State ex rel. George v. Hull

• Decision Date: 23 November 1948
• Docket Number: 2413
• Citation: 65 Wyo. 251,199 P.2d 832
• Parties: THE STATE OF WYOMING, ex rel. P. T. GEORGE and ANN GEORGE, Petitioners and Respondents, v. A. J. HULL, City Engineer, and D. B. WILLETT, City Manager, of the City of Laramie, Wyoming, Respondents and Appellants
• Court: Wyoming Supreme Court

199 P.2d 832

65 Wyo. 251

THE STATE OF WYOMING, ex rel. P. T. GEORGE and ANN GEORGE, Petitioners and Respondents, v. A. J. HULL, City Engineer, and D. B. WILLETT, City Manager, of the City of Laramie, Wyoming, Respondents and Appellants

No. 2413

Supreme Court of Wyoming

November 23, 1948

APPEAL from District Court, Albany County; V. J. TIDBALL, Judge.

Mandamus proceeding by the State of Wyoming, on relation of P. T George and Ann George, against A. J. Hull, City Engineer, and D. B. Willett, City Manager of the City of Laramie, Wyo., to compel respondents to issue a permit entitling petitioners to construct a business building on property owned by them. From the judgment, respondents appeal.

Judgment affirmed.

For the Appellants, the cause was submitted upon the brief and also oral argument of George J. Millett and Alfred M. Pence, both of Laramie, Wyoming.

POINTS OF COUNSEL FOR APPELLANTS

A person whose rights are affected by one portion of a statute may not question the constitutionality of another portion where the operation of the provision affecting him will not be influenced by the validity or invalidity of the contested provision; but, conversely, he may question the constitutionality of a provision of a statute not affecting him where the invalidity of such provision would render the entire act, or at least the portion thereof affecting him void. 16 C. J. S. 165, Sec. 76. Zancanelli v. Central Coal and Coke Co. 173 P. 981, 25 Wyo. 511.

That mandamus cannot be resorted to as a substitute for an appeal or proceeding in error is a well-settled principle that should not be disregarded without good reason. State v Board of Land Commissioners, 254 P. 491.

The distinction between an appeal and a certiorari is marked. The former brings the case up on its merits. The latter brings up the record only, and upon such a writ the court can look merely at the regularity of the proceedings. 3 C. J. 315. (note 36c). 4 C. J. 81.

It is very generally held that except in so far as changes have been introduced by special statutory provisions, the writ of mandamus being an extraordinary writ will not issue where there is another plain, speedy, and adequate remedy available in the ordinary course of law. According to well established principles it is not the office of the court to establish a right or to define and impose a duty; it does not supersede, but rather supplies the want of, legal remedies. 38 C. J. 558, Sec. 31.

A zoning ordinance which is a proper exercise of the police power does not unlawfully deprive a property owner of vested rights, especially where the property owner has invested in the property after the ordinance or with knowledge of a pending ordinance. 16 C. J. S. 662.

For the Respondents, the cause was submitted upon the brief and also oral argument of Gordon W. Davis and Glenn Parker, both of Laramie, Wyoming.

POINTS OF COUNSEL FOR RESPONDENTS

Courts will interfere with the exercise of police power only when the zoning ordinance is plainly unreasonable, arbitrary add discriminatory. City of Tucson v. Arizona Mortuary, 272 P. 923.

Where by the terms of a general zoning ordinance, certain property, previously used for residence use, is zoned for residence use, but is actually suitable and of substantial value only as business property, and is unattractive for residence purposes, the ordinance is unconstitutional and void as to that property. Hedgecock, Building Inspector vs. People ex rel Arden Realty and Investment Company (1936) 98 Colo. 522, 57 P. 2d. 891; Hedgecock, Building Inspector vs. People, ex rel Reed, 91 Colo. 155, 13 P. 2d. 264; Nectow vs. City of Cambridge (1928), 277 U.S. 183, 48 S.Ct. 447.

The grantees of real property stand in the same position as their grantor and hold fully the same rights of testing use restrictions upon it. Women's Kansas City St. Andrews Society vs. Kansas City, 58 F. 2nd. 593; Taylor, et al. vs. Glencoe (Ill.), 25 N.E. 2nd 62; Ignaciunas vs. Risley, et al., 121 A. 783.

Where the statutory remedy would prove inadequate, mandamus will issue to supply the necessary relief. Bancroft's Code Practice and Remedies, Vol. 5. 5016.

