Corrao v. Mortier

• Court: Wisconsin Supreme Court
• Writing for the Court: CURRIE
• Citation: Corrao v. Mortier, 7 Wis.2d 494, 96 N.W.2d 851 (Wis. 1959)
• Decision Date: 02 June 1959
• Parties: Vincent J. CORRAO, Appellant, v. James J. MORTIER et al, comprising The Common Council of the City of Milwaukee, et al., Respondents.

Page 851

96 N.W.2d 851

7 Wis.2d 494

Vincent J. CORRAO, Appellant, v. James J. MORTIER et al, comprising The Common Council of the City of Milwaukee, et al., Respondents.

Supreme Court of Wisconsin.

June 2, 1959.

Wiernick & Zurlo, Milwaukee, Clinton A. Boone, Milwaukee, of counsel, for appellant.

Walter J. Mattison, City Atty., Ewald L. Moerke, Jr., Harvey G. Odenbrett, Asst. City Attys., Milwaukee, for respondents.

CURRIE, Justice.

The question on this appeal is whether the applicant for a permit or license can recover damages in a mandamus proceeding against the mayor and members of a city council who illegally denied such application. There is no contention made that the defendants acted fraudulently or corruptly in refusing to grant the plaintiff's application for a renewal of his taxicab permit. It is apparent from the record before us on the prior appeal that such refusal was the result of a mistaken interpretation by the defendants of the applicable city taxicab licensing ordinance.

Sec. 293.04, Stats., provides that, if the judgment in a mandamus proceeding be for the plaintiff, 'he shall recover his damages and costs.' We are satisfied that this statute is procedural and not substantive in character. Without it, the successful plaintiff in a mandamus proceeding would be obliged to institute a separate action for his damages. The statute does not create a right to damages which were not recoverable by separate action prior to the enactment of the statute.

In State ex rel. Bautz v. Harper, 1917, 166 Wis. 303, 313, 165 N.W. 281, 284, this court held that sec. 3453, Stats., ¹ now sec. 293.04, as it then read did not create an absolute liability for damages on the part of the defendant in a mandamus proceeding in the event the plaintiff prevailed. However, there is language in the later case of State ex rel. Lathers v. Smith, 1943, 242 Wis. 512, 515, 8 N.W.2d 345, which may be interpreted as holding that the change in wording, which was made in sec. 293.04 as a result of a revisor's bill enacted by the 1935 legislature, did create an absolute liability for damages if the plaintiff was successful in the mandamus proceeding. We repudiate such interpretation. We are satisfied that the change wrought in sec. 293.04 by the 1935 revision was to eliminate the requirement that the successful plaintiff's right to damages was limited to the situation where a cause of action existed for a false return. For the nature of such common-law action for false return, see 35 Am.Jur., Mandamus, p. 100, sec. 359, and cases cited in footnote 10. The rationale for the result reached in State ex rel. Lathers v. Smith, supra, appears in the last paragraph of the opinion wherein it was held that the defendant state treasurer did not act in a quasi-judicial capacity. In other words, the act required of him was purely ministerial in character.

The plaintiff attempts to bring himself within the rule, that a public officer who knowingly or negligently refuses to do a ministerial act, which the law absolutely requires him to do, may be compelled to respond in damages to one to whom the performance was owing. 43 Am.Jur., Public Officers, p. 90, sec. 278. However, 9 McQuillin, Municipal Corporations, 3d Ed., p. 205, sec. 26.98, lays down the principle that the power to grant a permit or license conferred upon a public officer or board imposes a governmental function which does not permit of such officer being held liable in damages because of the granting or refusal of the permit or license applied for.

The case of Paoli v. Mason, 1945, 325 Ill.App. 197, 59 N.E.2d 499, holds that the power to issue a license or permit on the part of a public officer is a quasi-judicial function, and that such an officer is exempt from liability for error or mistake of judgment in the absence of a corrupt or malicious motive. We deem that the power to grant or refuse a permit or license always constitutes the exercise of a quasi-judicial function and that this precludes holding the public officer exercising such power from liability in damages for failure to issue the same in the absence of a corrupt or malicious motive. This is true even though in a particular situation the officer has no discretion to deny the permit or license, and mandamus will lie to compel its issuance. As this court stated in State ex rel. Lathers v. Smith, supra, 242 Wis. at page 514, 8 N.W.2d at page 346, 'Acts of legislative or quasi judicial nature by a public official are distinguished from ministerial acts.'

Where an attempt is made to hold liable in damages the entire membership of a governmental board, or, as...