Blankenship v. City Of Richmond

• Decision Date: 08 September 1948
• Citation: 49 S.E.2d 321
• Court: Virginia Supreme Court
• Parties: BLANKENSHIP et al. v. CITY OF RICHMOND.

49 S.E.2d 321

BLANKENSHIP et al.

v.CITY OF RICHMOND.

Supreme Court of Appeals of Virginia.

Sept. 8, 1948.

Appeal from Chancery Court of Richmond; Brockenbrough Lamb, Judge.

Suit by R. L. Blankenship and others against the City of Richmond to have zoning ordinance declared void, and to enjoin the city from enforcing the provisions of the ordinance. From a decree, the complainants appeal.

Affirmed.

Before HUDGINS, C. J., and EGGLES-TON, SPRATLEY, BUCHANAN, STAPLES and MILLER, JJ.

May, Simpkins, Young & Rudd, of Richmond, for appellants.

J. Elliott, Drinard, of Richmond, for appellee.

HUDGINS, Chief Justice.

The forty-two parties whose names are signed to the bill in this cause allege:

(1) that they are residents of, and property owners in, "the area adjacent to the 3400 block of Forest Hill avenue in Richmond, Virginia;" (2) that they acquired their respective homes in this area on the belief that it would continue to be classified under the zoning ordinance of the City of Richmond as a residential district; (3) that on July 13, 1945, without their knowledge, the city adopted an ordinance changing the classification of the south side of the 3400 block of said avenue from "C-Single Family Dwelling District" to "G-Local Business District."

It is charged in the bill that the zoning ordinance changing the classification of the area is null and void because: (a) proper legal notice of the public hearing on the adoption of the ordinance was not given; (b) the adoption of said ordinance was procured upon the urgent personal solicitation of P. L. Travis who, at the time, was a member of the city council representing Madison ward, in which ward the 3400 block of Forest Hill avenue is located; Travis prior to the adoption of the ordinance had secured an option to purchase a dwelling house situated on the corner of Forest Hill and Dundee avenues within this block, which option was to become effective only in the event that the 3400 block was changed from a residential to a business district so as to permit the erection and maintenance of a filling station on the lot; (c) after the ordinance was adopted, Travis exercised the option to purchase, erected a filling station, and is now operating it as permitted by the ordinance; and (d) the ordinance was adopted solely for the personal and private gain of Travis.

The prayer of the bill is: (1) that the ordinance be declared null and void, and (2) that the city be enjoined from enforcing the provisions of the ordinance and from "permitting the use of the balance of the 3400 block of Forest Hill avenue outside of the filling station of the said P. L. Travis other than as a C-Single Family Dwelling District" and for general relief.

Complainants obtained this appeal from a decree sustaining the demurrer filed by the City of Richmond, the only respondent.

It is contended in this court that the ordinance is null and void for two reasons: (1) that legal notice was not given for public hearing on the adoption of the ordinance, and (2) that it was initiated, procured, and adopted for the personal, private, and pecuniary interest of a member of the council.

Chapter 197 of the Acts of 1926, Michie's Code, section 3091(1) to 3091(26) authorizes the councils or other governing bodies of municipalities to divide the municipal area into zones or districts and to regulate the use of lands and buildings therein. Subsection (4) of said act provides that no such zoning or regulating ordinance shall become effective "until after a public hearing in relation thereto, at which parties in interest and citizens shall have an opportunity to be heard. At least fifteen days' notice of the time and place of such hearing shall be published in an official paper, or a paper of general publication, in such city or town."

Pursuant to this enabling act, the City of Richmond adopted a comprehensive zoning ordinance which was approved on May 19, 1943, under which ordinance the 3400 block of Forest Hill avenue was classified as a "C-Single Family Dwelling District." Subsection (5) authorizes such zoning ordinances to be amended, supplemented, changed, modified, or repealed, but provides that no such amended ordinance shall become effective until notice of a public hearing as provided for in subsection (4) shall be given.

Complainants concede that notice of the time and place of the hearing on the ordinance of July 13, 1945, was published for more than fifteen days in the Richmond Times Dispatch, a paper of general circulation in the City of Richmond, but they contend that this publishing of the notice was inadequate because it appeared in the paper in small type and an inconspicuous place and they did not see it. They intimate that, had the notice appeared in larger type or in another form or in anotherplace in the newspaper they might have seen it.

The provisions of the statute requiring notice to be given and a public hearing to be held do not prescribe the character of the notice, the size of type to be used in its publication, or where it shall appear in the newspaper. The statute is similar in this respect to many others, notably the statutes dealing with orders of publication, section 6070, service of notice generally on non-resident defendants in divorce cases, section 5108, service of notice in condemnation proceedings, sections 4365, 4374, service of notice relating to acts of the State Corporation Commission affecting transportation and transmission companies, section 156 of Constitution, and many others. In no instance do there appear any specifications governing the size of type, form or place where the notice shall appear in the newspaper.

It appears from a copy of the notice as published, filed as Exhibit A in the record, that the type used is identical in size and appearance with other legal notices required by statute appearing almost daily in the newspapers of the city and State. The fact that the complainants did not see the notice certainly cannot affect the validity of the ordinance in question when everything required by the statute was done before its adoption. It is a matter of almost daily occurrence that rights are affected and the status of relationships is changed upon the giving of similar notice, but no one may successfully contend that acts predicated upon such notice are rendered invalid because persons affected did not see the notice in the newspaper.

The ordinance of May 19, 1943, whereby the area in question was classified as a residential district was adopted after publication of notice in the same type and in a similar place in the newspaper. Yet the complainants insist that publication of the notice in the first instance was sufficient while they insist that a similar publication of notice on the adoption of the ordinance of July 13, 1945, was insufficient. The position is inconsistent and there is no merit in this contention.

The substance of complainants' next contention is that the ordinance is void because it was passed at the solicitation and for the personal gain of Travis, a member of the council, who thereby was enabled to erect and maintain a filling station in an area which prior to the adoption of the ordinance had not been possible.

The facts admitted on demurrer do not present a case within the influence of that excellent principle of the common law which prohibits a member of a municipal council from contracting with the municipality for personal gain. This concept of the common law principle is expressed in Code, section 2708, and Chapter 4, section 8, of the Code of the City of Richmond. See Bristol v. Dominion National Bank, 153 Va. 71, 149 S.E. 632.

Every public official whether a member of the administrative, legislative, or judicial branch of the government, should impartially perform his official duty for the good of the public, uninfluenced by thoughts of personal gain or loss. Such officials are trustees for the people who have a right to require them to exercise their best judgment in everything that appertains to the people or their welfare, unaffected and unprejudiced by anything that might inure to the officials' own interest as individuals. However, where a member of the legislative branch of the government offends in these particulars in performance of a purely legislative duty, he is answerable to the electors from whom he derived his official position and not to the courts which have no power to inquire into the motives which prompted his action on a...