Dart v. City of Gulfport

Citation113 So. 441,147 Miss. 534
Decision Date06 June 1927
Docket Number26503
CourtUnited States State Supreme Court of Mississippi
PartiesDART v. CITY OF GULFPORT. [*]

Division A

1. CONSTITUTIONAL LAW. City permit to erect filling station may be abrogated by valid restrictive ordinance.

Permit by city to erect filling station does not prevent the city from abrogating rights thereunder by valid ordinance prohibiting erection of such a structure within certain limits embracing the lot in question.

2. CONSTITUTIONAL LAW. Where not necessary for case constitutionality of statute will not be decided.

Constitutionality of statute will not be passed on till it becomes necessary to the decision of the case.

3. MUNICIPAL CORPORATIONS. Power to city to "regulate and restrict" building does not authorize it to "prohibit" filling stations (Zoning Act).

Power given by Zoning Act (Laws 1924, chapter 195), to a city within established districts, to "regulate and restrict" erection of buildings, does not authorize it to prohibit a filling station building (citing Words and Phrases, Second Series, "restrict").

Suggestion of Error Overruled. June 29, 1927.

APPEAL from chancery court of Harrison county.

HON. V A. GRIFFITH, Chancellor.

Suit from injunction by Samuel H. Dart against the city of Gulfport. Bill dismissed, and complainant appeals. Reversed and judgment rendered.

Reversed.

Mize, Mize & Thompson, for appellant.

The decree appealed from in this case brings into review the constitutionality of the zoning law as passed by the legislature of 1924, which, we submit, is really not open to discussion at this time; having been so well settled by the decision of this court that the law now becomes a rule of property in Mississippi.

This court in Desporte v. City of Biloxi, 100 So. 387, held invalid an ordinance which attempted to zone the city of Biloxi into certain areas and prohibiting in certain parts of the city zoned off the operation of an oyster retail business where raw oysters were opened and sold by retail and wholesale, and declined to follow Reinman v. City of Little Rock, 237 U.S. 171; and Hadachek v. Sebastian, 239 U.S. 394; and cited with approval Ex parte O'Leary, 65 Miss. 80; Comfort v. City of Jackson, 88 Miss. 611; Crittenden v. Booneville, 92 Miss. 277; Fitzhugh v. City of Jackson, 132 Miss. 585, all of which cases are in point on the question involved in this case and which case as we herein cite has authority for our contention.

Before a municipality can prohibit any business, that business must be a nuisance in fact and the city authorities are without authority to say a business is a nuisance when as a matter of fact it is not. See Quintini v. City of Bay St. Louis, 64 Miss. 484; Pieri v. Shieldsboro, 42 Miss. 493; Town of Clinton v. Turner, 95 Miss. 594.

The decisions in Mississippi beginning in the Shieldsboro case in 42 Mississippi and ending with the Desporte case and going over a great period of years have become a rule of property in Mississippi as to the rights of purchasers of property and a settled principal of law upon which they have a right to rely and upon which attorneys advising prospective purchasers as to investment have a right to rely.

Jno. L. Heiss, for appellee.

This case brings into view the constitutionality of the zoning law as passed by the legislature of 1924. We deny, however, the contention of counsel that this court has ever declared by adjudication on facts before it that such a law is unconstitutional.

In Desporte v. City of Biloxi, 100 So. 387, the court expressly held that it did not reach the question of the power of the legislature under the Constitution on this subject. All it did hold in this case was that under section 5816, Hemingway's Code, no such authority was given a municipality.

Fitzhugh v. City of Jackson, 97 So. 190, held that a zoning ordinance did not come within the police power of the city and expressly declined to pass upon the constitutionality of a legislative grant of such power.

The cases of Ex parte O'Leary, 65 Miss. 80; Comfort v. City of Jackson, 88 Miss. 611; and Crittenden v. Booneville, 92 Miss. 277, are decided upon the same point as the cases of Desporte v. City of Biloxi and Fitzhugh v. City of Jackson; that is, the want of legislative authority in declaring a thing a nuisance unless it was a nuisance in fact.

