State ex rel. Continental Oil Co. v. Waddill

• Decision Date: 10 November 1958
• Docket Number: No. 46714,No. 1,46714,1
• Citation: 318 S.W.2d 281
• Parties: STATE of Missouri ex rel. CONTINENTAL OIL COMPANY, a Corporation. Respondent, v. Robert B. WADDILL, as City Engineer of the City of Independence, Missouri, a Municipal Corporation, Appellant
• Court: Missouri Supreme Court

Page 281

318 S.W.2d 281

STATE of Missouri ex rel. CONTINENTAL OIL COMPANY, a Corporation. Respondent, v. Robert B. WADDILL, as City Engineer of the City of

Independence, Missouri, a Municipal Corporation, Appellant.

No. 46714.

Supreme Court of Missouri, Division No. 1.

Nov. 10, 1958.

Motion for Rehearing or to Transfer to Court en Banc Denied

Dec. 8, 1958.

John F. Thice, Gilbert R. Titus, Rufus Burrus, Independence, for appellant.

George H. Gangwere, Leo E. Eickhoff Jr., Blackmar, Swanson, Midgley, Jones & Eager, Kansas City, for respondent.

VAN OSDOL, Commissioner.

This is a proceeding in mandamus instituted in the Circuit Court of Jackson County at the relation of Continental Oil Company, a corporation, to compel the respondent, City Engineer of the City of Independence, to issue relator a permit for building a filling station on Lot One of Country Club Addition to the City of Independence. The relator had averred the unconstitutionality of ordinances and of the action of respondent City Engineer in revoking a permit which had been issued to relator, and in denying subsequent applications.

The trial court issued its alternative writ and, after trial, issued its peremptory order commanding the immediate issuance of a permit to relator. Respondent City Engineer has appealed.

Country Club Addition was platted by Master Craftsmen, Inc., July 7, 1941. Lot One of the addition is an irregular triangular tract at the southwest corner of the intersection of Sheley Road and Crysler Avenue. The lots of the platted tract were designated as residential lots, 'except Lot One (1), which is reserved for business.' The recorded platting also contained a restrictive provision--'No noxious or offensive trade or activity shall be carried on upon any lot nor shall anything be done thereon which may be or become an annoyance or nuisance to the neighborhood.'

January 26, 1952, relator had entered into an option to purchase part of Lot One, the option to be surrendered and the consideration paid therefor to be returned if a permit from the city could not be obtained. March 27, 1952, relator applied to respondent City Engineer for a building permit, and permit No. 5838 was issued April 2, 1952, the permit providing the work of construction was to be completed within one year. July 23, 1952, relator notified the vendor-optionor in the option to purchase agreement that relator, purchaser-optionee, was exercising the option, and a conveyance was executed, the $17,500 purchase price paid and the purchase consummated September 15, 1952. But, October 8, 1952, respondent advised relator by letter that the city council had revoked permit No. 5838 and that relator might reapply through the city council. The City Planning Committee had recommended to the council that the permit be revoked; the committee had reported to the council that protesters were almost unanimous 'against such filling station at this location.'

August 30, 1955, relator filed duplicate application with the City Engineer and the city council for the reinstatement of permit No. 5838, or for the issuance of a new permit. But, September 13, 1955, relator was advised by letter from the city clerk that the application was denied by the council 'in view of more than 300 protests of citizens.' When the latter application was filed, the original application of 1952 was taken from city's files and returned to relator.

There was evidence that subsequently there was a movement for rezoning Lot One for residential use. The movement failed; and August 1, 1956, relator again reapplied, and the minute of the council of August 27th shows the application was denied.

By Chapter 2, Article I, Section 47, Revised Ordinances of Independence, 1931, it was provided that any person desiring to erect a building or improvement or repair any building 'shall, before commencing work * * * procure a permit therefor.' And by Section 49, as amended by Ordinance No. 9374, April 25, 1933, it was provided as follows,

