State ex rel. Gaddis v. Bryan

167 N.W. 783, 102 Neb. 506, 1918 Neb. LEXIS 92

• Court: Nebraska Supreme Court
• Decided: May 17, 1918
• Docket: No. 20367
• Status: Published

Opinions

Morrissey, C. J.

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. 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, 9 Wall. (U. S.) 298, 312.

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 judgment is

Affirmed.