The defendant has filed a motion to dismiss the proceeding as not being a proper one for this court to consider in the exercise of its original jurisdiction. The application for the writ not having been served upon the defendant before being filed in compliance with Eule 33, we will consider the matter as though the alternative writ had not been issued.
The proceeding is brought in reliance upon Article VII, of Section 2, of the Constitution of Oregon, as amended in 1910, which contains the following:
*523“But the Supreme Court may, in its own discretion, take original jurisdiction in mandamus, quo warranto and habeas corpus proceedings.”
This court speaking through Mr. Justice McBride construed this amendment on the point now under consideration in a habeas corpus case, Ex parte Jerman, 57 Or. 387, 392 (112 Pac. 416, 418, Ann. Cas. 1913A, 149), using the following language:
“We are of the opinion that it was not the intention of the framers of the late amendment to thrust upon this court the burden of hearing, considering, and deciding in the first instance every application for quo warranto, mandamus, and habeas corpus which should be presented to it. Such a construction would overwhelm us with a mass of original business, including the examination of witnesses, hearing arguments of counsel, and considering the merits of the causes presented, which would interfere seriously with those duties for which this court was primarily constituted, namely, the hearing and decision of cases coming here in the usual manner upon appeal. And we are also of the opinion that, before taking jurisdiction in any of the cases enumerated, we should carefully consider: First, the condition of the business of this court; second, the hardships to the petitioner incident, to a denial of the writ; third, whether the petitioner has any plain, speedy, adequate remedy in the Circuit Court; and, fourth, whether he has a remedy by appeal.”
In 7 R. C. L., page 1076, Section 112, the principle to be applied is stated thus:
“To warrant the assertion of original jurisdiction in an appellate court the interest of the state should be primary and proximate, not indirect or remote; peculiar, perhaps, to' some subdivision of the state, but affecting the state at large in some of its prerogatives, raising a contingency requiring the interposition of the appellate court to preserve the *524.prerogatives and franchises of the state in its sovereign character; the appellate court judging of the con-ting-ency, in each case, for itself. For all else, though raising questions publici juris, ordinary remedies and ordinary jurisdictions are adequate, and only when, for some peculiar cause, these are inadequate will the original jurisdiction of the appellate court he exercised for the protection of merely private or merely local rights.”
In the notes on the question in 20 Ann. Cas. 188, 189, we find the following:
“In states where both the court of last resort and the inferior courts have original jurisdiction to issue writs of mandamus, it is the general rule' that the court of last resort will exercise its jurisdiction only in cases involving questions publici juris, or in cases where it is shown that a refusal to take jurisdiction would practically amount to a denial of justice, and that the writs from that court should, in general, be put only to prerogative uses. * * .
“Some courts go even further than the rule stated at the beginning of this section, and say that the writ should not be issued except in. cases affecting the sovereignty of the state, its franchises, or prerogatives, or the liberties of its people, or in exceptional cases where a failure to take jurisdiction would amount to a denial of justice.”
We will consider this proceeding in accordance with the rule announced in Ex parte Jerman, 57 Or. 387, 392 (112 Pac. 416, 418, Ann. Cas. 1913A, 149), in the light of the other precedents cited. The docket of this court is in such condition that, should the relators be relegated to the Circuit Court to obtain a determination of their rights in the matter; it is probable that one year’s time would elapse before the case could be heard in this court upon an appeal. It goes without saying that this court would *525receive the 'benefit of the more thorough and orderly presentation of the case on an appeal from a judgment rendered after a trial in the Circuit Court. According to the allegations of the petitioners, the necessary delay that would be occasioned by such a course would prevent their beginning building operations during the present year. Circumstances might be such that on account of financial conditions such a delay would prevent the petitioner Everett from constructing the building for a much longer time, and would practically amount to a denial of justice. The ordinary remedy of the relators, if their allegations are true, would be inadequate.
While the state at large is not interested in this proceeding, the validity of an ordinance of the large City of Portland which affects the interests of a great many people is involved. The importance of the question is shown by the statements in the brief of defendant:
“If, therefore, the application made by this petitioner shall prevail, a decision of far-reaching importance will be handed down.
“Public interests and public policy are shown by the writ to be in question, and the police power of the City of Portland sought to be abridged.”
We think it is conceded that the question involved is one of great importance to the relators and to the municipality. The fact that the business of this court is congested is like a two-edged, sword in this case, and is a reason why original jurisdiction should not be exercised except in proper cases, and should also be considered in estimating the time that would expire before a final determination of such a proceeding if this court should refuse to entertain original jurisdiction.
*526Appeal dismissed July 31,
rehearing denied October 5, 1920.
In Banc. The relators, desiring to build an apartment house on real property in the City of Portland, of which the relator Kelly is the owner and which the relator Everett had contracted to purchase, applied to the defendant, as inspector of buildings of the municipality, for a permit to erect the building. Permission having been refused by the defendant, the relators by an original proceeding in this court, after their appeals hereinafter mentioned had been denied, sued out an alternative writ of mandamus requiring the defendant to issue the permit or show cause why he had not done so. After allegations of the ownership of the property, that the defendant is the inspector of buildings, intrusted by the bureau of buildings of the City of Portland with the supervision and direction of the issuance of building permits, and a further statement that on December 12, 1919, on the application of the relator Everett the defendant had issued a permit of the bureau of buildings for excavation upon the premises for the future erection of the apartment house, it is said:*526It is not onr purpose to consider the merits of the case, or intimate an opinion as to the validity of the ordinance in question, in passing upon the motion.
Counsel for relators have interposed a motion for the issuance of a peremptory writ at this time. Without discussing the matter, we think this should be postponed until a return to the writ has been made.
The motion to dismiss will therefore he denied, and the defendant allowed five days in which to answer the writ. Motion Denied.
McBride, C. J., and Johns and Bennett, JJ., concur.