Ballard v. Smith

• Decision Date: 08 December 1958
• Docket Number: No. 40901,40901
• Citation: 234 Miss. 531,107 So.2d 580
• Parties: , 75 A.L.R.2d 152 James L. BALLARD, Mayor of the City of Tupelo, Mississippi, and Robert H. Monaghan, Chief of Police, v. D. D. SMITH.
• Court: Mississippi Supreme Court

Page 580

107 So.2d 580

234 Miss. 531, 75 A.L.R.2d 152

James L. BALLARD, Mayor of the City of Tupelo, Mississippi and Robert H. Monaghan, Chief of Police, v. D. D. SMITH.

No. 40901.

Supreme Court of Mississippi.

Dec. 8, 1958.

C. R. Bolton, Sam E. Lumpkin, Tupelo, for appellants.

Adams, Long & Adams, Tupelo, for appellee.

McGEHEE, Chief Justice.

This case involves the validity of certain zoning ordinances of the City of Tupelo, Mississippi, with reference to procedure and methods followed in their adoption, and, if they are valid, then the validity of their application to appellee, D. D. Smith, who obtained an injunction against their enforcement.

The appellee brought this suit in the Chancery Court of Lee County against the City of Tupelo, its Mayor Ballard and Chief of Police Monaghan, seeking to enjoin them from successive prosecutions and convictions of him in the city police court on charges of violating the city zoning ordinance by the operation of a gasoline filling station. The two city zoning ordinances in question were enacted in 1946 and in 1953, respectively.

After a lengthy hearing, the chancery court permanently enjoined the appellants from prosecuting complainant under the city zoning ordinances, on the ground that they were both void. From that decree this appeal was taken.

I.

The chancery court held that the 1953 zoning ordinance was invalid because the minutes of the Mayor and Board of Aldermen for the period when it was enacted were not signed by the Mayor and attested by the City Clerk. We agree with that conclusion. Miss.Code 1942, Recompiled, Sec. 3374-97, makes it the duty of the city clerk to keep the municipal minutes, in which 'he shall record the proceedings and all orders, ordinances and judgments of the governing authorities, and to keep the same fully indexed alphabetically, so that all entries on said minutes can be easily found. All official actions of the governing authorities of a municipality shall be evidenced only by official entries duly recorded on such minute book.'

Section 3374-75, Code of 1942, requires the municipal clerk to keep an ordinance book. Prior to the amendment by the Laws of 1950, Chapter 491, Section 75, the predecessor statute, Section 3656, Mississippi Code of 1942, provided likewise for an ordinance book. The 1950 amendment, however, set forth in Section 3374-75, provided in some detail for the recording of ordinances in the ordinance book. The amendment further stated that the clerk shall keep municipal minutes in which he must record the proceedings as to all orders and judgments of the city. The 1950 amendment then added the following provision:

'Said clerk shall likewise record in said minute book all ordinances in full, or in lieu thereof, the title of all ordinances, in each of which instance, the ordinances in full shall be recorded in the ordinance book provided for in section 1 hereof. In the event only the titles of ordinances are recorded in the minute book, it shall be necessary that the ordinance in full, after recordation in the ordinance book, shall be read and verified and subscribed to by the mayor and clerk at a regular meeting of the governing authority of the municipality in the same manner required by law for the reading, verification of and subscription to minutes of said municipality.'

These 1950 amendments to the municipal laws of the state manifest a legislative intent that the city clerk shall keep municipal minutes which record the proceedings as to all orders and judgments of the governing authority of the municipality; and that the minutes shall be read, verified and subscribed by the mayor and clerk. The quoted amendment of 1950 states indirectly what could have been stated directly, but it evidences the legislative intent that the mayor and clerk shall sign and attest the minutes of the governing authority of the city. It is undisputed that this was not done during the period when the 1953 ordinance was enacted. Failure to comply with this mandatory legislative requirement invalidates the 1953 zoning ordinance. Since this conclusion is applicable to the 1953 ordinance, it is not necessary for us to consider the other grounds of objection thereto.

II.

Since the 1953 zoning ordinance was invalid, it did not repeal the City of Tupelo's zoning ordinance of August 6, 1946. Hence the next issue is whether the 1946 zoning ordinance was validly enacted and in effect and applicable to appellee Smith. The chancery court held that it was duly and legally adopted by the mayor and board of aldermen, but that, when Smith installed his gasoline pumps at his filling station, the zoning use map which was referred to in the ordinance was not available to Smith or to the public, had been lost and was not found until after this controversy arose; that the zoning map did not conform to the ordinance; that for those reasons, and because the zones set forth in the map were unavailable to Smith for his inspection and were, therefore, not notice to him, the 1946 ordinance was invalid at least as to Smith in the construction of his filling station.

