State ex rel. A. Hynek & Sons Co. v. Board of Appeals of City of Racine

• Decision Date: 09 November 1954
• Parties: STATE ex rel. A. HYNEK & SONS CO. et al., Appellants, v. BOARD OF APPEALS OF THE CITY OF RACINE et al., Respondents.
• Court: Wisconsin Supreme Court

Page 623

66 N.W.2d 623

267 Wis. 309

STATE ex rel. A. HYNEK & SONS CO. et al., Appellants, v. BOARD OF APPEALS OF THE CITY OF RACINE et al., Respondents.

Supreme Court of Wisconsin.

Nov. 9, 1954.

Foley & Foley, Racine, for appellant A. Hynek & Sons Co.

Flynn & Greenquist, Racine, for appellants Chester and Julie Krusienski.

Thomas P. Corbett, City Atty., and Jack Harvey, Asst. City Atty., Racine, for respondents.

Robert D. Sundby, Legal Counsel for League of Wisconsin Municipalities, Madison, amicus curiae in support of motion for rehearing.

PER CURIAM.

Respondents moved for rehearing to protest our consideration of the question of the estoppel of the city to reverse the action of the city building inspector. Rehearing and reargument was granted. Respondents then contended that upon certiorari the issues are limited to those raised by the petition for the writ. Their citation of authority convinces us that the point is well taken.

'Sec. 62.23(7)(e) 10. Any person or persons, jointly or severally aggrieved by any decision of the board of appeals, or any taxpayer, or any officer, department, board or bureau of the municipality, may present to a court of record a petition, duly verified, setting forth that such decision is illegal, in whole or in part, specifying the grounds of the illegality. Such petition shall be presented to the court within 30 days after the filing of the decision in the office of the board of appeals.'

'The petitioner makes a point that the property or part of it subjected to the levy was not of such a nature as to have a situs in Montana or to be amenable to process issuing from her courts. No such point was made in the record of the proceedings in the court below. No such point was made in this court in the petition for certiorari to bring the case here for review. It will not be considered now.' Clark v. Williard, 294 U.S. 211, 55 S.Ct. 356, 358, 79 L.Ed. 865, 98 A.L.R. 347, 351.

'The writ of certiorari is not one of strict right. Whether it shall or shall not issue in any given case rests in the sound discretion of the court. Knapp v. Heller, 32 Wis. 467; State ex rel. Schintgen v. [City of] La Crosse, 101 Wis. 208, 77 N.W. 167. Hence the propriety of requiring every jurisdictional defect, upon which the petitioner intends to rely, to be plainly pointed out and brought to the attention of the court in order that its discretion may be intelligently exercised in passing upon the application for the writ, and the propriety also of examining the return only as it responds to the points of challenge. The return on such points when it fully presents the record, is conclusive and furnishes the sole basis for answering the question of whether the judgment should be reversed or affirmed. The statement in 4 Ency. of Pl. & Pr. 293, to which respondent's counsel refers, voices the rule in that regard correctly, thus:

"The petition or affidavit upon which the writ issues serves the purpose of an assignment of errors, and no irregularities will be considered except such as are pointed out therein, although they are apparent of record."

Tourville v. S. D. Seavey Co., 1905, 124 Wis. 56, 102 N.W. 352, 353.

Appellants' petition for a writ of certiorari alleged:

'Eighth: That the plaintiffs allege that the aforedescribed and annexed decision is wholly illegal in that:

'(1) Evidence taken at said hearing before said Board of Appeals was inadmissible and should not have been considered by the Board of Appeals in passing upon the questions involved;

'(2) Thomas P. Corbett, City Attorney for the City of Racine, a municipal corporation, acted in the capacity as attorney for the objecting petitioners at said hearing before said Board of Appeals, and did not represent Peter Brown, Building Inspector, who had issued the building permit in the first instance, and therefore a fair, complete and impartial hearing was not had;

'(3) No consideration was given by the Board of Appeals to the question of laches on the part of the objecting petitioners relating to the time on which they objected to the issuance of the building permit;

'(4) Such decision is based upon an interpretation of the zoning ordinance of the City of Racine, which is unreasonable, illegal, and unconstitutional;

'(5) Such decision ignores the plain language, meaning and intent of the Racine Zoning Ordinance relating to the permitted uses of professional offices and home occupations in residential areas;

'(6) The decision is based upon an erroneous interpretation of the applicable sections of the Racine Zoning Ordinance.'

None of these assignments deal with the power of the city Board of Appeals to hold a review or with its estoppel, as contrasted to the estoppel or laches of the objecting petitioners. Upon reconsideration, we conclude that in the absence, from the application for the writ, of a specification concerning the laches or estoppel of the city it would have been improper for the trial court to consider that question and it is equally improper for us to consider and ground a decision upon it.

We withdraw the decision accordingly and limit our consideration of the issues to those listed in the petition for a writ of certiorari.

Paragraph Eighth (1) of appellants' petition refers to testimony by the Director of Planning of the city of Racine. In response to a hypothetical question he testified that the proposed use of appellants' building was neither a use as a professional office nor a home occupation, as they are defined in the ordinance. In State ex rel. Morehouse v. Hunt, 1940, 235 Wis. 358, 291 N.W. 745, we held that testimony by an expert that the use of the property by the owner constituted an abandonment of a non-conforming use was an opinion as to the law in the controversy and was incompetent. The testimony of the witness here that the proposed use is not permitted under the ordinance is incompetent for the same reason but we can not reverse the Board of Appeals on account of it, as we reversed the trial court in the Hunt case. In the Hunt matter the expert did not testify before the Board. The Board had found and determined that the non-conforming use had not been abandoned within the meaning of the ordinance. On certiorari the circuit court reversed the Board after taking additional testimony as permitted by sec. 62.23(8)(b), Stats. That was when the incompetent evidence came in. We reinstated the decision of the Board, saying, 235 Wis. at page 367, 291 N.W. at page 749:

'The case is certiorari. When...