Marshall v. City of Mobile

• Decision Date: 27 May 1948
• Docket Number: 1 Div. 327.
• Citation: 250 Ala. 646,35 So.2d 553
• Parties: MARSHALL v. CITY OF MOBILE.
• Court: Alabama Supreme Court

35 So.2d 553

250 Ala. 646

MARSHALL v. CITY OF MOBILE.

1 Div. 327.

Supreme Court of Alabama

May 27, 1948

Johnston McCall & Johnston, of Mobile, for appellant.

Harry Seale, of Mobile, for appellee.

GARDNER Chief Justice.

The City of Mobile, pursuant to the general law (Title 37, § 774 et seq., Code 1940), adopting a zoning ordinance for the municipality, establishing varying districts, among the first of which is known as 'A-Residential District,' including single family dwellings, schools and colleges libraries, churches, police and fire department stations parks, recreation buildings, golf club buildings and accessory uses incident to these matters.

Complainant Robert L. Marshall is the owner of a lot situated at the corner of Dauphin and Pine streets in the said city, fronting 57 feet on Dauphin street with a depth of 116.5 feet along North Pine street, and is located within said 'A-Residential District,' and upon which he desires to erect a store building. Being unsuccessful with the city authorities in his efforts to obtain a permit complainant filed this bill under what is known as the Declaratory Judgment Act found in Title 7, § 157, Code 1940, to have declared his rights, status or other legal relations under the zoning ordinance above referred to, and to have the ordinance declared invalid as applied to his property.

From the ruling of the court sustaining the demurrer to the bill, as amended, complainant has prosescuted this appeal.

It is clear enough in filing the bill the proper remedy has been pursued, a question here not controverted. Title 7, § 156 et seq., Code 1940; Chapman v. City of Troy, 241 Ala. 637, 4 So.2d 1; Morgan v. Board of School Commissioners, 248 Ala. 22, 26 So.2d 108.

Attached to the bill is a diagram showing the block upon which plaintiff's lot is located, and by virtue of its location the insistence is that the ordinance presents an arbitrary classification, and that the restriction against the improvement by the erection of a store building in effect deprives complainant of his property without due process of law in violation of both the state and federal constitutions. Ala.Const. 1901, Art. 1, § 13; U.S.Const. Amend. 14.

The City in the exercise of its police power may enter into a comprehensive zoning scheme, the wisdom of which in large part rests in the wise discretion of the municipal authorities. Altho in the beginning there may have been a diversity of opinion, this is now generally accepted by all the courts, both state and federal. See note to Arverne Bay Const. Co. v. Thatcher, 117 A.L.R. 1110; note to State of Washington ex rel. Seattle Title Trust Co. v. Roberge, Superintendent, etc., 86 A.L.R. 654; note to State Bank & Trust Co. v. Wilmette, 96 A.L.R. 1327. In Leary v. Adams, 226 Ala. 472, 147 So. 391, the authorities were rather extensively reviewed with much stress laid upon the leading case of Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303, 54 A.L.R. 1016.

To enter into any detailed discussion of the authority of the municipality, or the zoning board, would be but a repetition of much of what was said in Leary v. Adams, supra, with which, of course, counsel are well familiar. We there recognized that governmental interference with the lawful use of one's property by zoning ordinance is not unlimited, and such restrictions should bear some substantial relation to the public health, safety, morals, or general welfare, or, as otherwise expressed, the public convenience or the general prosperity. We also observed that the inclusion of a reasonable margin, to insure effective enforcement, will not put upon a law, otherwise valid, the stamp of invalidity, and that in some instances the bad fades into the good by such insensible degrees that the two are not capable of being readily distinguished and separated in terms of legislation. The courts recognize that in the passing of such general zoning ordinance, the municipal authorities act in a legislative capacity, and that their superior opportunity to know and consider the varied and conflicting interests involved, to balance the burdens and the benefits, to lay out zoning districts with a view to the general welfare of the city, render the courts slow to set up their own opinions as against those charged with and in position to rightly perform such duty. Before the courts will interfere, it must be made to appear that such an ordinance passes the bounds of reason and assumes the character of a merely arbitrary fiat.

In Leary v. Adams, supra, we recognized the strong appeal from the standpoint of financial loss occasioned by the restriction imposed by the ordinance there in question. We answered the arguement by following a statement of the North Carolina court in City of Elizabeth City v. Aydlett, 201 N.C. 602, 161 S.E. 78, to the effect that financial loss is not the test. If the question is fairly debatable, the court will not substitute its judgment for that of legislative body which creates the ordinance. We also noted an extract from Hadacheck v. Sebastian, 239 U.S. 394, 36 S.Ct. 143, 145, 60 L.Ed. 348, Ann.Cas.1917B, 927, as follows: 'It is to be remembered that we are dealing with one of the most essential powers of government,--one that is the least limitable. It may, indeed, seem harsh in its exercise, usually is on some individual, but the imperative necessity for its existence precludes any limitation upon it when not exerted arbitrarily.'

As we construe the amended bill in the instant case complainant applied to the building inspector of the City of Mobile for a permit to construct a store building on the above described real estate. This permit was denied upon the theory that the property was located within the 'A-Residential District.' Complainant then appealed to the Board of Commissioners of the city, which refused the application for like reason. As we interpret paragraph 7 of the amended bill, complainant sought to have the ordinance amended by the Board of Commissioners, which application came on for hearing at a regular session of the Board of Commissioners of the city, and upon said hearing the permit was again denied, whereupon the application was withdrawn. Construing the averments of the amended bill against the pleader, we may assume that the application for a change in the ordinance was duly heard after notice given pursuant to §§ 778, 779, Title 37, Code 1940. Upon this hearing a petition was presented opposing the application.

The theory upon which relief is sought is twofold, as we understand it. First, that due to the surrounding facts and circumstances concerning the particular block within which complainant's lot is located, the zoning ordinance classifying this particular block as 'A-Residential District' is discriminatory and arbitrary and of consequence is void. In the second place, that if this position is not sustained that it is rendered invalid by the arbitrary...