Baxley v. City of Frederick

• Decision Date: 23 October 1928
• Docket Number: Case Number: 18653
• Citation: 1928 OK 619,271 P. 257,133 Okla. 84
• Parties: BAXLEY v. CITY of FREDERICK et al.
• Court: Oklahoma Supreme Court

1928 OK 619

271 P. 257

133 Okla. 84

BAXLEY v. CITY of FREDERICK et al.

Case Number: 18653

Supreme Court of Oklahoma

Decided: October 23, 1928

Syllabus

¶0 1. Municipal Corporations--Existence of Facts Sustaining City Ordinance Presumed.

The existence and not the nonexistence of the necessary facts to sustain a city ordinance is presumed in the absence of evidence to the contrary.

2. Same--Validity of Zoning Ordinance--Motive of City Councilman in Voting for Enactment not Inquired Into.

The motive of a member of a city council in voting for the enactment of a general zoning ordinance cannot be inquired into for the purpose of determining the validity of the ordinance.

3. Same--Zoning Ordinance Against Filling Stations Valid Though Enacted After Suit by Property Owner to Secure Permit for Filling Station.

A zoning ordinance which, under its general terms, denies the use of certain real estate located within a particular district for filling station purposes, is no less effective or enforceable because such ordinance was enacted after the owner of the real estate has applied for a permit to remodel his building so as to make it usable as a gasoline filling station, and has instituted suit against the city authorities to compel the issuance of the permit and to restrain interference with him in the operation of a filling station on his property; and such ordinance may be pleaded as a defense to plaintiff's action.

4. Same--Zoning Ordinance Valid Though Exempting Buildings Already Dedicated to Objectionable Use.

To exempt buildings, already devoted to a particular use, from prohibition against such use of buildings thereafter erected, or remodeled, is not an unlawful discrimination invalidating zoning ordinance.

5. Same--Ordinance Sustained as Legal.

Record examined; held, sufficient to sustain judgment of the trial court.

W. G. Roe and Stevens & Cline, for plaintiff in error.

Mounts & Chamberlin, for defendants in error.

LEACH, C.

¶1 In September, 1924, T. A. Baxley, plaintiff in error, commenced this action in the district court of Tillman county, against city of Frederick et al., defendants in error, and prayed that ordinance No. 144 of the city of Frederick, which ordinance prohibited the construction and operation of gasoline filling stations, except those then existing, within the fire limits of the city, and provided a penalty by fine of not more than $ 100 for its violation, be declared null and void because the same was discriminatory, unreasonable, and not a proper exercise of authority, and further prayed that the defendants be restrained from interfering with him in the erection and maintenance of a filling station, and that they be directed to issue him a building permit covering the alteration of his building for use as a gasoline filling station. The defendants answered, specifically denying the allegations relied upon by plaintiff for relief. On a trial of the issues as then made, judgment was entered in favor of the defendants, and the plaintiff appealed to this court. Defendants in error failed to file a brief, and the cause was reversed and remanded for a new trial. Baxley v. City of Frederick, 113 Okla. 149, 239 P. 1116.

¶2 Upon remand of the case to the district court, the defendants, by leave of court, filed an amended answer, wherein they generally and specifically denied the allegations of plaintiff, and alleged that the operation of a filling station on plaintiff's lot would constitute a danger to the life and safety of a majority of the school children of the city and other pedestrians and persons passing the corner of the proposed station; that the storage of oil and gasoline for use by plaintiff would constitute a hazard to property. As an additional defense to that pleaded in their original answer, they alleged the passage by the city of zoning ordinance No. 150, enacted April 28, 1925, which ordinance prohibited the use of plaintiff's property for a filling station.

¶3 Plaintiff filed reply, wherein he alleged that the purported zoning ordinance arose long after the commencement of the suit, and ought to be disregarded and stricken from the amended answer; that if the allegations pertaining to said zoning ordinance be allowed and considered as a defense, then such ordinance is invalid in that it violates the constitutional protection of property afforded by the Fifth and Fourteenth Amendments to the Constitution of the United States, and the provisions of the Constitution of Oklahoma, is confiscatory, discriminatory, and unreasonable. Further denied that the ordinance was ever passed or adopted in the manner required by law. A trial of the cause was had which resulted in a judgment for defendants, and plaintiff brings this appeal, assigning a number of specifications of error as grounds of reversal, only a portion of which are presented in his brief.

