City of Jackson v. McPherson

Decision Date04 January 1932
Docket Number29484
CourtMississippi Supreme Court
PartiesCITY OF JACKSON v. MCPHERSON

(In Banc.)

1. MUNICIPAL CORPORATIONS.

Zoning statute held valid (Code 1930, sections 2474-2481).

2. MUNICIPAL CORPORATIONS.

APPEAL from circuit court of Hinds county HON. W. H. POTTER, Judge.

W. L McPherson applied to the city of Jackson for a permit to erect a gasoline service station, and, from the action of the city commissioners in refusing the permit, applicant appealed to the circuit court, where the action of the city authorities was reversed and the permit was ordered to be issued, and the city appeals. Reversed and rendered.

Reversed, and judgment here for appellant.

W. E. Morse, of Jackson, for appellant.

The enforcement of police regulations is not the taking of property without due process of law.

Sedgwick on Statutory and Constitutional Law, page 507; Parker &amp Worthington, Public Health and Safety, page 25, sec. 18; Lewis on Eminent Domain (2 Ed.), par. 187; Cooley's Constitutional Limitations, ch. 16; Dillon's Municipal Corporations (2. Ed.), sec. 93, 179 N.Y. 325; Commonwealth v. Alger, 61 Mass. 53, 85.

The Fourteenth Amendment of the Constitution does not impair the police power of a state or a municipality.

113 U.S. 27; Chicago & Burlington R. R. Co. v. People, 200 U.S. 561; C. & A. R. R. Co. v. J. L. & A. R. R Co., 105 Ill. 388; Windsor v. Whitney, 95 Conn. 357, 111 At. 354; Munn v. Illinois, 94 U.S. 113; Barbier v. Connelly, 113 U.S. 27.

While the police power of the state cannot be so arbitrarily exercised as to deprive persons of their property without due process of law or deny them equal protection of the law, it is one of the most essential powers of the government and one of the least limitable; in fact, the imperative necessity for its existence precludes any limitation upon it, when not arbitrarily exercised.

239 U.S. 394.

The police power, so difficult to define, but so frequently invoked, is confined to such restrictions and prohibitions as are necessary to guard public health, morals and safety, and to conserve public peace, order and the general welfare. Regulations and ordinances within such general definitions are valid. The city may make and enforce such regulations and ordinances, although they interfere with and restrict the use of property. Compensation for such interference with and restriction in the use of property is found in the share that the owner enjoys in the common belief secured to all.

218 N.Y. 542.

The police power of a state embraces regulations for the general prosperity as well as regulations designed to promote public health and the public morals or the public safety.

200 U.S. 592.

The legislature may make police regulations, although they may interfere with the full enjoyment of private property and although no compensation is given.

Sedgwick's Stat. & Const. Law 506.

The police power is not a fixed quantity, but the expression of social economic and political conditions. As long as these conditions vary, the police power must continue to be elastic, i. e., capable of development.

Freund on Police Power.

The zoning law and ordinance are valid police regulations.

