City of Tucson v. Arizona Mortuary

Citation34 Ariz. 495,272 P. 923
Decision Date17 December 1928
Docket NumberCivil 2715
PartiesTHE CITY OF TUCSON, Appellant, v. ARIZONA MORTUARY, a Corporation, Appellee
CourtSupreme Court of Arizona

APPEAL from a judgment of the Superior Court of the County of Pima. C. C. Faires, Judge. Judgment reversed and cause remanded with instructions.

Mr. Ben C. Hill, City Attorney, for Appellant.

Messrs Campbell & Conner, for Appellee.



Arizona Mortuary, a corporation, hereinafter called plaintiff brought suit against the City of Tucson, a municipal corporation, hereinafter called defendant, to enjoin the latter from enforcing the provisions of Ordinance 600 of the City of Tucson, which regulates the location of mortuaries. The trial court granted the injunction, and from the decision of that court this appeal has been taken.

The facts of the case are as follows: On the twelfth day of May 1926, there was no ordinance in the City of Tucson regulating the location of mortuaries. All existing establishments of that nature were and had been for many years located in what is unquestionably the business district of the City, and within the limits of the mortuary district thereafter established by ordinance 600. About the date mentioned plaintiff purchased for the price of five thousand dollars a certain lot on the northeast corner of Stone Avenue and Third Street, applied for and received from the building inspector of Tucson a permit authorizing it to construct on said lot a mortuary building, entered into a contract for its erection, the estimated cost being in the neighborhood of twenty-five thousand dollars, and actually commenced work thereon. As soon as it became generally known that the mortuary was to be established, some fifty property owners in the vicinity thereof requested the mayor and common council to pass an ordinance regulating the location of the undertaking business, which would prevent plaintiff from using the site above referred to for that purpose. This petition was first presented to the council on May 21st, and the matter was discussed by the interested parties and referred to the city attorney for the purpose of investigation as to the law. While this investigation was under way plaintiff applied to the city license collector for a license to conduct an undertaking business at the location described, although the building was not then ready for use, and would not be for some months, and paid a license tax for the remainder of the current year in advance, although under the ordinances of Tucson such taxes are only payable quarterly, and proceeded with the construction of the mortuary. On the sixth day of July, Ordinance 600 was finally passed. At that time a number of the citizens who had previously protested against the location of the mortuary withdrew their objections, though the majority did not. The ordinance was adopted in the manner we shall hereafter describe, and thereafter this suit was commenced to enjoin its enforcement.

There are some thirty assignments of error, but we shall discuss them under four heads. The first is the general right of municipalities to regulate mortuaries; the second, the nature of the regulations permissible; the third, whether the ordinance in question goes beyond the permissible limits; and, the fourth, whether it was adopted as provided by law. It is generally conceded that mortuaries, to use the modern term applied to undertaking and embalming establishments, are subject to reasonable police regulation as to their location as well as to the manner in which they are conducted. The Supreme Court of Minnesota, in the case of Meagher et al. v. Kessler, 147 Minn. 182, 179 N.W. 732, says:

"It has been held, in a number of well considered cases, that undertaking and embalming establishments may be deemed nuisances, depending largely on the locality in which they are conducted. . . .

"The general principles involved in these cases fully justify the conclusions arrived at by the learned trial court in the case at bar. The feelings and sentiments of the respondents are those of the ordinary, normal individual living under similar conditions, that is, being compelled, by day and night, to look out from their homes upon an institution devoted solely to the carrying in and out of dead bodies, and the conducting of obsequies. It is the almost universal rule that an undertaking business is not a nuisance per se, but, as generally held, the ordinary person can hardly live next door to such an establishment without becoming depressed and more or less deprived of the comforts and enjoyment of his surroundings and when long continued it is liable to affect his general health.

