
    Village of Ottawa v. The Odenweller Milling Co. et al.
    (Decided January 9, 1936.)
    
      Mr. Jos. J. LaBadie and Mr. E. F. Weiser, for plaintiff.
    
      
      Messrs. Wheeler, Bentley, Neville & Cory and Mr. Claude Recker, for defendants.
   Guernsey, J.

This case came into this court on appeal from the Common Pleas Court of Putnam county, Ohio. It is' an action to enjoin the erection of a grain loading elevator on certain premises in the village of Ottawa, Putnam county.

The plaintiff, the village of Ottawa, filed its petition in the Common Pleas Court on July 10, 1935, and, thereafter, on July 13, 1935, filed its amended petition. The Odenweller Milling Company and William Odenweller were made parties defendant to the petition and amended petition, and The Baltimore & Ohio Railroad Company was, on its own motion, made a party defendant to the amended petition.

The defendants,. The Odenweller Milling Company and William Odenweller, filed their joint answer and cross-petition to the amended petition, and the defendant, The Baltimore & Ohio Railroad Company, filed its separate answer to the petition, and the cause was submitted to this court upon such pleadings and a transcript of the evidence in the lower court.

In its amended petition the plaintiff, the village of Ottawa, alleges in substance:

That it is a municipal corporation organized and existing under the laws of the state of Ohio.

That on the 2nd day of February, 1925, the council of the village of Ottawa duly passed an ordinance, being ordinance number 304 of the village, which was thereafter duly approved and signed by the mayor and published according to law, and that by the terms of the ordinance it is provided that it shall be unlawful for any person or persons, firm, partnership or corporation to erect any building or to add to or improve any building within the corporation limits of the village of Ottawa where the cost or estimated cost thereof exceeds fifty dollars, without first procuring from the mayor of said village a permit to erect, add to or improve such building.

That the defendants, The Odenweller Milling Company and William Odenweller, made the written request for a building permit, as required by the ordinance, to W. A. Beutler, mayor of the village, on the 8th day of July, 1935, which request was refused by the mayor.

That on July 8, 1935, at a special meeting of the council of the village, the council by a full yea vote passed an emergency ordinance, being ordinance number 392 of the village, the terms of which made it unlawful for any person, persons, firm, partnership or corporation to erect, or construct, or cause or permit to be erected or constructed, any building or buildings which shall be used or designed or intended to be used for a grain elevator, grain storage house, or flour mill upon premises within a certain restricted zone or area specified in the village ordinance.

That the defendants, the milling company and Odenweller, have threatened to, have commenced, will continue, and will cause or permit to be erected and constructed a certain grain elevator or grain storage house upon premises within the restricted zone or area unless restrained and enjoined by an order of the court.

That the erection and construction of a grain elevator, grain storage house or grain loading station by the defendants upon the site as contemplated, being at the southwest corner of the intersection of Third and Oak streets in the village, and being not more than five feet south of the south sidewalk line along Third street, will be a menace to the public safety, convenience, peace and public welfare of the inhabitants of the village, in that the approach of trains and railroad cars upon the tracks of The Baltimore & Ohio Railroad Company from the south will be obstructed to vehicles, persons and school children crossing the railroad tracks of the railroad company at Third street from east to west.

The amended petition further avers that the erection and construction of the proposed building, or buildings, as contemplated by the milling company and Odenweller on the proposed site, being across the street and not more than twenty-five feet north of the entrance to the fire engine house of the village of Ottawa, Ohio, situated on Oak street, will be a menace to the public safety and public welfare of the citizens and property of the citizens of the village in that the parking of wagons, trucks and other vehicles along the west side of Oak street in front of the fire engine house will interfere with the egress of the fire engine of the village in making responses to fire calls.

That for more than forty years last past, trucks, wagons and other vehicles, have constantly used as a right of way, for loading and unloading cars of The Baltimore & Ohio Railroad Company, and for loading and unloading merchandise to and from the old city building of the village, and for other general uses and purposes, a driveway about twenty feet in width, east of the east spur track of the railroad company, and that the building contemplated to be erected or constructed by the defendants would occupy a portion of the driveway, which has by virtue of its constant use as such been dedicated as a public right of way for the use of the passage of vehicles to and fro in the village.

That the council of the village is and has been planning to establish a City Planning Commission in order to draw up plans and maps of the entire portion of the village of Ottawa for the purpose of establishing zones to control the location, construction and erection of buildings throughout the village in compliance with the terms of Sections 4366-1 to 4366-12, General Code, and that the construction and erection of the proposed building at the site contemplated will violate the terms and conditions of the proposed zoning ordinance.

