Fitzhugh v. City of Jackson

97 So. 90, 132 Miss. 585, 33 A.L.R. 279, 1923 Miss. LEXIS 94

• Court: Mississippi Supreme Court
• Decided: July 2, 1923
• Docket: No. 23265
• Status: Published

Opinion

Sykes, P. J.,

delivered the opinion of the court.

The bill of complaint of the appellant in effect alleges: That appellant J. L. Fitzhugh is now and has been for several years engaged in the business of conducting and operating a, grocery store. That he has purchased a lot on the corner of State and Carlisle streets in the city of Jackson, upon which lot he expects to erect a suitable, proper, and lawful brick building in which to conduct and carry on the retail grocery business, which will be conducted in a proper and lawful manner. That he has made arrangements to erect this building, engaged a contractor, and put material upon the ground. He applied to the city through its proper officials for a permit to erect the building, and fully complied Avith all the rules and regulations with reference thereto. That he offered to pay the proper fee for the permit. This permit was refused him. The ground of refusal is because the city has passed an ordinance, commonly termed a zoning ordinance, which in effect prohibits the conducting of any business enterprise within the residence part of the city, unless the residence and property owners Avithin a certain area of the place where the proposed business is to be conducted petition or consent thereto in writing. The material parts of this ordinance, necessary to be considered, are herein set out in full and are as follows, viz.:

“An ordinance to vouchsafe protection to residential areas within the city of Jackson, Mississippi, and to that end establishing residential zones wherein business enterprises shall be unlawful.

“Be it ordained by the council of the city of Jackson, Mississippi:

“Section 1. That protection of the homes of the people is of the utmost importance to the public welfare and is an all-sufficient predicate for the exercise of the police power in accordance therewith. That all residential areas, within the city, shall be protected from the encroachment of business enterprises of every character and that hereafter it shall be unlawful within such residential areas to erect any character or structure whatsoever for business enterprises, even though the same might be in part used for residential purposes.

“Section 2. That it shall hereafter be unlawful, within residential areas, to start any new business enterprise of any character that does not now exist, and further shall be unlawful to so alter any residence within such area so as to make of it a structure the erection whereof hereunder would be unlawful.

“Section 3. That any person desiring within said residential area may, if he desire to erect any such structure, conduct any such business or alter any such building may do so upon- compliance with this condition, that he shall first obtain consent thereto in writing from persons actually owning in fee more than one-half in superficial area of a circle whose radius is four hundred feet and whose center is at the center of the lot whereon said proposed operation- is to be, all street areas, public property and business property shall be excluded and where there is more than one owner, each owner shall have power to consent only for the proportion. After such petition shall have been signed by such persons, it shall be presented to the city clerk to remain on file for two weeks and thereafter the prayer of such petition may be granted by ordinance of the council, in whole or in part, or refused and there may be prescribed such conditions as may seem proper in the order allowing the use.

“Section 4. That any person violating any term of this ordinance shall be guilty of a misdemeanor and punished, as such as provided by section 452 of the Revised Ordinances of 1920 of this city, and all structures constructed or altered to violate the terms hereof shall be nuisances and be removed by the police department of the city.

“Sction 5. That this ordinance take effect-and be in force from and after its passage.”

The bill asks that the city be enjoined from enforcing this ordinance, alleging that it is void and that the proper city officials be required to issue the proper building permit.

A demurrer was interposed by the city and sustained by the chancellor. The appellants declined to amend, the bill was dismissed, and this appeal here prosecuted by complainant.

It is first insisted by the appellee that appellant’s remedy was by mandamus and not by bill in chancery. The bill in this case seeks to have declared void this city ordinance because it is not within the police power of the city to enact it; that this void ordinance interferes with the lawful proper use of his lot and proposed building.

While there are some authorities to the contrary, the great weight of authority and the better reasoned cases hold that, where a municipal ordinance is void and its pro • visions are about to be enforced, or are being enforced, any person who is injuriously affected thereby either in his person or the use of his property may go into a court' of equity to have the enforcement of the ordinance stayed by injunction. New Orleans Baseball & Amusement Co. v. City of New Orleans, 118 La. 228, 42 So. 784, 7 L. R. A. (N. S.) 1014, 118 Am. St. Rep. 366. In passing on an ordinance in some respects similar to the one here in question, this court in the case of Quintini v. City of Bay St. Louis, 64 Miss. 483, 1 So. 625, 60 Am. Rep. 62, stated that:

“The fact that in declaring buildings of the character in question nuisances the municipal authorities have also provided that persons who erect them may also be prosecuted in the courts of the town does not preclude relief by injunction. The ordinance, as we have said, is an attempted dedication of private property to public uses without due compensation first made, and this a court of chancery has jurisdiction to prevent. It is immaterial that the exercise of this power will, as a consequence, protect the owner from criminal prosecution.”

