decisions and furnishing the reasons for the change. Mandamus will not lie to control the "judicial discretion" of an administrative officer, or any other officer. The question in such cases generally is whether the officer has a "judicial discretion" to do or to refuse to do the act required. It has never before been decided by this court, or any other so far as my observation has gone, that in all cases where evidence of a fact is required, and must be considered and determined, the officer has a "judicial discretion" to refuse to act, as this syllabus and similar language in the opinion declares the law to be. This new departure will very much restrict the use of the writ of mandamus. Indeed, nearly all of the cases in which heretofore the writ has been allowed would be wrong under the law as now declared. In nearly every case there was some important fact that must be considered and determined upon which the right to the writ depended, and, if the controverted fact was so clearly proved that reasonable minds could not differ as to its existence, it was held that the respondent could not be held to have a "judicial discretion" as to such matters.
Whether the board of transportation had investigated charges against a railroad company, etc, was a question of fact that required proof and determination, but the respondent did not have a judicial discretion in determining that fact, and was...
To continue reading
Request your trial