State Ex Rel. Oliver Cadillac Co. v. Christopher , 317 Mo. 1179 ( 1927 )

For a concise statement of the general nature of this action, its objective and the parties thereto, we quote from appellants' brief:

"This is a proceeding in mandamus, brought by the State at the relation of the Oliver Cadillac Company, a corporation, against the appellants, as Building Commissioner and Director of Public Safety, respectively, of the city of St. Louis, to require them to issue the Oliver Cadillac Company a permit for the erection on a lot at the southwest corner of Lindell Boulevard and Sarah Street, in St. Louis, of a two-story, reinforced-concrete, brick-and-stone building, with a basement, to be occupied and used as a place of business for the display, sale and adjustment of automobiles, and for the sale and installation of automobile parts and accessories.

"The lot in question has a front of 258 feet on Lindell Boulevard, and runs back 213 feet along Sarah Street to an alley. The proposed building was to occupy the eastern 170 feet of the lot, and was to be set back thirty feet from the property line on Lindell.

"The petition charged, and the evidence showed, that the relator, the respondent here, had on May 24, 1926, applied to the appellants, the respondents below, for a building permit, and had at that time complied with the requirements of the then existing building code. It was admitted that the permit had been refused. Application was thereupon made for an alternative writ of mandamus, which was issued on May 24, 1926, and was served on the appellant Brod on May 25th, and on the appellant Christopher on May 26th.

"The permit was refused on the grounds, first, that the proposed building constituted a garage within the meaning of Section 2559 of the Revised Code of 1914, and its erection would therefore violate Ordinance No. 34103 of the city of St. Louis, prohibiting garages on Lindell Boulevard between Grand Avenue and Kingshighway; and, secondly, that, being a business structure, the building could not be constructed without violating the provisions of Ordinance No. 35003, the new zoning ordinance, which was to go into effect two days later, and which placed the lot on which the building was proposed to be erected in the multiple dwelling district, in which commercial and industrial buildings were prohibited."

The zoning ordinance referred to became effective May 26, 1926. Its purported authorization and objectives are disclosed by its preamble and title, as follows:

"In order to avail itself of the powers conferred by an Act of the General Assembly, approved on the 30th day of April, 1925, Laws of Missouri, 1925, page 309, the city of St. Louis, through its legislative body, has heretofore appointed the members of its City Plan Commission to be and constitute a commission known as the Zoning Commission, to recommend the boundaries of the various original districts into which it is proposed for the purpose of this ordinance and pursuant to said act, to divide the city and to recommend appropriate regulations to be enforced therein. Pursuant to said appointment, said Zoning Commission has prepared and made a preliminary report, held public hearings thereon, and thereafter made and submitted to the Board of Aldermen its final report, recommending the boundaries of said original districts and the regulations to be enforced therein.

"An ordinance to regulate and restrict the height, number of stories, bulk, volume and size of buildings and structures, the size of yards, courts and other open spaces, the location, erection, alteration and use of buildings, structures and land for the purpose of promoting the health, safety, morals and general welfare of the city of St. Louis; and for said purposes to divide the city of St. Louis into districts; to provide for change of the regulations, restrictions and boundaries of such districts; to provide for a Board of Adjustment; to provide for enforcement, to prescribe penalties for violation of the provisions hereof."

As its title indicates the ordinance is a comprehensive one. It zones the entire city: (1) into use districts and (2) into height and area districts. The pertinent portions of Sections 2, 3 and 4 are as follows:

"Section 2. In order to regulate and restrict the location, erection, alteration or use of buildings, structures or land, the city of St. Louis is hereby divided into five Use Districts, known as:

1. Residence District.

2. Multiple Dwelling District.

3. Commercial District.

4. Industrial District.

5. Unrestricted District.

"The city of St. Louis is hereby divided into the five districts aforesaid and the boundaries of such districts are shown upon the map attached hereto, being designated as the Use District Map, and which is hereby made a part of this ordinance.

