Veal v. Leimkuehler
| Decision Date | 20 May 1952 |
| Docket Number | No. 28384,28384 |
| Citation | 249 S.W.2d 491 |
| Parties | VEAL et al. v. LEIMKUEHLER et al. |
| Court | Missouri Court of Appeals |
Timothy R. Veal, St. Louis, pro se and for appellants.
James E. Crowe, City Counselor, John P. McCammon, Associate City Counselor and John J. Shanahan, Asst. City Counselor, St. Louis, for respondents.
HOUSER, Commissioner.
This is an appeal from the judgment of the Circuit Court of the City of St. Louis sustaining and affirming an order of the board of adjustment of said city revoking an alteration permit granted by the building commissioner to Timothy and Olivette Veal.
The property involved in this matter, owned by Timothy and Olivette Veal, is located at 4311 Page Boulevard in St. Louis. For many years it was used as residential property. Under Zoning Ordinance No. 35003, Ordinance No. 35009, effective May 26, 1926, it was zoned for commercial use. On March 6, 1950 Timothy and Olivette Veal applied up the building commissioner for a permit to make alterations on the building in order to use it as a funeral home and for a permit to occupy the building as a funeral home. On April 25, 1950 Ordinance No. 45309, a new zoning ordinance, was approved, to become effective 30 days thereafter. Under Ordinance No. 45309 this property was re-zoned and classified as 'C' Four Family Dwelling District. On May 13, 1950 the building commissioner issued Alteration Permit No. S 4566 and Occupancy Permit No. S 4567 granting permission to alter and to occupy the premises for use as a funeral home. On August 17, 1950 Block Unit 48 filed an appeal for the revocation of Permit No S 4566, and on September 13, 1950 a hearing was held thereon before the board of adjustment.
At the hearing it was shown that the proposed use of the property would create a traffic hazard, imperil the safety of children living in the block, increase the parking problem, depreciate property values in the neighborhood and destroy the enjoyment and privacy of nearby residential property owners by creating a morbid and depressing atmosphere; that the property was being used for residential purposes; that Mr. Veal went to the building commissioner's office and was aware that the ordinance was to be changed; that petitions in opposition to his establishment of a funeral home were being circulated; that the circulation of the petitions commenced in April when the property owners heard that Mr. Veal was planning to open this business; that 110 signatures were obtained; that Mr. Veal had notice that the ordinance was changed; that persons were living in the house at the time the ordinance was passed and 'up to June'; that as late as July 10 Mr. Veal had tenants in the place; and that Mr. Veal did not conduct any funeral at any time.
Timothy R. Veal testified that the house had been in the commercial zone for more than 40 years; that desiring to use the property for a funeral home he and his wife made application to the building commissioner who found, after inspection, that the building was commercial; that the house could be used for a funeral home with very little alteration; that petitioners obtained a permit to make certain alterations on May 13, 1950 and that two weeks before the new ordinance went into effect they 'went into business with the funeral home, making repairs and buying things'; that on May 18, 1950 they paid $25 for a license to operate; that they began 'operating' before the new law went into effect; that although as of September 13, 1950 no funerals had been conducted from the premises, he had had several calls with respect to funerals before May 26, 1950 and that he was 'available at any time' to perform funeral services; that 'since going into business (petitioners) have spent $5,681.00 for a hearse, truck, and other things * * * prior to and after May 26, 1950'; that he 'imagined' $3,000 was spent prior to May 26, 1950. He acknowledged that 'someone was living downstairs' but contended that the permit included the entire building and premises, stated that they have preparation rooms in the basement and a display room on the second floor. He testified that there is a church on the corner, a cleaning establishment in the middle of the block, on another corner they sell whiskey. When asked if it was not true that most of the money had been expended on movable equipment he answered 'No, there was a lot spent on changing the ceiling and the chapel and making the building fireproof.' He further testified that he had canceled checks to show the expenditure of $5,600. He offered in evidence Permits Nos. S 4566 and S 4567 and evidence that the property was 'commercial' when the permits were granted.
