Boomhower v. Cerro Gordo County Board of Supervisors

173 N.W.2d 95, 1969 Iowa Sup. LEXIS 945

• Court: Supreme Court of Iowa
• Decided: December 9, 1969
• Docket: 53703
• Status: Published

Opinions

LARSON, Justice.

On December 12, 1966, the Board of Supervisors of Cerro Gordo County, Iowa, rezoned certain real property reflecting the recommendations of the zoning commission. Thereafter a group of resident objectors gave notice of appeal to the board of adjustment. Pursuant to hearing, the board of adjustment dismissed the appeal on the ground that it was without jurisdiction because such appeal was not authorized by statute. By certiorari, that action was reviewed by the district court and the writ was annulled. Upon appeal to this court it was held that the board of adjustment does not have jurisdiction to hear such appeals. See Boomhower v. Cerro Gordo County Board of Adjustment, Iowa, 163 N.W.2d 75, 77. In this decision rendered December 10, 1968, it was stated: “Parties who claim such ordinance or amendment thereto is arbitrary or capricious should seek relief in the courts by petitioning for a writ of certiorari.” The parties have attempted to follow that suggestion, and the only question presented by this appeal is whether their action is timely.

I. Rule 319, Iowa Rules of Civil Procedure, provides:

“No writ of certiorari shall issue or be sustained unless the petition is filed within six months from the time the inferior tribunal, board or officer exceeded its jurisdiction or otherwise acted illegally.”

The resolution of the Cerro Gordo County Board of Supervisors, which plaintiffs claim was illegal, was adopted on December 12, 1966. Plaintiffs’ petition for writ of certiorari herein was filed January 2, 1969, over two years after the action complained of. It is their contention that the statutory period set forth in Rule 319 was tolled while they were exhausting their administrative remedies, and that the six month limitation period did not start until December 10, 1968. They maintain that it is necessary for them to exhaust possible administrative remedies before direct resort to the court, or that they may elect which remedy to pursue without loss of rights to seek relief in court.

The trial court did not agree and, on defendants’ motion, dismissed plaintiffs’ petition.

II. Although we have recognized the doctrine of exhaustion of administrative remedies, we have not applied it to preclude judicial determination of an issue which could be or might have been presented to an administrative agency. The issue is usually raised when resort is first taken to the court. Valentine v. Independent School District, 187 Iowa 555, 174 N.W. 334, 6 A.L.R. 1525; Knowlton v. Baumhover, 182 Iowa 691, 166 N.W. 202, 5 A.L.R. 841; Hitchcock v. Department of Public Safety, 250 Iowa 1016, 98 N.W.2d 1; Hohl v. Board of Education, 250 Iowa 502, 94 N.W.2d 787; Lehan v. Greigg, 257 Iowa 823, 830, 135 N.W.2d 80, 84. In other words, we have not held, where one claims an administrative agency is given jurisdiction of a certain subject matter, the question is in the first instance for the administrative agency and thence the party must exhaust the claimed administrative remedy before resorting to the courts. Both before and after the adoption of our Rules of Civil Procedure we have rejected that so-called exclusive procedure referred to in 2 Am.Jur.2d, Administrative Law, § 604, pp. 440, 441. Even the cases cited therein do not hold this remedy is exclusive under all circumstances. See Sohns v. Jensen, 11 Wis.2d 449, 105 N.W.2d 818, 84 A.L.R.2d 643, and citations; Jorgensen v. Pennsylvania R. Co., 25 N.J. 541, 138 A.2d 24, 72 A.L.R.2d 1415.

In Valentine v. Independent School District, supra, it was held, where it appears that the rule of public school authorities is unreasonable, relief is not limited to administrative appeals and certiorari is not barred. Likewise, in Knowlton v. Baum-hover, supra, while recognizing administrative remedies, the court held, where it is alleged that the board of directors of a school acts without jurisdiction, the court has jurisdiction to set aside the unauthorized act and either remedy is open to complainant.

In Lehan v. Greigg, supra, we cited Hitchcock and Hohl with approval and concluded certiorari would properly lie even though the legislature had provided another method of review. This was especially so, we said, because Rule 308, R.C.P., provides: “The writ shall not be denied or annulled because plaintiff has another plain, speedy or adequate remedy; * *

Furthermore, as pointed out in Hohl v. Board of Education, supra, the rights to consider original complaints under this writ are jealously guarded by the courts.

It must, therefore, be concluded that plaintiffs were not compelled to pursue what they believed was an administrative remedy, but had available certiorari under Rule 319 to test the legality of the board’s action as well as its jurisdiction to act in the matter. They elected not to do so.

III. Unless, then, some authority or justification appears which will authorize the suspension of the six month limitation period provided in Rule 319, plaintiffs’ rights thereunder have expired. We find no such authority and, except for the exclusive remedy claim above discussed in Division II, appellants cite none. On the other hand, it would seem unjust and unfair to those interested and affected by the board’s actions to compel them to delay improvements pending the exhaustion of an alleged administrative remedy which may finally be determined to be without merit. We are satisfied by the delay that appellants have chosen not to pursue the remedy afforded them in Rule 319, that time for that remedy has passed, and that the trial court’s action in sustaining defendants’ motion to dismiss must be affirmed.

Affirmed.

MOORE, C. J., and SNELL, STUART, MASON and LeGRAND, JJ., concur. BECKER, J., dissents. RAWLINGS and REES, JJ., take no part.