The prayer of the petition is that a temporary restraining order be granted without notice, enjoining the defendants, The Odenweller Milling Company and William Odenweller, from erecting or constructing, or causing to be erected or constructed, such building within said restricted zone or area, for a permanent injunction herein, and for such other and further relief in the premises as may be just and proper.

The joint answer of The Odenweller Milling Company and William Odenweller admits the corporate capacity of the plaintiff, the passage by the council of the village on July 8, 1935, of ordinance number 392, referred to in the petition; and that they have threatened, commenced and will continue to erect and construct a certain grain elevator or grain storage house on the premises described, in the restricted zone or area specified in ordinance number 392.

And, furthermore, i.n the answer they deny that the erection or construction of the grain elevator, grain storage house, or grain loading station, at the location specified in the petition, will be a menace to the public safety, convenience, peace and public welfare. They further deny that such erection and construction will interfere with the use of the fire engine house of the village, and further deny that a building permit was refused to them, and aver that the mayor of the village, in accordance with his duties, granted the permit to them and that they obtained the approval of the Chief of the Division of Workshops, Factories and Public Buildings of the Industrial Commission, in accordance with the provisions of Section 12600-296, General Code.

It is further averred that they purchased lumber, scales and other materials and started the excavation of the ground for the purpose of erecting the building as set out in the plans and specifications.

The defendants answering further deny that any driveways, or roadways on the premises of the railroad company, have been dedicated as public roadways, and deny each and every allegation of the petition not admitted or denied.

For further answer defendants allege that The Baltimore & Ohio Railroad Company is a common carrier by steam railroad, operating various lines of railroad in the state of Ohio and into and through other states, and that it does thereon an intrastate as well as an interstate business in the' transportation of freight, livestock and passengers; and that among other lines in the state of Ohio it operates a railroad extending from the city of Cincinnati northwardly to the city of Toledo, which passes through the village of Ottawa, and that the zone described in ordinance number 392 includes premises operated by the railroad, extending from Second street on the south to a point on the north which is 230 feet north from the center line of Third street; which property between Second and Main streets is 100 feet wide, and between Main street and the line aforesaid, 230 feet north of the center line of Third street, has an average width of approximately 150 feet; that railroad tracks have been built and maintained on the aforesaid railroad premises for the past eighty years, and that the premises of the railroad company and the premises abutting on and adjoining the railroad premises have since the construction of the railroad been used by the railroad company and others, and occupied by buildings and structures for handling shipments over the railroad, and for various manufacturing purposes including milling and storage of grain; further, that ordinance number 392 is unreasonable, and therefore void, because it is directed solely against the construction and use of grain elevators, grain storage houses, flour mills, public automobile garages, coal sheds and stone sheds, whereas it permits the use of the premises for all other purposes; and that ordinance number 392 deprives the defendants of their property and use thereof, and is therefore void, as it conflicts with Article I, Sections 1 and 19, of the Constitution of Ohio and also with Article XIV, Section 1, of the Amendments to the Constitution of the United States.

Defendants answering further allege that they have a license from the railroad company on the real estate upon which they have commenced the erection of the grain loading elevator.

The prayer of the answer and cross-petition is that plaintiff’s petition be dismissed, and for all such other and further relief as equity may require.

The answer of the defendant, The Baltimore & Ohio Railroad Company, is substantially the same as the answer of the milling company and Odenweller.

The facts of the case, as shown by the record and transcript, are as follows:

On February 2, 1925, the council of the village of Ottawa passed ordinance number 301 of the village, which was duly approved by the mayor and published according to law, and which was at all times hereinafter mentioned in full force and effect, providing in substance that it should thereafter be unlawful for any person to erect any building within the corporate limits of the village of Ottawa, where the cost or estimated cost of the same exceeds fifty dollars in value, without first procuring from, the mayor of the village a permit to erect, add to or improve such building; and that it should be the duty of the mayor upon application to him made in writing, giving the estimated cost of the building, addition or improvement, the lot or land upon which the same is to be situated, and the payment to him of the sum of fifty cents to be paid into the treasury of the village, to issue to the party requesting the same a permit as hereinbefore provided. It was further provided in the ordinance that if the application is for building, addition or improvement for other than single or double residences, or single or double garage, then the mayor should not issue the permit until there was filed with him an application for a permit, a set of plans and specifications bearing the stamp of approval, together with a letter of approval from the Department of Industrial Relations, Division of Factory and Building Inspection, state of Ohio, in accordance with the provisions of Sections 12600-296 and 12600-297, General Code.