"Section Three. In the Residence District no building or premises shall be used and no building therein shall be erected or structurally altered except for the following purposes:

1. One Family Dwelling.

2. Two Family Dwelling.

3. Church.

4. Schools offering instruction in primary, secondary or collegiate courses of study.

5. Library, museum, playground, park or recreational buildings which are owned or operated by the Municipality.

6. Accessory Buildings; including one private garage or private stable when located not less than thirty feet from the front lot line and not less than five feet from any side street line, or a private garage constructed as a part of the main building.

"Section Four. In the Multiple Dwelling District no building or premises shall be used and no building therein shall be erected or structurally altered except for the following purposes:

1. Any use permitted in the Residence District.

2. Multiple Dwelling.

3. Hotel.

4. Private Club or Lodge, excluding any which has as its chief activity a service customarily carried on as a business.

5. Boarding or Lodging House.

6. Hospital or clinic.

7. An institution of an educational, philanthropic or eleemosynary nature.

8. Accessory buildings; including private and storage garages when located on the same lot not less than thirty feet from the front lot line, and not less than five feet from any side street line unless constructed as a part of the main building; however, it shall be permissible to maintain and operate a storage garage in the basement or on the ground floor of fireproof hotels and apartments, which garage is to be operated and maintained for the use of the guests or tenements residing within such hotel or apartment."

The provisions creating a Board of Adjustment and delegating to it certain powers follow closely Section 7 of the Enabling Act. [Laws 1925, p. 309.] Appeals to this board may be taken by any person aggrieved or by any officer, department, board or bureau of the municipality affected by any decision of an administrative officer. And in passing upon appeals, where there are practical difficulties or unnecessary hardships in the way of carrying out the letter of the ordinance, the board is authorized to vary or modify the application of any of the regulations or provisions of the ordinance relating to the use, construction or alteration of buildings or structures or the use of land so that the spirit of the ordinance shall be observed, public safety secured and substantial justice done. However, every such variation or modification must be reported immediately to the Board of Aldermen and embodied in the ordinance by way of an amendment thereto before it can become effective. All decisions of the Board of Adjustment are subject to review on certiorari by the circuit court.

None of the used districts into which the city is divided by the ordinance is composed of compact or contiguous territory. The multiple dwelling district, for example, consists of many widely separated areas. The one involved in this case is triangular in form, the base resting on Kingshighway and the apex extending east to Grand Avenue. The triangle is bi-sected by Lindell Boulevard. Kingshighway forms the eastern boundary of Forest Park. Sarah Street crosses Lindell Boulevard five blocks east of Kingshighway and three blocks west of Grand Avenue. Whittier Avenue comes into Lindell Boulevard from the south about a half block west of Sarah Street, and Vandeventer crosses Lindell Boulevard a block east of Sarah. The locus in quo is at the southwest corner of Lindell and Sarah. One of respondent's witnesses made a survey with reference to the uses of both sides of Lindell Boulevard from Whittier to Vandeventer. He found that the great majority of the buildings were used as multiple dwellings; rooming houses, apartments and hotels. In addition to these he found three oil-filling stations, two automobile show and sales rooms, one drug store, one grocery store and two other buildings used for commercial purposes which he was unable to describe. The City Planning Engineer also made a survey. He testified that ninety-three per cent of Lindell Boulevard between Kingshighway and Grand Avenue (calculated by the front foot) was used for "dwelling," within the meaning of that term as defined by the ordinance.

As heretofore stated, the building which respondent seeks a permit to erect is a two-story, reinforced concrete, brick-and-stone structure with a basement, presumably fireproof. It is to front 170 feet on Lindell Boulevard and extend back south along Sarah Street 213 feet to an alley. According to the architect the building was designed to be used as a sales room for automobiles, the front portion on Lindell Boulevard being intended for a show room for new automobiles, and the portion on the Sarah Street side for a show room for second-hand automobiles, while the portion on the alley is intended to be used by people who come in to have their automobiles inspected. The sales manager of respondent said that it would probably carry in stock at all times eighteen or twenty new cars, and have on sale for customers from twenty to twenty-five used cars; that a part of the new cars would be placed on the second floor and the major adjustment work would be done on that floor.

