In Mаy 1966 an application for a new license for the sale of used auto parts for the year beginning July 1, 1966, was filed in the name of Liberty Auto Wrecking by Fred and Bessie Lepofsky for two separate premises — 1007 and 1059 Fort Street in the City of Lincoln Park. All licenses under the city ordinance 1 are issued annu *349 ally and expire each June 30. Plaintiffs Fred and Bessie Lepofsky have been licensed to operate a *350 used auto parts. business in Lincoln Park since 1933 or 1934 when thе property at 1007 Fort Street was sold to them. The same business had been in existence for about ten years prior to their purchase of it. In the original complaint in this action filed on June 29, 1966, Fred and Bessie Lepofsky as the only named plaintiffs requested an order compelling the city to issue the license. Defendants filed an answer wherein théy claimed that final action had not yet been taken on the license, the mayor and city council having considered the license application June 27, but the hearing being adjourned until July 5, for the alleged reason that the premises violated the city fire code because certain combustibles were stored there. Earlier, on December 6, 1965, the mayor and city council had passed a resolution that the property at 1007 Fort Street constituted a nuisance because of the disrepair of the board fence surrounding the premises. The owners were given 30 days to abate the nuisance. Thereupon, Sidney Lepofsky, son of Fred and Bessie, applied to the city building in *351 spector for a permit to fix the fence, which was denied. Sidney and his brother Theodore Lepofsky then went ahead and collected wood and began repairing the fence despite the lack of a permit. The collected wood was stored at 1059 Fort Street until Sidney and Theodore received a notice on or about June 8, 1966, from the fire marshal declaring the collection of wood to he a fire hazard and ordering it removed. This fire hazard was apparently the reason for the city council’s adjournment of the June hearing, at least as to the license application for 1059 Fort Street. Subsequently, the wood was moved to 1007 Fort Street. In the meantime, while the repairing of the fence at 1007 Fort Street continued without a permit, Sidney and Theodore Lepofsky were served with a summons June 9, 1966, for erecting a fence without a permit. Sidney and Theodore were thereafter tried and convicted in Lincoln Park Municipal Court as charged, but appealed to the Wayne County Circuit Court, where they were found not guilty November 10, 1966, of violating the ordinance, the grounds apparently being that they were repairing, not erecting, a fenсe. Apparently the fence has now been fully repaired.
While Sidney and Theodore Lepofsky were contemplating the summons for the fence erection violation, they received another summons, on June 27, 1966, this one charging that they were engaged in the operation of a junk business at 1007 Fort Street without a license. The pertinent part of the junk dealers ordinance here is set out in the footnotes. 2 As a result of this latest summons, *352 plaintiffs Fred and Bessie Lepofsky filed this suit June 29, 1966, seeking a writ of mandamus compelling the city to issue used auto parts licenses for both 1007 and 1059 Fort Street, and seeking an injunction against further action by the city against their business. An order to show cause for a temporary injunction against the city was obtained, same to be heard on July 15, but this hearing was adjourned until August 16, 1966. In the interim, on August 1 the city council denied plaintiffs Fred and Bessie Lepofsky’s application for a license filed in May 1966 fоr the following reasons:
"(a) The fence surrounding the premises does not comply with the requirements of the licensing ordinance and constitutes a public and private nuisance;
"0>) The applicants for license are apparently not the operators thereof and have apparently leased the premises to another person or persons, who is or are unlicensed to conduct any business on the premisеs;
"(c) The premises are being used for purposes — i.e. junkyard operation — not contemplated or permitted by the license previously held by the applicants or sought in the pending application or permitted by the pertinent city ordinances.”
On August 4, 1966, Sidney and Theodore Lepofsky were convicted in municipal court of operating a junk business without a license. The municipal *353 court ignored a defense that Sidney and Theodore were not the real owners and therefore improper defendants, since the ordinance requires the "person in control” to obtain a license. Lincoln Park Ordinances Ch IX, § 8-9.12, supra, footnote 2. This conviction, was appealed and reversed in Wayne County Circuit Court June 3,1968.
Meanwhile, back with Fred and Bessie Lepofsky’s action against the city, a hearing was held August 16, 1966, on a contempt proceeding brought by the above-named plaintiffs against the City of Lincoln Park for alleged harаssment, and on defendant city’s motion for a summary judgment on the original action. During counsel’s argument it appeared that the pleadings were not in order, and permission was given to add as parties plaintiff Sidney and Theodore Lepofsky, and to the city to file an amended answer. On October 16, 1966, an order was granted allowing such amendments, but at the same time the court ordered that plaintiffs post a $2500 bond in accordance with the city’s liсense application requirements, that a building permit be issued for the construction of the new fence around 1007 Fort Street, and that a license be issued to operate the used auto parts business. Since this was exactly the relief sought by plaintiffs and since it was granted before the defendant could file an amended answer and without a hearing on the issues framed by the amended pleadings, we reversed on appeal and remаnded.