Following a number of conferences between Odenweller and the mayor of the village with reference to the issuance of a permit for the construction of a grain loading elevator by The Odenweller Milling Company, at the site described in the petition, The Odenweller Milling Company by and through its attorney, Claude L. Recker, on July 8,1935, made application in writing for a building permit, which it filed with the mayor of the village. In this application it is stated that the building is to be erected at an estimated cost of $3000 and is to be located on the property along The Baltimore & Ohio Railroad Company at the southwest corner of the intersection of Third street and North Oak street, on a plot of ground, fifty feet by sixty feet, leased from The Baltimore & Ohio Railroad Company, and that the building is to be used as a loading elevator.

With the application there was filed a set of plans and specifications for the building. The plans did not bear the stamp of approval and were not accompanied by a letter of approval from the Department of Industrial Relations, Division of Factory and Building Inspection.

Prior to the filing of the application and the plans and specifications with the mayor, defendant Odenweller had presented the plans and specifications for approval to the Division of Factory and Building Inspection of the Department of Industrial Relations of the state of Ohio, and they were orally approved by the chief of such division; the chief of the division had informed him that it was unnecessary and it was not the custom of the division to place a stamp of approval on, or to write letters of approval of plans and specifications approved by the division, and that at the time the application and plans and specifications were filed with the mayor he was informed of such facts by Odenweller.

The applicant for a permit and Odenweller were ready, able and willing to pay the fee of fifty cents to the mayor for the issuance of the permit at the time the application was made, and have ever since been and now are ready, able and willing to make such payment upon the issuance of the permit.

The facts further show that the mayor refused to issue the permit requested, and that on the evening of July 8, 1935, at a meeting of the council of the village, an ordinance was passed by the council and approved by the mayor, which is in the words and figures following:

“Zoning ordinance to further regulate the construction of buildings and additions thereto within the corporate limits of the village of Ottawa, Putnam county, Ohio.
“Be it ordained by the council of the village of Ottawa, state of Ohio:
“Section 1. That it shall hereafter be, and it is hereby declared to be unlawful for any person, persons, firm, partnership or corporation to erect or construct, alter or maintain, or cause or permit to be erected, constructed, altered or maintained upon any premises within the following zone or area hereby created, any building or buildings which shall be used for, or designed or intended to be used for, a grain elevator, grain storage house, flour mill, public automobile garage, coal shed or stone shed, together with its usual accessories, to wit:—
“Such area bounded on the north by an east and west line 230 feet north of and parallel with the center line of Third street, on the east by Locust street, on the south by Second street and on the west by Taft avenue and Railroad avenue.
“Section 2. Any person, persons, firm, partnership or corporation, who constructs or erects or who begins the erection, construction or alteration or who causes the beginning of the erection, construction or alteration of any such building upon any premises within such zone or area, shall be guilty of a misdemeanor and upon conviction thereof shall be fined not less than twenty-five ($25.00) dollars nor more than five hundred ($500.00) dollars.
“Section 3. Each day any violation of this ordinance continues shall be deemed a separate offense.
‘ ‘ Section 4. This ordinance is hereby declared to be an emergency measure necessary in the interest and for the promotion of the public health, safety, convenience, peace, comfort, order and public welfare of said village and of the inhabitants thereof. The reason for such necessity lies in the fact that the construction of such a building is at this time being contemplated.
“Section 5. This ordinance shall take effect and be in force from and after the earliest period allowed by law.
“Passed this 8th day of July, 1935.
“W. A. Beutler, Mayor.
“Attest: L. H. Schmenk, Clerk.”

The ordinance, since the above date, has, under the terms thereof, been in full force and effect.

On the 1st day of June, 1935, preceding the making of such application and the passage of the ordinance, The Baltimore & Ohio Railroad Company had granted to The Odenweller Milling Company a license to erect, maintain and use a warehouse on the land upon which the milling company proposes to erect the grain loading elevator.

The zone or area described in the ordinance approximately covers the center of the business district of the village of Ottawa, the court house being almost in the center of the zone. The right of way of The Baltimore & Ohio Railroad Company, together with the street lying west thereof, is the western boundary of such zone.

