State ex rel. Tingley v. Gurda

• Decision Date: 20 June 1932
• Citation: 243 N.W. 317,209 Wis. 63
• Parties: STATE EX REL. TINGLEY v. GURDA, INSPECTOR OF BUILDINGS.
• Court: Wisconsin Supreme Court

209 Wis. 63

243 N.W. 317

STATE EX REL. TINGLEY

v.GURDA, INSPECTOR OF BUILDINGS.^a1

Supreme Court of Wisconsin.

June 20, 1932.

Appeal from a judgment of the Circuit Court for Milwaukee County; Charles L. Aarons, Circuit Judge. Affirmed.

On the 31st day of December, 1930, upon the petition of the relator, C. W. Tingley, an alternative writ of mandamus issued out of the circuit court for Milwaukee county, addressed to the defendant Leon M. Gurda, Inspector of Buildings of the City of Milwaukee, commanding him to issue to the said C. W. Tingley the necessary permit authorizing the erection and construction of buildings and other improvements for a cut stone plant and yard upon certain premises owned by the relator in the city of Milwaukee, or show cause why such permit should not issue. The issue formed by the return of the defendant to the alternative writ was tried, and on the 21st day of October, 1931, the issuance of a peremptory writ of mandamus was adjudged. The defendant, Leon M. Gurda, appeals from that judgment.Max Raskin, City Atty., and Edwin W. Knappe, Asst. City Atty., both of Milwaukee, for appellant.

George A. Affeldt, of Milwaukee, for respondent.

OWEN, J.

The relator is the owner of premises located in block No. 15, in North Milwaukee Townsite Company's addition No. 1, now a part of the city of Milwaukee. This block is traversed by Mud creek, is bounded on the east and west by premises devoted to industrial purposes, on the south by the right of way of the Chicago, Milwaukee, St. Paul & Pacific Railroad Company, and on the north by Cameron avenue. Relator's premises lie east of Mud creek in said block. This block was originally a part of the city of North Milwaukee, which has now been annexed to and is a part of the city of Milwaukee. The zoning ordinance of the city of North Milwaukee included this block within an industrial area. After the annexation of North Milwaukee to the city of Milwaukee, the city of Milwaukee passed a zoning ordinance which restrained the use of this block and relator's property to residential purposes, and made said block a part of a residential area. By reason of this ordinance, the defendant, as inspector of buildings in the city of Milwaukee, refused a license to the relator to equip said premises for use as a stone yard and plant.

Relator claims the ordinance upon which the building inspector relies is unconstitutional. The lower court so held, and issued a peremptory writ of mandamus commanding the defendant to issue such permit.

[1][2] Upon the trial, the introduction of the ordinance of the city of Milwaukee constituting relator's premises a part of a residential area was apparently inadvertently overlooked, and the ordinance upon which the defendant relies was not introduced in evidence. While this was an unfortunate inadvertence, it does not constitute ground for reversal, as contended by the defendant. The defendant justifies his refusal of the permit by virtue of this ordinance. The petition alleges and the return admits the adoption of an ordinance by the city of Milwaukee on the 11th day of February, 1929, zoning said premises as a part of a residential area. No question was raised as to the existence of this ordinance at any time during the trial. The existence of the ordinance being thus assumed probably accounts for the failure of either relator or defendant to introduce it. However, inasmuch as the defendant relied upon its provisions as a justification for the refusal of the permit, the burden of its introduction rested upon him as well as the relator. At any rate, if he is to rely upon the provisions of the ordinance as a justification for his official conduct, it is not very apparent how he can urge a reversal on the ground that the ordinance was not introduced.

[3][4] Appellant further contends that the peremptory writ of mandamus should not have issued because the relator did not pursue other adequate remedies provided by law for the attainment of his alleged rights. The remedy to which he refers is that provided by section 62.23 (8), Stats., which provides for a review by the board of appeals, which is established by ordinance of the city of Milwaukee, of any determination made by the building inspector. The relator did appeal from the refusal of the defendant to grant the permit to the board of appeals. It seems that the board of appeals announced, rather informally, that it had no jurisdiction to pass upon the constitutionality of the ordinance, for which reason they failed to set a time for the hearing of the appeal before this action was commenced.

The power of this board is specified in sections 62.23 (8) (b) as follows: “The board of appeals shall review any order requiring decision or determination made by an administrative official charged with the enforcement of any ordinance adopted pursuant to subsections (1) to (7) of this section. Such board shall also hear and determine all matters referred to them or upon which they are required to pass under any ordinance of the council adopted pursuant to such subsections. The concurring vote of four members of such board shall be necessary to reverse any order requiring decision or determination of any such administrative official or to decide in favor of the applicant any matter upon which they are required to pass under any such ordinance or to effect any variation of such ordinance. Every decision of such board, shall, however, be subject to review by certiorari. Such appeal may be taken by any person aggrieved or by any officer, department, board or bureau of the city.” The gist of the power thus conferred is that of...