The ordinance itself did not define the zones. Section 1 thereof stated that the city was divided 'as shown by the zoning map, dated August 5, 1946, and filed in the office of the city clerk * * * said map and all the notations, references, and other things shown thereon shall be as much as part of this ordinance as if the matters and things set forth by said map were all fully described herein.'

Although there is a procedural defect in the proceedings of the board enacting the ordinance, we do not think it has the effect of invalidating it. Hawkins v. City of West Point, 1946, 200 Miss. 616, 27 So.2d 549; Walker v. City of Biloxi, Miss.1957, 92 So.2d 227.

The undisputed evidence also reflects that the map offered in evidence as the city's exhibit, dated August 6, 1946, is the zoning map referred to in the 1946 ordinance. The zoning statutes in effect in 1946 did not provide for a method of verification of a municipal zoning use map. Miss.Code of 1942, Sections 3590-3597. It is well established that a zoning map may be incorporated in a zoning ordinance by reference to it. 58 Am.Jur., Zoning, Section 32; 1 Yokley, Zoning Law and Practice (2d Ed. 1953), Sections 44, 71; 62 C.J.S. Municipal Corporations § 427, pp. 819-820, § 226, pp. 464, 465; 8 McQuillin, Municipal Corporations (3rd Rev.Ed. 1957), Section 25.89.

The map itself is amply identified as the use map under the 1946 ordinance. The four zones, industrial, residential, general business, and local business, are in different colors. The corporate limits are defined by a red colored line. Under a legend on the map describing the colors for each zone is written in longhand, 'this the 6th day of August, 1946,' and under that is the signature of the then mayor and the attestation of the then city clerk. Following are the words 'Tupelo, Mississippi,' and 'Tupelo City Planning Committee,' with a distance scale in feet. The witnesses undisputedly identified this map as being the 1946 zoning map.

The only inconsistency in this connection arises from the quoted statement in the ordinance referring to the map 'dated August 5, 1946,' whereas the handwritten date on the map itself above the signatures of the mayor and city clerk is August 6, 1946. It is manifest that this is a mere clerical error; that this was the only zoning map under the 1946 ordinance, and the great weight of the evidence verifies that fact. Hence we think that the zoning map in evidence dated 1946 is amply shown to be the one pertaining to the 1946 zoning ordinance, and in conformity therewith. City of Newburyport v. Thurlow, 1949, 324 Mass. 40, 84 N.E.2d 450; Auditorium, Inc. v. Board of Adjustment, 1952, 8 Terry 373, 47 Del. 373, 91 A.2d 528.

After the 1953 zoning ordinance was passed by the board, a new zoning map was made and placed on display in the office of the city tax assessor. It was hung on the wall in that office. With the new map in use under what the city authorities assumed was the valid 1953 zoning ordinance, the 1946 zoning map was filed away, apparently being turned over to W. J. Conway, city building inspector. After this suit was filed by Smith, the map was found and introduced in evidence.

W. J. Conway, city building inspector, said that after the search began for the 1946 map, Leland Cook, apparently a surveyor, advised him that he had placed the map in the Mayor's office; that he, Conway, found it in that office after considerable search, in an unexpected place; that he then placed the map in a frame and hung it up in the city hall the next morning. His reason for this was evidently because the validity of the 1953 ordinance was then under attack, and the usefulness of the 1953 map was in question.

There have been several cases involving situations where use maps referred to by zoning ordinances have been lost, misplaced or not prepared at all. Where such maps were not properly filed, or made available for public inspection, it has been held that application of particular zoning regulations was invalid because of lack of definiteness of description and location. Annotation, 1955, 39 A.L.R.2d 766, 772-773. However, the circumstances here take this case out of the cited rule. In the first place, the 1946 map was in fact made, filed, and kept as a public record during the period from 1946 until enactment of the 1953 zoning ordinance, which later ordinance the city authorities assumed to be valid. In other words, the 1946 ordinance went into effect with a proper map on public record, but it was filed away after the invalid 1953 ordinance was passed, which the city authorities assumed was valid. We do not think that a zoning ordinance once effective can be repealed by the filing away or misplacement of the use map, where this occurred after an invalid but presumptively valid ordinance had been passed superseding the prior zoning...