The restricted zone includes from one-tenth to one-fifteenth of the area of the village. On Oak street, between Main street and Third street, which is included in the zone, there are no residences, but such territory has been in times past, and is at the present time- — ■ with the exception of the city building and the Presbyterian Church, located immediately north of the city building on the east side of Oak street — wholly occupied and used as a business and commercial district; and the premises immediately west of the premises on which the elevator is proposed to be erected, and the territory across the railroad tracks, are likewise entirely devoted to business and commercial purposes. Immediately north of Third street there is now located, and has been for some time, a grain elevator, and such elevator is as close to the residence immediately joining Third street on the north as the proposed grain loading elevator would be. Further, there is a grain elevator located immediately south of Main street just outside of the restricted district, in close proximity to residence properties.

The part of the restricted district between Second street, on the south, Taft avenue on the west, Oak street on the east, and a line 230 feet north of and parallel to the center line of Third street, includes purely business and commercial property, the balance of the district including both commercial and residential property.

Third street crosses the tracks of the railroad company at a point immediately north and west of the proposed location of the elevator. This crossing is a much traveled crossing, and the erection of the elevator, or any other structure at that location, would tend to obstruct the view toward the south of persons crossing said railroad from the east on Third street. Oak street is a paved street, the pavement being either twenty-four or thirty feet wide, and the distance from the west curb of Oak street, adjacent to the premises upon which the elevator is proposed to be erected, to the door of the fire engine house across the street from and about twenty-five feet south of said premises, is sixty to sixty-five feet,- and the parking of trucks and autos along the west.curb of Oak street, adjacent to the premises, would narrow the space in such street in which fire trucks could otherwise be freely operated.

There were formerly located on the premises of the railroad company on Oak street adjacent to the premises on which the loading elevator is proposed to be erected, the city building of the village of Ottawa, and a beer house, and for more than twenty-one years the railroad premises around the city building and beer house, including that portion of the premises upon which such elevator is proposed to be erected, had been used for the loading and unloading of merchandise on railroad cars and loading and unloading merchandise into the city building and beer house. For this purpose a portion of the premises upon which the elevator is proposed to be erected was used as a driveway. The city building and beer house -have been removed from the premises within the past several years and since that time a portion of the premises has been used by the public for the purpose of parking cars.

Under the pleadings and the evidence the following questions arise:

First. Is ordinance number 392, establishing a restricted area or zone, a valid enactment?

Second. Does the fact that the view of persons approaching the railroad crossing on Third street from the east will be obstructed by the erection of the proposed elevator constitute a ground for injunction against the construction of the same?

Third. Does the fact of the situation of said proposed building with reference to the location of the entrance to the fire department building constitute a ground for injunction?

Fourth. Has the use of a portion of said premises for traffic constituted a dedication of such portion of said premises for public use so as to preclude the construction of said elevator on such portion of said premises ?

Fifth. A building permit not having been issued, is the village entitled to an injunction; or is the defendant, The Odenweller Milling Company, entitled to a mandatory injunction to compel the issuance of a building permit by the mayor for the construction of said building?

These questions will be discussed in the order mentioned.

1. Municipalities derive their authority to adopt zoning ordinances from Sections 4366-1 to 4366-19, both inclusive, General Code, and/or Section 3 of Article XVIII of the Constitution.

The ordinance in question does not in any respect .comply with the provisions of the sections of the General Code mentioned, and is not in any way an exercise of the power vested in municipalities by such sections, and consequently the authority of the municipality in the ease at bar to adopt such ordinance is based on the provisions of Section 3 of Article XVIII of the Constitution, above referred to, which reads as follows:

“Municipalities shall have authority to exercise .all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws.”

In the case of Wondrak v. Kelley, 129 Ohio St., 268, 195 N. E., 65, it was held:

“If it is clear that police regulations adopted by municipal councils are arbitrary or unreasonable and have no substantial relation, to the public health, morals, safety or public welfare, it becomes the duty of the court to declare such regulations to be invalid.”

