State ex rel. Myers v. Shinnick
| Decision Date | 06 August 1929 |
| Docket Number | 27251 |
| Citation | 19 S.W.2d 676 |
| Parties | STATE ex rel. MYERS v. SHINNICK, Superintendent and Commissioner of Buildings |
| Court | Missouri Supreme Court |
Maurice J. O'Sullivan and Julius C. Shapiro, both of Kansas City, for appellant.
John T Barker, City Counselor, and William H. Allen and Robert K Ryland, Asst. City Counselors, all of Kansas City, for respondent.
This is an original proceeding by mandamus, instituted in the circuit court of Jackson county, to compel Walter A. Besecke, superintendent and commissioner of buildings of the city of Kansas City, to issue to relator a building permit for the erection of a filling station upon premises owned by relator in Kansas City. An alternative writ of mandamus was issued, and on September 26, 1925, said court sustained a motion to quash the same and dismissed relator's petition. Relator was thereafter granted an appeal to this court. The presence of certain constitutional questions determines our appellate jurisdiction. The parties will be referred to as relator and respondent, as below, in order to avoid confusion. Upon relator's motion, Matt S. Shinnick was substituted as party respondent in this court in place of Walter A. Besecke, whom Shinnick succeeded as superintendent of buildings.
On December 12, 1928, respondent filed his motion to dismiss the action upon the ground that it had become a moot case and an actual controversy no longer existed between the parties. This motion was overruled December 18, 1928. In his brief respondent has renewed this insistence. Our former action does not foreclose the question against further consideration in the event we now conclude that there is no real controversy in the case. This question we will first consider.
An examination of the record and of our files in this court reveals the following situation: The petition filed in the circuit court discloses that relator applied to Superintendent Besecke for a permit to erect a filling station for dispensing gasoline and oil at the southwest corner of Chestnut avenue and Thirty-Ninth street, known as 2717 East Thirty-Ninth street, in Kansas City, and that said superintendent refused to issue said permit on the ground that the use proposed did not conform to the zoning ordinance of said city. A copy of said zoning ordinance was attached to and made a part of relator's petition, and relator alleged that said ordinance is unconstitutional and void for various reasons and also that Kansas City was not authorized by its charter to enact said ordinance.
The prayer of relator's petition was as follows: 'Wherefore, relator respectfully prays, that this court issue and award its writ of mandamus, commanding and enjoining defendant Walter A. Besecke, Superintendent of Buildings, of the City of Kansas City, Missouri, or his successor, to immediately and without further excuse or delay, issue to said relator a building permit, in due, regular, and customary form, as by his application heretofore sought, dated April 30, 1925, and permitting and authorizing said relator to erect, construct and maintain, upon his property described herein, as by said application appears, a copy of which application is hereto attached, and made a part of this petition as though fully set forth herein, the frame and stucco building as therein set forth, and by said application and plans thereto attached appear. * * *'
Section 21 of the zoning ordinance, attached to and made a part of relator's petition, provided that said ordinance should be enforced by the superintendent of buildings under the rules and regulations of the board of zoning appeals, and further provided that 'any decision of the Superintendent of Buildings made in the enforcement of this ordinance may be appealed to the Board of Zoning Appeals by any interested person or by any officer of the city.'
In relator's 'Answer and Reply to Motion to Dismiss' filed in this court December 15, 1928, relator stated that the refusal of the superintendent of buildings to grant relator's application for permit was confirmed by the board of zoning appeals May 20, 1925, and that on June 4, 1925, relator filed in this court his petition for our writ of mandamus to compel the issuance of such permit, and that this court denied such application on July 3, 1925, 'without prejudice.' The application to the circuit court of Jackson county was made July 11, 1925.
Relator attached to his said answer and reply 'Exhibit A,' which is a copy of proceedings of the board of zoning appeals on May 20, 1925, and this shows the denial of relator's application for permit, as follows: 'Appeal from ruling of the Superintendent of Buildings to modify the use provision as applied to the Southwest corner of Thirty-ninth street and Chestnut avenue, being 2717 East Thirty-ninth street, to permit the erection thereon of a structure to be used as a gasoline filling station.'
Relator also attached to said answer and reply copy of a letter from the secretary of the board of zoning appeals, addressed to relator's attorney and dated June 4, 1926, which reads as follows:
'This is to notify you that because of changing conditions along Thirty-ninth street due to the inauguration of a bus line and other matters, the Board of Zoning Appeals feels that if you and your client Mr. Myers still are interested in the case involving the Southwest corner of Thirty-ninth street and Chestnut avenue, it would be glad to grant a rehearing in that case.
Exhibit C, likewise attached, is a copy of a letter written by relator's attorney to the city plan commission in answer to the above letter of June 4, 1926, and reads as follows:
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