Ball v. Jones

Decision Date22 June 1961
Docket Number3 Div. 935
Citation272 Ala. 305,132 So.2d 120
PartiesFred S. BALL, Jr., et al., v. Walter B. JONES, as Judge.
CourtAlabama Supreme Court

Rushton, Stakely & Johnston and Hill, Hill, Stovall & Carter, Montgomery, for respondent.

SIMPSON, Justice.

Brought under review by this proceeding is the constitutionality, vel non, of so much of § 6 of Act 729, General Acts of Alabama, 1957, Regular Session (pp. 1134 et seq.) providing that any petitioner for a zoning or rezoning of his property, or certain adversary property owners, who are aggrieved by any decision, order, or act of the legislative body of the city (here the City Commission) with respect to such petition, may appeal within 15 days from the date of such decision, order, or act to the Circuit Court in the county in which the city is located. The cause in such Circuit Court, according to the provisions of said § 6, is to be tried de novo with the right to a jury trial if demanded. As a matter of fact, it would seem that the act only applies to Montgomery, but was passed as a general law.

The petitioners, Fred S. Ball, Jr., Charles A. Ball, and Richard A. Ball, are owners of certain real estate located in the City of Montgomery, which has been leased to petitioner Sears-Roebuck & Co. When the lease agreement was made, the property was then classified under the zoning ordinance of the City of Montgomery as Residence A and C districts. Pursuant to an application of petitioners, the Board of City Commissioners of the City of Montgomery (denominated in said act as 'the Legislative body of the city') enacted an ordinance on June 22, 1960 amending the zoning ordinance of Montgomery so as to rezone the real property from Residence A and C to Local Business District. On June 23, 1960 certain named persons, described as living or owning property within 1,000 feet of the real property affected by the rezoning ordinance, filed with the City Clerk of Montgomery a notice of appeal to the Circuit Court of Montgomery County, under the provisions of said § 6 of the statute and demanded a 'jury trial, de novo'. On July 6, 1960 the City Clerk of Montgomery certified the proceedings of the Board of Commissioners and the enactment of the rezoning ordinance and filed the same with the Clerk of the Circuit Court. On July 11, 1960 petitioners filed in the Circuit Court of Montgomery County a motion to dismiss the appeal which was subsequently amended. The respondent judge overruled said motion and this petition for writ of prohibition or other appropriate writ is filed here for the purpose of reviewing said order overruling petitioners' motion to dismiss the appeal.

In the investigation of the constitutionality of an act of the legislature, we should determine what the constitution in expressed terms or by its just implication means and this must depend upon the reading of the constitution itself. The provisions of the enactment itself cannot be consulted to give interpretation to the language of the constitution. The question has been ably argued by counsel for the parties and we approach its consideration with due sense of its importance and in recognition of the principle that enactments of the legislature are presumed to be constitutionally valid and this presumption prevails until it appears beyond a reasonable doubt that the enactment under consideration is invalid or obnoxious to the expressed terms of the constitution or to the necessary implication afforded by, or flowing from, such expressed provisions.

The strict legal question is whether or not said § 6, supra, providing for an appeal from the ordinance of the City Commission rezoning the questioned property to Circuit Court with a right of a trial de novo violates §§ 42 and 43 of our constitution which provides for the separation of powers of government into three distinct branches: the Legislative, the Executive, and the Judicial.

It is hardly necessary to comment on the meaning of a trial de novo. A trial de novo, within the common acceptation of that term, means that the case shall be tried in the Circuit Court as if it had not been tried before, and that that court may substitute its own findings and judgment for that of the lower tribunal. Or as stated in Thompson v. City of Birmingham, 217 Ala. 491, 492, 117 So. 406, 407:

'* * * when an appeal is allowed by statute from the judgment of an inferior court to a superior court, where the case is to be tried de novo, * * * a trial de novo means a new trial 'as if no trial had ever been had, and just as if it had originated in the circuit court.''

See also Vinyard v. Republic Iron & Steel Co., 205 Ala. 269, 87 So. 552; California Co. v. State Oil & Gas Board, 200 Miss. 824, 27 So.2d 542, 544.

