1 Reported in 21 N.W.2d 203.
Appeal by Zion Evangelical Lutheran Church of Detroit Lakes (hereinafter called petitioner) from an order sustaining a demurrer to an alternative writ of mandamus.
Petitioner, after having purchased certain premises in the city of Detroit Lakes upon which to erect a new church, made formal application on June 5, 1944, for a building permit under the local zoning ordinance. The application having been denied on June 16, 1944, petitioner, approximately seven months later, commenced mandamus proceedings. Its petition for the writ, considered as true for the purpose of testing the demurrer, alleged that "a full and complete hearing was had before the city council" with a full presentation of all pertinent facts, but that said council arbitrarily and capriciously, in abuse of its discretion, disregarded the provisions of said ordinance, refused to issue a permit "on a fictitious statement of fact to the effect that the construction of said church would increase the automobile traffic hazard and that said fictitious reason is without fact or foundation and untrue," and in fact arbitrarily refused said application "upon no legal grounds whatsoever"; and further that said city council considered immaterial evidence in the form of "a certain petition filed by objectors" and refused "to consider pertinent evidence presented by the petitioners." The petition contained the usual averment that no other remedy was available.
The zoning ordinance involved provides:
"No person shall construct * * * any building * * * without first having received a written permit from the Common Council * * * after application in writing made to the said * * * Council * * *."
The demurrer was based on two grounds: (1) That the facts stated in the petition do not constitute a cause of action, and
(2) that mandamus is not a proper remedy, in that petitioner should have proceeded by certiorari.
1. For the purpose of testing the sufficiency of the pleading, a demurrer admits all well-pleaded allegations of fact, and further admits the legal and factual inferences fairly and reasonably to be drawn therefrom as distinguished from bare conclusions or assertions of law. McGuigan v. Allen,165 Minn. 390, 395, 206 N.W. 714, 715; 2 Pirsig's Dunnell, Minn. Pleading, § 1622, and cases cited therein under footnote 56.
2. Obviously, in alleging an abuse of discretion, petitioner admits that the city council, in acting upon an application for a permit under the zoning ordinance, is performing a quasi-judicial function involving an exercise of discretion, not a ministerial duty. "While courts do not undertake to control the manner in which official acts of a discretionary nature are to be performed, still mandamus will lie to set discretion in motion. If therefore the petition and writ show that there is a refusal to exercise any discretion whatever, or if it is made to appear that the discretion has been exercised in a clearly arbitrary and capricious manner the lower court should be" overruled. "But there is also the well-settled rule that mandamus is an extraordinary remedy to be granted only in case the petition shows a clear right thereto." Olson v. Honett, 133 Minn. 160, 162, 157 N.W. 1092. "There may be rare cases where the officials act in so clearly an arbitrary and capricious manner that their action may be reviewed on mandamus." Powell v. Township of Carlos, 177 Minn. 372, 375,225 N.W. 296, 297; Romsdahl v. Town of Long Lake, 175 Minn. 34,220 N.W. 166.
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1 Reported in 21 N.W.2d 203.
Appeal by Zion Evangelical Lutheran Church of Detroit Lakes (hereinafter called petitioner) from an order sustaining a demurrer to an alternative writ of mandamus.
Petitioner, after having purchased certain premises in the city of Detroit Lakes upon which to erect a new church, made formal application on June 5, 1944, for a building permit under the local zoning ordinance. The application having been denied on June 16, 1944, petitioner, approximately seven months later, commenced mandamus proceedings. Its petition for the writ, considered as true for the purpose of testing the demurrer, alleged that "a full and complete hearing was had before the city council" with a full presentation of all pertinent facts, but that said council arbitrarily and capriciously, in abuse of its discretion, disregarded the provisions of said ordinance, refused to issue a permit "on a fictitious statement of fact to the effect that the construction of said church would increase the automobile traffic hazard and that said fictitious reason is without fact or foundation and untrue," and in fact arbitrarily refused said application "upon no legal grounds whatsoever"; and further that said city council considered immaterial evidence in the form of "a certain petition filed by objectors" and refused "to consider pertinent evidence presented by the petitioners." The petition contained the usual averment that no other remedy was available.
The zoning ordinance involved provides:
"No person shall construct * * * any building * * * without first having received a written permit from the Common Council * * * after application in writing made to the said * * * Council * * *."
The demurrer was based on two grounds: (1) That the facts stated in the petition do not constitute a cause of action, and
(2) that mandamus is not a proper remedy, in that petitioner should have proceeded by certiorari.
