Opinion
No. 28864.
October 20, 1930. Suggestion of Error Overruled, November 3, 1930.
1. MANDAMUS.
Writ of mandamus will not be issued to direct inferior tribunal to decide issue of fact in particular way, when law has invested tribunal with original jurisdiction to decide question.
2. MANDAMUS.
Where ordinance designated property as residential property, and question was doubtful, court would not interfere by mandamus to compel issuance of building permit (Hemingway's Code 1927, sections 6841-6848).
3. MANDAMUS.
Mandamus will not lie where there is adequate remedy by appeal.
4. MANDAMUS.
Where statute gives right of appeal from decision of board, such is ordinarily deemed adequate remedy so as to preclude issuance of mandamus.
APPEAL from circuit court of Hinds county, First district. HON.W.H. POTTER, Judge.
W.E. Morse, of Jackson, for appellant.
Where a discretion is left in an inferior tribunal the writ of mandamus can only compel it to act, but not control the discretion.
Madison County v. Alexander, Walker, 523; Attala County v. Grant, 9 S. M. 77; Swan v. Gray, 44 Miss. 393; Vicksburg v. Rainwater, 47 Miss. 547; Clayton v. McWilliams, 49 Miss. 311; Board of Education v. West Point, 50 Miss. 638; Monroe County v. State, 63 Miss. 135; Sullivan v. Yazoo Valley R.R. Co., 85 Miss. 649; Cole v. State, 91 Miss. 628; Robinson v. Ittawamba County, 105 Miss. 90, 62 So. 3; Greenwood v. Provine, 108 So. 284; Rankin County v. Lee, 113 So. 194.
Where there is a right of appeal there is an adequate remedy at law and mandamus does not lie.
Chalmers Potter and Howie Howie, all of Jackson, for appellee.
Appellee had a legal right to demand of the board the permit requested, and the board was vested with no discretion as to whether or not they would issue the permit and mandamus was the proper remedy.
Howie Howie, of Jackson, for appellee.
The issuance of the permit was nothing more nor less the ministerial act and was not a matter about which or in reference to which the city authorities had any discretion whatever. A writ of mandamus is the proper and only proceeding where the relief sought is to compel the performance of a ministerial act.
De Soto County v. Dean, 120 Miss. 337, 82 So. 257; Ladner v. Talbert, 121 Miss. 592, 83 So. 748; State v. Morgan, 141 Miss. 585, 106 So. 820.
It has been held that where the action of the municipal authorities in the administration of their discretion power is arbitrary or unjustly discriminating or wrongfully exercised, that in all such cases a writ of mandamus to compel the right action of such boards is not only the proper remedy but the only remedy.
38 Corpus Juris Mandamus; 54 A.L.R. 1049, 1053 and 1057; Ingersoll v. South Orange (1925), 128 A. 393; 126 A. 213; 130 A. 721; Prince v. Board of Adjustment, 129 A. 123; 133 A. 920; Slamowitz v. Jelleme, 130 A. 883; Franklin Realty Mortgage Co. v. South Orange, 132 A. 81; 134 A. 917; Finkel v. Kaltenback, 132 A. 197, 33 A.L.R. 288-289.
Argued orally by W.E. Morse, for appellant, and by Chalmers Potter and Virgil Howie, for appellee.
Appellee filed his petition in the circuit court, and prayed a writ of mandamus to compel the governing board of appellant city to grant a building permit to appellee for a filling station at the corner of Carlisle and North State streets in said city. On the hearing the court ordered the mandatory writ as prayed.
Appellant relies on the statute commonly known as the Standard State Zoning Law, sections 6841-6848, Hemingway's 1927 Code, and upon an ordinance passed by said city, under said law, on April 16, 1929, by the terms of which ordinance the property here concerned was set apart and designated as residence, and not as commercial, property. Appellee makes no attack upon the said Zoning Law nor in the main upon the said ordinance. The exact contention of appellee is that the ordinance is void in so far as it includes this particular property within the area set apart for residences, for the reason, as alleged, that the property is in fact commercial property, and therefore to include it within residence boundaries is an arbitrary and unreasonable exercise of power by the municipal council, and to such an extent that the ordinance should, in the particular respect mentioned, be disregarded by the court. The contention of appellee is, then, to state it otherwise, that, conceding for the purposes of this case that the city board had the jurisdiction and the warrant of law to pass upon and decide the question whether this particular property is such that it might be properly included within the boundaries reserved to residences, yet in deciding that question the board has acted erroneously and to the extent that the court should as a matter of law hold the action to have been without reason, without the warrant of any supporting facts, and therefore wholly arbitrary and void.
It is not within the purposes of a writ of mandamus to direct an inferior tribunal to decide an issue of fact in a particular way, when the law has invested that tribunal with original jurisdiction to decide the question for itself. If this were not the rule, the determination of issues of fact, although committed to many different officers and boards in the first instance, would be only advisory to the courts, and local government of all grades would or could be absorbed by, and transferred to, the courts — a proposition obviously contrary to the frame and structure of civil government in this country, and impolitic and impracticable to the last degree. In such cases, where as to the facts there exists any admissible doubt, or in respect to which reasonable men might conscientiously differ, the courts have, with a practical unanimity, declined to interfere by mandamus. This case, as disclosed by the record, falls well within the stated rule. See Board v. Lee, 147 Miss. 99, 103, 113 So. 194; State v. Board, 133 Miss. 562, 567, 98 So. 101; Robinson v. Board, 105 Miss. 90, 62 So. 3, and the numerous others referred to in the reports of those cases.
The petition must be dismissed also on the ground that there is, or was, another adequate remedy available to the party. The general rule is that mandamus will not lie where there is an adequate remedy by appeal. 38 C.J., pp. 565-567. Therefore, where a statute gives the right of appeal from the decision of a board or tribunal to review its action, this is ordinarily deemed an adequate remedy so as to preclude the issuance of a mandamus to coerce such tribunal in respect to such matter. 18 R.C.L., p. 133. These rules are sustained by many decisions of this court. Several are collated and cited by the court in Board v. Lee, 147 Miss. at page 104, 113 So. 194, which case is squarely to the point that appeal, and not mandamus, is the remedy in a situation such as is presented by this record.
Reversed, and petition dismissed.