Lepofsky v Lincoln Park,
The case having been remanded, plaintiffs Fred, Bessie, Theodore and Sidney Lepofsky, doing business as Liberty Auto Wrecking, filed a supplemental complaint in October 1968. (Every May since 1966 plaintiffs have applied for a new license, but *354 the mayor and council have not acted on the petition pending this litigation, though the bonds and fees have been kept by the city.) A trial was had without a jury, and the judge below decided 3 that a used auto рarts license should be issued for 1059 Fort Street; but since he found that the premises at 1007 Fort Street were being used as a junk yard without the appropriate license in violation of the city ordinance, he ordered plaintiffs to terminate their business at that address. There is no disagreement now over the order of the court concerning 1059 Fort Street, and the appeal is brought by plaintiffs in objection to the findings and order of the trial judge concerning 1007 Fort Street. Defendants file a cross appeal more to substantiate the rulings below than to object to any of them.
Plaintiffs first claim that the mayor and common council arbitrarily denied plaintiffs a new license for their used auto parts business at 1007 Fort Street. Their primary objection here concerns the events in the summer of 1966 when the council considered the May 1966 application for a new license for both 1059 and 1007 Fort Streеt. Plaintiffs claim that no notice in writing of any charges were served upon them prior to the council meeting and announcement of license denial on August 1, 1966, in violation of Lincoln Park Ordinances, Ch XVIII, §8-18.6.
4
They also alleged that they were denied a hearing on the merits of the issues involved, contravening the rule of
Detroit v Mash
*355
lakjian,
Plaintiffs in their complaint seek an order granting them a license, an injunction preventing further harassment of their business by the city, and "further relief as shall be agreeable to equity and good conscience”. On the other hand, the defense counsel characterized the action as being one under "the old writ of certiorari”, while the trial judge characterized the action as "certiorari, to
*356
review the actions of the city council, the mayor, and the officials there; mandamus, in the nature of ordering the same officials to issue the license to the plaintiffs”. Certiorari is a writ issued by a superior to an inferior tribunal whose function is to bring before the superior tribunal the record of the proceedings below in order that the superior court may determine from the face of the record whether the inferior tribunal has exceeded its jurisdiction, or has madе errors in the law.
Lenz v Mayor of Detroit,
If this action is characterized as one for manda
*358
mus to a public official,
7
we again face similar problems with the scope of review permissible, but this time under GCR 1963, 714. While mandamus is a discretionary writ, it will not lie to compel a public officer to perform a nonministerial duty dependent on disputed and doubtful facts.
Lobaido v Detroit Police Commr,
*359
We are confronted, then, with a situation where review of the Lincoln Park city council’s action by the court below, was improvidently granted if there was no administrative record, and improperly made if there was one. We have reviewed all courses of action open to us and have simply been unable to discover a means by which we might avoid remand of these proceedings to determine the adequacy of the administrative record. We are not unmindful of the strong possibility that there was no administrative record made, save for the August 1, 1966, announcement that plaintiffs would be denied a used auto parts license, and that therefore the circuit court would need remand the case back to the city council in order that a proper record be made. Such a result might seem wasteful at best, since the history of this prolonged litigation may obviate the fact that the Lincoln Park city fathers are insistent that plaintiffs’ business at 1007 Fort Street cease operations. Moreover, we are distressed by the fact that many important issues presented to us by this case on appeal merit extensive analysis and discussion, which because of our required disposition of this casе, we may not confront and answer. However, these factors, important though they are, do not dispel our obligation to refrain from interference with the acts of public administrators when performed within the scope of their authority.
Washington Agency v Insurance Commissioner,
Reversed and remanded for proceedings consistent with this opinion.
Notes
City Ordinance Used Automobile Parts, Article XVIII
"LICENSE REQUIRED TO CONDUCT USED AUTOMOBILE PARTS BUSINESS.
"8-18.1. No person, firm, co-partnership, or corporation shall operate or cause to be operated within the City of Lincoln Park any business commonly known as the Used Auto Parts Business, dealing in used, or second-hand auto parts or salvaged automobiles without ñrst obtaining a license therefor from the Mayor of the City of Lincoln Park and complying with the terms of this Article.
"DEFINITIONS AND GRANTING OF LICENSES.
"8-18.2. For the purpose of this Article a dealer in used auto parts shall be deñned to mean any person, ñrm, co-partnership or corpora *349 tion engaged or conduсting a business commonly known as the Used Auto Parts Business, or in the business of dismantling automobiles, or in dealing in used or second-hand auto parts or salvaged automobiles, or in the business of selling, buying, or delivering used or second-hand auto parts in the' City of Lincoln Park. The Mayor and Council is hereby authorized to grant licenses for the purpose aforesaid to any citizen of the United States of the age of 21 years and upwards and of good character, or to any firm, co-partnership or corporation organized or doing business in accordance with the laws of the State of Michigan. Said license may be granted by the Mayor and Council upon the applicant paying into the city treasury the sum of $25 and executing a bond in the penal sum of $2,500 with one or more sureties, conditioned that said person, firm, co-partnership or corporation shall faithfully observe the conditions of this Article.
