State ex rel. Hunter v. Winterrowd
| Decision Date | 03 June 1910 |
| Docket Number | 21,519 |
| Citation | 91 N.E. 956,174 Ind. 592 |
| Parties | The State of Indiana, ex rel. Hunter, v. Winterrowd, Building Inspector, et al |
| Court | Indiana Supreme Court |
Rehearing Denied October 12, 1910, Reported at: 174 Ind. 592 at 599.
From Superior Court of Marion County (78,401); Vinson Carter Judge.
Action by the State of Indiana, on the relation of Edgar O. Hunter against Thomas A. Winterrowd, as building inspector of the City of Indianapolis, and others. From a judgment for defendants, plaintiff appeals.
Affirmed.
Roemler & Chamberlain and Smith, Duncan, Hornbrook & Smith, for appellant.
Frederick E. Matson, Crate D. Bowen, James D. Peirce, J. E. Iglehart and Linton A. Cox, for appellees.
This is a proceeding for a peremptory writ of mandamus to compel appellee Winterrowd, as building inspector of the city of Indianapolis, to approve certain plans for an apartment house and to issue a permit for its erection in said city. Appellees waived the issuance of an alternative writ, appeared and filed a demurrer to the petition, on the ground that the facts therein stated were insufficient to constitute a cause of action. This demurrer was sustained, and, appellant declining to amend, final judgment was rendered in favor of appellees. The only error assigned is the sustaining of appellees' demurrer to the complaint.
The complaint averred that on April 20, 1909, the city of Indianapolis had a population of more than one hundred thousand inhabitants, according to the last preceding census of the United States; that Thomas A. Winterrowd then was and still is the duly appointed, qualified and acting building inspector of said city; "that under and by virtue of a certain ordinance duly passed by the common council of said city, and approved by the mayor thereof, now and for many years last past in full force and effect therein, entitled, 'an ordinance providing for all matters concerning, affecting or relating to the construction, alteration, repairs or removal of buildings, structures and appurtenances thereof, erected and to be erected in the city of Indianapolis, Indiana,' said Thomas A. Winterrowd, as such building inspector, is authorized and required to examine and inspect the plans for all buildings proposed to be erected in said city, and, in the event he shall approve said plans, is to issue to the person so presenting said plans a license or permit to proceed with the erection of such proposed building; that by such ordinance it is further provided that it shall be unlawful for any person to proceed to erect any building in the city of Indianapolis until he shall have caused plans to be prepared for its erection, and until he shall have submitted said plans to such building inspector for his examination, and until such building inspector has approved said plans, and issued to the person proposing to erect such building his permit, as such building inspector, for the erection of said building;" that on said date the relator was, and ever since has been and still is, the owner of a certain described lot in said city, upon which he desires to erect an apartment house, and to that end he caused certain plans for such building to be prepared and presented to said building inspector, and requested him to inspect and approve such plans, and to issue a permit authorizing the erection of the proposed building; that said plans complied in every respect with the building ordinances of the city of Indianapolis; that appellee Winterrowd examined said plans, as requested, and found and declared them to be in compliance with the building ordinances of said city, and that the designed building, if erected, would be safe, be supplied with abundant light and air, and provide commodious and convenient apartments, but he declined to approve said plans and to issue the requested building permit, because said plans did not comply with certain requirements of an act of the General Assembly of the State of Indiana, entitled "An act relative to the construction and maintenance of tenement, lodging, and apartment houses," approved March 3, 1909, (Acts 1909 p. 108) in ten specified particulars. It is then averred that the legislative act heretofore mentioned is in conflict with certain provisions of the state Constitution, and of the 14th amendment to the Constitution of the United States.
It was manifestly the purpose of appellant's counsel to invoke the judgment of the courts upon the constitutional validity of the tenement, lodging and apartment house law of this State, approved March 3, 1909. The constitutional question has been fully and ably briefed, and we have no inclination to evade or postpone its decision, but, upon mature consideration, have concluded that the question is not properly presented for decision in this proceeding.
It is provided by statute in this State that "writs of mandate may be issued to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins, or a duty resulting from an office, trust, or station." § 1225 Burns 1908, § 1168 R. S. 1881.
Appellee's counsel challenge the sufficiency of the allegations of the complaint to show a legal right in the relator to the thing demanded, and a clear duty on the part of the building inspector to do the act requested. The allegations of the complaint respecting the provisions of the city ordinance, and the plans submitted for approval, are indefinite and faulty; but waiving these defects, we are of the opinion that the writ was rightly denied by the trial court. The writ of mandamus was originally of a high prerogative character, and in no sense a writ of right. The writ is authorized in certain cases by statute in this State, as heretofore shown, but it has always been regarded as an extraordinary one, and, in a sense, discretionary. Relief by writ of mandamus may be had only in the absence of any other adequate remedy. The issuance of the writ is justifiable only in favor of a petitioner who shows a clear legal right to the thing demanded, and an imperative duty on the part of the respondent to do the act required. State, ex rel., v. Cummins (1908), 171 Ind. 112, 85 N.E. 359; City of Auburn v. State, ex rel. (1908), 170 Ind. 511; 19 Am. and Eng. Ency. Law 725; 26 Cyc. 151.
Courts have generally been unwilling to extend the operation of this writ, and its use has been kept within its own narrow limits. It will be denied, when the object sought is an adjudication upon some question or right which may as well be...
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