On the Merits.
(191 Pac. 883.)
“That on January 22, 1920, relator Everett, through his architects, made application to the said defendant and to the said bureau of buildings for a permit to erect a six-story fireproof apartment house on said premises at an estimated cost of $225,000; that said application was accompanied by plans and specifications in manner and form as provided by the Building Code of the City of Portland; that the term ‘Building Code’ is the designation of ordinance number 33911 of the City of Portland, Oregon, entitled, ‘an ordinance providing building regulations to be known as the Building Code, repealing certain existing building regulations and providing a penalty, and declaring an emergency,’ which said ordinance had theretofore been duly enacted and approved and has been and is in full force and effect in the said city; that said ordinance requires application to be made to the said bureau of buildings for a permit to erect structures, directs the accompanying of the application for permit with two sets of plans and specifications and an estimate of probable cost of the work, and requires the issuance by said bureau of such permit if the applications, plans, and specifications conform to the requirements of the said Code; that the said ordinance further provides that a permit shall either be issued or refused within three working days from the date of filing ^the application, and a board of appeal is created to* which appeal may be made from such refusal on the part of the said building inspector or bureau of buildings.” The writ states also, in substance, that at the time the excavation permit was issued, the Building Code of the city provided that certain kinds of buildings erected or altered for use in whole or in part for certain kinds of occupancy therein naméd,. should be restricted as to location; that no permit for the erection or alteration of such building should be issued unless such application were approved by the council; that it should be accompanied by a plan giving the location of the building in question, together with all buildings within a radius of two hundred feet from the proposed structure, and the names and addresses of the owners of such buildings; that the ordinance required fixing a time for the consideration of the case by the council, notification to the owners of neighboring buildings, and that the “granting of the application for a permit shall not be approved by the council wherever it appears that the granting of the same is or may be detrimental to the public health or safety or detrimental to the welfare and growth of the city.” In the list of restricted buildings, as the ordinance stood at the time the excavation permit was issued, apartment houses were not included. The writ narrates that on January 14, 1920, the restrictive ordinance mentioned was amended so as to include, among other structures, apartment houses, and that Section 2 of the amending. ordinance limited the period of its application to apartment houses as follows: “Section 2. That the provisions of Section 706 of said ordinance No. 33,911 so far as the same applies to apartment houses, shall cease to be in force and effect from and after July 1, 1920.” This amended ordinance carried with it an emergency clause. The writ goes on to allege that when the application was made for the erection of the desired apartment house the defendant did not object to the application, plans, or specifications because of any imperfections therein or because of failure to conform to the Building Code or any ordinance of the city, but based his refusal on the ground that because the building ordinance was amended so as to include apartment houses he was powerless to issue a permit without direction of the city council. It further appears that the relator Everett appealed from the action of the defendant to the board of appeals constituted by the Building Code, where his appeal was denied, and the matter was carried to the city council on his further appeal, accompanied by a plan as prescribed in the building code before the amendment mentioned, with the result that a majority of the owners of neighboring buildings within two hundred feet of the site of the proposed structure objected to the granting of the permit, whereupon the council also rejected the application and declined to issue the permit. This rejection is characterized by the alternative writ as an arbitrary exercise of power assumed by the council to . deny the right to erect apartment houses on the location chosen merely because of aesthetic considerations or because certain neighboring owners preferred to be exclusive. The effect of the action of the defendant and of the bureau of buildings, board of appeals, and city council is declared by the relators to be to deprive them of their property rights and to be in violation of Article XIV, Section 1, of the Constitution of the United States, and Article I, Section 10, of the state Constitution; and it is averred that if the property is used merely for the construction of a residence it is worth only $20,000, whereas if used for the construction of an apartment house, it will be worth $40,000. The defendant showed cause by answering. On information and belief he denies the ownership of the property, and admits that he is the inspector of buildings and is authorized to issue permits, but not for the erection of apartment houses. He denies that the application mentioned in the allegation of the writ already quoted was accompanied by plans or specifications in manner or form as provided by the Building Code of the City of Portland, and denies that the Code requires the issuance by the bureau of such a permit if the application, plans and specifications conform to the requirements of said Code, or that a permit shall either be issued or refused within three days or within any other time from the date of the filing of the application. -It is admitted that the ordinance became functus officio on July 1, 1920, as to apartment houses. The answer denies that the defendant restricted his objections to the plans and specifications submitted with the application to mere want of authority to grant the permission without consent of the council. The appeal to the board of appeals and finally to the council is admitted, with the result as stated in the alternative writ. Other admissions and denials were made, not necessary to be noticed here. Affirmatively, the answer to the writ sets out the amendment to the ordinance, including apartment houses on the restricted list, saying that as to such edifices the ordinance had been amended on December 21, 1919. The answer further points out that the plans and