On this evidence the board of adjustment granted the appeal, thereby revoking Permit No. S 4566, and ruled that A rehearing was held on September 27 and on October 25 the board affirmed the order of September 13.
On November 3, 1950 Timothy and Olivette Veal filed in the circuit court an application for a writ of certiorari naming the five members of the board of adjustment as respondents, praying for the issuance of the writ to the end that the proceedings before the board be certified to the circuit court and the board's order reversed for illegality because (1) the petitioners had a lawful non-conforming use on the effective day of the new zoning ordinance; (2) of undue hardship; (3) the order violates Missouri Constitution 1945, art. I, Secs. 10 and 13, V.A.M.S. and U.S. Constitution, Amendment XIV. The respondent board members filed a return attaching thereto a transcript of the proceedings before the board of adjustment, and asserting that the board 'properly and lawfully revoked the permit theretofore issued to the appellants.' The cause was submitted on the pleadings and the circuit court entered the judgment referred to in the first paragraph of this opinion. Following the overruling of appellants' after-trial motions an appeal was duly prosecuted to this court.
Although all parties concede that we have jurisdiction we make special reference to the question since appellants seek to inject certain constitutional questions into the case by contending that the order of the board of adjustment violates Missouri Constitution 1945, art. I, Secs. 10 and 13, and U. S. Constitution, Amendment XIV. If there is a question in the case 'involving the construction of the Constitution of the United States or of this State' we should transfer the case to the Supreme Court for determination. Constitution of Missouri 1945, art. V, Sec. 3.
The first constitutional question sought no be raised is whether Olivette Veal was deprived of property without due process of law by not having been given due notice of the hearing of September 13, 1950 at which the permit was revoked. This question is not in the case because it was not raised at the earliest practical opportunity. Nowhere in the application for the writ of certiorari is reference made to this point. So far as the record shows the point was first raised in the briefs filed in this court. We are therefore not deprived of jurisdiction on this account. 2 V.A.M.S. p. 54, note 43, Annot. to Constitution of Missouri 1945, art. V, Sec. 3.
Appellants' chief complaint on constitutional grounds is that the order of the board destroyed vested rights; that in reliance on the permit appellants proceeded in good faith to incur obligations for supplies and equipment, made alterations in the building and established and were operating a funeral home in a commercial district on and before May 26, 1950, the time when Ordinance No. 45309 became effective; that before that date they converted the residence into a funeral home which is a non-conforming use permitted by the terms of the ordinance itself to continue since it existed prior to the effective date of the ordinance; that appellants' rights under the permit became vested rights protected by federal and state constitutional guarantees, and that in construing and applying the ordinance to Veal Mortuary the board gave the ordinance retrospective operation, all in violation of Missouri Constitution 1945, art. I, Secs. 10 and 13, and U. S. Constitution, Amendment XIV. There is, however, no constitutional question in the case. The order of the board of adjustment does not involve or raise any question of the construction of either the federal or state constitution. There is no contention that Ordinance No. 45309 or any provision thereof is unconstitutional. To the contrary appellants concede its constitutionality. There is no conflict between the parties in their construction of the constitution. Both sides agree that vested rights are entitled to constitutional protection.
Appellants say that this is a case of the erroneous construction of a constitutional ordinance and an application of the ordinance in such a manner as to invade their constitutional rights. If that be true, a constitutional question has not been raised in the appellate jurisdictional sense. Curtin v. Zerbst Pharmacal Co., 333 Mo. 346, 62 S.W.2d 771, loc. cit. 772.
The only substantial question in the case is the proper determination of the fact issue whether, in reliance upon the alteration permit, appellants spent a substantial amount of money altering their residence property and whether they established a non-conforming use thereof before the zoning ordinance became effective. The board of adjustment decided against appellants on this issue. Our task is to determine the correctness of the action of the circuit court in its review of that decision.
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