"We conclude that the rule must be considered as well settled, and when the prosecution of a business, of itself lawful, in a strictly residential district, impairs the enjoyment of homes in the neighborhood, and infringes upon the well being and comfort of the ordinary, normal individual residing therein, the carrying on of such business, in such locality, becomes a nuisance and may be enjoined. There is no fixed or arbitrary rule, however, governing cases of this kind. Each must be determined by the particular facts and circumstances therein."

To the same general effect are the cases of: Goodrich v. Starrett, 108 Wash. 437, 184 P. 220; Osborn v. Shreveport, 143 La. 932, 3 A.L.R. 955, 79 So. 542; Spencer-Sturla Co. v. Memphis, 155 Tenn. 70, 290 S.W. 608; Brown v. Los Angeles, 183 Cal. 783, 192 P. 716; Odd Fellows' Cemetery Assn. v. San Francisco, 140 Cal. 226, 73 P. 987; Laurel Hill Cemetery Assn. v. San Francisco, 152 Cal. 464, 14 Ann. Cas. 1080, 27 L.R.A. (N.S.) 260, 93 P. 70.

The second question is, what limit is there to the regulating power of a municipality, or, in other words, what would be considered reasonable? So far as the operation of the business itself is concerned, it will doubtless be conceded that the municipality could pass any reasonable ordinance compelling the proprietors of such establishments to conduct them in as sanitary and inoffensive a manner as possible without defeating the obviously necessary purpose of their maintenance. The particular question is as to the reasonableness of limiting the places where they may be maintained.

The leading case in the United States on the general regulation of the location of business establishments is undoubtedly that of Euclid v. Ambler Realty Co., 272 U.S. 365, 54 A.L.R. 1016, 71 L.Ed. 303, 47 S.Ct. 114. In that case the village of Euclid had attempted to regulate the location of practically all classes of business within its limits by what is known as a "general zoning ordinance." The entire village was divided into some six classes of "use" districts, and these districts were classified rigidly in respect to the use to which buildings erected therein could be put. The Supreme Court of the United States, in discussing the constitutionality of such an ordinance, said:

"Building zone laws are of modern origin. They began in this country about twenty-five years ago. Until recent years, urban life was comparatively simple; but with the great increase and concentration of population, problems have developed, and constantly are developing, which require, and will continue to require, additional restrictions in respect of the use and occupation of private lands in urban communities. Regulations, the wisdom, necessity and validity of which, as applied to existing conditions, are so apparent that they are now uniformly sustained, a century ago, or even half a century ago, probably would have been rejected as arbitrary and oppressive. Such regulations are sustained, under the complex conditions of our day, for reasons analogous to those which justify traffic regulations, which, before the advent of automobiles and rapid transit street railways, would have been condemned as fatally arbitrary and unreasonable. And in this there is no inconsistency, for while the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation. In a changing world, it is impossible that it should be otherwise. But although a degree of elasticity is thus imparted, not to the meaning, but to the application of constitutional principles, statutes and ordinances, which, after giving due weight to the new conditions, are found clearly not to conform to the Constitution, of course, must fall.

"The ordinance now under a review, and all similar laws and regulations, must find their justification in some aspect of the police power, asserted for the public welfare. The line which in this field separates the legitimate from the illegitimate assumption of power is not capable of precise delimitation. It varies with circumstances and conditions. A regulatory zoning ordinance, which would be clearly valid as applied to the great cities, might be clearly invalid as applied to rural communities. In solving doubts, the maxim 'sic utere tuo ut alienum non laedas,' which lies at the foundation of so much of the common law of nuisances, ordinarily will furnish a fairly helpful clew. And the law of nuisances, likewise, may be consulted, not for the purpose of controlling, but for the helpful aid of its analogies, in the process of ascertaining the scope of, the power. Thus the question whether the power exists to forbid the erection of a building of a particular kind or for a particular use, like the question whether a particular thing is a nuisance is to be determined, not by an abstract consideration of the building or of the thing considered apart, but by considering it in connection with the circumentances and the locality. Sturges v. Bridgman,...

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