138 Wis. 27 | Wis. | 1909
Lead Opinion
The petition or relation upon which the al temative wilt of manidamus, seeking to enforce the issue of a permit for repair of a certain building, was issued contained no statement that there was enacted, or that there existed, an ■ordinance of the city imposing a duty upon the building inspector to issue such permit. Much less does it disclose that .such duty was absolute or the action thereunder ministerial. The averment is as follows:
“Your petitioner further alleges and shows to the court that on the 10th day of July, A. D. 1907, pursuant to the ordinances of the city of Milwaukee, he made application to Edward V. Koch, Esq., as inspector of buildings of said city of Milwaukee, for a building permit for the erection of a brick basement under said building, and in all things complied with the ordinances of said city, and did on the 10th day of July, A. D. 1907, make due application for a permit, hereto annexed, to build said basement under said building, and did tender to and offer to file with the inspector of buildings of said city plans and specifications, hereto annexed, for the erection of said basement, and did at the same time duly tender to said inspector of buildings the legal fee therefor, as required by law; that the inspector of buildings of said city did refuse and still does refuse to grant your petitioner, as*29 executor of said estate, a permit to build said basement; that-it is the duty of said inspector, under the law and ordinances of said city of Milwaukee, to issue such permit.”
No general statute imposes upon the inspector any such-duty. There was no ordinance pleaded showing any such duty, giving the relation the most liberal construction. Decker v. McSorley, 111 Wis. 91, 86 N. W. 554; McQuillan, Mun. Ordinances, § 374; Buckley v. Eisendrath, 58 Ill. App. 364. The concluding statement above quoted is a mere conclusion of law not admitted by demurrer, and not an averment of fact. It might be sufficient, in the absence of a motion to make more definite and certain, to admit proof of the ordinance. But that is not in the case here. No ordinance is offered in evidence. We are obliged to accept this statement as the ordinance or else reject it as a conclusion of the pleader. McCune v. Norwich City G. Co. 30 Conn. 521; Buffalo v. Holloway, 7 N. Y. 493; Angus v. Lee, 40 Ill. App; 304; Morton v. Comp. Gen. 4 S. C. 430. The court does not take judicial notice of municipal ordinances not pleaded. Davey v. Janesville, 111 Wis. 628, 87 N. W. 813; Pettit v. May, 34 Wis. 666; Horn v. C. & N. W. R. Co. 38 Wis. 463; Stittgen v. Rundle, 99 Wis. 78, 74 N. W. 536.
The alternative writ, which is the first process, but not the first pleading, in mandamus recited: “Whereas under the ordinances of the city of Milwaukee it was the duty of said Edward V. Koch, as such inspector of buildings, to issue unto the petitioner a permit,” etc.; but even here there is no ordinance referred to, either by its number or date of passage or publication, nor does it purport to give either the words or the substance of the ordinance, and it has only the petition to rest upon, where the averment is still more defective. The building inspector made return to the alternative writ. The relator demurredto this return. This demurrer to the return was sustained, and thereupon, without further trial, judgment was entered awarding the peremptory writ. The trial
But if the relation was defective the return was grotesque. It first set forth that the duties of the Wilding inspector and the laws relating to the erection and construction of buildings are covered by ch. 3 of the general ordinances of the city.' It nowhere gives information of the contents of ch. 3, but selects two sections (7 and 10) of that chapter and sets them forth in extenso• twice, once in the body of the return and again in the order of the building inspector attached to the return as an exhibit. Sec. 7 provides for two cases, one where the building, wall, or part of a building, platform, or staging is dangerous or unsafe for the purpose for which it is being used or in danger of being set on fire because of defects in construction ; and in these cases the inspector is required, or authorized, to notify the owner, or his agent, in writing, specifying wherein the danger consists or wherein such building is unsafe and defective. If the owner, or his agent, after such notice neglects to proceed to put the building in a safe condition or forthwith to pull down or secure such building, etc., he shall be deemed guilty of a misdemeanor. The object of pleading this part of the ordinance is not apparent, unless it be to show that the building inspector did not comply with it, for it is afterward shown that, instead of acting as therein directed, he acted jointly with the health inspector, and instead of giving the notice there required they made an order
The sec. 10 pleaded relates to appeals from the decision of the inspector of buildings to a board of arbitration, but does not include appeals from the emergency orders of the inspector and chief, and seems to be also wholly irrelevant. But the eapsheaf of this irrelevant return is found in the order of the arbitrators on appeal, which is also returned, as follows:
“We find that the buildings in question . . . are in a very ■dilapidated condition, which as to the two buildings known as No. 601 and No. .603 is due mainly to their age, and the present value of the foundations of the aforementioned two buildings was not taken into consideration because of their thoroughly dilapidated condition. The upper structures, after a very careful and thorough examination as to their value, were found to be damaged to a greater extent than fifty per cent, of their original cost. We therefore find that the building inspector’s and health department’s orders must*32 be sustained in condemning said two buildings (N>. 601 and 603 Cherry street), but we have decided that the frame building known as No. 605 Cherry street may remain.”