See, also Pieri v. Mayor & Aldermen of Shieldsboro, 42 Miss. 493.

The serious question presented is whether or not the city, under the police power, had the right to pass this ordinance; if it does not come within the police power, then the ox*dinance of course is void.

It is the contention of the city that the property is located in a thickly settled residential area, isolated from the business district; that a great many of the commodities sold by retail grocery stores are very injurious to children, and that the ordinance really is for the protection of children; that it will detract from the beauty of the residences in the neighborhood; that it will tend to depreciate the value of these residences; that the increase of traffic in front of the store will be a nuisance; that the assembling there of persons will tend to destroy the pxuvacy of these residences; that there will be nuisances caused thereby; that debris will probably accumulate around the store; that unpleasant odors are apt to emanate therefrom. The court is asked to take judicial notice of these facts.

The bill alleges that the store will be a brick store, properly erected, and that the business of a retail grocery will be properly and lawfully conducted.

While a grocery store is most probably undesirable for the neighboxing residents, as stated by the appellee, it is also probably true, as also stated by the appellee, that it might be very attractive for the children. An overindulgence in sugars and caxxdies and soda water is quite likely injurious to children, but it is perhaps the primary duty of the parents to prevent these children from these over*indulgences. It is not contended, of course, and cannot be, that the proper operation of the business, a mercantile business, a dx*y goods store, or a retail grocery store, is a nuisance per se. If properly and lawfully operated, it will not become a. nuisance. If unlawfully operated such as to become a nuisance, there is a legal way for it to be suppressed or abated.

The appellant contends that the ordinance deprives him of a lawful use of a property without just compensation, does not come within the police power, and is void. We are indebted to counsel on both sides for excellent briefs and a wealth of authorities. It would protract this opinion to undue length to discuss all of the authorities cited. Referring to them generally, we might say that, while there are authorities from other states which would sustain the validity of this ordinance, we think the weight of authority and the better reasoned cases are to the effect that such a sweeping ordinance as the one here is not a valid exercise of the police power of the municipality, and in this case, in view of the previous decisions of this court, we are constrained to hold that the ordinance doés not come within the police power of the city of Jackson. We are therefore of the opinion that .it is in violation of our state Constitution. It is unnecessary therefore to consider whether or not it is violative of the Constitution of the United States, and therefore the decisions with reference to the latter Constitution will not be here considered by us.

In the case of Town of Clinton v. Turner, 95 Miss. 594, 52 So. 261, the court correctly stated that:

“Municipalities act under limited powers, and must find authority clearly given in the law, and, when so found, they must follow the law.”

The exercise of the police power, when that power is given, is most delicate and far reaching. The right of the citizen to be protected in his life, liberty, and the lawful use of his property is one of the most sacred rights reserved to him under our Constitution.

Section 17 of this Constitution prohibits the taking or damaging of private property for public use except on due compensation.

By section 5826, Hemingway’s Code (section 3329, Code of 1906), a municipality is given the power:

“To make all needful police regulations necessary for the preservation of good order and the peace of the municipality; and to prevent injury to, destruction of, or interference with public or private property; and to adopt ordinances prohibiting within the corporate limits the commission of any act which amounts to a misdemeanor under the laws of the state.”

Section 5889, Hemingway’s Code (section 3342, Code of 1906), authorizes the city to prohibit and suppress dram shops and other disreputable places, naming certain ones, and winding up as follows:

“And all kinds of indecency and other disorderly practices, disturbance of the peace, and to provide for the punishment of the persons engaged therein!’

Section 5895, Hemingway’s Code, authorizes municipalities to establish fire districts.