It is conceded that the intended use of the building is commercial or industrial, and therefore one which the ordinance forbids in a multiple dwelling district.

The ground principally stressed by appellants as a justification for their refusal to issue the permit sought is that the building is to be erected and used in a multiple dwelling district for commercial or industrial purposes, in violation of the zoning ordinance. The respondent answers: (1) that the zoning ordinance, considered in its general aspect, is unconstitutional and void because (a) it provides for the taking and damaging of private property for public use without just compensation. (b) it deprives owners of their property without due process of the law, and (c) it denies them the equal protection of the laws: (2) that as applied to respondent's property, all the facts and circumstances considered, it violates the constitutional provisions just referred to, even though in its general application it might be deemed to be valid; and (3) that it can in no event operate to deprive respondent of the right to the building permit in question, because such permit was applied for before the ordinance became effective. These contentions of respondent indicate the scope of our inquiry.

I. The constitutionality of zoning laws as applicable to large cities has been so fully considered recently in a multitude of cases arising in almost all of the jurisdictions of this country that little remains to be said on the subject. It has beenEminent suggested, however, that the Constitution of MissouriDomain. and a few others are somewhat unique in respect to the limitation which provides "that private property shall not be taken or damaged for public use without just compensation" (Sec. 21, Art. II, Constitution), and consequently that such limitation puts Missouri in a class separate and apart from the jurisdictions in which the validity of zoning laws has been upheld. The usual provision is that private property shall not be taken for public use without just compensation; whether the addition of the words "or damaged" in our Constitution broadens the limitation must be determined from the construction which we have put upon the provision containing them.

"When we amended the Constitution, in 1875, so as to permit a recovery for property damaged in the taking of other property for public purposes, it became a serious question as to what meaning should be given to the amended constitutional provision. In Van DeVere's case (Van DeVere v. Kansas City, 107 Mo. 83), this court threshed out the question, and the ruling in that case has never been departed from in any subsequent ruling." [GRAVES, J., in Peters v. Buckner, 288 Mo. l.c. 636.] In that case we said:

"Our Constitution of 1875 declares ``that private property shall not be taken or damaged for public use without just compensation.' The same clause in prior constitutions did not contain the word damaged; and the first question is whether the change in the organic law secures to the plaintiff compensation for the damages which he will sustain under the circumstances of this case. Previous to the Constitution of 1875 a very restricted meaning had been given to the words taken and property. Thus it was held in St. Louis v. Gurno, 12 Mo. 415, and affirmed in Taylor v. St. Louis, 14 Mo. 20, that the city was not liable in damages resulting to a property-owner from grading and paving a street, where the work was done under an ordinance authorized by the charter. The reason assigned was that to grade a street dedicated to public use was not the appropriation of private property to public use, but simply the exercise of a lawful power over what had become public property, and that the property-owner had no remedy for such consequential damages. And in Hoffman v. St. Louis, 15 Mo. 651, the same rule was applied where the grade of the street had been changed. The rule of these cases was disapproved in Thurston v. City of St. Joseph, 51 Mo. 510; but in the case of Schattner v. City of Kansas, 53 Mo. 162, the court returned to the old doctrine, and so the law continued down to the adoption of the Constitution of 1875. . . .

"The eminent domain clause was amended so as to include cases where property is damaged, as well as ``taken,' to overcome the hardship growing out of the old rules. . . .

