Little v. Board of Adjustment

143 S.E. 827, 195 N.C. 793, 1928 N.C. LEXIS 211

• Court: Supreme Court of North Carolina
• Decided: June 23, 1928
• Status: Published

Opinion

Beogden, J.

The case of Harden v. Raleigh, 192 N. C., 395, determined two questions.

1. That the board of adjustment is clothed with at least quasi-judicial power and that the investigation of facts as a basis of official action is not a ministerial duty, the Court saying, “but the exercise of judgment or discretion may be regarded as the usual test by wbicb to determine wbether an act is ministerial or judicial. Within the class of quasi- judicial acts fall the board’s conclusions as to wbether the proposed building would be noxious or offensive or detrimental to the public safety or welfare by reason of its situation or the surrounding conditions; also in this class is the legal discretion to be exercised by-the board upon the conclusions reached.”

2. That tbe record did not disclose that tbe board of adjustment in declining tbe permit bad improperly exercised its discretion.

From the finding of fact made by the trial judge in the case at bar it therefore appears that practically the same parties are contesting the same matter and in the same manner as in the case of Harden v. Raleigh, supra. Moreover the controversy is based upon the same facts and allegations contained in the former case. The petitioners appeared before the board, in the case at bar, and filed a plea of res judicata contending that the case of Harden v. Raleigh, supra, bad determined the rights of the parties upon the same facts. While the plea of res judicata is not available with respect to proceedings by a purely administrative board, it is available with respect to the proceedings and final decision of a judicial or guasi-judicial body. In re Smiling, 193 N. C., 448. There is no allegation, no proof, and no finding by the trial court that the facts in the ease at bar are in anywise different from the facts in the case of Harden v. Raleigh. Indeed, the trial judge finds that Mrs. Harden applied to the building inspector “to reopen and rehear its former decision upon the building of the filling station upon her said lot.”

Upon these circumstances we are constrained to bold that tbe plea of res judicata, duly filed in apt time by tbe petitioners, was available, and therefore that tbe owner of tbe lot is not entitled to reopen and rehear tbe case upon tbe identical facts presented in tbe former record.

Reversed.