Shandy v. City of Omaha

255 N.W. 477, 127 Neb. 406, 1934 Neb. LEXIS 62
CourtNebraska Supreme Court
DecidedJune 15, 1934
DocketNo. 29107
StatusPublished
Cited by12 cases

This text of 255 N.W. 477 (Shandy v. City of Omaha) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Shandy v. City of Omaha, 255 N.W. 477, 127 Neb. 406, 1934 Neb. LEXIS 62 (Neb. 1934).

Opinion

Eberly, J.

This is a proceeding under the workmen’s compensation law. The judgment of the district court was for the applicant. From the order of the trial court overruling its motion for a new trial, the city appeals.

The record before us discloses the following facts: Thomas N. Shandy was a member of the paid fire department of the city of Omaha, with the rank of captain. He died on or about February 8, 1933, from injuries received [408]*408in the course of and while performing his duties as such fireman in the Millard hotel fire in the city of Omaha. He left surviving him his widow, the applicant, appellee, with whom he was living at the time of his death. Under the home rule charter of the city of Omaha, appellee became entitled to, and is now receiving, a pension of $102.50 a month from that city. On the hearing before the compensation commissioner, on the petition filed by appellee for compensation, the maximum award was made in her behalf. On appeal to the district court a similar award was entered.

Two contentions are made in behalf of the city on appeal, viz.: (1) The deceased was not an employee within the meaning of the workmen’s compensation act, and at the time of his injury and death did not have a compensable status, for the reason that he was an official of a governmental agency created by the state and had been appointed for a regular term of office. (2) The receipt and acceptance of pension benefits by appellee from the city of Omaha, exceeding the amount of the death benefits provided under the workmen’s compensation act, bar the appellee from relief under the act to which reference is last made.

Apellant’s first contention was before us in the case of Rooney v. City of Omaha, 105 Neb. 447. There, however, the office of a policeman was under consideration, and not a fireman as here presented. Still the provisions of the charter of the city of Omaha relative to the appointment and discharge of firemen are substantially identical with those relating to the appointment and discharge of policemen. Comp. St. 1929, secs. 14-601 to 14-619, and 14-701 to 14-708. It follows that the questions involved must be deemed identical.

In the Rooney case this court announced, on December 23, 1920: “A regular term of office, as the term is applied to government employees in the workmen’s compensation law (Rev. St. 1913, sec. 3656), means such term of office as has a fixed and definite duration and a date [409]*409of termination known and fixed by law or other general regulation.” The conclusion there was that a policeman in his employment did not hold his position by virtue of “a regular term of office,” within the meaning of the compensation law.

In passing, reference might be made to the following authorities which involve the construction of statutory terms substantially identical with our own, and in which the views expressed are in harmony with the majority opinion in Rooney v. City of Omaha, supra. See, State v. District Court, 134 Minn. 26; State v. District Court, 134 Minn. 28; Markley v. City of St. Paul, 142 Minn. 356; Segale v. St. Paul City R. Co., 148 Minn. 40.

Nevertheless, the city of Omaha, in effect, asks for a reconsideration of this queston decided in the Rooney case. Its claim is that principles expressed in the minority opinion in that case are correct, and should now be formally adopted by this court. We are unable to accede to this demand. The controlling question here is more than the mere technical correctness of the majority opinion in the Rooney case, viewed in the light of the situation that prevailed when that pronouncement was made. The present record involves not merely the force and effect of this decision as a precedent, after it has stood unchallenged for more than a decade, and during that period necessarily influenced and controlled subordinate courts in dealing with questions to which it was applicable, but also giving force and effect to subsequent expression of legislative intent clearly and unmistakably made.

On the subject of the compensable status of appellee’s intestate, the Nebraska workmen’s compensation act in force at the death of Shandy provided: “The provisions of this act shall apply to the state of Nebraska and every governmental agency created by it, and to every employer in this state employing one or more employees, in the regular trade, business, profession or vocation of such employer. Provided, that railroad companies engaged in [410]*410interstate or foreign commerce are declared subject to the powers of congress and not within the provisions of this act.” Comp. St. 1929, sec. 48-106.

The act also defines “employee” as follows: “The terms ‘employee’ and ‘workman’ are used interchangeably and have the same meaning throughout this article. The said £erms include * * * and shall be construed to mean: (1) Every person in the service of the state or of any governmental agency created by it under any appointment or contract of hire, express or implied, oral or written, but shall not include any official of the state, or any governmental agency created by it, who shall have been elected or appointed for regular term of office, or to complete the unexpired portion of any regular term.” Comp. St. 1929, sec. 48-115. It is quite obvious the deceased at the time of his death was fairly within the statutory description as an “employee,” unless embraced within the exclusionary provision, viz., “but shall not include any official of the state, or any governmental agency created by it, who shall have been elected or appointed for regular term of office, or to complete the unexpired portion of any regular term.” This court, as already suggested, has squarely determined this question in the negative in the Rooney■ case.

However, wholly apart from the force of that decision as a binding precedent, it may be said that in the proper interpretation of the foregoing statutory language, as applied to the facts in the instant case, the observance of application of certain well-established canons of statutory construction become important. The rule appears well supported by authority that “The courts will take judicial notice of whatever may affect the validity or meaning of a statute. They will take notice of events generally known within their jurisdiction,” and of matters of common knowledge within the limits of their jurisdiction. 2 Lewis’ Sutherland, Statutory Construction (2d ed.) 606, sec. 310. See, also, Redell v. Moores, 63 Neb. 219; McShane v. Douglas County, 96 Neb. 664; In re Estate of Bayer, 116 Neb. 670, 678. The course of legislation may also be considered. Campbell v. Youngson, 80 Neb. 322.

[411]*411So, also, “In the interpretation of reenacted statutes, the courts will follow the construction which they received when previously in force. The legislature will be presumed to know the effect which such statutes originally had, and by reenactment intend that they should again have the same effect.” 2 Lewis’ Sutherland, Statutory Construction (2d ed.) 780, sec. 403, and cases cited under note 98.

It will be noted, however, that compensation was denied in the Rooney case solely because “a policeman, in the regular service of the Omaha police department, is not employed for the ‘gain or profit’ of the city, as those terms are used in the workmen’s compensation law, and is, therefore, not within the operation of the act.” Rooney v. City of Omaha, supra.

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Bluebook (online)
255 N.W. 477, 127 Neb. 406, 1934 Neb. LEXIS 62, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shandy-v-city-of-omaha-neb-1934.