State v. Welsch

• Decision Date: 11 July 1939
• Docket Number: No. 25156.,25156.
• Parties: STATE ex rel. WINKLEY v. WELSCH.
• Court: Missouri Court of Appeals

131 S.W.2d 364

STATE ex rel. WINKLEY v. WELSCH.

No. 25156.

St. Louis Court of Appeals. Missouri.

July 11, 1939.

Appeal from St. Louis Circuit Court; William S. Connor, Judge.

"Not to be reported in State Reports."

Suit by the State, on the relation of Joseph W. Winkley, for a writ of mandamus commanding Charles A. Welsch, as building commissioner of the city of St. Louis, to issue a permit for the erection of a business building on relator's property. From a judgment granting a peremptory writ, respondent appeals.

Affirmed.

Edgar H. Wayman, City Counselor, and Oliver Senti, Associate City Counselor, both of St. Louis, for appellant.

Oliver F. Erbs and Edwin C. Luedde, both of St. Louis, for respondent.

HOSTETTER, Presiding Judge.

This mandamus suit was begun on June 13, 1938, in the circuit court of the city of St. Louis by Joseph W. Winkley, hereinafter referred to as relator, seeking to have the court to issue a writ of mandamus commanding Charles A. Welsch, Building Commissioner of the city of St. Louis, who will be hereinafter referred to as respondent, to issue a permit for the erection of an automobile sales and service agency building on the property owned by the relator in Block 1 of Christy Addition to Southhampton and in City Block 5775 of the city of St. Louis, and, an alternative writ of mandamus was issued. Welsch made return denying the right of relator to have the permit and alleging that the plans and specifications for relator's building violated paragraph 3 of Section 163 of the Revised Code of St. Louis of 1926, and that respondent acted under said section, claiming that by its terms relator's building had to be set back from the north line of Bancroft avenue so as to leave an open space between said building and Bancroft avenue.

The trial of the issue in the circuit court resulted in the issuance by that court of its peremptory writ of mandamus directing respondent to issue the building permit. Thereupon respondent, Welsch, after an ineffective motion for a new trial, brings the case by appeal to this court for review.

It is conceded by respondent, Building Commissioner Welsch, that the proposed building is a commercial building in what is designated by the ordinances as a commercial district, and also as a "B" Height and Area District. Under these ordinances this type of building in a commercial district may occupy the entire lot upon which it is located, unless respondent's contention that a side yard is required on the Bancroft avenue line is correct. Relator's building does, in fact, occupy the entire lot, except a small strip on the north side thereof. Under the ordinances introduced in evidence no "front yard" of any kind is required for such a building as relator, Winkley, sought permission to erect. Under Section 11 of the same ordinance the requirements as to a rear yard specifically provide that they are applicable as to interior lots only. (Italics ours.)

Boiled down the sole question in controversy is whether the ordinance requires a sideyard for relator's building. The "side yard" required by the ordinance is defined in Section 1, Paragraph 36 as follows:

"36.—Yard—Side. The yard between the side of the building and the lot line most nearly parallel thereto and extending from the street line to the rear yard." (Italics ours.)

It is the contention of counsel for relator that since, under other sections of the ordinance a "rear yard" is not required in this case, then, no "side yard" can be required. We think they are correct in this contention.

It is a well recognized rule of construction of ordinances and statutes that the maxim "expressio unius est exclusio alterius" applies.

In Hogan v. Fleming, 317 Mo. 524, ...