Opinion
No. 20754
Decided November 3, 1927.
Municipal corporations — Mandamus to compel issuance of building permit for gasoline filling station — Noncompliance with stop-gap zoning ordinance suspended by referendum, not valid defense — Supreme Court — Judicial notice taken of judgment in another case.
IN MANDAMUS.
Messrs. Kelley, David Cottrell, for relator.
Mr. Carl F. Shuler, director of law, for defendants.
This is a suit in mandamus originally filed in this court in which the petition alleges that the relator is the owner of certain premises on Lake avenue in the city of Cleveland, and desires to erect a gasoline filling station thereon; that application was made to the commissioner of buildings for a building permit on August 19, 1927, which was refused, and thereupon relator appealed to the board of appeals, under the provisions of Section 1033 of the municipal code of said city, which board likewise denied the permit. The petition further alleges that relator has complied with all of the requirements of the building code of the city of Cleveland, and that there is therefore a duty specially enjoined by law upon the commissioner of buildings, and also upon the board of appeals, to issue such permit. The answer admits the compliance with all the requirements of the building code, other than a certain stop-gap zoning ordinance, which ordinance, if in full effect, would deny the right of relator to the permit. It is alleged in the reply that the said stop-gap zoning ordinance is subject to a referendum which will be submitted to the voters of the city of Cleveland on November 8, 1927, and that by recent judgment of this court the referendum petition was held to be valid, and the effective date of the ordinance is thereby suspended until an affirmative vote upon the referendum.
Inasmuch as this court will take judicial notice of its own judgment in the case of Dillon v. City of Cleveland (No. 20676), ante, 258, 158 N.E. 606, decided October 5, 1927, the answer does not allege a valid defense to the petition, and the peremptory writ of mandamus will therefore be awarded.
Writ awarded.
MARSHALL, C.J., DAY, ALLEN and ROBINSON, JJ., concur.
JONES, J., not participating.