(dissenting) — The majority have determined that “The action of the board was arbitrary and unreasonable,” and that, hence, a writ of mandamus should be granted *388compelling the board to issue a building permit, as provided by ordinance No. 1117 of the city of Wenatchee. I dissent for the following reasons:
(1) The majority hold that, in this mandamus proceeding, “the trial court acted as a court of review for error of law and could not try the case de novo .” I do not agree. The sole issue before the trial court was the alleged conduct of the board of adjustment in arriving at its determination not to grant the building permit. In order to make an adjudication of whether or not the board’s acts were arbitrary and unreasonable, the court must review the evidence which the board considered in arriving at its decision. If the issue of arbitrary and unreasonable conduct was not tried de novo in the superior court, in what constitutional tribunal was that issue previously determined? To ask the question is to answer it.
The witnesses before the trial court testified concerning the single issue of whether or not the board acted arbitrarily and unreasonably in denying the issuance of the permit. In addition to this testimony, the court considered documentary evidence and viewed the area in question. This proceeding was a trial de novo in the superior court. The determination made by the trial court was a factual one, and one in which the court entered specific findings. The findings of a trial court will not be reversed by this court unless the evidence preponderates against such findings. Gray v. McDonald, 46 Wn. (2d) 574, 283 P. (2d) 135 (1955); Irwin v. Sanders, 49 Wn. (2d) 600, 304 P. (2d) 697 (1956). In my opinion, the evidence does not preponderate against the trial court’s findings.
(2) The majority state that “It should also be noted that the ultimate burden of proof relative to alleged arbitrary and capricious zoning action rests upon zoning authorities and not upon a property owner who is seeking a permit,” citing State ex rel. Synod of Ohio, etc., v. Joseph, 139 Ohio St. 229, 39 N.E. (2d) 515, 138 A.L.R. 1274 (1942).
I have no quarrel with the fact that this may be the rule in Maryland and Ohio, hut it is not the rule in Washington. *389We have consistently held that there is a presumption that public officers perform their duties regularly and in accordance with the law. Smith v. Hollenbeck, 48 Wn. (2d) 461, 294 P. (2d) 921 (1956). We have further held that the burden of establishing that a public officer has acted arbitrarily and capriciously in the exercise of his duties rests upon the one who asserts it. This rule was specifically applied to the action of a zoning board in Lillions v. Gibbs, 47 Wn. (2d) 629, 289 P. (2d) 203 (1955). The fact that this case involved an application for a permit to construct a church does not warrant a different rule as to the burden of proof than that applied in the Lillions case. Hence, I cannot agree that, in this jurisdiction, there is a presumption that the conduct of the board in denying the permit was arbitrary and capricious, that the burden of proof is upon the board to establish that its action was reasonable.
(3) This' is a mandamus proceeding, and we have consistently held that mandamus will not lie to compel the performance of acts or duties which call for the exercise of discretion on the part of public officers. That discretion is involved in this case is admitted when the majority, by court order, direct the board to exercise it against its judgment. When an officer engages in the performance of a duty which is not ministerial, our court will interfere only when the public officer’s action is so arbitrary and capricious as to evidence a total failure to• exercise discretion, and therefore, the act of the officer is invalid. Stoor v. Seattle, 44 Wn. (2d) 405, 267 P. (2d) 902 (1954); Lillions v. Gibbs, supra. The denial of the permit by the board of adjustment was based upon substantial evidence, and was not arbitrary and capricious.
(4) It is conceded, by both the appellant and the majority, that Wenatchee’s ordinance with reference to zoning is constitutional. This is, apparent from the fact that the majority grant relief under the ordinance. Since the constitutionality of the ordinance is not challenged, we are not concerned in this proceeding with any of the following constitutional issues: (a) denial of religious freedom, (b) *390equal protection under law, (c) due process of law, and (d) proper exercise of the police power. We are concerned only with whether or not the board complied with the administrative standards set out in this admittedly constitutional ordinance. In R-l districts (where this permit was sought), congregations were granted the right to erect, construct or alter churches, “if approved by the Planning Commission.” (Italics mine.) The ordinance permitted construction of churches in other use zones where such approval by the board was not required.
