Masters v. Pruce

• Decision Date: 08 February 1973
• Docket Number: 6 Div. 942
• Citation: Masters v. Pruce, 290 Ala. 56, 274 So.2d 33 (Ala. 1973)
• Parties: R. E. MASTERS et al. v. Marcia Smolian PRUCE et al.
• Court: Alabama Supreme Court

Page 33

274 So.2d 33

290 Ala. 56

R. E. MASTERS et al. v. Marcia Smolian PRUCE et al.

6 Div. 942.

Supreme Court of Alabama.

Feb. 8, 1973.

John T. Roach, Jr., Birmingham, for appellants.

Dale Corley, Birmingham, for appellees.

BLOODWORTH, Justice.

This case was originally assigned to another justice. It was reassigned to the writer for the preparation of an opinion for the court. On rehearing, the application for rehearing is granted, and the original opinion, prepared by the writer, is withdrawn and the following opinion substituted therefor.

Appellants filed a bill of complaint in the circuit court of Jefferson County, in equity, seeking to obtain a permanent injunction against appellee, James E Norris, as Zoning Administrator of Jefferson County, to restrain him from issuing a building permit for the construction of an apartment complex on a tract of real property, lying within the police jurisdiction of the City of Vestavia Hills but outside its corporate limits. The bill also prayed that the court declare Acts 1177 and 1178 of the Alabama Legislature, approved September 13, 1969, General Acts of 1969, unconstitutional, and that the court determine that the Jefferson County Commission, the Jefferson County Board of Zoning Adjustment, and the Jefferson County Planning and Zoning Commission were without authority to change the zoning classification of the property, and for other, further and different relief to which they might be entitled.

The appellants are owners of residential dwellings near the property in question, the latter tract being owned by the appellees, Isadore Pizitz, John H. Jacobson and Marcia Smolian Pruce. Appellee, Stuart W. Gaines, is the party who filed the rezoning petition.

Prior to September 13, 1969 (the date when Acts 1177 and 1178 became effective), the City of Vestavia Hills, Alabama, exercised zoning jurisdiction and control over the property in question. It was zoned R--2.

Sometime after that date, Jefferson County commenced to exercise zoning over this property.

The zoning classification of the tract was changed from R--1, residential district, and C--1, commercial district (its previous county zoning classifications) to R--4, multiple dwellings, by a resolution of the Jefferson County Commission adopted on May 25, 1971.

The pertinent portions of the acts in question are as follows:

'Act No. 1177

'* * *

'Section 1. Definitions: For the purposes of this Act, certain terms are defined as follows:

"County' shall mean any county of this state having a population of 600,000 or more according to the 1940 federal census or any succeeding decennial federal census.

'* * *

'Section 2. Any county which has heretofore or shall hereafter adopt zoning regulations shall have exclusive jurisdiction over all matters relating to such zoning within all areas of the county not lying within the corporate limits of any municipality in such county. From and after the adoption by the county of such zoning regulations, any and all jurisdiction of any municipality as to any area outside its corporate limits as to any matter relating to zoning is and shall be withdrawn and taken away.

'* * *

'Section 5. All laws or parts of laws in conlflict with this Act are hereby superseded.

'Section 6. If any section, provision, sentence or phrase of this Act shall be declared unconstitutional, or void for any reason, such adjudication shall not affect any other provision hereof, and the remainder thereof shall be left intact and valid.

'Section 7. This Act shall become effective immediately upon its passage and approval by the Governor, or upon its otherwise becoming law.

'Approved September 13, 1969.

'Time: 4:42 P.M.'

'Act No. 1178

'* * *

'Section 1. The title of Act No. 344, H. 775 of the Regular Session of 1947 (General Acts 1947, p. 217) is hereby amended to read as follows: 'An Act to empower any counties having a population of 400,000 or more according to the 1940 or any succeeding federal census to provide for, regulate, and restrict in the unincorporated portions of the county including that area lying outside the corporate limits of the municipalities of the county but within the police jurisdiction of such municipalities, the use and construction of buildings, structures and land for trade, industry and residence; to establish set-back lines for buildings and structures along the roads and streets; to prescribe certain duties and functions of the county planning commissions; to provide for county boards of zoning adjustment and define the authority, powers, and functions of such boards, and procedure and appeals from their decisions; and to provide remedies for the enforcement of ordinances, resolutions, and regulations made by such counties under authority of this act.'