Now the legislature, as the repository of all the police power of the state, has the power to declare all things of a class a nuisance if some of them are and the tendency of all is to be a nuisance. To illustrate, in the case of Crittenden v. Booneville, supra, the court held the ordinance prohibiting pool rooms in Booneville to be void as beyond the municipal authority at that time, which authority was to regulate and suppress. Yet on this very question, the court held such a general ordinance valid because the special charter of Corinth had granted the power to prohibit pool rooms. Subsequently, by chapter 200, Laws of 1910, the legislature amended the provisions of section 3340, Code of 1906 (section 5837) and all municipalities under the code chapter have this authority.

Quintini v. City of Bay St. Louis, 64 Miss. 483, goes back into our judicial history to the time when conditions calling for zoning laws were unthought of. And while the opinion of the very able justice denounces the constitutionality of a law that would attempt to deprive an owner of the use of his land for the benefit of the public without first making due compensation to him therefor, yet clearly such observations did not become a pronouncement of law of the court upon this point for the reason that this point was not before the court and not involved in the case.

Counsel has pointed to no decision which sustains his contention of the unconstitutionality of the zoning act, or this ordinance. Section 5849, Hemingway's Code, authorizes the establishment of fire limits within a municipality and to regulate, restrain or prohibit the erection of certain character of building therein. Section 5837, Hemingway's Code, grants authority to regulate, suppress or prohibit circuses, shows, theatres, billiard tables, pool tables, bowling alleys, etc. All of this class of laws deprive the owner of certain use of his property yet no one has questioned their constitutionality.

The idea sometimes prevails that the police power goes only to the extent of protecting the public health, the public morals, and the public safety. But this is not the extent of the police power of a state.

It may well be said that two general principles lie as the basis of every right and of all law: (1) That the safety, welfare and happiness of the people is the supreme law; (2) That a condition to all rights in property is the duty to so use it as not to injure others in the lawful use of their property. Under the first maxim, the safety, welfare, and happiness of the individual as a whole is superior to that of the individual.

The character and extent of the police power of the legislature is thus stated in State v. Newman Lbr. Co., 59 So. 923. As to the extent of the police power, see the following cases from the United States supreme court, see: Chicago B. & Q. Co. v. Illinois, 50 L.Ed. 609; Barbier v. Connolly, 23 L.Ed. 923 at 925; Edgar A. Levy Leasing Co. v. Siegel, 42 S.Ct. 289.

Practically all modern decisions of the supreme court of the United States and of the various states upon this subject sustain the validity of zoning laws. If it lies within the police power of the legislature, then it needs no specific constitutional grant to exercise it. These are a few of the well-considered cases that sustain this authority: Reinman v. Little Rock, 35 S.Ct. 513; Hadacheck v. Sebastian, 36 S.Ct. 143; City of Des Moines v. Manhatton Oil Co., 23 A. L. R. 1322; Village of Euclid, Ohio, v. Ambler Realty Co., 47 S.Ct. 114; State ex rel. Civello v. City of New Orleans, 97 So. 440; State ex rel. Nat'l Oil Works of La. v. McShane, Mayor, 106 So. 252.

But appellant contends that a permit having been given by the city for the construction of the building in question, this became a contract right which could not be taken from him by the subsequent passage of the ordinance in question. Such is not the law, for this permit may be cancelled by subsequent enactment and is in no sense a contract between the individual and the government. Miss. Society of Arts & Science v. Musgrove, 44 Miss. 835; Pierce Oil Corp. v. City of Hope, 39 S.Ct. 172; Denver & R. G. R. Co. v. City and County of Denver, 39 S.Ct. 450; St. Louis Poster Adv. Co. v. City of St. Louis, 39 S.Ct. 275.

The court will bear in mind that there is not involved in this case the question of what particular use may be made by the appellant of his land. It is true that section 3 of the ordinance does limit the use of land of this location to certain particular purposes and counsel for appellant argues that that question is in issue. But it will be seen from the bill that the sole complaint is that the city will prevent him from constructing the building in question and the carrying on of the business of a filling station.

The principles of law remain fixed and permanent while the application of these principles vary with the changing condition of civilization. The form changes but the spirit remains; the law is a living thing. What would be the proper application of police power to conditions that existed fifty years ago in Mississippi, would have no application to the same community at the present time. What would then be reasonable and proper for the welfare of the people at that time might well have no application now.

The welfare of the people is the supreme right and with respect to rights of property, every right from an absolute ownership in property down to a...

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