Smith v. City of Atlanta

• Docket Number: 4882. [*]
• Decision Date: 11 February 1926
• Citation: 132 S.E. 66,161 Ga. 769
• Parties: SMITH v. CITY OF ATLANTA.
• Court: Georgia Supreme Court

132 S.E. 66

161 Ga. 769

SMITH v. CITY OF ATLANTA.

No. 4882. ^[*]

Supreme Court of Georgia

February 11, 1926

Syllabus by the Court.

The provision of the act of the General Assembly, approved August 4, 1921 (Acts 1921, p. 665), being an act to amend the charter of the city of Atlanta, which authorizes the mayor and general council to pass an ordinance "districting or zoning of the city for the purpose of regulating the location of trades, industries, apartment houses, dwellings," etc., is unconstitutional and void in so far as it authorizes the municipal authorities to prohibit by ordinance the building of stores in districts set apart under the zoning regulations as residential districts or sections; the provision referred to being contrary to the due process clauses of the state and federal Constitutions; and the ordinance passed in pursuance of the act of the General Assembly referred to is invalid and void to the same extent. This decision is not to be construed as a holding upon other provisions of the act and the ordinance intended to allow and make zoning regulations as to structures and buildings other than stores, that being the character of the buildings contemplated by the petitioner, for the erection of which she sought a building permit from the city authorities.

Injunction was the remedy available to the petitioner to secure relief as against prosecution threatened in the event she should proceed to erect the buildings without permit.

Error from Superior Court, Fulton County; W. D. Ellis, Judge.

Suit by C. S. Smith against the City of Atlanta. Judgment for defendant, and plaintiff brings error. Reversed.

Spence & Spence and Little, Powell, Smith & Goldstein, all of Atlanta, for plaintiff in error.

Jas. L Mayson and Jesse M. Wood, both of Atlanta, for defendant in error.

BECK P.J.

This case involves, primarily, the decision of the constitutionality of certain ordinances of the city of Atlanta, known as the zoning ordinances; and, as incidental thereto, the constitutionality of certain provisions of an act of the Legislature approved August 4, 1921 (Acts 1921, p 665), being an act to amend the charter of the city of Atlanta, under authority of which the ordinances in dispute were enacted. The facts in the case, briefly stated, are as follows: Mrs. C. S. Smith alleged that she was the owner of certain property within the limits of the city of Atlanta extending along Piedmont avenue approximately 225 feet, and running back to the right of way of the Southern Railway Company. She alleged that the property was peculiarly well adapted and especially valuable to be used for business purposes, because of its proximity to the railroad, and for other reasons; and for the same reasons she alleged that her property was practically valueless if she should be restricted to erect residential buildings thereon. At the time of the suit the property was vacant and had no earning capacity, and petitioner was sustaining expense in the form of taxes and loss of interest upon the money she had invested in the property. She made application for building permits as provided by existing ordinances of the city of Atlanta, but permits were refused on the ground that they conflicted with the ordinances brought in question by the suit. The buildings contemplated were stores. Having offered to comply with the city's regulations relating to building permits, and the city having refused to issue permits, the plaintiff proceeded to start the erection of buildings, and thereupon she and her employés were arrested for a violation of the zoning ordinances, and these cases were about to be tried when an injunction was sued out and the proceedings on the part of the city were halted.

The defendants answered the suit for injunction, primarily, by pleading the ordinances of the city known as the zoning ordinances, which are set forth fully in the record, and the case was heard upon the question of the constitutionality of the charter amendment and the ordinances. After hearing evidence and argument, the court passed an order denying the injunction, and, in effect, holding the ordinances and the act constitutional. The plaintiff, besides relying upon the general unconstitutionality of the act in question, also relied upon the unreasonableness of the ordinances in so far as they were made to apply to her property, even though the Legislature might have had the power to pass the act in question. Plaintiff offered evidence to show that her property, alleged to be worth many thousands of dollars, would, under the operation of the ordinances, be practically valueless, that the application of the ordinances to her property would amount to depriving her of her property without compensation, and that it would amount to a taking of her property for public use without due process of law. To the judgment refusing an injunction she excepted.

The property of petitioner upon which she desires buildings to be used as retail stores had been zoned for residence purposes, and under the zoning ordinance the city of Atlanta would not permit stores to be erected in the district in which the property was situated. The ordinance zoning this district of the city was passed under authority expressly given by an amendment to the charter of the city of Atlanta passed by the General Assembly of the state of Georgia, in an act entitled, "An act to amend an act establishing a new charter for the city of Atlanta, approved February 28, 1874," etc. The city, in its answer in this case, asserts that it would enforce the zoning ordinance, and claims the rightful authority to do so. The city further alleges:

"The city of Atlanta is a large and growing city. As the result of this growth and as soon as residence sections are opened, some citizens, who do not care as much for the residences in such section as for income from their property, immediately put stores in such residence sections, and the result was to impair the value of such residence sections and to drive them away from their property or to force the owner of such residences to buy out the property in which the projected stores were to be built. There were many other reasons which led to the districting of the city into uses so that, while the business and manufacturing interests could be and would be provided for, yet places for residences would likewise be reserved. The city of Atlanta, as well as all progressive cities, came to realize that business interests had no regard for residence sections, and, on the other hand, residence sections were more necessary than business. People must have a place to breathe and live, precedent to their ability to labor and earn money. For this and many similar reasons the city of Atlanta applied to the Legislature of Georgia for authority to district the city into zones, which zones should be set apart for the different uses. This was done, and under this authority a very complete ordinance was passed, which will be exhibited to the court on the trial of this case. By authority of this ordinance the section in which the property of plaintiff was located was zoned and business was prohibited. Petitioner has had the question up several times with the city of Atlanta, looking toward a change of this use from residence to business purposes. These various applications have been denied."

It is unnecessary to set out in full the act of the Legislature amending the charter of the city or the very elaborate ordinance passed in pursuance of the powers conferred by that act. So far as it relates to the case made in this record, the ordinance in effect prohibited the erection of buildings to be used as retail stores upon any property in a district of the city set apart, under the ordinance referred to, as a residence section. If that part of the act which authorized the city to so redistrict or divide up the city into zones is constitutional and valid, then it would seem to follow that the ordinance is also valid, and if that part of the act of the General Assembly to which we make special reference is unconstitutional and invalid, then that part of the ordinance passed in conformity to the act is also invalid. And so the principal and controlling question that we have to deal with is the constitutionality and validity of the act and ordinance in question, or, rather, the constitutionality of that part of the act and ordinance which prevents the building of stores upon property located in the districts made residential by the city's ordinance.

The right to redistrict the city and to prohibit the erection of business houses and stores in certain districts is claimed by the city, not under its right of eminent domain, for no compensation is to be paid to those property owners who are refused the right to erect stores, but it is asserted as a proper exercise of the police power. It is unnecessary here to attempt a discussion of the police power, or to enter upon a discussion of the extent of this power. The decision which we render in this case is based largely upon decisions already made both by this court and by other courts of last resort in various states of this country. In several of those cases will be found lengthy and luminous discussions of the police power, its extent, limitations, purposes, and sources which may be read with profit by lawyers and laymen. We shall not quote at any length from what is said by the various courts and text-writers upon the subject generally, but we shall cite and refer to cases in which this question is discussed, and shall quote such parts of several decisions as bear directly upon the question involved here. The importance of the subject is manifest, and no discussion of the problems with which municipalities are confronted is necessary to...