State ex rel. Ammerman v. City of Philippi

• Decision Date: 19 June 1951
• Docket Number: No. 10394,10394
• Parties: STATE ex rel. AMMERMAN, v. CITY OF PHILIPPI et al.
• Court: West Virginia Supreme Court

Page 713

65 S.E.2d 713

136 W.Va. 120

STATE ex rel. AMMERMAN, v. CITY OF PHILIPPI et al.

No. 10394.

Supreme Court of Appeals of West Virginia.

Submitted June 5, 1951.

Decided June 19, 1951.

Syllabus by the Court.

1. 'An ordinance of a town which fails to specify rules and regulations for the erection of buildings and their location, within the corporate limits of such town, and grants to the common council the right to grant or withhold its permission to erect buildings therein, is void.' Point 1, syllabus, State ex rel, Casto v. Town of Ripley, 95 W.Va. 521, 121 S.E. 725.

2. A business operated for repairing, recapping or vulcanizing automobile tires is not a nuisance per se.

3. Where the council of a municipality, acting under assumed authority of an ordinance later held to be void in a proceeding in mandamus in the Supreme Court of Appeals, refuses to issue a permit for the erection of a building, a peremptory writ will be awarded directing the council to issue the permit. Point 2, syllabus, State ex rel. Casto v. Town of Ripley, 95 W.Va. 521, 121 S.E. 725, is overruled.

George M. Kittle, Dayton R. Stemple, Philippi, for relator.

Paul B. Ware, William T. George, Jr., Philippi, for respondents.

GIVEN, Judge.

In this original proceeding in mandamus, praying for a peremptory writ requiring the proper officials of the City of Philippi, a municipal corporation, to issue a permit authorizing him to erect a one story building 'to be used for the purpose of automobile tire recapping shop', the petitioner alleges that an application for the permit was duly filed with the city council; that the application conformed with all requirements of the ordinance of the city as to form and content; and that the permit was refused without any valid reason therefor. The respondents filed a demurrer to the petition and jointly and severally answered the same. A general replication to the answer was filed and depositions taken by the parties are now before the Court.

Prior to the filing of the application for the permit petitioner was engaged in the business of repairing or 'recapping' automobile tires at a location near the B. & O. Railroad passenger station in Philippi, the same type of business intended to be conducted in the proposed building. The lot upon which the proposed building is sought to be erected is situated about sixty-four feet from the old location, directly across what is known as B. & O. Street. In the immediate vicinity of the two locations there are a number of business buildings, and probably an equal number of dwellings. Some of the residents of that vicinity filed with the city council a petition objecting to the issuance of the permit, contending that the noise from such a business would prevent 'persons living nearby from getting a proper amount of sleep'; that 'The obnoxious odors arising from said tire recapping station are extremely bad for those living in the vicinity of the plant'; and that the fire hazard in the vicinity would be greatly increased 'because of the number of trucks and vehicles parked about such a place of business.' In a letter addressed to petitioner it was stated that the issuance of the permit had been denied by the city council for the reasons so assigned.

Chapter 71 of the 1923 Acts of the Legislature gives the city its present charter. Section 16 of that chapter enumerates the 'general powers' granted to the council. Subdivision (26) of that section reads: 'To regulate or prohibit the erection or operation, or maintenance in what the council deems an improper locality within said city, any blacksmith shop, livery stable, barn, stable, cattle pen, poultry house, pig pen, privy, bill board, sign board, gas or other engine, coal mine, coal plant, or coal bin, or any other thing that may in the opinion of the council be a menance to persons or property or public safety, or that would injure private property or annoy citizens of said city.' Subdivision (57) reads: 'To regulate the erection, construction, alteration and repair of dwelling houses, buildings and other structures, within the municipality, to issue permits therefor, and to compel the numbering of such houses and buildings by the owners and occupiers thereof; and to prescribe by ordinance the distance which dwelling houses, and other structures in resident districts shall be set back from the sidewalk.' No contention is made that any other provision of the charter has any application to the subject matter of the instant action.

Acting under the authority so granted, the city council enacted an ordinance known as 'Chapter IX, Building Ordinances'. Section 1 of that ordinance prohibited any person from erecting any building of any kind, without first obtaining a permit from the city council. The applicable provisions of Section 2 of the ordinance are: 'Any person desiring to erect a new building of any kind, * * * shall submit to the city council the general plan of such new building, and the purpose for which it is proposed to use the same, * * * and shall designate the street, alley, road, lot or land on which it is proposed to erect such new building, * * * and shall do no work whatever upon such building, until a permit has been obtained from the city council. * * *.' A penalty is provided for any violation of the section. Section 3 of the ordinance requires the city clerk to issue any permit authorized by the council upon the payment of a nominal fee. Section 4 of the ordinance reads:

'4. To the end that the citizens of this city may be protected from noxious smells, disturbing noises and secured in the enjoyment of their own property in peace and quietude, it is hereby declared unlawful for any person to erect or operate any stable, livery barn, tannery, tan house, soap factory, planing mill, flouring mill, blacksmith shop, carpenter shop, foundry, machine shop or other factory, or shop of a like kind, without first obtaining the consent of the city council, and the application to erect or operate any such industry, shall specifically designate the place where the same is to be located, the amount of land which is to be used in connection therewith, what disposition is proposed to be made of the refuse and waste therefrom, and a fair description of the building or buildings proposed to be erected and used, of what material the same is to be built of, what provision is proposed to be made against the danger of fire, and all such other information as will enable the council to determine and pass upon the application intelligently. Any violation of this section shall be punished by a fine not to exceed one hundred dollars, and imprisonment of not more than six months in the discretion of the mayor.'

Section 5 of the ordinance defines a certain zone within the city as being 'within the fire limits', but the lot upon which the proposed building is to be erected does not lie within that zone.

It is the contention of petitioner that the ordinance, in so far as it has any application to erection of the proposed building, is void, and that the business proposed to be conducted within the building not being a nuisance per se, the action of the city council in refusing the permit was arbitrary, capricious and void.

We are of the opinion that the first point is well taken. There is no doubt that the provisions of the charter...