specifications, mentioned in the alternative writ as having been presented to the defendant, failed in seventeen specified particulars to comply with the Building Code, the Housing Code, and other ordinances of the City of Portland, which are pleaded. There are other allegations of the answer giving reasons, based upon the ideas of the defendant respecting health requirements, fire protection, and aesthetic considerations, why the site mentioned ought not to be devoted to the use of an apartment house. The reply admits many of the -defects charged against the submitted plans and specifications by the answer, but avers a willingness on the part of the relators to make proper corrections in the future. At this stage of the litigation the relators moved for a judgment on the pleadings awarding a peremptory writ of mandamus against the defendant, commanding him forthwith to issue the desired permit. Dismissed. Rehearing Denied. For the relators there was a brief over the names of Messrs. Bey, Hampson $ Nelson and Mr. C. J. Young, with an oral argument by Mr. Boscoe C. Nel- . son. For defendant there was a brief over the names of Mr. Wallace McCamant, Mr. H. M. Tomlinson and Mr. Walter P. La Boche, City Attorney, with oral arguments by Mr. McCamant and Mr. Tomlinson. BURNETT, J.2. It is well-nigh axiomatic that the court is powerless to render judgment on the pleadings when there is at issue any question of fact material to the relief sought. It is charged in the writ, as appears more at large in the ’quoted allegation above set forth, that the application made to the defendant for permission to erect the apartment house was accompanied by plans and specifications *532in manner and form as provided by the Building Code of the City of Portland, and this is denied. At this point the relators are confronted with a dilemma. On the one hand there is an issue on this part of the writ, in which there appear an affirmation on one side and a traverse on the other. On the other'hand, this cannot be avoided with the statement, as made in the argument, that this allegation was a mere conclusion of law. In brief, there is either an issue of fact joined, or the pleading of the writ is insufficient in point of law, in that it states a mere conclusion of law and not a fact. To allow the motion for a judgment .awarding a peremptory writ would be either to disregard the issue of fact, if there' be one, or to permit the relators to stultify themselves by admitting that their pleading was insufficient to justify the issuance of a writ.
It is hornbook law that the writ will not issue unless it is made clear that all of the preliminaries preceding the execution of the function sought to be compelled have been completed, so that nothing is left for the defendant to do except the ministerial duty involved. Having availed himself of this extraordinary remedy of mandamus, the petitioner for the writ must show such a situation that all objections to the performance of the duty have been removed and that the defendant is confronted with the absolute obligation to perform the act sought to be compelled. In this case the validity and authority of the Building Code of the City of Portland are granted, except so far as it attempts by the amendment to make proposed apartment houses subject to the will of the council. In many of the respects in which the plans and specifications are challenged, the objections thereto are conceded, for instance, the re*533quirement of the dimensions of flues, the width of stairways, and the like, which are sufficient for illustration. In the very nature of things, under the building ordinance, the defendant could not and ought not to be allowed to issue permits for the erection of buildings which do not conform to the Building Code.
It is urged, however, in argument, and substantially alleged, that at the time the defendant rejected the application he did not make any of the objections now set out in his answer respecting nonconformity with the Building Code. It must be remembered, however, that the defendant is a public officer, whose duties are prescribed by the ordinances of the city, of which the relators must take notice. It is not within his authority to ignore or waive any of the requirements of the city laws. The relators must take notice of the limitations upon his authority. Upon them, not upon him, rests the burden of showing all things necessary to creating a situation in which his duty to issue the permit is imperative. They cannot rely upon waiver, as if the obligation were between private individuals, where only their respective rights are affected. In such an instance, where only private rights and duties are involved, either party may waive requirements which he otherwise would be authorized to enforce. It is not so, however, in matters where public rights are involved and the duties of an officer are enjoined upon him by law with restrictions governing his conduct. It is not necessary to cite authorities for the views herein expressed. They are of common learning. These are sufficient reasons for denying the motion asking.the issuance of a writ on the pleadings as they .now stand. Neither would it be competent to issue a peremptory writ conditioned upon the relators’ future correction of *534the errors in their plans and specifications. A conditional peremptory writ would be a contradiction of terms. Peremptory means absolute, and admits of no qualification.
For the reason that by the admitted terms' of the ordinance it ceased to be effective on the first day of July, 1920, as to apartment houses, the right of the council to pass such an ordinance has become a moot question, which the invariable practice of this court has excluded from our consideration: Moores v. Moores, 36 Or. 261 (59 Pac. 327); State ex rel. v. Grand Jury, 37 Or. 542 (62 Pac. 208); State ex rel. v. Fields, 53 Or. 453 (101 Pac. 218); State ex rel. v. Webster, 58 Or. 376 (114 Pac. 932).
Only in its discretion does this court take original jurisdiction in cases of this sort: Article VII, Section 2, State Constitution.
For the reasons already stated, therefore, the motion, based on the pleadings, to direct the issuance of a peremptory writ, will be denied, and as an exercise of our constitutional discretion the proceeding will be dismissed, without prejudice to the rights of the relators to apply to the Circuit Court for a writ of mandamus as they may be advised.
Dismissed. Rehearing Denied.
McBride, C. J., and Harris, J., concur in the result. Bean, J., took no part in the consideration of this case. JOHNS, J.Under the facts shown to exist, neither one of the reasons assigned for dismissing the writ is legally sound, and for such reason I dissent.