Meyer v. County of Dubuque

43 Iowa 592

Opinion

Day, J.

I. It is very clear that the petition does not state facts entitling plaintiff to the relief demanded. Section 3373 •l^TAXATiojy: of the Code provides, that the action of mandamus practice. ’ is one brought to obtain an order commanding an inferior board or tribunal to do or not to do an act, the performance or omission of which the law enjoins as a duty resulting from an office or trust; and where a discretion is left to the inferior tribunal, the mandamus can only compel it to act, but cannot control such discretion.

Section 829 of the Code provides a board of equalization, and section 831 authorizes any one aggrieved to appear before such board and have any error in assessment corrected. It is clear that such board is vested with a judicial discretion. It must examine the case, consider the facts presented and then decide. If such board refuses to act at all, it omits a duty and may be compelled, by the writ of mandamus, to discharge that duty. But the petition does not allege any refusal of this board to act. Upon the contrary, it avers that plaintiff petitioned the proper officers of the county to strike out the assessment, and that they acted upon the application and refused to strike out the assessment. Now if the writ should issue, it could compel the board to do only what they have done, to-wit: to act upon the application. Hence, there has been no omission of duty, and from the showing made iu the petition there is no cause for the writ of mandamus.

Besides, section 3376, provides that an order for mandamus shall not be issued in any case where there is a plain, speedy, and adequate remedy in the ordinary course of the law.

Section 829, provides- a tribunal for the correction of the error complained of, and section 831, provides for an appeal to the Circuit Court from the action of that tribunal. A plain and speedy remedy is thus provided, and a refusal of this tribunal to act creates the only condition under which a writ of mandamus would be proper in the premises.

2. pleading: (íemuríer!* ‘ II. Whilst the plaintiff was not, under the facts stated, entitled to a writ of mandamus, still we are of opinion that the objection was not properly presented by a motion to dismiss the cause, and that the motion should have been overruled. That the court has no jurisdiction of the subject of the action, and that the facts stated in the petition do not entitle the plaintiff to the relief demanded, are, under section 2648 of the Code causes of demurrer. It is very important to the proper administration of justice that the course of procedure be uniform and consistent. Upon the sustaining of a demurrer it is competent for the unsuccessful party to amend, and to remove the objection, if he may be able. But when a motion to dismiss is sustained, he is out of court, and is remediless. True, if there should be a case in which it would be impossible to obviate the difficulty by amendment, the practical effect of sustaining a demurrer to the petition would be the same as sustaining a motion to dismiss, and in such a case we would probably hold that a resort to such motion instead of a demurrer constituted error without prejudice. But we should do so only in cases where it is impossible to amend. If the District Court had no jurisdiction over the action of mandamus, this would be such a case. But the District Court has such jurisdiction, and the only trouble with the present case is, that the petition does not set forth a state of facts which, in this particular case entitle the plaintiff to the writ. Now whilst it is not probable that plaintiff can amend and set forth a state of. facts entitling her to the writ, still it is possible that she may do so. Suppose, by way of amendment she should state that she applied to the board of equalization, and demanded relief of them, and that they refused to take any action in the premises. It seems to us such a state of facts would entitle her to a writ of mandamus compelling them to act. At all events, as the defendant did not present the question in a proper manner, we ought not to affirm the action of the court, unless fully satisfied that no prejudice could have resulted from the error in procedure. Eor these reasons we think the judgment should be

Eeversed.