In 3 McQuillen on Municipal Corporations (2 Ed.), 326, the author, in commenting upon zoning regulations similar to those incorporated in ordinance number 392, says:

“On examination and study of this subject it is often found that certain cities endeavor to apply specific regulations to parts of their territory leaving other parts without such regulations. In such cases disapproval of the courts may result, because the fundamental principle applicable is that all property situated substantially similarly should in the view of the law be treated alike. * * *
“Zoning regulations, like the exercise of the police power in all respects, and, indeed, all action by the city under a general grant of power, must be reasonable, which means that no discriminations are permitted; all must be afforded equal protection of the law; and any classification adopted as a ground for different regulations must rest upon reason, and the classification must treat all whose property is in the same, or substantially the same, condition alike, to the end that all will be accorded due process of law and equal protection of the laws as the Constitution requires. If the regulations are the same throughout the city no constitutional objection can be interposed, provided they are reasonable and within the range of the police power, but when they vary in different parts of the municipal area, they may or may not be constitutional. This will depend upon the facts of each particular case.
“While as expressly authorized by many of these laws, conferring in terms the power to zone, the regulations in one or more districts may differ from those of other districts, nevertheless uniformity in this respect for each class of buildings throughout each district is required. Unreasonable discriminations are thus sought to be avoided, or, indeed, it may be said they are plainly forbidden by implication. In utilizing such permissive legislation the local authorities are thus reminded to recognize in their ordinances and the practical administration of the regulations, restrictions or prohibitions which "they deem necessary to impose, the distinction established by the law between trades and industries considered dangerous, unwholesome or offensive and those which are not so, and by so doing, keep within the law and refrain from invasion of property rights. To illustrate, if the regulations, restrictions or prohibitions as to the location of buildings should be confined to those designed for specific uses, whether such uses are offensive or may become so, or otherwise; if all trades and industries are included, and no separation is made of those which are offensive or public nuisances, or which, by reason of conditions, may become so, from those which are innocuous, entirely legitimate and wholly inoffensive; in short, if any trade or industry, whatever its nature, may be excluded from any established district, or be subjected to special regulations, it is needless to say that the method would not be upheld by the courts.
“The reasonable classification of zoning districts, therefore, is the first step.”

In the case of Pritz v. Messer, 112 Ohio St., 628, 149 N. E., 30, the validity of an ordinance enacted by a municipality under Article XVIII, Section 3 of the Ohio Constitution, and under Sections 4366-1 to 4366-12, General Code, dividing the whole territory of a municipality into districts according to a comprehensive plan, which, in the interests of the public health, public safety and public morals, regulates the uses and the location of buildings and other structures, and of premises to be used for trade, industry, residence, or other specific uses, was upheld, while in the case of City of Youngstown v. Kahn Bros. Bldg. Co., 112 Ohio St., 654, 148 N. E., 842, 43 A. L. R., 662, a provision in the zoning ordinance establishing a fraction only of the territory of a municipality into a district, and providing that no building which is intended to be used as a dwelling shall be erected within the district except as a single or two family dwelling, was held invalid on the facts presented by the record. And in the opinion of the court in that case the distinction between a comprehensive zoning ordinance and a so-called “block ordinance,” relating only to a certain small district of a municipality, noted in McQuillen on Municipal Corporations, supra, is recognized.

The ordinance in the case at bar makes it unlawful for any person to erect or construct upon any premises within the zone or area created here any building or buildings which shall be used for, or designed or intended to be used for, a grain elevator, grain storage house, flour mill, public automobile garage, coal shed or stone shed.

None of the structures mentioned, or the prohibited uses thereof, constitute nuisances per se, and there is no provision of the ordinance prohibiting the erection or use of buildings within the restricted area for industrial purposes, similar to the prohibited purposes; or prohibiting the erection or use of buildings within the restricted area for purposes which áre offensive, or constitute public nuisances, or which by reason of conditions may become so; or prohibiting industries generally.

Under the evidence, that part of the restricted zone between Second street on the south, Taft avenue on the west, Oak street on the east, and a line 230 feet north of and parallel to the center line of Third street, on the north, in which the grain elevator is proposed to be built, is adapted and exclusively devoted to commercial and industrial purposes.

The ordinance is therefore unreasonably discriminatory in that it deprives owners of property of the use of their property for certain specified purposes, while it does not deprive owners of property of the use of such property for similar purposes, and in that it does not treat alike all those whose property is in the same, or substantially the same, condition, and in that it deprives persons of property without due process of law and denies to persons the equal protection of the law.

The ordinance is therefore void as being in violation of Sections 1 and 19 of Article I of the Constitution of Ohio, and Section 1 of Article XIV of the Amendments to the Constitution of the United States.

And considered as a stop-gap ordinance designed to preserve the status quo, pending the adoption of a comprehensive zoning ordinance, it is likewise invalid. State, ex rel. Ice & Fuel Co. v. Kreuzweiser, 120 Ohio St., 352, 166 N. E., 228; and State, ex rel. Gaede, v. Guion, 117 Ohio St., 327, 158 N. E., 748.

