5 N.W.2d 783 | Wis. | 1942
Certiorari brought by Rose M. Robst against the Board of Appeals of the city of Wauwatosa to review an order of said board made under a zoning ordinance. From the portion of an order permitting amendment of the petition and from an order denying a motion to supersede the writ granted upon the amended petition the defendants appeal. The facts are stated in the opinion.
The petition of plaintiff alleges that the city of Wauwatosa has a zoning ordinance which establishes a "B" district in which no more than duplex apartments are permitted. The ordinance also provides that the lawful use of a building existing at the time of the enactment of the ordinance may be continued although such use does not conform to the ordinance, but that such nonconforming use may not be extended. The plaintiff owns a building located in district "B." The building inspector of the city, pursuant to terms of the ordinance, gave notice to the plaintiff reciting that her building was occupied by five families and ordered that she change the use of the building so, that it would comply with the ordinance. In compliance with the statute, sec.
The petition named the building inspector, whose order was reviewed by the board, and the board, but did not name the individual members of the board. The plaintiff presented her petition to the court within the thirty-day period, and the court within that period issued its writ of certiorari addressed in the name of the state and directed to the building inspector by name and to the Board of Appeals without naming its members. The building inspector moved to supersede this writ on the specified grounds that it was "not issued in the name of the state" and that it "was misdirected."
This motion was heard on November 28th, which was more than thirty days after the filing of the order of the Board of Appeals. The court made an order superseding the writ which recited that "it appearing that said writ was not issued in the name of the state of Wisconsin and was wrongly directed, and should have been directed to the individual members of the board." The court also of its own motion provided in the order that the plaintiff have five days within which "to amend her petition and name the individual members of the Board of Appeals." The plaintiff amended her petition in conformity with this order, and on the amended petition the court issued a second writ of certiorari directed to the individual members of the board. The board moved to supersede this writ on the specified grounds that the court had no jurisdiction of the person of the defendants or the subject of the action; that the action was not commenced within the time limited by law; that the petition did not state facts sufficient to constitute a cause of action; and that the writ was misdirected. The court denied this motion.
The questions raised are stated by the appellants in their brief substantially and in the order as below stated and numbered. *192
(1) Did the court have jurisdiction to issue the second writ on the amended petition?
The first writ was superseded on the ground that it was misdirected. Under State ex rel. Flint v. Fond du Lac,
"The objection that the writ of certiorari was improperly directed to the common council . . . is untenable. It was the acts and proceedings of the common council . . . which were sought to be reviewed. The common council, under the city charter, is a permanent body; has the legal control of all its records and papers; appoints the city clerk; and could therefore make return to the writ."
The petition as originally presented contained all statements required by the statute on which the proceeding is based, sec.
That the original petition was sufficient need not rest alone on the Flint Case, supra. Examination of the printed cases on file in this court in over twenty-five cases of certiorari ormandamus running to county boards discloses that the members of such boards were not named in either petition or writ. At least one of the county boards of the state comprises over eighty members. It would be entirely useless to name in either petition or writ such a list of members. All that should be reasonably necessary to bring up a record to be reviewed in absence of express statutory provision is to deliver demand therefor to such officer as will pursuant to performance of official duty cause the record to be produced. This is manifest from the fact that the statute, sec.
The twenty-five cases above referred to in which the printed cases were examined to check up on the prevailing practice were nearly all brought before the amendment of sec.
It is true that it is said in State ex rel. Graff v. Everett,
(2) Was the action commenced within the thirty days limited by sec.
The question here stated seems to have been based on the idea that the time of commencing the action is fixed by the issuing of the writ. This is an incorrect concept. Under the instant statute the action was commenced when the plaintiff presented the original petition to the court. The plaintiff presented her petition within the thirty days' period and that is all the statute required. That being done, the court could issue its writ when it got ready.
(3) Does the amended petition state facts sufficient to constitute a cause of action, (a) under sec.
(a) The petition states that before the enacting of the zoning ordinance the plaintiff had, (1) "opened an apartment house upon said [the] premises [in suit] with three apartments therein and made improvements upon said premises fitting it for an apartment house and has ever since maintained an apartment house therein for the accommodation of no less than three apartments and tenants." The petition also states, (2) "that at the time said [zoning] ordinance was adopted your petitioner had been, for months, conducting apartments therein numbered, at said location in one building and has never abandoned the keeping and operating of three apartments in said building at said location." The petition further states, (3) "that at the time the said ordinance was first passed and long prior thereto said premises were used there as apartments for at least three families and such use *196 for at least three apartments and families has continued to the present day without interruption ever since the year 1919, and your petitioner has a right to continue to use said premises for apartments and families numbering three or more."
The petition sets out the notice of the building inspector served upon the plaintiff which states that the building "may not be used as the residence for more than two families . . . [and] is now being used as the residence for five families."
It seems to be the contention of appellants that these several allegations of the petition show that the plaintiff claims the right to use t, he building for occupation for more than three families because she was so using it when the ordinance was adopted, and that she claims the right to use it for the occupation of five families. The point of the case is not what she claims but what her rights of use are under the facts shown by the record when it is returned and such evidence if any as the court may receive under sec.
(b) It was held in Decker v. McSorley,
(4) Did the court have power under sec.
We consider that if the court was of opinion that the bringing in of the individual members of the board was necessary to the bringing up of the board's record it had the power to direct amendment of the complaint to incorporate their names. That is what the court did. The petition having been presented to the court within the thirty-day period it was properly before the court. The quashing of the writ first issued did not dismiss the action. The motion to quash was in effect a demurrer to the petition for insufficiency of facts stated.State ex rel. Karnes v. Board of Regents,
By the Court. — The order of the circuit court dated December 29, 1941, denying the motion to supersede the writ ofcertiorari, and the portion of the order entered November 28, 1941, appealed from, are affirmed. *198