City administrative bodies who are authorized to enforce the terms of a zoning ordinance and to permit a variance from such terms, have no authority to consider the constitutionality of the ordinance. Any action to be effective must be by direct attack on the ordinance. Selleck vs. Waterbury, 257 A.D. 1049, 13 N.Y.S. 2d. 591; Board of Zoning Appeals vs. Waintrup, 99 Ind.App. 576, 193 N.E. 701; South Bend v. Marckle, 215 Ind. 74, 18 N.E. 2d. 764.

BLUME, Justice. RINER, C. J. and KIMBALL, J. Concur.

OPINION

BLUME, Justice.

This case involves a petition for a writ of mandamus. The petitioners are P. T. George and Ann George, who are husband and wife and the owners of Lots 12 and 13 of Block 172, Hodgeman's Addition to the City of Laramie, and who will be referred to herein as the petitioners. The defendants are A. J. Hull, City Engineer, and D. B. Willett, City Manager, of the City of Laramie, who will be referred to herein as the appellants. It appears from the petition that a business building has for many years occupied the west 59 1/2 feet of that property and is located in the northwest corner of the block. The east 72 1/2 feet have been occupied by a frame building of little value and theretofore used as a garage, storage building, and chicken coop. Plaintiff sought to tear down the frame building and erect on the east portion of the lots a stiansteel, concrete-floored, fireproof and vermin proof building to be used as a warehouse and for storage in connection with the store and business situated on the west portion of the lots, and that no income is derived by petitioners from the east portion of the lots. Petitioners, on October 13, 1947, applied to the City Engineer and City Manager for a building permit to construct such new building. The City Engineer and City Manager refused the permit on the ground that it was contrary to a zoning ordinance theretofore adopted by the city government. Petitioners thereupon took an appeal to the board of adjustment, and, on October 29, 1947, this board also denied the permit. It is alleged as follows:

"That the real property owned by Petitioners and hereinabove described, cannot be improved and used profitably except for business purposes; that said land is satisfactory for business purposes only and has practically no value for any other purpose than business; that Petitioners have received no income from the easterly portion of said lots; that the frame building thereon and shed used for a garage, storage purposes and chicken coop is of little value and Petitioners will lose the entire value of the easterly portion of said lots within a few years by being compelled to repair a disintegrating structure and to pay taxes on said property that the unlawful refusal of the said building construction requested by Petitioners and the refusal of the building permit has seriously and irreparably injured and damaged Petitioners; that said lots are unsalable and practically useless for residence purposes and are of little value for business property, as limited by the said ordinance to non-conforming use, and under existing conditions and regulations are worth less than Five Thousand Dollars ($ 5,000.00); but the value of said lots is Fifteen Thousand Dollars ($ 15,000.00) as business property under provisions relating to Business 'D' Districts under said ordinance; that the failure and refusal of Respondents to grant said permit has materially reduced the value of Petitioners' existing business conducted on said property; and that Petitioners are desirous of improving and remodeling the entire property on said lots for business use, but any application for such improvement and remodeling is futile under the present ruling of the Respondents and the City of Laramie;

"That adjacent to and contiguous with Petitioners' said lots above described, to the east thereof is a Business 'D' District occupied by various properties, including a saloon and a garage; that in the block immediately across the street to the north, there are two business buildings occupied respectively as a store and a restaurant; that diagonally across the street from the store building on the westerly Fifty-nine Feet Six Inches (W 59' 6") of Petitioners' said lots, is a wood yard and furniture storehouse used as an operating base for general hauling, moving, storage and sale of wood; that in the block next south of Petitioners' said property is located a school; that in the block immediately south of said school and also the fractional block across the street southwest thereof is a Business 'D' District, zoned and used for businesses; that approximately one-half block west of Petitioners' said store is a large area, zoned by the City of Laramie as a Commercial District, in part restricted by deed covenants to business and commercial use, and occupied in part by various commercial and business enterprises, including all tracks, shops and buildings of the Laramie North Park and Western Railroad Company; the brick making plant of the Laramie Brick and Tile Company; the timber treating plant of Douglas Timber Company; and that the area of the City within several blocks of Petitioners' said property is unsuitable as a residential district and largely devoted to businesses.

"That the area from which Petitioners have been unlawfully prevented from erecting and using a business building lies directly between--

"a. A business district on the east bordering a Commercial District containing the Union Pacific Railroad Company yards, and

"b. The Laramie North Park and Western Railroad Company, the Laramie Brick and Tile Company,...