From these statutes it will be seen that the police power relied on by the city will be found in section 5826, Hemingway’s Code (section 3329, Code of 1906), under the power to make all needful police regulations necessary for the preservation of good order and the peace of the municipality. This case might be disposed of by stating that it is not necessary for the preservation of good order or the peace of the municipality to enact such an ordinance: Bather that this order can in no way be ascribed to the preservation of peace and good order of a municipality.

Conceding, however, that the municipality within its limits may exercise the police powers vested in the state, is this ordinanc a valid exercise of such power? In this connection the decision of the court in the case of Quintini v. City of Bay St. Louis, 64 Miss. 483, 1 So. 625, 60 Am. Rep. 62, supra, is illuminating. An act of the legislature gave the city of Bay St. Louis power — “to declare what shall constitute a nuisance in said city, and to prohibit, prevent, and abate the same, and in connection with all matters or things that are or may be hereafter declared as aforesaid to be a nuisance shall be included all shanties and other buildings now erected or may hereafter attempted to be erected on the beach side of the front street of said city when'the same has a tendency to depreciate in value the property of persons nearby, or in any manner obstruct the view of the same, or the breeze therefrom, the same being essential to the comfort, convenience, and good health of the occupants thereof; and any act done, or structure or- thing erected or suffered, after it has been declared by said board of mayor and aldermen to be a nuisance, is hereby declared to be a nuisance, and shall be so held and considered by all the courts of this state as fully as if such act, thing, or structure were herein expressly named and prohibited.”

Quintini’s lot was within the forbidden ground. A market house had existed on the lot for'more than forty years. This house was torn down and Quintini was preparing to build a larger building, when forbidden to do so. The question there presented was whether or not the legislature could declare, or authorize the municipal authorities to declare, private residences to be nuisances, because they had a tendency to depreciate the value of property of persons nearby or obstruct the view of the breeze. In the opinion the court said:

“By one legislative decree this private property' along the whole of one side of the principal street is swept out of beneficial existence because the use of it for any of the ordinary purposes of life has a tendency to depreciate that upon the other side by obstructing the view of the bay, or by intercepting the breezes which blow from the Mexican Gulf. There is scarcely, either in the answer or the evidence, a suggestion that the object of the ordinance and legislative declaration is other than to enhance the beauty of the street. The suggestion that the health of the town will be impaired by the obstructing of the health-giving breezes raises the pertinent inquiry, why they will not be equally obstructed by the residences' on the other side of the street, and the fact that the view will be obstructed suggests, the further question whether a view can be taken from one man because it can be enjoyed only from the rear of his house and conferred upon another, whose only superior equity is that it is unfolded in his front. The law can know no distinction between citizens because of the superior cultivation of the one. over the other. It is? with common humanity that legislatures and courts must deal, and that use of property which in all common sense and reason is not a nuisance to the average man cannot be prohibited because repugnant to some sentiment of a particular class. That the legislature, in the exercise of the police power, may prohibit in particular localities such use of property as is injurious to public health is admitted, and what it may do may also be authorized to be done by the local authorities, but it does not follow that it may, by a mere declaration, convert the harmless, proper, and ordinary use of property into a nuisance. Where the use of the land furnishes the test for the determination of the constitutionality of the law, the legislature may not conclusively determine the effect to be harmful. This would be the assumption of judicial functions by the legislative department, and if yielded to by the courts would be an abrogation of those duties and powers committed by the Constitution to the judicial department, and the untrammeled exercise of which is essential for the preservation of life, liberty, and property.”

The proper operation of a grocery store cannot possibly be injurious to the. public health. One of the ordinary uses of property is for personal gain, and in the lawful use of this property the individual is protected by the Constitution. He must so use it as not to injure others. By using this property for the purpose of conducting a retail grocery store in a lawful manner he does not injure, in the legal sense, the property of his neighbor.

There is no exact definition of the term “police power.” The courts have carefully refrained from attempting such definition. The supreme court of the United States has held that the police power of the state embraces regulations designed to promote the public convenience or the general prosperity, as well as regulations designed to promote the public health, the public morals, or the public safety. Railroad Co. v. Illinois, 200 U. S. 561, 26 Sup. Ct. 341, 50 L. Ed. 594, 4 Ann. Cas. 1175. This is perhaps one of the most liberal interpretations of the police powers of the state to be found in the judicial decisions.. We doubt, but do not here decide, that under our Constitution the state under the police power has the right to pass regulations purely to promote the public convenience or the general prosperity to the disadvantage and detriment of the individual property holders. In this case, however, we do not think that even under this sweeping’ inclusion this ordinance could be said to promote the public convenience or the general prosperity of the municipality or its inhabitants.

