State ex rel. Herman v. City of Grand Island
| Decision Date | 28 July 1944 |
| Docket Number | 31804. |
| Citation | 15 N.W.2d 341,145 Neb. 150 |
| Parties | STATE et rel. HERMAN v. CITY OF GRAND ISLAND et al. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. The policy or impolicy of statutory provisions is the exclusive function of the lawmaking body and not of courts. Therefore, where the language of a statute is unambiguous there is no necessity for construction, and courts cannot change the clear language thereof.
2. A fireman employed by a city of the first class, having a paid fire department, 'elects to retire from active service,' as provided by section 2439, Comp.St. 1922, if having served 21 years, he resigns and requests that he be placed upon the retired list.
3. Such fireman's election to retire from active service is optional on his part, but when exercised by him every prerequisite of the statute is complied with, and his right to a pension under existing law is perfect, whereupon it becomes the statutory duty of the city to put him upon the retired list and pay the pension to which he is lawfully entitled.
4. The discretion of a public officer cannot be controlled by mandamus, but 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 duty is to be performed may compel its performance by mandamus.
5. Where a specific duty is provided by statute mandamus may be invoked to enforce it, if denied; and the party entitled to such relief will not be forced to pursue his remedy by a circuitous and dilatory action at law.
6. Mandamus is a proper remedy to require a city of the first class having a paid fire department to place a fireman upon the retired list and pay him a pension after he has served 21 years and elected to retire from active service as provided by section 2439, Comp.St. 1922.
7. The mere fact that there is another remedy at law will not prevent the issuance of a writ of mandamus unless the other remedy is adequate to afford relief upon the very subject matter involved, a remedy appropriate and effectual to enforce the right or compel performance of the particular duty in question, and a remedy to which the relator may at all times resort for full relief against the party from whom the duty is owing as distinguished from one against a third person.
C. E. Cronin, P. C. Holmberg, and A. G. Abbott, all of Grand Island, for appellants.
Harold A. Prince, of Grand Island, for appellee.
Heard before SIMMONS, C. J., and PAINE, CARTER, MESSMORE, YEAGER, CHAPPELL, and WENKE, JJ.
This is a mandamus action filed by relator, appellee, in the district court for Hall county against the city of Grand Island, its mayor and councilmen, respondents, appellants, praying that they be required to place relator on the city retired firemen's pension roll under the provisions of section 2439, Comp.St. 1922. After hearing upon the issues presented the trial court found in favor of relator and by peremptory writ of mandamus ordered that respondents place relator on the city pension roll as a pensioned fireman as of February 9, 1943, at $83.75 per month, payable in the same manner as firemen on the active list are paid.
Respondents appeal from the judgment, contending that the trial court erred in finding that relator had retired from active service; that because of equitable considerations in a war emergency the writ should not be awarded; that mandamus is not a proper remedy for the enforcement of relator's rights; that relator has another action pending in the district court for Hall county which bars mandamus; and that the decree is not supported by the law and the evidence. We find that the law and the record in the instant case do not support these contentions.
We have presented for decision in this appeal only questions of law under admitted facts. The undisputed evidence is that the city of Grand Island at all times concerned was a city of the first class, maintaining a paid fire department. William Herman, relator, entered the service of the city's fire department on August 8, 1921, and served as a paid fireman therein continuously up to and including February 8, 1943, a period of 21 years and six months.
On September 3, 1941, relator was appointed and qualified as assistant fire chief. He continued to serve in such capacity to and including February 8, 1943, the last day of active service in the department. At the time of his retirement from active service his salary, as provided by city ordinance, was $167.50 per month, that is, $83.75 payable on the 5th and 20th of each month. On February 11, 1943, after a conference with the mayor, relator delivered to the city the following application:
Thereafter on May 19, 1943, by resolution, and not by settlement or agreement with relator, the mayor and city council placed relator upon the city firemen's pension list at $73.75 per month which was $10 less than 50 per cent of the amount of salary he was receiving at the time of his retirement as required by section 2439, Comp.St. 1922. The city paid him at that rate from February 9, 1943, to and including May 31, 1943. Relator then filed a claim with the city for $37.14, a sum representing the difference between the amount of pension allowed by the city and that required by statute during such period. This claim was disallowed, and, in addition thereto, on June 16, 1943, without notice to relator or his attorney, and in their absence, the mayor and city council passed the following motion: 'On motion of Starr, seconded by Krieger, William Herman was cut from the pension payroll until the court decides whether or not he is a retired fireman.' Thereupon the city refused to pay his pension. From the disallowance of relator's $37.14 claim by the city, he appealed to the district court for Hall county, and thereafter filed this mandamus action to be restored to the pension list.
We have recently held 'that a statute providing for firemen's pensions is a matter of state-wide concern applicable to all cities within the designated class, whether they be home rule cities or not.' Axberg v. City of Lincoln, 141 Neb. 55, 2 N.W.2d 613, 615, 141 A.L.R. 894. The effect of such ruling is that the firemen's pension law as a state law controls municipal action. The statute involved in this action is chapter 21, art. II, section 2439, Comp.St.1922, which, in so far as it is material here, provides: Section 2442, Comp.St. 1922, provides:
Respondents contend that relator did not retire from active service for the reason that after he quit the city fire department he obtained employment in a fire department at an army air base, a separate entity, approximately five miles from Grand Island. It is insisted that relator elected to retire from active service without in fact retiring; that he just quit or resigned to take other employment, and that the city council was required to exercise discretion or act quasi judicially in determining whether under the statute relator did in fact retire from active service. There is no contention here that relator was not entitled to an honorable discharge.
In a very similar mandamus case, State ex rel. Haberlan v. Love, 95 Neb. 573, 145 N.W. 1010, 1013, Ann.Cas.1915D, 1078, the relator who had served as a paid fireman of the city of Lincoln for more than 21 years, testified, 'I just quit.' And, in this connection, the court said: 'Did Haberlan retire? Haberlan resigned. His resignation was an election to retire, and the Standard Dictionary defines 'retire' (See, also, 54 C.J. 739). In State v. Mayor and City Council, 4 Neb. 260, this court says 'In the absence of some statutory provision, we know of no rule which requires such resignation to be accepted by the municipal authorities, to make it effective. Their refusal, even, to accept it, would not have the effect to compel him to retain the office against his will.'' It would seem conclusive that this court has held specifically that to quit, resign, separate, or withdraw, and retire with respect to the identical law here involved, mean exactly the same thing. Therefore, a fireman employed by a city of the first class having a paid fire department, 'elect[s] to retire from active service,' as provided by section 2439, Comp.St.1922, if, having served 21 years, he resigns and requests that he be placed upon the retired list. Such fireman's election to retire from active service is optional on his part, but when exercised by him every prerequisite of the statute is complied with, and his right to a pension under existing law is perfect,...
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