State ex rel. Wieland v. Beermann

• Decision Date: 04 November 1994
• Docket Number: No. S-94-897,S-94-897
• Citation: 246 Neb. 808,523 N.W.2d 518
• Parties: STATE of Nebraska ex rel. William A. WIELAND, Relator, v. Allen J. BEERMANN, Secretary of State of the State of Nebraska, Respondent.
• Court: Nebraska Supreme Court

Page 518

523 N.W.2d 518

246 Neb. 808

STATE of Nebraska ex rel. William A. WIELAND, Relator, v. Allen J. BEERMANN, Secretary of State of the State of Nebraska, Respondent.

No. S-94-897.

Supreme Court of Nebraska.

Nov. 4, 1994.

Syllabus by the Court

1. Statutes: Appeal and Error. The general rules governing statutory construction and interpretation provide that in the absence of anything to the contrary, statutory language is to be given its plain and ordinary meaning; the Nebraska Supreme Court will not resort to interpretation to ascertain the meaning of statutory words which are plain, direct, and unambiguous.

2. Time: Words and Phrases. "Prior to" means before and cannot include the terminal date.

3. Statutes: Time. Neb.Rev.Stat. § 25-2221 (Reissue 1989) controls the method of computing the statutory filing deadline imposed by Neb.Rev.Stat. § 32-707.01 (Reissue 1993).

4. Actions: Words and Phrases. The term "action or proceeding" generally refers to business before a court or judicial officer, but the term is not restricted in application to those actions which occur within the walls of a courtroom.

5. Statutes: Intent: Time. A statutory rule for the computation of time is usually construed as a general provision relating to all acts required and permitted by law, unless an intention to the contrary affirmatively appears or a different construction seems imperative, and it may be applied in matters of practice as well as in the construction of statutes.

6. Time: Words and Phrases. Unless the context shows otherwise, the word "month" means calendar month. A calendar month is a period terminating with the day of the succeeding month, numerically corresponding to the day of its beginning, less one. If there be no corresponding day of the succeeding month, it terminates with the last day thereof.

7. Mandamus: Words and Phrases. Mandamus is a law action and is defined as an extraordinary remedy, not a writ of right, issued to compel the performance of a purely ministerial act or duty, imposed by law upon an inferior tribunal, corporation, board, or person, where (1) the relator has a clear right to the relief sought, (2) there is a corresponding clear duty existing on the part of the respondent to perform the act in question, and (3) there is no other plain and adequate remedy available in the ordinary course of the law.

8. Mandamus. The general rule is that an act or duty is ministerial if there is an absolute duty to perform in a specified manner upon the existence of certain facts.

9. Mandamus. A seemingly discretionary decision to act may, in fact, be purely ministerial.

10. Mandamus. Legal or factual determinations made at the outset of the inquiry do not make the decision to act discretionary. The requirement to act upon certain factual findings is still ministerial if there is a requirement to act at all.

11. Mandamus: Public Officers and Employees. Where the duty of a public official is mandatory and not discretionary, mandamus is available where the responsible officer has refused to carry out his statutory obligation.

12. Constitutional Law: Courts. The Nebraska Supreme Court will not pass upon the constitutionality of legislation absent a need to do so in order to properly dispose of an action.

Denzel R. Busick, of Luebs, Leininger, Smith, Busick & Johnson, Grand Island, for relator.

Don Stenberg, Atty. Gen., and Dale A. Comer, Lincoln, for respondent.

HASTINGS, C.J., WHITE, CAPORALE, FAHRNBRUCH, LANPHIER, and WRIGHT, JJ., and BOSLAUGH, J., Retired.

PER CURIAM.

Relator, William A. Wieland, in this original action seeks a writ of mandamus compelling respondent, Allen J. Beermann, the Secretary of State of the State of Nebraska, to remove proposed Legislative Resolutions 2CA, 29CA, 277CA, 15CA, and 293CA from the November 8, 1994, general election ballot. Wieland alleges in his first cause of action that Beermann accepted the explanatory statements which describe the proposed constitutional amendments after the statutory filing deadline, and thus must be compelled to remove the proposals from the ballot. We grant the petition and hereby order Beermann to withdraw the proposed constitutional amendments listed above.