Section 6, Constitution of Mississippi; Longshore v. City of Montgomery, 22 Ala.App. 620, 119 So. 599; White v. Funeral Home, 129 So. 84; Herrying v. Stannus, 190 Ark. 244, 275 S.W. 321; Miller v. Board of Public Works of Los Angeles, 195 Cal. 477, 234 P. 381; Zahn v. Board of Public Works of Los Angeles, 195 Cal. 497, affirmed 274 U.S. 325; Fourcade v. City of San Francisco, 196 Cal. 655, 238, P. 934; Building Inspector v. Cook, 54 Cal. 320, 130 P. 828; Averch v. City and County of Denver, 78 Colo. 246, 242 P. 47; Colby v. Denver, 81. Colo. 344, 255 P. 443; Whitney v. Town of Windsor, 95 Conn. 357, 111 A. 354; State v. Hillman, 147 A. 294; Del., Wilmington v. Turk, XIV Del Chan. Reg. 392, 129 A. 512; Schwartz v. Brownlow, 50 Appeal Cases 279; Florida, State ex rel. Raylor v. Jacksonville, 133 So. 114; Georgia, Howdin v. Savannah, 159 S.E. 401; Illinois, Aurora v. Burns, 319 Ill. 84, 149 N.E. 784; Deynzer v. City of Evanston, 319, Ill. 226, 149 N.E. 790; lowa, Des Moines v. Manhattan Oil Co., 193 Ia. 1096, 184 N.W. 823; Marquis v. City of Waterloo, 228 N.W. 870; Kansas, Ware v. City of Wichita, 113 Kan. 153, 214 P. 94; West v. Wichita, 118 Kan. 265; Louisiana, Civello v. New Orleans, 154 La. 271, 97 So. 440; Du Bois v. New Orleans, 154 La. 287, 95 So. 445; Palmer v. New Orleans, 161 La. 1103, 109 So. 916; Roberts v. New Orleans, 162 La. 202, 110 So. 201; Maine, York Harbor Village v. Libby, 126 Me. 537, 140 A. 382; Maryland, Appelstein v. Baltimore, 156 Md. 40, 143 A. 666; 234 Mass. 597; Lowell v. Stokloss, 250 Mass. 52, 145 N.E. 262; Spector v. Milton, 250 Mass. 63, 145 N.E. 265; Michigan, Dawley v. Ingram, Circuit Judge, 242 Mich. 247; Lansing v. Dawley, 225 N.W. 500; Minnesota, Berry v. Houghton, 164 Minn. 146, 204 N.W. 569; Missouri, Oliver Cadillac Co. v. Christopher, Buildhing Commissioner, 317 Mo. 1179, 298 S.W. 720; New Hampshire, Sundeen v. Rogers, 83 N.H. 253, 141 A. 142; New Jersey, Marks v. Building Inspector of New Jersey, 3 N.J.Misc. 265, 127 A. 783; Durkin Lumber Co. v. Fitzsimmons, 147 A. 555; Hench v. East Orange, 2 N. J. Misc. 510, 130 A. 363; Kopling v. South Orange, 142 A. 235, 144 A. 920; New York, Lincoln Trust Co. v. Williams Building Corp., 229 N.Y. 313, 128 N.E. 209; Biggs v. Steinway, 229 N.Y. 320, 128 N.E. 211; Wulfshow v. Burden, 241 N.Y. 288; North Carolina, Hardin v. Raleigh, 192 N.C. 395, 135 S.E. 151; Morris v. Osborn, Building Inspector of Cleveland, 22 N. P. (N. S.) 549; Euclid v. Ambler Realty Co., 272 U.S. 365, 61 L.Ed. 303; City Ice & Fuel Co. v. Stegner, 120 O. S. 418, 166 N.E. 126; Oklahoma, DeLano v. City of Tulsa, 26 F. 640; McCurley v. El Reno, 280 P. 467; Oregon, Kroner v. Portland, 116 Ore. 141, 240 P. 536; Pennsylvania, Ward's Appeal, 289 P. 458, 137 A. 630; Kerr's Appeal, 294 Pa. 246; Rhode Island, Richard v. Zoning Board of Review, 47 R. I. 102, 129 A. 736; Madden v. Zoning Board of Review, 48 R. I. 175, 136 A. 493; Tennessee, Spencer Sturla Co. v. Memphis, 155 Tenn. 70, 290 S. W., 608; McEachern v. Town of Highland Park, 34 S.W. (2d Series) 676; Salt Lake City v. Western Foundry Stove Repair Works, 55 Utah 447, 187 P. 829; Virginia, Goriev v. Fox, 145 Va. 554, 134 S.E. 914, 274 U.S. 603, 47 S.Ct. 675; Washington, State v. Roberge, 144 Wash. 74, 256 P. 781; Wisconsin, Carter v. Harper, 182 Wis. 148, 196 N.W. 451; Zahn v. Board of Public Works, 247 15. S. 325.

A police regulation is different from any other regulation.

Sections 6 and 190, Constitution of Mississippi.

We cannot contract away our police rights under the Constitution, and neither can the court construe away the police rights of the people by its decisions. It is a thing inherent in the people. It is different from contractual relation. Contractual relation is bound by the law of the land. Zoning regulations cannot be justified on any other ground than police regulation, and if it is a police regulation then the line of cases of stare decisis or the rule with reference to the property would not be applicable.

Howie & Howie, of Jackson, for appellee.

The right to acquire and use one's property as the owner chooses so long as the use harms nobody's natural rights is the natural right to which the police power of the state is subordinate. It is not within the police power of the municipality to enact an ordinance prohibiting the erection of a building for business purposes or for conducting a business in the residential portion of the municipality.

Fitzhugh v. City of Jackson, 132 Miss. 525, 97 So. 190.

The constitutional guarantee is protection of the natural rights against arbitrary exercise of the police power subject to the regulation made under the police power for the health, safety, morals or general welfare of the community.

Sections 14 and 17, Constitution of Mississippi.

If the police power attempted to be exercised does not fall within the above classifications, then the same deprives the individual of the natural rights guaranteed to him by the Constitution and which, when tested by judicial interpretation, must be declared to be void and of no effect.

Terrace v. Thompson, 68 L.Ed. 255, 263 U.S. 197; Valley Railways Co. v. City of Harrisburg, 124 A. 644.

The right to deal with one's property as the owner chooses, so long as the use harms nobody, is a natural right and one guaranteed by our state and federal constitutions.

Reimer v. Dallas, 129 A. 390.

The state cannot by its laws unduly and unnecessarily interfere with a person in the exercise of his inherent rights or the unlimited control and use of his property.

State v. J. J. Newman Lumber Co., 59 So. 923, 102 Miss. 802; Davis v. Florida Power Company, 60 So. 759.

State v. Armstead, 60 So. 778, 103 Miss. 790; Maxwell v. City of Miami, 100 So. 147; People v. Chicago M. & St. P. Ry. Co., 306 Ill. 486, 138 N.E. 155, 28 A. L. R. 610.

The doctrine is well established that to the extent that property or business is devoted to the public use or is effected with public interest, it is subject to regulation under police power. Furthermore, the right of private property does not include the right to use it in manner injurious to the public and all such uses may be forbidden. Subject to these limitations however, the right of the owner of the property to use it in any manner that he pleases is inherent attribute of private property, and any attempt by statute or ordinance to forbid such use is void as violation of the constitutional guaranties against depriving a person of property without due process of law.

12 C. J., page 922, and note page 924.

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