#### J. C. LITTLE et al. v. BOARD OF ADJUSTMENT OF CITY OF RALEIGH.

(Filed 23 June, 1928.)

Judgments — Conclusiveness of Adjudication — Matters Concluded — Res Adjudicatin'.

The city board of adjustment, on, appeal from the action of the building inspector as to issuing a permit to erect a gasoline filling station in a certain part of the city, determines the matter upon the facts presented in a quasi-judicial capacity, and the doctrine of res adjudÁcatur applies upon a subsequent presentation to them of the issuing of the permit upon the same lot under substantially the same conditions.

Civil action, before Sinclair, J., at December Term, 1927, of Waice.

This cause was considered in Harden u. Raleigh, 192 N. C., 395, 131 S. E., 760, where the facts are set forth. After said decision was rendered by the Supreme Court on 27 October, 1926, the owner of the lot applied to the defendant Mangum, building inspector, to reopen and rehear the former decision, denying a permit for erecting a filling station upon the land described. The building inspector thereupon issued a permit for said filling station and the plaintiffs appealed to the board of adjustment. The board of adjustment was duly convened to hear the matter and at the said meeting the plaintiffs appeared and contended that the former ruling of the board of adjustment referred to in Harden P. Baleigh, supra, was res judicata as there was neither allegation nor proof that conditions had changed since said decision by the Supreme Court. On 30 September, 1927, the board of adjustment voted upon the *794question of sustaining tbe building inspector in issuing tbe permit, apd said record disclosed that two members of tbe board were in favor of sustaining tbe building inspector and two members voted not to sustain said building inspector in issuing said permit. Thereupon tbe plaintiffs filed a petition for a writ of certiorari. Tbe cause came on to be beard before Sinclair, J., who found as follows: “Tbe court further finds as a fact that after tbe Supreme Court bad passed upon two questions of law presented to it, and bad sustained tbe validity of tbe ordinances and overruled tbe judgment of Judge Barnhill, tbe said Mrs. George M: Harden duly applied to tbe building inspector of tbe city of Raleigh to reopen and rehear its former decision upon tbe building of tbe filling station upon her said lot, and duly filed with,tbe said building inspector, with her application, plans and specifications as required by tbe ordinances of tbe city of Raleigh; that tbe building inspector, after bearing tbe evidence and argument on behalf of tbe plaintiffs and defendants . . . reversed bis former ruling and granted to tbe said Mrs. George M. Harden a permit to build said filling station in such neighborhood business district. . . . That from tbe decision of tbe said building inspector tbe plaintiffs duly appealed to tbe board of adjustment, and after a full bearing before said board of adjustment, that tbe said board of adjustment sustained tbe action of said building inspector, and ordered that tbe permit issue to tbe said Mrs. George M. Harden to build tbe filling station on her lot as prayed. . . . It is further ordered, adjudged and decreed that tbe said Mrs. George M. Harden is entitled to construct upon her said lot a filling station in accordance with tbe plans and specifications filed with tbe said building inspector of tbe city of Raleigh, and tbe permit granted to her. It is further ordered by tbe court that tbe motion of defendants for judgment on tbe pleadings as filed herein, be and tbe same is in all respects sustained, and that tbe plaintiffs pay tbe costs of this action, to be taxed by tbe clerk.”

From tbe foregoing judgment tbe plaintiffs appealed upon tbe ground that tbe trial judge did not bold as a matter of law that tbe former judgment of tbe board of adjustment in Harden v. Raleigh was an estoppel or res judicata.

Attorney-General Brummitt and Assistant Attorney-General Nash for plaintiffs.

W. B. Jones and G. W. Beckwith for defendant.

Beogden, J.

The case of Harden v. Raleigh, 192 N. C., 395, determined two questions.

1. That the board of adjustment is clothed with at least quasi-judicial power and that the investigation of facts as a basis of official action is *795not a ministerial duty, the Court saying, “but the exercise of judgment or discretion may be regarded as the usual test by wbicb to determine wbether an act is ministerial or judicial. Within the class of quasi-judicial acts fall the board’s conclusions as to wbether the proposed building would be noxious or offensive or detrimental to the public safety or welfare by reason of its situation or the surrounding conditions; also in this class is the legal discretion to be exercised by-the board upon the conclusions reached.”

2. That tbe record did not disclose that tbe board of adjustment in declining tbe permit bad improperly exercised its discretion.

From the finding of fact made by the trial judge in the case at bar it therefore appears that practically the same parties are contesting the same matter and in the same manner as in the case of Harden v. Raleigh, supra. Moreover the controversy is based upon the same facts and allegations contained in the former case. The petitioners appeared before the board, in the case at bar, and filed a plea of res judicata contending that the case of Harden v. Raleigh, supra, bad determined the rights of the parties upon the same facts. While the plea of res judicata is not available with respect to proceedings by a purely administrative board, it is available with respect to the proceedings and final decision of a judicial or guasi-judicial body. In re Smiling, 193 N. C., 448. There is no allegation, no proof, and no finding by the trial court that the facts in the ease at bar are in anywise different from the facts in the case of Harden v. Raleigh. Indeed, the trial judge finds that Mrs. Harden applied to the building inspector “to reopen and rehear its former decision upon the building of the filling station upon her said lot.”

Upon these circumstances we are constrained to bold that tbe plea of res judicata, duly filed in apt time by tbe petitioners, was available, and therefore that tbe owner of tbe lot is not entitled to reopen and rehear tbe case upon tbe identical facts presented in tbe former record.

Reversed.