State ex rel. White v. Morehead

Sedgwick, J. The first question presented in this case is whether mandamus is the proper remedy, and that depends upon whether the relator had a complete and adequate remedy by petition in error to review the order of the state banking board in refusing to grant the charter. Under the opinion of this [38] court in Mathews v. Hedlund, 82 Neb. 825, and Munk v. Frink, 75 Neb. 172, and various other decisions of this court, some of which are cited in the two cases above referred to, there can be no doubt that the action of the state banking board can be reviewed by petition in error filed in the district court. The question then is whether the review by petition in error in such case is an adequate and complete remedy. Section 7880, Rev. St. 1913, provides: “Any person or officer, or the presiding officer of any board or tribunal before whom any proceeding may be had, shall, on request of any party thereto, settle, sign, and allow a bill of exceptions of all the evidence offered or given on the hearing of such proceeding.” Section 8177 provides the procedure. This would seem to give the applicants for a banking charter the right to have the evidence taken down and a bill of exceptions settled by the state banking board. If that was done and the evidence with the petition in error filed in the district court, the district court would proceed exactly as it Avould upon a Avrit of mandamus, if that was the proper remedy; that is, it would determine whether the board had committed any substantial and reversible error. If the record showed that the board had exceeded its jurisdiction or power, or if it showed that in the exercise of its discretion the board had abused its discretion to the prejudice of the plaintiff in error, the order of the board would be reversed. The statute provides that the order, if found erroneous, “may be reversed, vacated or modified by the district court.” Under this power the district court would affirm or reverse the order of the banking board, and, if the order was reversed, would' determine what order should have been made, if that could be determined upon the record presented, and certify to the banking board with instructions to enter the order that should have been entered. If the record was insufficient for that purpose, the matter would be remanded for further proceedings. This remedy would be complete. [39] In this case the proper practice is discussed in the briefs, and it is insisted that mandamus is not the proper remedy. It is the general rule in all courts that mandamus cannot be used when there is a complete and adequate remedy provided by statute. The important question of the construction of the statute, and the power of the banking board to refuse a charter solely because it may find that the banking facilities in the locality where it is proposed to use the charter applied for are already adequate, is determined in State v. Morehead, 100 Neb. 864, and it is not necessary to discuss that question here. The judgment of the district court is reversed and the cause dismissed. Reversed and dismissed.