Opinion
No. 74-193
Decided December 24, 1974. Rehearing denied January 7, 1975. Certiorari denied March 3, 1975.
Petitioner sought to have real estate commission issue him a real estate broker's license without requiring him to take examination, but the Commission denied his petition. In action to review that denial, court ordered the license granted and Commission appealed.
Reversed
1. MANDAMUS — Discretionary Act — Real Estate Commission — Require Examination — Issue Broker's License — District Court — Compel Issuance — Error. Mandamus cannot be used to control discretion, nor to compel a quasi-judicial tribunal to exercise its discretion in a particular way; hence, since the order of the Colorado Real Estate Commission refusing to issue petitioner a real estate broker's license without requiring him to take an examination involved an exercise of the Commission's discretion, the district court erred in compelling the Commission to issue petitioner a broker's license without examination.
Appeal from the District Court of the City and County of Denver, Honorable Robert E. McLean, Judge.
H. Gordon Howard, pro se.
John P. Moore, Attorney General, John E. Bush, Deputy Attorney General, Irvin M. Kent, Assistant Attorney General, Bruce M. Douglas, Special Assistant Attorney General, for defendant-appellant.
Plaintiff (Howard) petitioned the Colorado Real Estate Commission (the Commission) to issue him a real estate broker's license without requiring him to take an examination. The Commission denied his petition, and Howard sought relief in the Denver District Court under C.R.C.P. 106(a)(2). The district court held that the Commission could not require the plaintiff to take the examination and ordered the Commission to issue the license. We reverse.
The record shows that Howard obtained a real estate broker's license in 1951, that the license was renewed annually through 1957, and that the license was revoked on December 3, 1957. The license was not renewed in 1958 or in any subsequent year. On October 16, 1972, Howard filed with the Commission a written application for a real estate broker's license. A hearing was held on the sole question of Howard's reputation for good and fair dealing. The hearing officer found that the Commission failed to show by competent evidence that the applicant lacked a good reputation for good and fair dealing. The hearing officer's Statement of Findings, Conclusions and Recommendation also stated: "It is not the intent of such recommendation that the Applicant be exempted from the taking of such examinations as the Commission may require . . . . " The Commission adopted the hearing officer's findings and determined that Howard was qualified to take the examination.
Howard contended that the Commission could not require him to take the examination because at the hearing before the Commission the sole issue was his reputation for good and fair dealing, and he had never had a hearing on the issue of his being required to take the examination. The trial court held that, "[Howard] may not be arbitrarily required to re-take the test in question, without some showing of agency rules and regulations or some showing of evidence that [Howard] is unqualified." The court then ordered the Commission to issue the license forthwith.
The above ruling overlooks the fact that the method of determining the educational and intellectual qualifications of an applicant for a real estate broker's license under these circumstances is prescribed by statute, 1969 Perm. Supp., C.R.S. 1963, 117-1-8(1)(d), which provides that: "All licensee who fail to renew their licenses before February 1st of each year succeeding the year of their previous licensing, shall be required to file a new application and may be required to submit to and pass the examination required by this article for original applicants." (emphasis supplied) The decision whether to require a previous licensee to take the broker's examination, therefore, rests within the sound discretion of the Commission.
As the Commission stated in its Order, "there have been a great many developments, many quite complicated and complex, in real estate law and the practice of the real estate profession since applicant last practiced real estate over 16 years ago, in 1957, and . . . the Commission is charged by statute with properly ascertaining the competency of all applicants." See 1969 Perm. Supp., C.R.S. 1963, 117-1-1 and 3. In Brown v. Barnes, 28 Colo. App. 593, 476 P.2d 295, we held:
"Relief in the nature of mandamus to compel a public official to perform an act is narrowly interpreted. Such relief will be granted only in cases where the act is administrative in nature and a clear legal duty exists under a statute to perform this act. People ex rel. Albright v. Board of Trustees of the Firemen's Pension Fund, 103 Colo. 1, 82 P.2d 765. If the act sought to be compelled is one involving the exercise of discretion on the part of the official, or requiring a choice between alternative courses of action, then such relief will be denied. State ex rel. Holmes v. Peck, 92 Colo. 224, 19 P.2d 217."
And in Hall v. Denver, 117 Colo. 508, 190 P.2d 122, the court held that mandamus cannot be used to control discretion, nor to compel a quasi-judicial tribunal to exercise its discretion in a particular way.
[1] Since the Commission's Order involved an exercise of its discretion, the District Court erred in compelling the Commission to issue Howard a broker's license without examination.
The judgment is reversed, and the cause remanded with directions to dismiss the complaint.
JUDGE ENOCH and JUDGE SMITH concur.