City of Gulfport v. Daniels, 40530

• Citation: 64 A.L.R.2d 1161,231 Miss. 599,97 So.2d 218
• Decision Date: 07 October 1957
• Docket Number: No. 40530,40530
• Parties: , 64 A.L.R.2d 1161 CITY OF GULFPORT, Miss. v. Mrs. Eugene L. DANIELS.
• Court: United States State Supreme Court of Mississippi

Page 218

97 So.2d 218

231 Miss. 599, 64 A.L.R.2d 1161

CITY OF GULFPORT, Miss. v. Mrs. Eugene L. DANIELS.

No. 40530.

Supreme Court of Mississippi.

Oct. 7, 1957.

Owen T. Palmer, Jr., Charles R. Galloway, Gulfport, for appellant.

Aubert Dunn, Viola Hilbert, Gulfport, for appellee.

ETHRIDGE, Justice.

This suit was brought by the City of Gulfport, appellant, in the Chancery Court of Harrison County against appellee, Mrs. Eugene L. Daniels, to enjoin her from the alleged violation of a city zoning ordinance. The chancery court held that the complainant's evidence was 'inconclusive' and insufficient to show that defendant was violating the ordinance.

For sometime prior to October 1955 Mrs. Daniels operated a child nursery and kindergarten at Mississippi City, which is several miles from Gulfport. Its business name was the 'Day and Nite Nursery and Wonderland Kindergarten'. In that connection she had a licensed teacher to teach the children, and a good bit of school and play equipment. Several children boarded with her in Mississippi City, that is, they lived at her place and received their meals there, for a fee paid by their parents. Two or three of them came with her when she moved to Gulfport.

In September 1955 she and her husband leased a large house in a residential area in Gulfport. They have eight young children of their own. Defendant apparently intended to continue operation of the Day and Nite Nursery and Wonderland Kindergarten in Gulfport, in the same manner in which she had operated it in Mississippi City. However, she inquired of several of her new neighbors, and they expressed objection to it. Because of the size of her own family, she and her husband spent about $3,000 to enlarge the house which they had leased at 1506 19th Avenue, Gulfport, primarily by enclosing a large front porch and thereby making several additional rooms. Most of the kindergarten and play equipment which she had used at Mississippi City was stored in the attic, although three sets of swings were placed in the yard along with some smaller items of play equipment. This was not an excessive amount for her own children.

After Mrs. Daniels moved into the house on 19th Avenue in Gulfport, she proceeded to offer boarding facilities to children, and took as boarders with her six children. At no time has she had in the Gulfport residence more than six children as boarders. At the time of the trial in October 1956 she had six children boarding with her, some during the day only, others around the clock. One was in the second and one in the third grade, staying there for two or three weeks while their parents were out of town, for a fee of $18 per week each. A little girl age five had been boarding with her since she was 18 months old, for $16 per week. Another girl age three was staying for two or three weeks, at $16 per week. Two other children, age six weeks and seventeen months, respectively, stayed with defendant daily while their mothers taught school and worked as a secretary, at fees of $7.50 and $8.50 per week. Appellee furnishes the children in school their school lunch money. She feeds them their meals. She employs three colored servants, a cook, a housekeeper, and a maid who work until 8 p. m., after which appellee does any other work in connection with the boarding children which might be necessary. She bills the parents for any medical services or clothes which it becomes necessary for her to obtain for the children. Of course her own eight children live in the house in addition to the six who are there during the day and some of them at night.

The question is whether this limited business conducted by Mrs. Daniels at her family's home on 19th Avenue in Gulfport constitutes a violation of the zoning ordinances. Section 3 of Ordinance 611, enacted in 1940, provides use regulations for residential districts. Appellee's home is in a residential district. Section 3 states in part:

'In a Residential District, no building shall be erected, altered or used for any purpose nor shall any premises be used for any purpose except: * * *.

'4. The taking of boarders or the leasing of rooms by a resident family, provided that in such boarding or rooming house the total number of boarders or roomers does not exceed six for each dwelling.' Such residential districts may be used also for a detached dwelling for not more than two families, attached one or two family row houses, apartment houses, church, school, non-commercial library or museum, club, hospital or sanitorium, but not for the care of the feeble minded or of animals, etc.

Appellee contends that the business which she conducts on a limited scale in her family home is within the quoted part of Section 3, being the taking of boarders not exceeding six.

Section 25 of Ordinance 611 contains certain definitions, including one of a 'boarding house': 'The taking of boarders or the furnishing of meals to persons by the resident family of a dwelling, such persons residing in the City of Gulfport on a permanent or semi-permanent basis (one month or longer).'

In 1953 the Mayor and Board of Commissioners of Gulfport enacted Ordinance No. 850, which amended No. 611 by adding an additional section. No. 850 recited that in numerous cases hardships are worked upon citizens because there is not a provision for the issuance of temporary licenses or permits for the carrying on of certain types of businesses in the residential districts, and that it was for the best interest of all to have such a clause. The Mayor and Board of the City may in their discretion issue a temporary license or permit not to exceed one year to operate in the residential area certain businesses 'described as: Physicians, lawyers, insurance, real estate, beauty parlors, child nursery or kindergarten, barber shop, architects, and similar type business'.

Zoning ordinances should be given a fair and reasonable construction, in the light of their terminology, the objects sought to be obtained, the natural import of the words used in common and accepted usage, the setting in which they are employed, and the general structure of the zoning ordinance as a whole.

A boarding house is a place where the guest is under an express contract for food and lodging at a certain rate for a period of time. It is less public in character than an inn or hotel, and arranges with its guests to provide for them during some more or less definite period. It also involves the maintenance of the establishment by a private family living in the house. 5 Words and Phrases, 1940, Boarding House, pages 568 et seq. This generally accepted definition is consistent with that in Ordinance 611, which permits in a residential district the taking of not more than six boarders by a resident family. The quoted definition of boarding houses in Section 25 of the Ordinance does not alter the commonly accepted meaning of a boarding house, except as to the limitation in number, and the requirement that the persons should be city residents on a permanent or semi-permanent basis.

The great weight of the testimony supports what we must assume the chancery court found in its final decree, that the six children who were boarding with Mrs. Daniels in her family's home met these requirements. We think that within the terms of the ordinance her limited business constituted the taking of boarders within the permissible uses in a residential district. The ordinance does not designate what the ages of such boarders should be, assuming such a classification would be reasonable. It certainly does not preclude the boarding of children. In fact, the 'taking of boarders' means just what it says, the...