The facts of this case are not in dispute. Wieland and Beermann stipulate that the explanatory statements were delivered to Beermann's office by the Executive Board of the Legislative Council of the Nebraska Legislature on July 8, 1994. Neb.Rev.Stat. § 32-707.01 (Reissue 1993) provides in relevant part:

When any proposal is placed on the ballot for a vote of the electorate of the entire state, submitted by the Legislature a statement, in clear, concise language, explaining the effect of a vote for and a vote against the proposal shall be printed immediately preceding the ballot title. Such statement ... shall be prepared by the Executive Board of the Legislative Council and submitted to the Secretary of State not less than four months prior to the general election for certification to the county clerks and election commissioners along with the ballot titles.

(Emphasis supplied.) Wieland and Beermann disagree on whether the July 8 submission of the explanatory statements meets the deadline imposed by the Legislature in § 32-707.01.

At the heart of this action are two issues: (1) whether the explanatory statements were filed before the statutory deadline and (2) if the statements were not filed on time, whether a writ of mandamus is the proper remedy to compel Beermann to withdraw the proposals from the November 8 election ballot. We shall discuss each issue in order.

To determine whether the explanatory statements were timely filed, we must first ascertain the statutory deadline. It is clear that § 32-707.01 sets the amount of time that must intervene between the filing day and the election. At issue is how to apply the requirement of § 32-707.01 that the explanatory statements be submitted to the Secretary of State "not less than four months prior to the general election."

We have consistently held that the general rules governing statutory construction and interpretation provide that in the absence of anything to the contrary, statutory language is to be given its plain and ordinary meaning; this court will not resort to interpretation to ascertain the meaning of statutory words which are plain, direct, and unambiguous. In re Application of Jantzen, 245 Neb. 81, 511 N.W.2d 504 (1994); State on behalf of Matchett v. Dunkle, 244 Neb. 639, 508 N.W.2d 580 (1993); Malzahn v. Transit Authority, 244 Neb. 425, 507 N.W.2d 289 (1993).

Section 32-707.01 establishes the time within which the filing must be made. The statutory language clearly requires that no less than 4 entire months must intervene between the date the explanatory statements are filed and election day. "Prior to" means before and cannot include the terminal date. The time period to be computed must necessarily conclude before the election day, which commences at 12:01 a.m. on November 8. Thus, the election day itself cannot be considered. The 4-month period must conclude no later than November 7.

We must now look to statutory and case law to determine how to compute that 4-month period. Both Wieland and Beermann submit that Neb.Rev.Stat. § 25-2221 (Reissue 1989), which is generally used in the computation of time, controls the method of computing the last possible filing date in this case. We agree.

Section 25-2221 and its predecessors have long been applied by this court not only to matters in litigation, but also to statutes. Ruan Transport Corp. v. Peake, Inc., 163 Neb. 319, 79 N.W.2d 575 (1956); State ex rel. Smith v. Nebraska Liquor Control Commission, 152 Neb. 676, 42 N.W.2d 297 (1950); Wilson & Co. v. Otoe County, 140 Neb. 518, 300 N.W. 415 (1941); McGinn v. State, 46 Neb. 427, 65 N.W. 46 (1895). However, since our last decision holding that § 25-2221 applied to statutes, it has been amended.

Section 25-2221 now provides, in relevant part, that "the period of time within which an act is to be done in any action or proceeding shall be computed by excluding the day of the act ... after which the designated period of time begins to run. The last day of the period so computed shall be included...." (Emphasis supplied.) Additionally, since Ruan Transport Corp., supra, Neb.Rev.Stat. §§ 25-520.01 to 25-520.03 (Reissue 1989) have been enacted. Section 25-520.02 defines the term "action or proceeding" to mean "all actions and proceedings in any court and any action or proceeding before the governing bodies of municipal corporations, public corporations, and political subdivisions for the equalization of special assessments or assessing the cost of any public improvement." Although § 25-520.02 provides a definition of the term "action or proceeding," the use of that definition is limited in application by § 25-520.03. Section 25-520.03 states that § 25-520.02 applies to "parties authorized by law to give notice by publication." Section 25-520.02 has never been applied in any other circumstance.

The phrase "in any action or proceeding" does not preclude the use of § 25-2221 in this matter. Although the term "action or proceeding" generally refers to business before a court or judicial officer, the term is not restricted in application to those actions which occur within the walls of a courtroom.

A statutory rule for the computation of time is usually construed as a general provision relating to all acts required and permitted by law, unless an intention to the contrary affirmatively appears or a different construction seems imperative, and it may be applied in matters of practice as well as in the construction of statutes....

86 C.J.S. Time § 8 at 830 (1954).

Thus, § 25-2221 controls the computation of time in this case. We therefore must exclude the filing date in computing the filing deadline and include the last day of the period.

Unless the context shows otherwise, the word "month" means...