The circuit court of Montgomery County is made a part of the Judicial Department of the State of Alabama by § 139 of the Constitution of 1901. Petitioners contend--and we think correctly--that if an appeal to the circuit court is allowed from the enactment of zoning ordinances, with a trial de novo and possibly a trial by jury if demanded, the conduct of the trial and judgment or verdict of the jury will supplant the considered judgment of a legislative body, the City Commissioners, and thus the circuit court will be performing legislative functions of government prohibited by said §§ 42 and 43 of our constitution.

The legislative power of this state is defined in § 44 of the constitution: 'The legislative power of this state shall be vested in a legislature, which shall consist of a senate and a house of representatives.' It is well known that legislative powers have been delegated to municipalities. In the early case of Dunn v. Court of County Revenues of Wilcox, 85 Ala. 144, 147, a So. 661, 662, this court stated the well recognized principle that '* * * While the general rule obtains that the power to make laws is vested in the general assembly by the constitution, and this power can not ordinarily be delegated to any other tribunal, yet it is nowhere denied that it is competent for the general assembly to delegate to municipal corporations the power to enact by-laws and ordinances which in many particulars may have all the force and validity of a statute enacted by the general assembly itself. This is commonly done in the charters granted to incorporated towns and cities, and the authority thus conferred comprehends a vast number of subjects affecting the property rights and personal liberty of the citizen, and covering the same class of acts regulated by state laws. The American theory of municipalities is that the legislation permitted to be exercised by them is a mere delegation of power of the state; and hence it is an established rule that all laws or ordinances enacted by virtue of this delegated power are, in a certain sense, as much part of the general system of legislation as are the laws of the state, * * *'. (Emphasis supplied.)

A city or municipal corporation does not have the inherent power to enact and enforce zoning regulations. White v. Luquire Funderal Home, 221 Ala. 440, 129 So. 84; Leary v. Adams, 226 Ala. 472, 147 So. 391; Alabama Alcoholic Beverage Control Board v. City of Birmingham, 253 Ala. 402, 44 So.2d 593. Municipal corporations were granted the power and authority to enact comprehensive zoning ordinances under Code 1940, Tit. 37, §§ 772-773. This court in Marshall v. City of Mobile, 250 Ala. 646, 35 So.2d 553, recognized the well-known rule that municipal authorities act in a legislative capacity in the enactment of zoning ordinances. Also, the amendment to a comprehensive zoning ordinance or a rezoning of a certain area, as was done in the instant case, becomes a part of the existing comprehensive ordinance and, a fortiorari, is a legislative act. Phillips v. City of Homewood, 255 Ala. 180, 50 So.2d 267.

The limitation of judicial review grows out of the character of the proceedings involved. That the enactment of zoning ordinances is a legislative function and not a judicial one is well established and should need little citation of authority. We will, however, quote from Marshall v. City of Mobile, supra, where it is said:

'The courts recognize that in the passing of such general zoning ordinance, the municipal authorities act in a legislative capacity, and that their superior opportunity to know and consider the varied and conflicting interests involved, to balance the burdens and benefits, to lay out zoning districts with a view to the general welfare of the city, render the courts slow to set up their own opinions as against those charged with and in position to rightly perform such duty. Before the courts will interfere, it must be made to appear that such an ordinance passes the bounds of reason and assumes the character or a merely arbitrary fiat.' (Emphasis supplied.)--250 Ala. at page 649, 35 So.2d at page 555.


'Every intendment is to be made in favor of the zoning ordinance and the matter was largely in the legislative discretion of the municipal authorities.'--250 Ala. at page 650, 35 So.2d at page 556.


'Here the city Commission is acting in the exercise of a legislative function and with a wide degree of discretion.'--250 Ala. at page 651, 35 So.2d at page 557. (Emphasis supplied.)

101 C.J.S Zoning § 1; Andrews v. Town Bd. of Town of DeWitt, Sup., 98 N.Y.S.2d 494(2, 3).

To be sure, such legislative enactment, though not a judicial matter, is subject to judicial review, but only to determine the enactment's validity under the police power of the municipality. 'Accordingly, the courts have power to grant relief in appropriate proceedings against zoning which is unreasonable, discriminatory, unconstitutional, or otherwise invalid, * * *.' 101 C.J.S. Zoning § 320, pp. 1103, 1104. See also 101 C.J.S. Zoning § 5, pp. 672, et seq. This seems to be the universal rule. See 3 McQuillin, Municipal Corp., Vol. 8, p. 677, § 25.278.

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