State ex rel. Walmar Inv. Co. v. Armstrong

• Decision Date: 23 February 1972
• Docket Number: No. 34272,34272
• Citation: 477 S.W.2d 730
• Parties: STATE ex rel. WALMAR INVESTMENT COMPANY, a Corporation, Relator, Appellant, v. Harris ARMSTRONG et al., Respondents. . Louis District
• Court: Missouri Court of Appeals

Page 730

477 S.W.2d 730

STATE ex rel. WALMAR INVESTMENT COMPANY, a Corporation Relator, Appellant, v. Harris ARMSTRONG et al., Respondents.

No. 34272.

Missouri Court of Appeals, St. Louis District.

Feb. 23, 1972.

Ziercher, Tzinberg, Human & Michenfelder, Robert C. Jones, Clayton, for appellant.

George F. Gunn, Jr., County Counselor, Thomas W. Wehrle, Deputy County Counselor, Andrew J. Minardi, Asst. County Counselor, Clayton, for respondents.

SIMEONE, Judge.

Appeal from the Circuit Court of St. Louis County from an order sustaining the return to a writ of certiorari filed by relator (hereinafter Walmar) which in effect upheld the decision of the defendants, members of the Board of Building Appeals, (hereinafter Board), of said County.

Walmar instituted suit on July 21, 1965 in the circuit court by filing a petition requesting the court to issue a writ of certiorari directed to the members of the Board seeking to require the Board to certify a true and complete record of the proceedings so that the court might pass judgment on the legality of the action of the Board in entering an order on June 22, 1965.

Walmar's petition for a writ of certiorari stated that on April 6, 1965, it had filed petitions for appeal before the Board requesting occupancy permits for three buildings on Lot 23 of a subdivision in St. Louis County known as Inverness; that after hearing on the appeals and on June 22, 1965, the Board ruled that:

'1. The northernmost building on Lot 23 of Inverness be razed no later than ninety (90) days from this date of notification.

'2. The southernmost building on Lot 23 of Inverness may remain for a period of three (3) years with the provision that it is maintained in good condition and a screen be built.

'3. The center building on Lot 23 of Inverness may remain indefinitely.'

The relator prayed that the court issue a writ of certiorari requiring the Board to certify the record so that the court may pass judgment on the legality of the action of the Board.

After the petition for certiorari was filed, and on July 29, 1965, the writ issued commanding the members of the Board to return and certify to the circuit court a 'true, full and complete' copy of their record and all acts and proceedings in the matter so that the action of the Board may be reviewed by the court.

Some two years later, on December 7, 1967, the Board filed its Return to Writ of Certiorari and attached thereto were nineteen 'Return Materials.' Walmar filed a reply to the return in which it challenged items 1 through 13 of the 'Return Materials' on the ground they were immaterial, incompetent and irrelevant in that they were all items which preceded Walmar's appeal filed April 6, 1965. Further, Walmar's reply challenged items 14, 15, 16, 17, 18 and 19 of the 'Return Materials' because they did not support the action of the Board in entering its order of June 22, 1965.

After the matter was submitted, the court below entered its order sustaining the return of the Board and affirmed the order of the Board.

The main point relied on by Walmar is that the court erred in sustaining the return and affirming the order of the Board because the members of the Board exceeded their jurisdiction in failing to keep a proper record required by an ordinance of St. Louis County establishing the Board of Building Appeals. Walmar asks, therefore, that the record of the Board be quashed and requests that the Board be directed to rehear the various matters and keep a proper record so that proper review may be made.

This proceeding is brought under the authority of § 536.150, RSMo 1969, V. A.M.S., ¹ which provides that, 'When any administrative . . . body existing under the constitution or by statute or by municipal charter or ordinance shall have rendered a decision which is not subject to administrative review, determining the legal rights, duties or privileges of any person . . . and there is no other provision for judicial inquiry into or review of such decision, such decision may be reviewed by suit for . . . certiorari . . ..' The ordinances of St. Louis County establishing the Board of Building Appeals ² provides for no appeal from a ruling of the Board of Building Appeals, hence Walmar may proceed by certiorari under § 536.150. In this state the functions of the writ of certiorari have not been the subject of statutory description or definition; therefore, the writ performs the same office and function as at common law, and lies where there is no remedy by appeal or writ of error. State ex rel. Kassen v. Carver, Mo.App., 355 S.W.2d 324, 327; State ex rel. Shaw State Bank v. Pfeffle, 220 Mo.App. 676, 293 S.W. 512 (opinion by Bennick, J.): 'The chief object of certiorari is to confine inferior tribunals within the limits of their respective jurisdictions, and it is therefore the appropriate remedy to be pursued where an inferior court has acted either without or in excess or abuse of its...