concurring in conclusion only.
It is elementary that an ordinance of a permanent character cannot be amended by a mete resolution of a temporary nature. It seems clear to me, therefore, that the permit granted by the council attempted to allow a violation of the ordinance of June 10, 1910. While there are many open areaways in the city, there is no proof that any have been constructed since the ordinance went into effect. The ordinance changed the policy of the city and showed the intention of its authorities that no uncovered openings should be thereafter allowed in sidewalks within prescribed limits. The evidence shows that a number of like applications have been denied since it went into effect, and that the permit to the First National Bank is the only one that has been issued.
An areaway is not usually considered a nuisance per se. It is permitted by the statute. In the absence of this ordinance, the city authorities would have power to permit it by resolution. The fact that a much longer area-way had been used in connection with the old bank building on the lot for many years, no doubt, had much weight with the city council in passing the resolution; but in my judgment the council should have amended the ordinance-if it desired to grant the permit.
The relator shows no special injury peculiar to himself independent of and different from that, if any, suffered by the public at large. No property right of his is affected, and there is ample space on the sidewalk at this point for public travel. The rule applies that one seeking a writ of mandamus to compel action by a public officer must show a special interest in the relief- sought and a clear right to the writ, or it will not be granted.
I therefore concur in the conclusion.