"The amendment must be construed and applied in view of the evils which it was designed to remedy. We have seen that before this amendment there were many cases where the corpus of the property was not taken yet rights directly annexed to the property were injured, and that for such consequential damages the property owner had no remedy, because the act was authorized by law. Whether the plaintiff must now, in all cases when claiming that his property has been ``damaged' for public use, show that the injury is one for which he might have maintained an action if the act had not been done by authority of law, we need not say in this case. What we do say is this, that he must show that the property itself, or some right or easement connectedtherewith, is directly affected, and that it is specially affected." [Van DeVere v. Kansas City, 107 Mo. l.c. 87-88, 89-91.]

In order to determine what is a "taking" of private property, in a constitutional sense. Mr. LEWIS states the principle thus:

"If property, then, consists, not in tangible things themselves, but in certain rights in and appurtenant to those things, it follows that, when a person is deprived of any of those rights, he is to that extent deprived of his property, and hence, that his property may be taken, in the constitutional sense, though his title and possession remain undisturbed: and it may be laid down as a general proposition, based upon the nature of the property itself, that, whenever the lawful rights of an individual to the possession, use or enjoyment of his land are in any degree abridged or destroyed by reason of the exercise of the power of eminent domain, his property, is pro tanto, taken, and he is entitled to compensation." [1 Lewis on Eminent Domain (3 Ed.) sec. 65.]

That the text embodies the rule of construction now universally applied by the courts abundantly appears from the cases cited in the foot notes appended to Section 65 and Sections 66, 67 and 68 supra. Our own holdings have been in consonance with it ever since the decision in St. Louis v. Hill. 116 Mo. 527.

In view of the foregoing it is clear that the addition of the word "damaged" to that of "taken" in the eminent domain clause of our Constitution did not broaden its limitation. The amendment operated to correct an error of construction and nothing more.

There is another reason why Missouri does not occupy a unique position with respect to the constitutional safeguards with which she hedges the taking of private property for public use. A taking or damaging of private property for a public use without just compensation, unless under circumstances which justify it under the general police power, would be depriving the owner of his property without due process of law and denying him the equal protection of the laws, in violation of the 14th amendment of the Constitution of the United States; such a taking or damaging would also fall under the ban of the "due process" clause found in the constitution of nearly every state in the Union. [C.B. Q. Railway Co. v. Drainage Commissioners, 200 U.S. 561; Norwood v. Baker, 172 U.S. 269; Staton v. Railroad, 111 N.C. 278.]

Again, the Constitution of Illinois contains a provision limiting the exercise of the power of eminent domain practically identical with outs as to wording; yet it apparently never occurred to the Supreme Court of that State that such a provision was an insuperable barrier to the adoption by cities of zoning laws of the character of the one involved in this proceeding, for without specific reference to the provision that court sustained the validity of such laws. [City of Aurora v. Burns, 149 N.E. (Ill.) 784.]

In State ex rel. v. McKelvey, 301 Mo. l.c. 38, it was held by a majority of this court as then constituted that city zoning is a public use for which private property may be taken. In Kansas City v. Liebi, 298 Mo. 569, an ordinance designed to impose zoning restrictions upon a limited city area, under the power of eminent domain, was held to be valid. In the case at bar an ordinance city-wide in its operation seeks to impose, under the police power, restrictions upon private property through zoning, without compensation. Under the holding in the Liebi case its regulatory provisions would be constitutionally valid if compensation were provided for. Are its restrictions confiscatory in the constitutional sense because uncompensated? It was said by GRAVES, J., in State ex rel. v. McKelvey, supra, l.c. 22:

"In a broad sense no property or property right can be taken from the individual except through the police power of the State. This power may be exercised to abate a nuisance, to restrict the uses of property to lawful and non-deleterious purposes, or to take private property, or rights growing out of property, for public use upon payment therefor. In other words, eminent domain is but a limited use of the police power of the State. I know that cases and text-writers distinguish between the police power and eminent domain, but in ultimate analyses the basic principle of eminent domain is the inherent police power of the sovereign State. So that, in my judgment, eminent domain is but the limited exercise of the police power. So that in some cases rights in property may be limited, through the police power, without compensation, whilst other cases require compensation."