'Applications for building permits shall be made to the City Engineer and shall state generally the kind and character of building or improvement contemplated, the materials to be used, its intended site or location, and the probable time to be occupied in its erection, which time may be extended by the City Engineer for good cause together with a fair estimate of the cost thereof, and shall be signed by the owner, his agent or contractor. The applicant shall thereupon pay to the City Collector the proper fees for the building or improvement named in said application, taking his receipt therefor, and upon presenting the Collector's receipt and application to the City Engineer, a building permit shall be issued, signed by the City Engineer and limited for the time stated in the application. That all applications for building permits for the construction of commercial business structures, gasoline filling stations, business block, or any other building or structure designed for manufacturing or industrial purposes, now pending or hereafter applied for shall be referred to the City Planning Committee, and no building permit shall be issued before the application therefor shall have been approved by the City Planning Committee. Provided however, that no permit herein referred to shall be given or granted by the Engineer or the City Planning Committee if said property has theretofore been condemned, as provided by the laws and ordinances of the City of Independence, unless special permits be obtained from the City Council.' (Our italics.)

By Ordinance No. 13120, Zoning Ordinance, enacted December 18, 1950, Lot One of Country Club Addition was zoned in District 'D', local business district, which district included 'filling stations, provided all storage tanks for gasoline shall be below the surface of the ground.' Section 22 of Ordinance No. 13120 provided that it was the duty of the City Engineer to enforce the provisions of the ordinance 'and to refuse to issue any permit for any building or structure or for the use of any premises, which would violate any of the provisions hereof * * *.'

Ordinance No. 13679, Building Code, enacted June 29, 1953, parenthetically noted that the term 'Building Commissioner,' and other terms designating particular officers referred to in the ordinance, 'shall mean the City Engineer until such time as these specific appointments are made.' By Section 201 of Ordinance No. 13679, it was provided that no person shall 'construct any building * * * without first obtaining a building permit therefor from the Building Commissioner'; any person desiring a building permit 'shall file with the Building Commissioner an application therefor'; and by Section 202 of the Ordinance it was provided that the 'application, drawings and specifications filed by an applicant for a building permit shall be checked by the Building Commissioner, and if found to be in conformity with the requirements of this Code and all other laws or ordinances applicable thereto, the Building Commissioner, shall, upon receipt of the required fee, issue the building permit.'

This proceeding in mandamus was instituted September 26, 1956. As stated, the trial court, after trial, directed the issuance of its peremptory writ. The trial court found (1) that relator had met all requirements of ordinances requisite to the issuance of a permit; (2) that the granting of such permit was not a matter of discretion in respondent City Engineer, but was his plain and clear ministerial duty; (3) that Ordinance No. 9374 was unconstitutional and exceeds the statutory powers of the city; (4) that Ordinance No. 9374 was repealed by Ordinances Nos. 13120 and 13679; (5) that relator, in acquiring the portion of Lot One, relied on building permit No. 5838 and thereby acquired a vested right, and the permit could not be lawfully revoked thereafter; and (6) that the permit No. 5838 was unlawfully revoked and the further applications of relator unlawfully denied.

Respondent City Engineer, appellant herein (but for convenience we shall refer to the parties herein as designated in the trial court), assigns that the trial court erred in ordering the peremptory writ. It is contended that mandamus is a discretionary writ and ought not to issue in doubtful cases, or when it would collaterally decide issues of importance to persons not parties to the proceeding; that the peremptory writ should have been denied because city and the mayor and councilmen were necessary parties and were not joined as parties respondent; that Ordinance No. 9374 is in full force and effect, since it was not expressly or by implication repealed by Ordinances Nos. 13120 and 13679; and that the power to issue or withhold a building permit under Ordinance No. 9374 was reserved in the city council and 'when it (the council) acted in directing the revocation of the permit which it had not approved, it acted legislatively' and respondent could not question such legislative acts, but could only act in the issuance of permits as authorized by the council. It is argued that the legislative body, the city council, had, in the first instance, the discretionary power to determine the conditions, if any, under which filling stations were to be permitted in certain districts and the legislative body simply retained and properly exercised the power and discretion which it initially had.

Upon this appeal we have the responsibility of reviewing the evidence, of forming our own conclusions on the law and the evidence, and of deciding the case as justice requires. State ex rel. Toliver v. Board of Education of City of St. Louis, 360 Mo. 671, 230 S.W.2d 724.

We first direct our attention to Ordinance No. 9374 amending Section 49 of Chapter 2, Article I of the Revised Ordinances of 1931. It is noted that Ordinance No. 9374 required that signed applications for building permits shall be made to the City Engineer, the applications to state generally the...