¶4 While reference is made in the brief of plaintiff to ordinance No. 144 and its invalidity, we do not deem it essential to a proper disposal of this appeal to consider or determine whether such ordinance is valid because it was apparently superseded by zoning ordinance No. 150, which latter ordinance is chiefly relied upon by defendants as a defense, and the argument of the parties is directed to the validity of the zoning ordinance.

¶5 One of the assignments of error relied upon and urged, but without any citation of authority supporting the same, is that the court erred in holding that the defendants were entitled to set out in their amended answer the zoning ordinance, because it was passed after the filing of the action, and in permitting such ordinance to be offered in evidence.

¶6 We fail to observe any error in the action of the trial court in permitting the defendants to set up in their amended answer the zoning ordinance. The mere fact that such zoning ordinance had not been enacted at the time the plaintiff commenced this action, would not preclude the defendants from pleading the same as a defense. Even were we to adjudge ordinance No. 144 invalid, such holding would not affect or invalidate the zoning ordinance, and the plaintiff would still be confronted with it.

¶7 Argument similar to the one advanced by the plaintiff here was presented in the case of State ex rel. Civello v. New Orleans (La.) 97 So. 440, 33 A.L.R. 260. It appears in that case, as in the instant one, the plaintiff attacked the validity of an ordinance prohibiting the erection of a business building in a certain portion of the city; subsequent to the filing of the case, the city enacted a further ordinance on the subject; the court there said:

"Relator's argument that the ordinance No. 6689 cannot govern this case without having a retroactive effect is not well founded. It is based upon the idea that relator, by applying for the permit, and by filing this mandamus suit to compel the issuance of the permit, became invested with an absolute right to the permit, which could not be divested by any subsequent legislation by the municipal council."

¶8 A zoning ordinance is not invalid as retroactive because made applicable to property for which a permit to construct a building has been applied for and a writ of mandamus sought to compel its issuance. That the court has decided that certain city zoning ordinances were ultra vires does not require the municipal authorities to ignore another ordinance forbidding the erection of a certain class of buildings in a prescribed district when application is made for a permit contrary to its terms.

"The fact that an owner of a town lot procured a writ of mandamus requiring a city to grant him a permit to erect a business building in a residential section of the city, and an injunction restraining the city from interfering with its erection, which judgments were entered before the city had any ordinance prohibiting such use of the property, did not prevent the city from enacting such valid zoning ordinance, nor make it inoperative as to the town lot in controversy as soon as it was enacted, when the status of the property was not changed in the short interval which elapsed between the entry of the judgments and the adoption of the zoning ordinance." Ware v. City of Wichita, (Kan.) 214 P. 99.

¶9 Plaintiff complains of the action of the court in permitting certain testimony by the mayor of the city relating to the enactment of the zoning ordinance, and says there was not competent evidence offered of the giving of the notice required by the state zoning statute, or of the proper publication of the zoning ordinance. The original zoning ordinance was admitted in evidence, and the plaintiff objected to its introduction, because it showed on it face that it was passed, or purported to have been passed, after the suit was filed, and cannot in any way affect the rights of the plaintiff, and for the further reason it does not show it was adopted regularly and in accordance with the statutes. The city clerk, testifying as a witness, was also tendered the printed book of the revised and compiled ordinances of the city which contained the zoning ordinances, and was asked the question: "Q. Is that the revised and published ordinances of the city of Frederick?" To which he answered: "A. Yes." Whereupon it was admitted in evidence over the objection of plaintiff, who objected to its admission because the book showed it was adopted subsequent to the time this case was filed and subsequent to the time it was reversed by the Supreme Court of the state of Oklahoma, and cannot affect the rights of plaintiff. The testimony complained of was that given by the mayor of the city, and is, in substance, as follows:

"Q. Just state what you did, Mr. Gamblin? A. We first, in passing that ordinance, elected a board of citizens. We elected a board, appointed by the council, of citizens that worked out the different zones for different businesses; that was brought back and put before the council."

¶10 Counsel for plaintiff objected on account of the...