"EXPIRATION OF LICENSES.
"8-18.3. All licenses granted undеr the terms of this ordinance shall expire on June 30th of each year.
"EXHIBITION OF RECORDS OF PURCHASE.
"8.18.4. Every licensee shall on demand exhibit all automobiles or parts thereof bought or received and give the name, residence, and description of all persons from whom same was purchased or received to the Mayor or the officers of the Police Department.
"KEEPING OF RECORDS OF PURCHASE AND DELIVERY OF LICENSE PLATES.
“8-18.5. He shall keep a record or book written in ink in the English language, containing the names, residence, and description of аll persons from whom purchases were made. He shall promptly deliver to the Police Department all automobile licenses attached to any machines received by him which are to be dismantled.
"SUSPENSION AND REVOCATION OF LICENSES.
“8-18.6. The Mayor may at any time suspend or revoke any license granted under this ordinance and order the place of business of the licensee closed for any infraction of this ordinance or other violation of the law. All licenses granted hereunder are issued and accepted with the understanding that they are subject to suspension or revocation at the will of the Mayor. In case of any suspension or revocation the Mayor or Commissioner of Police shall cause to be served upon the licensee or person in charge of the business a notice in writing of such action by the Mayor. No person shall continue operating such business after service upon him of notice of such suspension or revocation. Before any license granted under this ordinance is revoked by the Mayor, charges in writing shall be preferred against the licensee, and a copy of such charges shall be served upon such licensee and he shall be given a hearing before the Mayor with a reasonable opportunity to present his defense.
"REQUIREMENTS FOR PETITIONING FOR CONDUCTING USED AUTOMOBILE PARTS, DEALER’S LICENSE.
"8-18.7. No building, place, or lot shall be used for the purpose of *350 operating a used car establishment unless a petition as hereinafter set forth shall therefore be filed with the Council for at least 10 days. Where the used parts establishment is conducted and maintained in a wholly enclosed structure, such petition shall be signed by 51% of the persons owning property within a radius of250 feet of the premises consenting to such use. Where the used parts establishment is conducted and maintained in whole or in part in any vacant lot or partially exposed structure, then such petition shall be signed by 51 % of the persons owning property within a radius of 500 feet оf the premises consenting to such use.
"ENCLOSURE OF PREMISES.
"8-18.10. In the event the premises used for the maintenance of such business is exposed to the adjacent street, alley, or property, the Mayor shall as a condition precedent at the issuance of such license, require the applicant of licensee to inclose said premises by a properly painted, tight board fence at least 8 feet high, erected in such a manner as to obliterate the premises from view, and which fencе shall be properly maintained at all times by the licensee.”{Emphasis supplied.)
City Ordinance Junk Dealers, Article IX
"PERMISSION REQUIRED TO ENGAGE IN JUNK BUSINESS
"8-9.12. No building, place, or lot for junk, rags, old rope, paper, bagging, old iron, brass, copper, tin, bottles, salvage parts of old automobiles, old lumber, house wrecking material, slush or lead, or *352 any like articles, shall hereinafter be established within the territory of the City of Lincoln Park, unless the owner, operator or person in control, shall, prior to such establishment, secure permission to establish the same by resolution of the Council and in no event shall any such building, place, or lot be established within the territory within the City of Lincoln Park where 65% or more of the property owners, within a radius of one city block of such premises, object in writing to the establishment of the same. No junk, as herein referred to, shall be stored or kept on any open lot or space, unless the licensee, or someone in his or its behalf, erects a tight board fence 8 feet high surrounding the same, which fence shall be painted and kept properly maintained. "(Emphasis supplied.)
The trial judge made himself a witness by visiting the premises at 1007 and 1059 Fort Street unaccompanied by counsel from either side. He' then proceeded at trial to relate what he had seen on his visits, and based his judgment thereon. We are surprised that neither counsel objected to the judge’s activities.
Valentine v Malone,
Set out in footnote 1.
Defense counsel’s statements at the trial seem to be of the opposite effect. In objecting to the introduction to the testimony of Sidney Lepofsky as to the city council’s activities concerning 1007 Fort Street, he stated: "I object to that question, your Honor. The city council is the one that passed on these things, and if there’s an official record, let him introduce it.” The court agreed and sustained thе objection.
Set out in footnote 1.
Plaintiff could have sought mandamus relief in the alternative under either GCR 1963, 711.3 or 714, as so authorized under GCR 1963, 710.4. Had this action simply been characterized as one for mandamus to an inferior tribunal,
i.e.,
for superintending control, under GCR 1963, 711.3, such a characterization would give plaintiff the same hurdles to leap as in
certiorari:
(1) proving the city council acting in a quasi-judicial capacity in order to allow review;
Scally v Liquor Control Commission
and
Lenz v Mayor of Detroit, supra,
in text; (2) limiting his arguments to questions of law, not fact.
Mt Pleasant v Michigan Public Service Com,
Set out in footnote 1.