State v. Shinnick
| Decision Date | 27 June 1921 |
| Docket Number | No. 14003.,14003. |
| Parties | STATE ex rel. THOMAS CUSACK CO. v. SHINNICK, Superintendent of Buildings. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Jackson County; D. E. Bird, Judge.
Application by the State, at the relation of the Thomas Cusack Company, for a writ of mandamus against Matt S. Shinnick, Superintendent of Buildings for the City of Kansas City. Judgment for relator, and defendant appeals. Reversed.
E. M. Harber, M. A. Fyke, and P. M. Hayward, all of Kansas City, for appellant.
Frank M. Lowe, of Kansas City, for respondent.
This is a proceeding by mandamus to compel defendant to issue a permit to relator to erect a billboard at 2441 McGee Street Traffic Way in Kansas City, Mo. It is alleged in the alternative writ that relator has heretofore made application for a permit to erect a billboard at the point above named; that in strict compliance with all of the terms, conditions, and requirements of ordinance numbered 33950 of the city of Kansas City, relator tendered the regular fee or license, and made due application to the inspector of buildings for a permit to erect and maintain said billboard; that the inspector of buildings refused said tender; that prior to the application aforesaid the mayor of Kansas City, of his own motion, and by no other and different authority than the general power supposed to vest in him as mayor of said city, issued an order to defendant forbidding him to issue a permit for the erection or maintenance of any billboard within the limits of said city of Kansas City until the mayor should withdraw said order; that the said defendant, superintendent, is an appointee of said mayor, and that in obedience to said order, and for no other reason, the said superintendent refused and still refuses to issue to relator the permit applied for; that said refusal appears to be wrongful and unlawful; and that relator has no adequate or complete remedy at law.
Defendant duly made return in which he averred that "said alternative writ does not state facts sufficient to entitle relator to the relief asked for therein," and specifically denied all the allegations contained in the alternative writ. Judgment of the court was in favor of relator, the peremptory writ of mandamus was issued, and defendant appeals.
Relator introduced in evidence, over the objections of defendant, Ordinance No. 33950 of the city of Kansas City, which provides:
It appears in the record, and is undisputed, that the billboard in controversy had been erected without a permit before the petition in this cause was filed. There is no controversy as to the facts above stated.
Defendant urges five points in support of his appeal: First, that the alternative writ does not state facts sufficient to entitle relator to a peremptory writ.
When an alternative writ of mandamus is issued, it becomes the primary pleading in the cause. The averments in an...
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