1. For the purpose of testing the sufficiency of the pleading, a demurrer admits all well-pleaded allegations of fact, and further admits the legal and factual inferences fairly and reasonably to be drawn therefrom as distinguished from bare conclusions or assertions of law. McGuigan v. Allen,165 Minn. 390, 395, 206 N.W. 714, 715; 2 Pirsig's Dunnell, Minn. Pleading, § 1622, and cases cited therein under footnote 56.
2. Obviously, in alleging an abuse of discretion, petitioner admits that the city council, in acting upon an application for a permit under the zoning ordinance, is performing a quasi-judicial function involving an exercise of discretion, not a ministerial duty. "While courts do not undertake to control the manner in which official acts of a discretionary nature are to be performed, still mandamus will lie to set discretion in motion. If therefore the petition and writ show that there is a refusal to exercise any discretion whatever, or if it is made to appear that the discretion has been exercised in a clearly arbitrary and capricious manner the lower court should be" overruled. "But there is also the well-settled rule that mandamus is an extraordinary remedy to be granted only in case the petition shows a clear right thereto." Olson v. Honett, 133 Minn. 160, 162, 157 N.W. 1092. "There may be rare cases where the officials act in so clearly an arbitrary and capricious manner that their action may be reviewed on mandamus." Powell v. Township of Carlos, 177 Minn. 372, 375,225 N.W. 296, 297; Romsdahl v. Town of Long Lake, 175 Minn. 34,220 N.W. 166.
Have we here one of those rare cases where there is a clear right to the remedy of mandamus? We think not. Petitioner admits that it has been accorded "a full and complete hearing" with a full presentation of all pertinent facts. It may be conceded that after a full and complete hearing based on all the facts a quasi-judicial body may thereafter proceed to abuse its discretion by acting in an arbitrary and capricious manner in arriving at its decision. Petitioner, however, alleges that the city council refused
to approve the issuance of a permit on the ground "that the construction of said church would increase the automobile traffic hazard." It is well established that mandamus cannot be used for the purpose of reviewing the decision of a board or tribunal which has exercised its discretion within the jurisdiction conferred upon it by law. State ex rel. Jenkins v. Ernest, 197 Minn. 599, 601, 268 N.W. 208, 210; 4 Dunnell, Dig. Supp. § 5752. Here the council has acted; and, even though the reason given for its denial may appear erroneous, we cannot say that it has necessarily acted capriciously or arbitrarily. Absent arbitrariness and caprice, mandamus does not lie for mere error in the exercise of discretion. After a full and complete hearing, admittedly based on a full presentation ofall pertinent evidence, the council, for the stated purpose of avoiding an increase in the automobile traffic hazard, denied the issuance of the permit. Can it be said that the expressed desire of avoiding a traffic hazard reflects either arbitrariness or caprice? On its face, the reason alleged for the denial is substantial. Whether an increased traffic hazard would in fact result is necessarily a question of fact involving the merits. As already noted, it is not for us in this proceeding to pass upon the merits of the ground for the denial. It would be a novelty if, after the council has determined that the granting of a permit and the erection of a building pursuant thereto would result in an increased traffic hazard, the court should upon application overrule its decision of denial. Romsdahl v. Town of Long Lake, 175 Minn. 34, 37,220 N.W. 166, 167. Once the council's discretion is exercised, there is no judicial remedy through mandamus. The court can compel a quasi-judicial body such as a city council to exercise discretion; but, once that discretion has been actually exercised, as here, the court is wholly without power throughmandamus to compel such quasi-judicial body to reverse, reconsider, or repeat its action. This fundamental principle, repeatedly recognized by this court, is salutary and essential to the preservation of local government. The court must not substitute its judgment for that of the city council and thus usurp the function of local governing
bodies. State ex rel. Jenkins v. Ernest, 197 Minn. 599,268 N.W. 208; Romsdahl v. Town of Long Lake, 175 Minn. 34,220 N.W. 166; Powell v. Township of Carlos, 177 Minn. 372,225 N.W. 296; Olson v. Honett, 133 Minn. 160, 157 N.W. 1092; see, State ex rel. Rose v. Town of Greenwood, 220 Minn. 508, 516,20 N.W.2d 345, 349; 4 Dunnell, Dig. Supp. § 5753.
3. "Mandamus will lie only where there is no other plain, speedy, and adequate remedy" available. 4 Dunnell, Dig. Supp. § 5754. Although no appeal could be taken from the council's quasi-judicial act, petitioner did have available a proper, speedy, and adequate remedy through an application within the statutory period for a writ of certiorari to review the entire matter, inclusive of any alleged violation of petitioner's legal rights at any stage of the proceeding. State ex rel. Jenkins v. Ernest, 197 Minn. 599, 268 N.W. 208; 1 Dunnell, Dig. Supp. §§ 1391-1397; Minn. St. 1941, § 606.01 (Mason St. 1927, § 9769).
Affirmed.