City of Jackson v. McPherson , 162 Miss. 164 ( 1932 )

Appellee is the owner of lot 5, block N, North Park addition in the city of Jackson; said lot being located on the east side of North State street at the corner of Carlisle street. On February 19, 1930, appellee applied to the city for a permit to erect on said lot a gasoline service station, which permit was refused, because the said lot is within the residential zone of the general zoning ordinance of said city, ordained by the governing authorities of said city, and effective on and after May 2, 1929, under the authority of the so-called standard zoning statutes of the state, chapter 308, Laws 1926, now brought forward as sections 2474-2481, Code 1930. From the action of the city commissioners in refusing said permit, appellee appealed to the circuit court, and, upon a hearing by the court, the action of the city authorities was reversed and the permit was ordered to be issued.

In order to affirm the judgment of the trial court in this case, it would be necessary for us to hold that the said standard zoning law, sections 2474-2481, Code 1930, is unconstitutional and void. This we decline to do; on the contrary, we declare the zoning statute, as it now exists in our Code, to be valid. In so declaring, we are conscious of, and have given due consideration to, what we believe to be the fact that had this same statute been before this court twenty years ago, or perhaps even at a later period, the answer would probably have been the opposite of what we give today. We answer as we now do because, along with nearly all the courts, we have been compelled to see and appreciate that the modern zoning law is essential to meet the requirements of modern conditions. Indeed, we can now see and appreciate that had these laws come earlier, had been earlier perfected and had at an earlier date received approval as to their constitutional validity, an almost incurable situation which now prevails in many large towns and cities could and would have been prevented. But the modern zoning law did not come earlier, because the proposal thus to restrict property owners in the use of their property appeared upon first approach to be in contravention of constitutional rights and as an arbitrary substitution of governmental regulation for that which was believed to belong exclusively to the field of private determination. It was difficult therefore to secure, in the first place, the necessary legislation; and, in the second place, it was even more difficult to obtain the cooperation of those who were adversely affected, and who naturally regarded all such laws and regulations as unjust and as an unwarrantable encroachment upon their private property rights. Those so affected, of course, appealed to the courts, and as was but natural, also, the judges were alarmed at the proposed extension of governmental interference, and the earlier decisions were generally adverse to the proposal.

But as time and experience further demonstrated the necessities of the situation, legislation persisted in its efforts; and the legislative enactments were improved and perfected so as to meet the specific objections made, and soon thereafter, as the courts themselves became the better convinced that the constitutional guaranties must be allowed to expand in their application and keep pace with the new conditions and new problems of urban life, the earlier decisions were made to give way to the requirements of the new and changing conditions; so that now the modern standard zoning laws, such as the statutes recently enacted in this state, have received the approval, so far as constitutional questions are concerned, of the overwhelming weight of judicial opinion, both state and federal. The opinion of the Supreme Court of the United States in Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303, 54 A.L.R. 1016, upholding the constitutionality of the recently enacted zoning laws has, in fact, been generally accepted as having closed the debate on the general subject, and all or practically all the states which had not formerly taken that position are now reversing their decisions so as to conform to the weight of judicial opinion.

We might well close the discussion in upholding the constitutionality of our standard zoning laws, as they are now contained in our statutes, by a simple reference to the opinion last mentioned, and by the reference to the present weight of authority on the subject, and by announcing our adherence to that weight of authority; but we take the privilege to add that we are in accord with the later decisions as a matter of original reasoning. It must be apparent now to the thoughtful observer of the tendencies of the last twenty-five years that the majority of the population of this country will eventually be found in cities of over five thousand inhabitants. The increasing size of this majority will be limited only by the capacity of field and pasture to supply the urban portion of the population with raw products. That capacity is being constantly augmented by new contrivances of farm machinery and improved transportation. When our Constitutions were made and all the treasured constitutional rights expressed therein were secured, it was the product of a population which was rural; the inspiration was from the rural home and from the prevailing rural life, wherein the home was the center of affection and interest. If the conditions which gave origin to Constitutions and have thus far preserved them should be permitted to be taken substantially out of the lives of those who are henceforward to constitute the majority of the people, then we might well look upon the future with apprehension. It is therefore a consideration of supreme importance to state and nation that the home and desirable home surroundings in cities and large towns shall be preserved and made permanently secure. It is too much to expect, or at least it is a dangerous experiment to suppose, that that profound and dependable patriotism which is necessary to preserve and maintain an ideal government like ours could survive the lapse of time crowded into apartments and tenements, where the children for generation after generation shall have no place to develop except in the immediate environments of commerce and in the clangor of factories. We need not elaborate upon considerations so distinctly vital; we merely introduce this as among those in the mature view of which we have no hesitancy in declaring that those reasonable regulations which will preserve the home from intrusion and will secure its permanency is within the legitimate field of the police power of the state; and that zoning laws, such as those now in the statute books of the state, to that end, are valid. And it is only a completion, a complement of the plan, that these laws shall reasonably permit at the same time a further zoning into separate commercial and industrial areas.

Appellee contends, however, that, conceding the validity of the zoning law and generally of the zoning ordinance, the action of the city authorities in including this particular piece of property within the residential zone was an arbitrary, unjust, and discriminatory action on the part of said municipal council. There is substantially no dispute in the record as to the physical facts and surroundings. Opposite this property and on the west side of North State street is the large property of the Blind Institute. To the south of the lot here in question is the residence of appellee, and next south is a church. To the north and across Carlisle street is the Guest House of the Baptist Hospital and next is the hospital; these two occupying the length of the block from Carlisle northward to Manship. To the east, all the adjacent property is occupied by residences. Without going into further details of the situation, we may say that a majority of the members of the court are of opinion that this property was properly placed within the residential zone. Moreover, the determination of this question was vested by law in the city commissioners, and, unless the court can say that their action was unreasonable and arbitrary, there is no proper power in the court to interfere.

It is next contended by appellee that those sections of the zoning ordinance providing for variations are void, and that therefore the entire ordinance is invalid. The ordinance contains a provision that if any section, clause, or provision of the ordinance shall be found to be invalid, the same shall not affect the remainder. The application here in question does not involve an attempt on the part of the council to make a variation. On the contrary, they have refused to vary. The point urged by appellee is therefore not before the court, and we are not required or authorized to express any opinion thereon. In dealing with these zoning laws and ordinances, all the courts have adhered to the policy of dealing with particular or specific provisions thereof only as they are directly involved, and when decision on the specific provision is actually necessary.

Finally, it is contended that this property is the identical lot which was involved in Fitzhugh v. City of Jackson, 132 Miss. 585, 97 So. 190, 33 A.L.R. 279; that, subsequent to that decision, appellee purchased said property; and that the decision in that case has become a rule of property. The foundation for the decision in the Fitzhugh case was that there was then no adequate state zoning law under which municipalities could act as was attempted to be done in that case. The doctrine of the rule of property, based upon court decisions, has no operation as against subsequent legislation on the subject involved. The present standard zoning law was passed three years later than the decision in the Fitzhugh case.

Reversed, and judgment here for appellant.