Midland Produce Company v. City of Minot

Decision Date13 August 1940
Docket Number6615
Citation294 N.W. 192,70 N.D. 256
CourtNorth Dakota Supreme Court

Syllabus by the Court.

1. Where there is no other plain, speedy and adequate remedy in the ordinary course of law, mandamus will lie to compel the members of a municipal board to perform an act which the law specially enjoins upon the members of such board as a duty resulting from their offices.

2. The writ of mandamus will not issue unless the plaintiff (or relator) has a clear legal right to the performance of the particular act, performance of which is sought to be compelled by the writ.

3. For reasons stated in the opinion, it is held, that no duty rested upon the mayor and city council of the City of Minot to issue a building permit to the plaintiff.

Appeal from District Court, Ward County; A. J. Gronna, Judge.

Mandamus proceeding by the Midland Produce Company, a corporation against the City of Minot, a municipal corporation, and others. From a judgment dismissing the proceeding, the plaintiff appeals.


Halvor L. Halvorson (Leon W. Halvorson, of counsel), for appellant.

O. B Herigstad, for respondents.

Christianson J. Nuessle, Ch. J., and Burr, Morris, and Burke, JJ., concur.


The plaintiff, Midland Produce Company, brought this proceeding in mandamus to compel the city of Minot, its mayor, and the members of its city council, to issue to the said Midland Produce Company a building permit authorizing it to construct a retail service and bulk oil station within the "fireproof building limits" of the city of Minot. The district court dismissed the proceeding and the plaintiff has appealed.

Section 8457, Comp. Laws 1913, provides that "The writ of mandamus may be issued . . . to any . . . board or person to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust or station. . . ."

Mandamus will not lie against a municipal board or officer unless the plaintiff's or relator's legal right to the performance of the particular act sought to be compelled by the writ is clear and complete. 38 C.J. 582, 691. The writ will not lie to control official discretion. Oliver v. Wilson, 8 N.D. 590, 80 N.W. 757, 73 Am. St. Rep. 784; State ex rel. Wiles v. Albright, 11 N.D. 22, 88 N.W. 729; Mogaard v. Garrison, 47 N.D. 468, 182 N.W. 758; State ex rel. Herbrandson v. Vesperman, 52 N.D. 641, 204 N.W. 202. Neither will it lie where there is some other plain, speedy, and adequate remedy in the ordinary course of law. Comp. Laws 1913, § 8458. To be enforceable by mandamus, the duty must be one clearly and peremptorily enjoined by law. The law must not only authorize the act, but it must require it to be done. 38 C.J. 600; 18 R.C.L. 119; State ex rel. Minot v. Willis, 18 N.D. 76, 118 N.W. 820; Cary v. Morton County, 57 N.D. 700, 223 N.W. 928.

The laws of this state confer upon a city council the power to regulate the construction of buildings; to prescribe the limits within which wooden buildings shall not be erected, placed, or repaired without permission; to establish fire limits and to direct that all buildings constructed within such limits shall be of fireproof material; to define fireproof material; and, to provide by ordinance, "for issuing building permits, and appointment of Building Inspectors." Comp. Laws 1913, § 3599, subds. 46, 47. They also empower the city council to regulate and prevent the storage of petroleum or any of the products thereof, and other combustible or explosive material. Comp. Laws 1913, § 3599, subd. 50.

The ordinances of the city of Minot provide that any person, firm, or corporation desiring to transport, sell, keep, or give away explosives, inflammable or other substances of like nature, or any materials, or things whatsoever which tend to increase fire hazards within the limits of the city, shall make application in writing to the Chief of the Fire Department; and such ordinances further provide that it shall be illegal to proceed with the transportation, sale or use of such articles until a license or permit shall have been issued by the Chief of the Fire Department. Compiled Ordinances of Minot, 1931, § 119. Such ordinances further provide that when any person or persons or corporation shall desire to erect any buildings or structure within the limits of the city, he or they shall make application to the city inspector for that purpose, and "shall furnish such inspector with a written statement of the proposed location, dimensions and manner of construction of proposed building, buildings or structure, as well as complete copy of the plans and specifications of same where the proposed construction shall exceed one hundred dollars in cost." Compiled Ordinances of Minot, 1931, § 199-a. And that "no person or persons or corporation shall construct, alter, repair, raise, or move any building or structure of any kind within the limits of the city, except the same conform to the rules and regulations prescribed by ordinance and such other regulations as the building inspector may make from time to time for the protection of property against fire and the protection of the health and persons of the inhabitants of the city, provided that, in case of difference arising between the builder and building inspector, the builder shall have the right to appeal to the city commissioners of said city and its decision shall be final upon the matters affecting the same." Compiled Ordinances of Minot, 1931, § 130.

On September 9th the plaintiff, Midland Produce Company, made application for a permit to construct a bulk and...

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