Wilson Realty Co. v. City and County Planning Board

JOHNSON, J. The petitioner in its petition does not challenge the validity or constitutionality of the enabling act under which the City and County Planning Board was established, Chapter 677, Session Laws of 1947. The cause of action alleged in the petition presupposes *655 a legally constituted planning board, created under a valid act of the General Assembly, with power to make discretionary decisions within the framework of the enabling act. Therefore we lay aside as not being pertinent to decision the contentions pro and con, discussed in the briefs and debated upon the argument, with reference to these questions: (1) whether the act meets minimum constitutional requirements in prescribing standards to guide the Planning Board in the exercise of the discretionary powers conferred upon it; (2) whether the Planning Board exceeded its authority in adopting rules for its guidance in regulating the subdivision of land into streets and lots; and (3) whether the enabling act exceeds constitutional limitations in prescribing penalties for failure to comply with rulings of the Planning Board. See Motsinger v. Perryman, 218 N.C. 15, 9 S.E. 2d 511; Coastal Highway v. Turnpike Authority, 237 N.C. 52, 74 S.E. 2d 310. These questions, not having been raised by the pleadings nor ruled upon below, are beyond the scope of review here. Merrell v. Jenkins, 242 N.C. 636, 89 S.E. 2d 242; Bank v. Caudle, 239 N.C. 270, 79 S.E. 2d 723. The petitioner by exceptions duly noted and brought forward on appeal challenges the action of the court below in considering, and in basing its findings and conclusions in part upon, records and documents not offered in evidence at the hearing. These exceptions and the assignments of error based thereon seem to be well taken. The trial court appears to have misapprehended the fundamental nature of this proceeding. The court seems to have assumed that the proceeding was one for review in its appellate capacity of action of the Planning Board on writ of certiorari used as a substitute for appeal. However, the proceeding was commenced and prosecuted below as an ordinary civil action wherein relief by way of mandamus was sought in the exercise of the court’s original, as distinguished from appellate, jurisdiction. The “issuance of a writ of mandamus is an exercise of original and not appellate jurisdiction.” Pue v. Hood, Comr. of Banks, 222 N.C. 310, 312, 22 S.E. 2d 896. The writ of mandamus is employed to compel inferior tribunals, officers, or administrative boards to perform duties imposed upon them by law. Hospital v. Joint Committee, 234 N.C. 673, 68 S.E. 2d 862; Person v. Doughton, 186 N.C. 723, 120 S.E. 481. Mandamus is not used to correct action, however erroneous it may be; hence it is not used to serve the purpose of a writ of error or appeal. Pue v. Hood, Comr. of Banks, supra; 34 Am. Jur., Mandamus, Sections 8 and 9. 'The function of a writ of certiorari as an independent remedy is quite different from that of mandamus. Certiorari, as an. independent remedy, is designed to review and examine into proceedings of lower tribunals and to ascertain their validity and correct errors therein. The *656 writ issues to review proceedings of inferior boards and tribunals which are judicial or quasi judicial in nature. Pue v Hood, Comr. of Banks, supra; 10 Am. Jur., Certiorari, Section 11, p. 535. In short, certiorari differs from mandamus in that mandamus compels'an unperformed clear legal duty; certiorari reviews a performed judicial duty. 10 Am. Jur., Certiorari, Section 4. In certiorari, evidence dehors the record is not permitted in the absence of statutory authority. Brooks v. Morgan, 27 N.C. 481; Pue v. Hood, Comr. of Banks, supra; 10 Am. Jur., Certiorari, Sections 5 and 19. Certiorari may be used, however, as an ancillary writ in a mandamus action for the purpose of bringing up from the inferior tribunal or board records deemed necessary for use in the trial of the case on its merits. 