However, among’ the judicial farrago in the return we find the following separable averment:
“That in the opinion of the inspector of buildings the-placing of a brick basement under said house at 601 Cherry street, as proposed in the application for permit to make alterations, would not make safe said building, for the reasons ■ hereinbefore set forth, namely, that the superstructure is so-dilapidated, rotten, and in bad condition that it will be unwise and unsafe to permit the repair of said building in such manner.”
This is a good return if the ordinances permit of any discretion on the part of the inspector in refusing permits. Rut we do not determine that point, having no assurance that we have before us the ordinances bearing on that subject. As it is, the judgment must be reversed, with orders to sustain the demurrer as a demurrer to the relation.
By the Gourt. — The judgment is reversed, and the cause-remanded with directions to sustain the demurrer to the relation.
Dissenting Opinion
The following opinion was filed March 2, 1909:
(dissenting)'. I have to dissent in this case. It is conceded by my brethren that if there is an ordinance in the city of Milwaukee making it mandatory upon the building inspector, in case of an application being presented to him for a building permit, such as was presented in-this case, to issue such permit, then there was a failure on the part of such inspector to perform a plain ministerial duty-giving cause for mandwrwus proceedings, such as were resorted to in order to compel performance, and if the existence-of such ordinance was sufficiently pleaded, as against a demurrer for insufficiency, the writ of mandamus was properly
The rule that an issue of law joined by a demurrer to a return or an answer presents not only the question of law as to the sufficiency of the second pleading, but also as to the sufficiency of the first one, is elementary; as is also the rule that such principle is substantial. But I do not understand, or else do not agree with, the reasoning upon which the conclusion is grounded, that the relation in this case is not good on a challenge for insufficiency. It states, in plain language, that the petitioner presented to the building inspector an application for a building permit and complied in all respects with the ordinance of the city as regards conditions precedent to his right to such permit; that the permit was refused, and that it is the duty of said inspector, under the law and ordinances of said city of Milwaukee, to issue it.
My brethren concede that the allegations might be sufficient, in the absence of a motion to make more definite and certain, to admit proof of the ordinance. But they say, “'that is not the ease here.” Why “is not that the case here ?” My brethren give no reason except that the demurrer to the return should be regarded as involving a counter denial of the sufficiency of the relation. Then we have this logic: A complaint, in general terms, reasonably suggesting facts not specifically set forth; a pleading of the facts by the legal results, in a sense conclusions of law, is good upon a challenge by the defendant by demurrer for insufficiency, even though open to a motion to make more definite and certain. But if defendant sees fit to omit such motion and answers, and the plaintiff demurs thereto, whereas, before, the pleading was proof against a formal demurrer by the defendant, it is not
True, as the relation stands, we are obliged to accept the statement as to the ordinance or else reject it as a conclusion of the pleader, but that is always true in case of testing facts pleaded by reasonable inference, especially when the allegation permissibly takes the form of pleading facts by their legal effect. That is held in the numerous cases in this court where such condition has been held not to militate against the sufficiency of the pleading when challenged upon demurrer.
I fail to see how decisions of other states having the common-law system, or ancient cases under a Code like ours, but with an undeveloped practice under it, or cases in our court as to the admissibility of an ordinance in evidence where not
The extent to which this court has gone in simplification of the practice under the Code, avoiding all nonessentials, is very strikingly illustrated in Prentice v. Nelson, 134 Wis. 456, 114 N. W. 830, where, in a suit on a treasurer’s bond, the sufficiency of the complaint was challenged by a general demurrer because, as claimed, it contained, as to many of the essential facts, only general conclusions which were properly denominadle conclusions of law. It w'as alleged that plaintiff was the duly qualified treasurer, etc.; that his bond was duly approved, that his successor was duly elected and qualified ; and there were other allegations of like character. The demurrer was overruled, the court saying:
“Where the ultimate fact essential to a cause of action is brought into existence by a series of detailed acts and events, it is entirely competent and sufficient to plead those detail acts according to their legal effect, and, when so pleaded in a complaint, that instrument is not obnoxious to a demurrer, but, at most, to a motion to make more specific. ...”
Does not that fit the claimed insufficiency in the relation in question most completely ?
I think the insufficiency claimed should be treated the same as in case of a formal demurrer and that so 'treated the relation is sufficient If I be right, then all will agree the judgment should be affirmed.
In closing I may well remark, that, if I be right, the result