Watts v. City of Omaha

• Decision Date: 20 February 1969
• Docket Number: No. 37027,37027
• Citation: 165 N.W.2d 104,184 Neb. 41
• Parties: John WATTS, Appellant, v. CITY OF OMAHA, a Municipal Corporation, et al., Appellees.
• Court: Nebraska Supreme Court

Page 104

165 N.W.2d 104

184 Neb. 41

John WATTS, Appellant, v. CITY OF OMAHA, a Municipal Corporation, et al., Appellees.

No. 37027.

Supreme Court of Nebraska.

Feb. 20, 1969.

Syllabus by the Court

1. A writ of mandamus may be issued to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station. Though it may require an inferior tribunal to exercise its judgment, or proceed to the discharge of any of its functions, it cannot control judicial discretion.

2. A writ of mandamus may not be issued in any case where there is a plain and adequate remedy in the ordinary course of the law.

3. 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.

4. 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 passing on its probative force and effect.

5. A writ of mandamus will not be allowed to compel officers vested with discretionary powers to make a particular decision or to set aside one already made, notwithstanding such decision is erroneous in the sense that it may be reversed upon appeal, writ of error, or other appellate proceeding.

6. Mandamus will not lie to coerce judicial discretion of an inferior court, nor to predetermine the character of the judgment that the court shall enter. Mandamus will not issue to review the action of an inferior court where there is an adequate remedy at law, and the writ may not be used to usurp or take the place of an appeal or writ or error. This rule is as applicable to a city council as it is to a county court.

7. While in matters involving official discretion, mandamus may be used for the purpose of compelling the exercise thereof, it will not ordinarily be extended beyond that, so as to interfere with the manner in which the discretion shall be exercised or to influence or coerce a particular determination.

Shrout, Nestle & Caporale, Omaha, for appellant.

Herbert M. Fitle, City Atty., Frederick A. Brown, Edward M. Stein, Walter J. Matejka, James E. Fellows, Allen Morrow, John B. Abbott, George S. Selders, Jr., Kent N. Whinnery, Omaha, for appellees.

Heard before WHITE, C.J., SPENCER, BOSLAUGH, SMITH, McCOWN, and NEWTON, JJ., and WALTER H. SMITH, District Judge.

SMITH, WALTER H., District Judge.

This is an appeal from a judgment of the district court for Douglas County denying a writ of mandamus. Appellant John Watts, hereinafter referred to as Watts, brought this action to compel appellees, hereinafter referred to as the City of Omaha, to pass a resolution to pay full monthly salary benefits for permanent disability received by Watts while in line of duty.

Watts, a man 55 years of age, joined the Omaha Police Department in 1934 and served on the police force for 33 years. During this period he sustained personal injuries in the line of duty on December 27, 1934, September 10, 1937, August 16, 1952, and on February 11, 1959, and, because of his disability, he has been off duty from August 2, 1967. The Police, Fire and Pension Board, on December 21, 1967, granted Watts a disability pension under section 7.38.180 of the Omaha Municipal Code, also known as ordinance No. 21668, which was passed on March 28, 1961, and he was found by the board to be permanently unfit for active duty in his division. The amount of the monthly pension granted by the Police, Fire and Pension Board was in the amount of one-half of the average monthly pay for the period of his 5 highest pay years. It was stipulated by the parties that section 7.38.180 of the Omaha Municipal Code is as follows: 'Any member of the system who, while in the line of duty, has sustained or shall sustain injuries or sickness, arising out of the immediate or direct performance or discharge of his duty, which immediately or after a lapse of time permanently unfit him or her for active duty in his or her Division, shall receive a monthly accidental disability pension as long as he or she remains unfit for active duty in his or her Division, equal to fifty per cent of his or her average final monthly compensation. In addition thereto, he or she shall be paid all medical, surgical, and hospital expenses which may be incurred as a result of such sickness or injury, but the pension and other benefits, being in excess of benefits under the Workmen's Compensation Act, shall be in lieu thereof.

'Nothing contained in this section shall be construed as limiting, altering, repealing or affecting the authority of the City Council to grant full salary payments pursuant to Section 7.36.195 of the Omaha Municipal Code, provided however, any member receiving full salary payments shall not be entitled to the benefits of this section during the period full salary payments are authorized and paid. (Ord. 21668 § 1; March 28, 1961).'

On February 7, 1968, Watts made application to the City Council of the City of Omaha for full monthly salary disability pension under section 7.36.195 of the Omaha Municipal Code, as amended, also known as ordinance No. 24441, which was passed on October 17, 1967, and became effective 15 days after its passage. By stipulation of the parties, ordinance No. 24441 was admitted into evidence, the pertinent parts of which are as follows: 'Notwithstanding the provisions of Section 7.36.060, Section 7.36.180, Section 7.36.190 and Section 8,24.010 of the Omaha Municipal Code, or any other Section or provision of the Omaha Municipal Code in conflict herewith, any member of the Police or Fire Division of the Public Safety Department, who, while in the line of duty, has sustained or shall sustain injuries or sickness, arising out of the immediate or direct performance or discharge of his duty, which render him permanently and totally unfit for active duty in his department, and to perform or follow other gainful pursuits or employments, shall be paid his full salary for the period of such permanent total disability, provided however, such full salary payments shall not be paid after such disability shall cease; and provided further, that such full salary payments shall not be paid until and after the City Council shall determine by Resolution, from the evidence and the facts and circumstances of each case presented to it for consideration, that the injured party was in line of duty; that the injuries or sickness sustained by the injured party arose out of the immediate or direct performance or discharge of his duty; that the injured party is permanently and totally unfit for active duty in his department, and to perform or follow other gainful pursuits or employments, and by resolution, authorizes the full salary payments. The full salary payments herein provided for shall accrue and be payable only from and after the date the City Council authorizes them.'

A hearing was held before the City Council of the City of Omaha on February 13, 1968, on the application of Watts under section 7.36.195, as amended, also known as ordinance No. 24441, and the request for full monthly salary disability pension was denied by the City Council. Thereupon Watts filed a petition for writ of mandamus to direct the City of Omaha to pass a resolution authorizing payment of full monthly salary benefits to him and, after hearing thereon, the petition was dismissed by the trial court and appeal taken to this court.

The principal question to be decided is whether the determination made by the City Council of the City of Omaha, in denying the application for a full salary disability pension under section 7.36.195, was judicial or ministerial in nature. If such action is ministerial, then mandamus is the proper remedy; on the other hand, if it is judicial in nature then mandamus will not lie and it is reviewable in the district court by way of petition in error or appeal. Section 25--1901, R.R.S.1943; Little v. Board of County Commissioners, 179 Neb. 655, 140 N.W.2d 1.

Watts contends that a writ of mandamus should have been granted by the district court compelling the City of Omaha to pass a resolution ordering that full monthly salary pension be paid to Watts on the basis of total permanent disability and that the passage of said resolution is a ministerial and not a quasi-judicial act and that mandamus is the proper remedy. The position of the City of Omaha is that mandamus does not lie inasmuch as the City Council of the City of Omaha was acting in a quasi-judicial capacity and not ministerial and that Watts has an adequate remedy at law by writ of error or regular appeal.

The evidence before the City Council of the City of Omaha consisted of a written statement from Watts in which he stated: 'The purpose of this letter is to make application to the City Council of the City of Omaha for full salary during the period of permanent total disability under Section 7.36.195 as amended of the Omaha Municipal Code.' The statement also set forth his injuries received in the line of duty and the medical examinations and treatments given by various doctors and at the County Hospital. The report of Dr. Kenneth M. Reighter, dated December 18, 1967, one of the physicians who...