What were the administrative standards provided by the ordinance to govern the scope of the board’s authority to grant or deny a permit in R-l districts? By section XXII of the ordinance, it was provided that (a) the board must investigate the applicant’s request in relation to the provisions of the ordinance, (b) consider the present land utilization pattern and density of building within the neighborhood area, (c) study conditions existing or predating the ordinance concerning topography, traffic, automobile parking, and utilities, and (d) consider the official maps, development plans, reports, and findings of the planning commission.
The majority opinion does not indicate any departure by the board of adjustment from the administrative standards set out in the ordinance. The majority contend that the refusal to grant the permit “sought by appellant was not in furtherance of the health, safety, morals or general welfare of the community,” and constituted an illegal exercise of the police power, and that this valid ordinance was administered in an unconstitutional manner. Since there has been no showing of any departure by the board from the administrative standards provided by the ordinance, such a contention attacks only the constitutionality of the ordinance. It does not attack the exercise of authority pursuant to it. In the absence of such a showing, I disagree with the majority’s contention that the board’s exercise of zoning authority, pursuant to the ordinance, was illegal.
(5) Finally, considering the case on its merits, the board did not act arbitrarily and capriciously. Two public hear*391ings were had.- Seventeen interested persons were present at the hearing of June 2, 1955, and fifty-two persons attended the hearing of June 16, 1955. At these hearings, those present expressed their views concerning the traffic congestion and the anticipated traffic hazard which would result from granting the permit, and that the granting of the permit would thwart the planning commission’s program of development for this area. This evidence related precisely to the standards which should govern the board in the exercise of its authority under the ordinance. In addition, the board had before it petitions signed by approximately one hundred persons who objected to the granting of the permit because a traffic hazard would be created thereby, and who alleged other objections not material to the issue here presented. The board made an on-the-ground inspection of the street condition and the adjacent lot upon which the building permit was requested.
The evidence which the board considered (all within the purview of the ordinance) consisted of maps, engineers’ reports, reports of the planning commission concerning anticipated future development of the area, petitions of residents living in the vicinity, and the testimony of witnesses relative to the narrow street, the heavy travel because of the existence of a nearby school, the inadequate off-street parking, and the anticipated increased vehicular traffic. After weighing this evidence, the board, in the exercise of its discretion, unanimously concluded that, because of traffic conditions in the area which would be created thereby, the request for a building permit at this location should be denied.
In Lillions v. Gibbs, supra, at p. 633, we defined arbitrary and capricious action as follows:
“Arbitrary and capricious action of administrative bodies means willful and unreasoning action, without consideration and in disregard of facts or circumstances. Where there is room for two opinions, action is not arbitrary or capricious when exercised honestly and upon due consideration, even though it may be believed that an erroneous conclusion has been reached. [ Citing case. ] ”
*392Applying the above definition to the facts in the case at bar, there is nothing in the record which would indicate that the action of the board was in willful disregard of the facts or that its action was in any manner arbitrary. Neither can it be said, in the light of nearly one hundred protests, that there was not “room for two opinions” concerning the possibility of traffic hazards and congestion, had the permit been granted.
The determination which the board made was in conformity with the standards provided by the ordinance. Considering this case on its merits, there was no showing of arbitrary or capricious action on the part of the board in the exercise of its discretion under the powers granted to it by the ordinance. The trial court, after hearing similar testimony and considering similar evidence, found that the action of the board was not arbitrary and capricious.
In my opinion, the judgment of the trial court should be affirmed, and the writ of mandamus denied.
Don worth, J., concurs with Ott, J.
Weaver, J., did not participate.