State ex rel. Walmar Investment Co. v. Armstrong

477 S.W.2d 730
CourtMissouri Court of Appeals
DecidedFebruary 23, 1972
DocketNo. 34272
StatusPublished
Cited by2 cases

This text of 477 S.W.2d 730 (State ex rel. Walmar Investment Co. v. Armstrong) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. Walmar Investment Co. v. Armstrong, 477 S.W.2d 730 (Mo. Ct. App. 1972).

Opinion

SIMEONE, Judge.

Appeal from the Circuit Court of St. Louis County from an order sustaining the return to a writ of certiorari filed by relator (hereinafter Walmar) which in effect upheld the decision of the defendants, members of the Board of Building Appeals, (hereinafter Board), of said County.

Walmar instituted suit on July 21, 1965 in the circuit court by filing a petition requesting the court to issue a writ of certio-rari directed to the members of the Board seeking to require the Board to certify a true and complete record of the proceedings so that the court might pass judgment on the legality of the action of the Board in entering an order on June 22, 1965.

Walmar’s petition for a writ of certiora-ri stated that on April 6, 1965, it had filed petitions for appeal before the Board requesting occupancy permits for three buildings on Lot 23 of a subdivision in St. Louis County known as Inverness; that after hearing on the appeals and on June 22, 1965, the Board ruled that :

“1. The northernmost building on Lot 23 of Inverness be razed no later than ninety (90) days from this date of notification.
“2. The southernmost building on Lot 23 of Inverness may remain for a period of three (3) years with the provision that it is maintained in good condition and a screen be built.
“3. The center building on Lot 23 of In-verness may remain indefinitely.”

The relator prayed that the court issue a writ of certiorari requiring the Board to certify the record so that the court may pass judgment on the legality of the action of the Board.

After the petition for certiorari was filed, and on July 29, 1965, the writ issued commanding the members of the Board to return and certify to the circuit court a “true, full and complete” copy of their record and all acts and proceedings in the matter so that the action of the Board may be reviewed by the court.

Some two years later, on December 7, 1967, the Board filed its Return to Writ of Certiorari and attached thereto were nineteen “Return Materials.” Walmar filed a reply to the return in which it challenged items 1 through 13 of the “Return Materials” on the ground they were immaterial, incompetent and irrelevant in that they were all items which preceded Walmar’s appeal filed April 6, 1965. Further, Wal-mar’s reply challenged items 14, 15, 16, 17, 18 and 19 of the “Return Materials” because they did not support the action of the Board in entering its order of June 22, 1965.

[732]*732After the matter was submitted, the court below entered its order sustaining the return of the Board and affirmed the order of the Board.

The main point relied on by Walmar is that the court erred in sustaining the return and affirming the order of the Board because the members of the Board exceeded their jurisdiction in failing to keep a proper record required by an ordinance of St. Louis County establishing the Board of Building Appeals. Walmar asks, therefore, that the record of the Board be quashed and requests that the Board be directed to rehear the various matters and keep a proper record so that proper review may be made.

This proceeding is brought under the authority of § 536.150, RSMo 1969, V.A.M.S.,1 which provides that, “When any administrative . . . body existing under the constitution or by statute or by municipal charter or ordinance shall have rendered a decision which is not subject to administrative review, determining the legal rights, duties or privileges of any person . . . and there is no other provision for judicial inquiry into or review of such decision, such decision may be reviewed by suit for . . . certiorari . ” The ordinances of St. Louis County establishing' the Board of Building Appeals2 provides for no appeal from a ruling of the Board of Building Appeals, hence Walmar may proceed by certiorari under § 536.150. In this state the functions of the writ of cer-tiorari have not been the subject of statutory description or definition; therefore, the writ performs the same office and function as at common law, and lies where there is no remedy by appeal or writ of error. State ex rel. Kassen v. Carver, Mo.App., 355 S.W.2d 324, 327; State ex rel. Shaw State Bank v. Pfeffle, 220 Mo.App. 676, 293 S.W. 512 (opinion by Bennick, J.): “The chief object of certiorari is to confine inferior tribunals within the limits of their respective jurisdictions, and it is therefore the appropriate remedy to be pursued where an inferior court has acted either without or in excess or abuse of its jurisdiction. . . . ” State ex rel. Shaw State Bank v. Pfeffle, supra, l.c. 515.

Walmar contends that items 1-13 of the Return Materials should have been ignored by the trial court because those items preceded the appeal filed by Walmar on April 6, 1965. However, § 1104.050, St. Louis County Revised Ordinances provides that when an appeal is taken from the action of the building official, the “ . . . building official shall immediately transmit to the Board of Building Appeals such notice and all papers constituting the record upon which the action appealed from is taken. . . . ” Walmar sought to occupy the three structures on Lot 23 for office facilities, and in order to issue the occupancy permits for these structures the official had to determine whether they complied with the ordinances. These “return items” show that the three structures were originally erected as display homes. The petition for appeal from building regulations, return item No. 14, dated April 6, 1965, shows that the buildings for which Walmar sought occupancy permits were residence display type homes which were sought to be used as office facilities.

The trial court should have wide latitude to examine “all papers” concerning the appeal. Return items 1-13 were properly reviewed since they constituted papers constituting the record upon which the action appealed from is taken.3

The serious question involved here is whether the Board complied with § [733]*7331104.020, St. Louis County Ordinances: “ . . . The Board shall keep minutes of its proceedings showing the vote of each member on each question, or if absent or failing to vote, indicating such fact, and shall keep records of its examination of witnesses and other official acts.” (Emphasis added.) Walmar contends that Return Materials 14 through 19 do not comply with these requirements, whereas the Board urges that the procedure and records complied with the ordinance, especially if the minutes of March 9, 1965 are coupled with the minutes of May 11 and June 15, 1965.

The minutes of June 15, 1965 reflect only that the attorney for Walmar presented an agreement made between Walmar and the trustees of Inverness, and thereafter in executive session the Board unanimously agreed how the three buildings were to be treated as reflected in its order of June 22. The minutes of May 11, 1965 only reflect that the attorneys requested they be allowed another month in which to reach a suitable agreement and the Board members agreed to the extension.

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Related

State Ex Rel. Walmar Investment Co. v. Mueller
512 S.W.2d 180 (Missouri Court of Appeals, 1974)
County of Platte v. Chipman
512 S.W.2d 199 (Missouri Court of Appeals, 1974)

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Bluebook (online)
477 S.W.2d 730, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-walmar-investment-co-v-armstrong-moctapp-1972.