One of the leading cases and a case greatly relied upon by the appellee is that of the Opinion of the Justices to the House of Representatives, 234 Mass. 598, 127 N. E. 525. The Constitution of the state of Massachusetts was amended whereby the general court was given power “to limit buildings according to their use or construction, to specify districts of cities and towns.” Const. Amend., art. 60. A zoning ’ordinance was passed in pursuance of this constitutional authority, and the court held that it neither-violated the Constitution of Massachusetts or that of the United States.

We have no such constitutional enactment in Mississippi, and while this decision is a learned one and discusses in detail the authorities bearing on the question of the legality of these ordinances, it rests upon the fact that this amendment authorizes the law. What the court would have held in the absence of this amendment cannot be said. It also held it was not violative of the federal Constitution, which question we are not considering..

This ordinance makes no classification of businesses because of their nature or the necessary incidents of such business. It simply says no business can be conducted in the residential portions of the town except under the circumstances therein named. We therefore carefully refrain from stating what businesses might be included within the police power. Numbers of states have legislative enactments on municipal ordinances directed to classifications of some businesses which may be injurious to health, dangerous or hazardous, or of some such character.

One of the best-considered cases dealing with this question is that of Spann v. City of Dallas, 111 Tex. 350, 235 S. W. 513, 19 A. L. R. 1387, and quoting therefrom:

“Property in a thing consists not merely in its ownership and possession, but in the unrestricted right of use, enjoyment, and disposal. Anything which destroys any of these elements of property to that extent destroys the property itself. The substantial value of property lies in its use. If the right of use be denied, the value of the property is annihilated and ownership is rendered a barren right. Therefore a law which forbids the use of a certain kind of property strips it of an essential attribute and in actual result prescribes its ownership.

“The police power is a grant of authority from the people to their governmental agents for the protection of the health, the safety, the comfort, and the welfare of the public. In its nature it is broad and comprehensive. It is a necessary and salutary power “since without it society would be at the mercy of individual interests, and there would exist neither public order nor security. While this is true, it is only a power. It is not a right. The powers of government, under our system, are nowhere absolute. They are but grants of authority from the people, and are limited to their true purposes. The fundamental rights of the people are inherent and have not been yielded to governmental control. They are not the subjects of governmental authority. They are the subjects of individual authority. Constitutional powers can never transcend constitutional rights. The police power is subject to the limitations imposed by the Constitution upon every power of government; and it will not be suffered to invade or impair the fundamental liberties of the citizen, those natural rights which are the chief concern of the Constitution and for whose protection it was ordained by the people. All grants of power are to be interpreted in the light of the maxims of Magna Charta and the common law as transmuted into the Bill of Rights; and those things which those maxims forbid cannot be regarded as within any grant of authority made by the people to their agents. Cooley, Const. Lim. 209. . . .

“It is not a right, therefore, over which the police power is paramount. Like every other fundamental liberty, it is a right to which the police poAver is subordinate.

“It is a right which takes into account the equal rights of others; for it is qualified by the obligation.that the use of the property shall not be to the prejudice of others. But if, subject alone to that qualification, the citizen is not free to use his lands and his goods as he chooses, it is difficult to perceive wherein his right of property has any existence. ...

“Since the right of the citizen to use his property as he chooses, so long as he harms nobody, is an inherent and constitutional right, the police power cannot be invoked for the abridgment of a particular use of private property, unless such use reasonably endangers or threatens the public health, the public safety, the public comfort or welfare. A law which assumes to be a police regulation, but deprives the citizen of the use of his property under the pretense of preserving the public health, safety, comfort, or welfare, when it is manifest that such is not the real object and purpose of the regulation, Avill be set aside as a clear and direct invasion of the right of property without any compensating advantages. Cooley, Const. Lim. 248.”

An exhaustive note is found to this case.

This ordinance is an arbitrary interference Avith the individual use of private property by the OAvner thereof. It does not come within the police poAver delegated to the municipality nor the police poAver of the state. As the case is really here presented on the merits, the decree of the lower court avüI be reversed, and decree entered here in favor of appellant in accordance Avith the prayer of the bill.

Reversed aivd decree here.