State Ex Rel. Henry v. City of Miami

This writ of error is addressed to an order of the court below granting motion to quash an alternative writ of mandamus and dismissing the cause.

The purpose of the writ was to compel the issuance of a building permit for the erection of a public hospital in the City of Miami, Florida, upon two adjoining lots fronting upon Brickell Avenue in said city which relator, Catherine M. Henry, had purchased for that purpose and had let a contract to the other relator for the construction of the proposed hospital. The proceedings involved the validity of an ordinance passed by the City Commission of the City of Miami making it unlawful to construct buildings for certain named business purposes, or mortuaries, or hospitals, within a described district or portion of the city which included that part of Brickell Avenue on which relator's property was located. This ordinance was adopted after the construction contract was let. The ordinance declared that its intention was to confine the described area to use for residential purposes.

The defendants in error contend that the City Commission had authority to adopt this ordinance under Section 5 of Chapter 14234 of the special Acts of 1929 (pp. 1352-1357). Plaintiffs in error contend that the title to Chapter 14234 is invalid in that it does not comply with Section 16 of Article III of the Constitution, and also that if the title is legally sufficient, said section of the Act never became legally effective because it was not properly described on the ballots for the referendum alleged to have been held under Section 9 of said Act. We have examined these contentions and cannot agree with the position taken by the plaintiff in error on either of these points.

The chief contention of plaintiff in error is that Section 5 of said Chapter 14234 (which Chapter amended Chapter 10847 in many particulars), required the City of Miami, in any action thereunder, to adopt one comprehensive zoning ordinance covering the entire city, which ordinance should provide a board of appeals, and that therefore the city was without authority to adopt an ordinance applying to property abutting on any one street, or embraced within only a comparatively small district of the city, and omitting any provision for a board of appeals. Said Section 5 amended Chapter 10847, which was an Act amending and re-enacting the charter of the City of Miami, by inserting after the third section of said Act a new section reading as follows:

"Section 3 (4). The Commission of the City of Miami may, by ordinance, provide regulations and restrictions governing the height, number of stories, and size of buildings and other structures, the percentage and portion of lot that may be occupied, the size of yards, courts, and other open spaces, and the location, use of buildings, structures, and land for trade, industry, residences, apartment houses and other purposes. Such regulations may provide for a board of appeals to determine and vary their application in harmony with their general purpose and intent, and in accordance with the general provisions of the ordinance."

It will be noticed that the language of this section is permissive and not mandatory or compulsory. It gives the City Commission the power to adopt by ordinance regulations and restrictions of the nature described in the Act, and also gives the City Commission power to provide for a board of appeals, but action is not compelled as to either. The ordinance here in question appears to have been authorized by the first sentence of the quoted section, and the mere fact that a board of appeals is not provided for does not invalidate the ordinance, for the reasons stated.

In the case of State, ex rel. Skillman, v. City of Miami,101 Fla. 585, 134 So. 541, this Court sustained a single ordinance restricting or "zoning" parts of Brickell Avenue and Biscayne Boulevard against funeral homes, and said Section 5 of Chapter 14234, above referred to, was quoted from and treated as valid. Mr. Justice BUFORD, who wrote the opinion of the court in that case, among other things, said:

"The restricted districts established by the ordinance here under consideration is shown to be the designated parts of a certain avenue and certain boulevard in the City of Miami, Florida, which avenue and boulevard constitute parts of one of the most traveled and most expensive thoroughfares in the South. The restricted area constitutes a very small portion of the great City of Miami. In this ordinance the city authorities have not attempted to confine the right to conduct a mortuary or funeral home within a limited area, but on the contrary, have by ordinance excluded a very limited area of the city from being used as the location for the operation or conduct of such business."

Undoubtedly, where an act vesting the city with authority to zone, or make regulations and restrictions which amount to zoning, clearly evidences the legislative intent that the authority and power thus vested can only be carried out by one comprehensive zoning ordinance covering the entire city, such intent must be observed, else the ordinance will fall. But, by our holding in the Skillman case above cited, the City of Miami was not confined to the passage of one comprehensive ordinance, zoning the entire territory of the city, by the statutory provision above quoted. In this connection see State v. City of New Orleans, 154 La. 271, 97 So. 440. Plaintiffs in error cite the case of City of Jackson v. McPherson (Miss.) 138 So. 604, in which very able majority and minority opinions were written, but it appears from that opinion that the ordinance in question was a general zoning ordinance passed by the governing authorities of the city in pursuance of a comprehensive standard zoning statute.

It does not clearly appear from the facts set forth by the relators in the petition and alternative writ that the ordinance here in question was such an arbitrary and unreasonable exercise of the power vested in the city by the Legislature, or constituted such an unwarranted invasion of private property rights, as to render the same unconstitutional. Under the general principles laid down in Euclid v. Ambler Realty Co., 272 U.S. 365, 71 L. Ed. 303, and in the opinion by Mr. Justice TERRELL in the case of Stateex rel. Taylor, v. City of Jacksonville, 133 So. 114, 101 Fla. 1241, and also in the opinion written by Mr. Justice BUFORD in the case of State, ex rel. Skillman, v. City of Miami, supra, we would not be justified in holding the ordinance here in question invalid, upon the facts as alleged in the alternative writ. In mandamus proceedings which is the remedy which was resorted to here, the relator must show his clear legal right to demand, and a clear legal duty on the part of the respondent to perform, an official ministerial act.

Our conclusion is that no reversible error appears and that the order of the Circuit Court quashing the alternative writ, as well as the order dismissing the cause, should be, and the same is hereby

Affirmed.

WHITFIELD, ELLIS, TERRELL and BUFORD, J. J., concur.

DAVIS, C. J., concurs specially in the result.