But what are the cases in which rights in property may be limited, through the police power, without compensation? and what those which require compensation? What principle of constitutional law determines the classification? The author of aPolice recent text-book on zoning law attempts to answerRegulation. the questions thus: "The analysis of the cases seems to show that it (the line of difference between the police power and the power of eminent domain) is largely one of degree. Is it reasonable and proper, under all the circumstances, that the public good sought should be attained without compensation to those whose rights are to be limited to this end? If, on the whole, those affected are benefited by the measure, if the right surrendered can no longer, in the light of advancing public opinion, be retained in its fullness by its present possessor, if the sacrifice to him is slight or if the number affected is great, so that compensation is impracticable — in all such cases compensation is not provided for; otherwise the law demands it. In the decision, history, custom, opinion, as well as surrounding circumstances play their part." [Williams on the Law of City Planning and Zoning, p. 25.]

To zone a great city like St. Louis through condemnation proceedings would be practically impossible. But aside from that the city as a social unit is a living, organic thing; all the while changing, expanding, growing, a zoning by condemnation under the power of eminent domain would tend to fossilize it and thereby defeat one of the essential purposes of zoning. It must be zoned therefore under the police power, or not at all.

By the Enabling Act heretofore referred to, the Legislature has said to St. Louis and other municipalities: You may divide the municipality into districts, and within such districts regulate and restrict the erection, construction, reconstruction, alteration or use of buildings, structures or land. Such regulations, however, shall be made in accordance with a comprehensive plan, and designed to lessen congestion in the streets; to secure safety from fire, panic and other dangers; to promote health and the general welfare; to provide adequate light and air; to prevent the over-crowding of land; to avoid undue concentration of population; to facilitate the adequate provisions of transportation, water, sewerage, schools, parks and other public requirements (Secs. 2 and 3, Laws 1925, p. 308); and this the ordinance under consideration purports to do. If its provisions may be regarded as a reasonably appropriate means of accomplishing the ends so specified, it is a valid exercise of the police power. In this connection it should be said that the test is not whether the individual members of this or any other court think the ordinance wise or expedient, that was for the determination in the first instance of the legislative body which passed it; before we can hold it invalid we must find that its provisions have no real or substantial relation to the evils of congestion in the streets, fire hazard, over-crowding, etc. [Pritz v. Messer, 149 N.E. (Ohio) 30; State ex rel. v. Harper,182 Wis. 148.]

The principle of zoning as applied to large cities has been worked out through the conclusions reached by students of social science. It is strongly advocated by various eminent scientific bodies, the Council of Social Agencies, the Public Health Federation, the American Association of Engineers, and the American Institute of Architecture as a means of promoting the public interests specifically designated in the Enabling Act. As a result of this advocacy a strong demand for zoning legislation has arisen. To meet such demand the Secretary of Commerce of the United States appointed a commission of experts to prepare a "standard enabling act." The act so prepared has been the basis of the enabling acts of twenty states, including Missouri. [Forty states in all have passed laws authorizing zoning ordinances.] On January 1, 1925, according to the Supreme Court of North Dakota, zoning ordinances were in effect in 320 municipalities with an aggregate population of 24,000,000 citizens. [City of Bismarck v. Hughes, 208 N.W. 711.] The views of sociologists and others who through study and investigation are competent to form opinions, with respect to city zoning, are now generally accepted. In the light of these it cannot be said that the ordinance in question, considered with reference to its general features, has no real relationship to congestion of traffic, to fire hazard, to the public health and to the public safety.