10 Am. Jur., Certiorari, Section 5, p. 529; Annotation 12 Am. Dec. 537; S. v. Johnson, 103 Wis. 591, 79 N.W. 1081. In mandamus proceedings, the general rules governing trials of actions at law and suits in equity control, in so far as applicable, in respect to the right (1) to a hearing, (2) to present evidence, and (3) to object to rulings on questions of reception and exclusion of evidence. And where an issue of fact is raised by the pleadings, either party, by virtue of G.S. 1-513, is entitled to a jury trial. However, if neither party moves for jury trial, it then becomes incumbent upon the trial judge to find the facts and enter judgment based thereon. Cannon v. Wiscassett Mills Co., 195 N.C. 119, 125, 141 S.E. 344. See also In re Housing Authority, 235 N.C. 463, 70 S.E. 2d 500. Here, the action was commenced by summons and verified petition, as is expressly required by statute in mandamus proceedings, G.S. 1-511. Certiorari was used only for the ancillary purpose of bringing up from the Planning Board records and documents for use at the hearing. At the hearing below, the petitioner offered evidence in support of its allegations bearing on the issues of fact raised by the pleadings. While some of the evidence offered by the petitioner consists of records and documents sent up by the Planning Board to the court under the ancillary writ of certiorari, nevertheless much of its evidence is in the form of affidavits dehors the records of the Planning Board and contradictory thereof. It thus appears that in the trial below the petitioner developed its case in accordance with the principles governing trial procedure in mandamus proceedings. The respondents offered no evidence. Therefore the court in finding the facts upon which judgment was based should have limited itself to consideration of the facts in evidence. Instead, the court appears to have given consideration to all the records, documents and maps sent up in bulk to the court by representatives of the Planning Board. Some of these documents appear to *657 be without semblance of authentication as reflecting official action of the Planning Board. Also, it is noted that the court’s findings appear to be based in part on “arguments of counsel.” It thus appears that the case was heard below under a misapprehension of the pertinent principles of law. When this occurs, the usual practice with us is to remand the case for another hearing. Griffith v. Griffith, 240 N.C. 271, 280, 81 S.E. 2d 918; McGill v. Lumberton, 215 N.C. 752, 3 S.E. 2d 324. See also Coley v. Dalrymple, 225 N.C. 67, 71, 33 S.E. 2d 477; Credit Co. v. Saunders, 235 N.C. 369, 373, 70 S.E. 2d 176. It is so ordered here. Therefore, to the end that the parties may have the case heard and determined under application of the pertinent principles of law, the judgment is ordered stricken out, with direction that the cause be remanded for rehearing. In this view of the case and since on retrial the facts may be different from those here shown, we withhold our opinion on the question whether the City and County Planning Board has legal authority to require as a condition precedent to approval of the petitioner’s subdivision plan that petitioner reserve a right of way along Silas Creek as shown on the March 10 plat, when, as here, it is made to appear: (1) that the proposed right of way will embrace a strip of land from 110 feet to 240 feet wide, comprising about six acres, for which concededly the petitioner is entitled to compensation; (2) that neither the Board of Aider-men of the City of Winston-Salem nor the State Highway and Public Works Commission has authorized or approved the proposed Silas Creek Parkway; (3) that the Planning Board has no authority under the enabling act to construct streets or highways; and (4) that no funds have been made available to any responsible governmental agency for acquiring and paying for the right of way. Suffice it to say, on these facts the authorities relied on by the petitioner appear to be more nearly controlling than those cited by the respondents. The cases of Ridgefield Land Co. v. Detroit, 241 Mich. 468, 217 N.W. 58, and Ayers v. Los Angeles, (Cal.) 191 P. 2d 546, and other decisions cited by the respondents seem to be distinguishable on the facts here disclosed. See also 11 Am. Jur., Constitutional Law, Sections 260 and 266; 12 Am. Jur., Constitutional Law, Section 651; Annotation 11 A.L.R. 524; 62 C.J.S., Municipal Corporations, Section 83. New trial. PariceR, J., dissents.