State ex rel. Bautz v. Harper

• Decision Date: 13 November 1917
• Citation: 166 Wis. 303,165 N.W. 281
• Parties: STATE EX REL. BAUTZ v. HARPER, BUILDING INSPECTOR, CITY OF MILWAUKEE.
• Court: Wisconsin Supreme Court

166 Wis. 303

165 N.W. 281

STATE EX REL. BAUTZ

v.HARPER, BUILDING INSPECTOR, CITY OF MILWAUKEE.

Supreme Court of Wisconsin.

Nov. 13, 1917.

Appeal from Circuit Court, Milwaukee County; W. J. Turner, Judge.

Mandamus by the State, on the relation of Andrew J. Bautz, against William D. Harper, as Building Inspector of the City of Milwaukee. From a judgment awarding a peremptory writ, the defendant appeals, and from the order denying the relator's motion for damages, the relator appeals. Judgment and order affirmed.

This is mandamus action to compel the inspector of buildings of the city of Milwaukee to issue to Andrew J. Bautz a permit to erect a public garage on a certain lot in that city.

The relator alleges that the lot in question is within the district defined in the Milwaukee city ordinances as the “business district,” and that he purchased the lot with the intention of building a public garage on it; that, while negotiating for the purchase of the property, he caused inquiry to be made at the office of the respondent Harper for the purpose of ascertaining whether or not there was any provision in the ordinances of the city that would prevent his erecting such a garage on this lot, and that he was informed that there was no ordinance of the city that would prevent this; and that the respondent, as building inspector of the city, had no objection to the granting of a permit for the erection of such a garage upon this property. He further alleges that he purchased the property after such assurance, had plans and specifications drawn which complied with the provisions of the city ordinances; that he presented these together with an application for a building permit at the office of the respondent; and that the respondent refused to issue such a permit, and that he tendered the amount of a permit fee to the city treasurer, but the tender was refused because not accompanied by a building permit.

In answer the respondent, as inspector of buildings for the city, denies that the property of the relator is within the district defined by the city ordinances as the “business district,” that he had any knowledge that the relator purchased the lot after having made inquiries at the office of the respondent and received assurance that there was no objection to the erection of such a building, and that the plans and specifications of the relator comply with the provisions of the city ordinances. He claims that he cannot lawfully issue a building permit to the relator to erect the proposed garage or approve the plans and specifications therefor, because the city ordinances prohibit same.

The relator also asked for damages caused by the respondent's alleged refusal to issue the permit.

The court made the following findings in the case:

(1) That the respondent, William D. Harper, is building inspector of the city of Milwaukee, and had qualified and was acting in this capacity at the times involved in this litigation, and that he has power and authority to issue building permits pursuant to the ordinances of the city.

(2) That the relator's property upon which he proposed to build the garage is located in block 48 in Clark's subdivision in the Twenty-Third ward of the city of Milwaukee, and that lots of this block upon which the proposed garage is located front the east side of Layton boulevard between Scott street on the north and Greenfield avenue on the south as shown on the accompanying map:

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(3) That all of the area on which the relator's proposed garage is located except the north 10-foot strip is located within the “business district” of the city, as provided by the city ordinances, and that this 10-foot strip is a part of block 48 above described; that two-thirds of the lots of this block fronting on Layton boulevard are not occupied by buildings devoted to residence purposes.

(4) That the city code of ordinances declares that all parts of the city embraced within the specified limits to be “the business section,” and that the term “business section” shall mean: (a) That all buildings within this section or portion of the city being within the described boundaries may be occupied or maintained for any purpose whatsoever if conformable to the building ordinances; (b) providing, among other things, that no garage to be used in the automobile business shall be erected in a block where two-thirds of the lots fronting on one street in any block not within the business section are occupied by buildings devoted to residence purposes; (c) that the following described part of the city is embraced in the “business section” “Greenfield avenue beginning at the intersection of First avenue to 150 feet north and south of Greenfield avenue westerly to Twenty-Sixth avenue. * * *”

The court awarded a peremptory writ of mandamus, commanding the respondent as building inspector to issue a building permit to relator for the erection of the proposed garage, and that he recover the sum of $118.88, costs of the action, from the respondent, and that the respondent approve the proposed plans and specifications for the garage as furnished by the relator. The court denied the relator's application upon motion to determine the amount of damages he sustained by the respondent's refusal to issue the relator the permit he applied for.

The respondent, William D. Harper, as building inspector of the city, appealed from the judgment awarding a peremptory writ of mandamus and the costs of action. The relator appealed from the order of the court denying his motion to have the court determine and award him recovery in the action of the amount of damages he sustained by the respondent's refusal to issue to the relator the building permit upon the relator's application therefor.

Clifton Williams, City Atty., and Charles W. Babcock, Asst. City Atty., both of Milwaukee, for appellant.

Otjen & Otjen and James T. Drought, all of Milwaukee, for respondent.

SIEBECKER, J. (after stating the facts as above).

Subsection (d), § 474, of the code of ordinances of the city of Milwaukee provides:

“When two-thirds of the lots fronting on one street in any block of the city of Milwaukee not within the business section are occupied by buildings devoted to residence purposes,” then no garage shall be erected on any lot in such block on such street.

The trial court held that under the provision of this ordinance the building inspector is not justified in his refusal to grant the relator the permit applied for. The evidence shows that there are 12 lots fronting on Layton boulevard on the east side of the block in question. Six of them are occupied by dwellings, and the rest are vacant, except lot 12, which has a saloon building on it. The court was of the opinion that the above subsection of the ordinances required that two-thirds of all lots on this block fronting on Layton boulevard must be occupied by dwellings in order to inhibit the erection of a garage on any lot in such block. This is the natural and ordinary meaning of the phraseology of the provision of the ordinance. The language employed by the common council indicates with reasonable certainty that this regulation was intended to embrace all the lots of any one block on either side of the street, regardless of the fact that a part of such block may be embraced in the “business section.” It is considered that the trial court properly held that the building inspector, under the facts and circumstances shown to exist in this block, is not, under the provision of this section of the ordinances, justified in refusing the relator the permit applied for.

It is contended on behalf of the building inspector that the lots on which the proposed garage is to be located are not within the “business section” as defined in the provision of section 476 of the code of ordinances which provides:

“All that part of the city of Milwaukee embraced within the following limits shall hereafter be known as ‘the business section.’ * * *”

Among the districts described is the following, under the designation the South district:

“Greenfield avenue--beginning at the intersection of First avenue to one hundred and fifty feet north and south of Greenfield avenue westerly to Twenty-Sixth avenue.”

It is conceded that block 48 above described lies between Greenfield avenue and Scott street as shown on the foregoing plat. The terms of the provision prescribing the limits of such “business section” leave no room for different interpretation. They definitely fix the limits of the city embraced in the “business section” as an area rectangular in form, beginning at the intersection of Greenfield and First avenues and extending north and south from the margins of Greenfield avenue 150 feet and extending westerly to where Greenfield intersects First avenue. The width of this strip is uniform throughout the whole section, and embraces whatever lots or parts of lots may be located within it, regardless of the fact as to on what avenue or street the lots within it may front. The trial court's interpretation of this ordinance gives a natural and ordinary meaning to the phraseology employed by the common council in describing and limiting the boundaries of the “business section” to the 150-foot area extending from the margins of Greenfield avenue. Under this interpretation of the ordinance the relator's lot is not located within a prohibited district for the erection of a public garage, and he is entitled to a permit from the city for its erection in his application to the respondent...