2. As an incident to the constitutional rights of acquiring, enjoying, possessing and protecting property, an owner of real estate is entitled to erect such structure thereon as may be necessary or convenient to his enjoyment thereof, subject only to the constitutional limitation that the exercise of such right shall be subservient to the public welfare, and the mere fact that the erection of certain structures thereon may tend to obstruct the view of railroad tracks, and of persons approaching a public railroad crossing, does not of itself preclude the owner from the right of erection incident to such ownership, and he can be deprived of such right only by condemnation for public use, and payment of compensation, in accordance with the provision of Section 19 of Article I of the Constitution.

The anticipated obstruction of view, therefore, constitutes no ground for injunction.

3. Applying the same reasoning the right of the owner to erect buildings necessary or convenient to his enjoyment of his property is not abrogated by the fact that persons transacting business at such building may by parking cars along the curb adjacent to such building obstruct the passage of fire apparatus.

The village has a complete and adequate remedy at law to prevent such contemplated situation by regulating such parking by ordinance, or by condemning the property for public use, and is not entitled to injunction.

4. Neither the allegations of the amended petition, nor the evidence, disclose facts essential to establish either the dedication for public use of or title by prescription of any portion of the premises on which said elevator is proposed to be located, as the use alleged and established was permissive and was not adverse. Railroad Co. v. Village of Roseville, 76 Ohio St., 108, 81 N. E., 178.

The claimed public right in the premises therefore affords no ground for injunctive relief.

5. The evidence in the case at bar establishes the fact that the defendant milling company made proper application in writing to the mayor of the village for a building permit, pursuant to the provisions of ordinance number 304 of the village, and that there was filed with the application a set of plans and specifications for the building, which had been approved orally by the Department of Industrial Relations, Division of Factory and Building Inspection, of the state of Ohio, in accordance with the provisions of Sections 12600-296 and 12600-297, General Code, and that it was not the custom or practice of the department to stamp its approval on plans and specifications aproved by it, or to write letters of approval thereof, and that for these reasons the applicant was unable to secure either stamp or letter of approval by the department at the time the plans and specifications were filed with the application, and that the milling company is ready, able and willing to pay the fee of fifty cents' for the permit as required by the ordinance. Or, in other words, the evidence establishes that the milling company fully complied with all the terms and provisions of the ordinance essential to entitle it to the issuance of a permit, unless the failure of the plans and specifications to bear the stamp of approval, and to be accompanied by a letter of approval of said department, justifies the mayor in refusing to issue such permit.

Sections 12600-296 and 12600-297, General Code, do not require that the approval by the department of plans and specifications be by stamp, or by letter of approval, and under those sections an oral approval is as valid as a written approval. The building permit ordinance could not legally require a form of action from a department of the state government not required by statute, nor could it require an applicant, as a condition to securing a permit, to require such extra statutory action from such department, and therefore the part of such ordinance requiring such stamp and letter of approval is void.

As the milling company has complied with all the valid requirements of the ordinance it is entitled, under the evidence, to a building permit as a matter of right. This right is a right that may be enforced by mandatory injunction as well as by mandamus, and is properly enforcible in this action.

However, the defendants, The Odenweller Milling Company and William Odenweller, in their cross-petition, have failed to aver the facts necessary to entitle them to relief by way of mandatory injunction to compel the issuance of such permit, and have also failed to make the mayor of the village, in whom the duty of issuing building permits is vested by the building permit ordinance a party defendant to said cross-petition. In order to afford such relief in this action it is therefore necessary that the petition be amended to conform to the evidence, and that the mayor be made a party defendant to the cross-petition; and, thereupon, pursuant to the provisions of Section 11363, General Code, leave will be given to the defendants, The Odenweller Milling Company and William Odenweller, within ten days after the announcement of this decision, to amend their answer and cross-petition to conform to the evidence, and to make the mayor of the village a party defendant thereto; and if this is done within the period mentioned this cause will be continued for further submission on any issues that may arise between the milling company and Odenweller and such mayor on the amended cross-petition. Otherwise a decree will be entered finding for the plaintiff on the sole ground that a building permit has not been secured for the erection of such building in conformity with ordinance number 304, and enjoining such construction until such permit is secured, and, further, denying relief to defendants on their cross-petition, at costs of defendants.

Judgment accordingly.

Klinger and Crow, JJ., concur.  