As intimated at the outset the constitutionality of city zoning laws has been so fully and painstakingly considered by so many courts of last resort, including the Supreme Court of the United States, that for us to attempt a general survey of the police power and then point out the particular features of such laws which bring them within its constitutional sphere would be a work of supererogation. We therefore deem it sufficient to say that we are in accord with predominant judicial opinion which holds that an ordinance of the general character of the one involved in this case is a valid exercise of the police power. Some of the cases so holding follow: Village of Euclid v. Ambler Realty Co., 4 U.S. Sup. Ct. Ad. Op. 171; The Opinion of the Justices of the Supreme Judicial Court of Massachusetts, 234 Mass. 597; Miller v. Board of Public Works (Cal.). 234 P. 381; State ex rel. Civello v. New Orleans, 154 La. 271; State ex rel. Beery et al. v. Houghton (Minn.), 204 N.W. 569; Wulfsohn v. Burden (N.Y.), 150 N.E. 120; Spector v. Building Inspector of Milton (Mass.), 145 N.E. 265; State ex rel. v. Harper, supra; City of Aurora v. Burns, supra; Pritz v. Messer, supra; Pontiac Improvement Co. v. Board of Commissioners, 104 Ohio St. 447; City of Providence v. Stephens (R.I.). 133 A. 614; Tighe v. Osborne (Md.), 133 A. 465; Gorieb v. Fox (Va.), 134 S.E. 914; State ex rel Palma v. New Orleans (La.), 109 So. 916; Herring v. Stannus (Ark.), 275 S.W. 321; Little Rock v. Pfiefer (Ark.),277 S.W. 883; Kroner v. Portland (Ore.), 240 P. 536; Deynzer v. Evanston (Ill.), 149 N.E. 790; City of Bismarck v. Hughes, supra; State ex rel. Roberts v. City of New Orleans (La.), 110 So. 201.

II. Having reached the conclusion that the ordinance in its basic aspects is constitutional, we come next to consider some of its special features which respondent challenges as arbitrary and unreasonable. The principal point of attack is the character of the district from which the ordinance excludes all commercial and industrial uses. The district appears to embody as its central feature Lindell Boulevard between Grand AvenueClassification. on the east and Forest Park on the west. Lindell Boulevard is a continuation of one of the main traffic arteries leading from the heart of the down town business district west to the city limits. The district in question is practically surrounded by commercial districts and there are a few such here and there within its general boundaries. The buildings within the district, characterized according to use, consist largely of old dwellings, boarding houses, rooming houses, flats, apartment houses both large and small, hotels, club buildings and schools. Many of the hotels and lodge and club buildings are large and imposing structures. Owing to the conditions just mentioned respondent insists that the district is a decayed residential district into which business and commerce have pushed their way in the course of the natural growth and expansion of the city and by reason thereof is no longer suitable for residential purposes. Hence the ordinance in attempting to exclude business uses therefrom is palpably arbitrary and unreasonable.

Respondent's contention in its final analysis strikes at the basis of classification adopted by the ordinance. It concedes apparently the reasonableness of a classification which excludes business or commercial uses from a purely residential district, that is, one having only one or two family dwellings in it; but denies that a classification which excludes such uses from a district in which are found apartment houses and hotels is based upon any intrinsic, natural or constitutional distinction. Now, the ordinance excludes from "residence districts" flats, apartment houses and hotels, and its validity in this respect can no longer be questioned. [Miller v. Board of Public Works, supra; Wulfsohn v. Burden, supra.] Then must those who dwell in flats, apartments or hotels, whether through necessity or choice, be subjected to the conditions which obtain in commercial or industrial districts? Those conditions which justify on the ground of the public welfare and comfort the exclusion of business from residence districts have been set forth at length in many recent decisions of the courts. In State ex rel. Civello v. New Orleans, supra, l.c. 282, it is said:

"In the first place, the exclusion of business establishments from residence districts might enable the municipal government to give better police protection. Patrolmen's beats are larger, and therefore fewer, in residence neighborhoods than in business neighborhoods. A place of business in a residence neighborhood furnishes an excuse for any criminal to go into the neighborhood, where otherwise, a stranger would be under the ban of suspicion. Besides, open shops invite loiterers and idlers to congregate: and the places of such congregations need police protection. In the second place, the zoning of a city into residence districts and commercial districts is a matter of economy in street paving. Heavy trucks, hauling freight to and from places of business in residence districts, require the city to maintain the same costly pavement in such districts that is required for business districts; whereas, in the residence district, where business establishment are excluded, a cheaper pavement serves the purpose. It is pointed out, too, that the fire hazard is greater in the neighborhood of business establishments than it is in residence districts. A better and more expensive fire department — better equipment and younger and stronger men — are needed in the business centers, where the buildings are taller, than in the residence districts.

"Aside from considerations of economic administration, in the matter of police and fire protection, street paving, etc., any business establishment is likely to be a genuine nuisance in a neighborhood of residences. Places of business are noisy; they are apt to be disturbing at night; some of them are malodorous; some unsightly; some are apt to breed rats, mice, roaches, flies, ants, etc. Property brings a better price in a residence neighborhood where business establishments are excluded than in a residence neighborhood where an objectionable business is apt to be established at any time."

Many of the reasons suggested in the foregoing for excluding business establishments from one-and-two-family dwelling districts would be just as valid as grounds for excluding such establishments from districts set apart for flats, apartments, hotels, clubs, hospitals, schools and churches. In any event the wisdom or expediency of establishing a primary residential district and also a secondary or quasi-residential district and excluding from both commercial and industrial establishments is for the city council to determine in the exercise of its legislative judgment. [Zahn v. Board of Public Works, 234 Pac. (Cal.) 388; Fourcade v. City and County of San Francisco,238 P. 934.]

The fact that the ordinance establishes here and there small commercial districts where stores may be maintained within comparatively short distances from the residence districts does not make it irrational or discriminatory. The filling station, grocery, drug store, beauty parlor, etc., found in these small isolated commercial districts of easy access to the dwellers in the near-by residence districts serve a distinct and insistent social need. They represent a characteristic phase of urban growth. And of course the use of Lindell as a boulevard in no wise affects the residential use for which the district in question has been set apart.

It is next contended that "respondent's proposed building and its intended use will not cause any of the things the ordinance was designed to prevent — congestion in the streets, danger from fire, panic and other dangers, danger to health and the general welfare, obstructions to light and air, over-crowding of land or the undue concentration of population, interference with provisions for transportation, water, sewerage, schools, parks and other public requirements" — and consequently that the ordinance as it affects respondent is both arbitrary and discriminatory. But if respondent establishes its commercial plant in the district others less innocuous may of right follow. A zoning ordinance cannot permit administrative officers to pick and choose as to who may or who may not occupy a particular use district. If it is not to be condemned as a special law, or as one denying the equal protection of the laws, it must rest upon some rational basis of classification and apply alike to all persons and things falling within a designated class. If through its universality an individual because of special circumstances suffers hardship, that fact does not render the ordinance void as to him. The private interest is subordinate to the public good. [Wulfsohn v. Burden, supra: Spector v. Building Inspector of Milton, supra, l.c. 267.]

The fact that respondent filed its application for a permit before the ordinance went into effect is no reason why it should not be held applicable to respondent from and after it became operative. Respondent held its property subject at all times to every valid exercise of the police power. The filing of its application gave it no vested right. [Spector v. Building Inspector of Milton, supra, l.c. 268.] Had the permit been granted on the date it was applied for it would have conferred upon respondent no additional property right; it would merely have rendered respondent immune from prosecution for violation of the City's Building Code.

The judgment of the circuit court awarding a peremptory writ of mandamus is reversed. White, Atwood and Gantt, JJ., concur;Graces, J., dissents in a separate opinion; Blair, J., dissents and concurs in conclusions reached in the dissenting opinion of Graves, J.; Walker, C.J., dissents.