'Section 2. Section 1 of said Act No. 344 of the Regular Session of 1947, as heretofore amended, is further amended to read as follows:

"Section 1. For the purpose of promoting health, safety, morals, or the general welfare of the county, the governing body of any county having a population of 400,000 inhabitants or more according to the 1940 or any succeeding decennial Federal census, (herein called the 'County'), is hereby empowered to regulate and restrict the use and construction of buildings, structures and land for trade, industry and residence; and to establish setback lines for buildings and structures along the roads and streets in the unincorporated areas of the county including all areas within the police jurisdiction of any incorporated minicipality even the area within the police jurisdiction of a municipality over which the governing body of such municipality is exercising zoning jurisdiction and control when this amendment becomes effective; and all the rights, powers and authority relative to zoning in such areas heretofore vested in any municipality in any such county having a population of more than 400,000 according to the most recent federal decennial census is hereby withdrawn and taken away.'

'Section 2. This Act shall become effective immediately upon its passage and approval by the Governor, or upon its otherwise becoming a law.

'Approved September 13, 1969.

'Time: 4:42 P.M.'

In its final decree, the trial court held both acts were valid, constitutional, and that 'the legislative intent and the statutory effect' of Acts 1177 and 1178 were to repeal and supersede prior legislative enactments in conflict with them.

I.

Appellants insist, in brief, that Act 1178 did not amend all the sections of Act 344 of the Alabama Legislature, approved August 15, 1947, General Acts of 1947, as amended last on August 16, 1949 (appears as §§ 970--974, Appendix, Vol. 14, Code of Alabama), necessary to accomplish its stated purpose.

By Act 1178 only the title and Section 1 of Act 344 were amended. Act 1178 did not amend Section 4 of Act 344, as amended in 1949, which provides as follows:

'Section 4. Method of Procedure.--The governing body of the county may, by resolution or order, exercise the powers granted to it in Section 1 of this Act, for the entire unincorporated area of the county, excluding part or all of any areas within the police jurisdiction of any incorporated municipality over which the governing body of such municipality is either already exercising zoning jurisdiction and control, or shall actively exercise zoning jurisdiction and control within 180 days after the effective date of this act, or in the case of a municipality subsequently incorporated, within 180 days from the date of its incorporation. Before enacting any such resolution or order, the governing body shall hold a public hearing thereon, at least fifteen days' notice of which shall be published in a newspaper of general circulation within the county. Such publication shall include the time and place of said hearing, but shall not be required to include the text or further description of said resolution or order if the county has already taken action in accordance with Section 5 of this Act. No change in, or departure from, the text or maps of the zoning resolution or order shall be made, unless such change or departure receive the favorable vote of a majority of the entire membership of the governing body. All such resolutions or orders, including maps, and all amendments, supplements, changes, modifications and repeals of such resolutions or orders shall be filed in the office of the Judge of Probate of the county, and shall there, as well as in the offices of the governing body of the county, be open to public inspection, free of charges.'

Thus, it can be readily seen that Section 1 of Act 344, as previously amended in 1949 and as amended by Act 1178, and Section 4 of Act 344, as amended in 1949, are in direct conflict with each other. Section 1, as amended by Act 1178, purports to grant any such county the power to exercise zoning in the unincorporated areas of the county, including all areas within the police jurisdiction of any incorporated municipalities and withdraws that power from any incorporated municipalities. On the other hand, Section 4 excludes such areas in the police jurisdiction of incorporated municipalities from county zoning where these municipalities are exercising such power.

Section 4 of Act 344, as amended, contains the implementing legislation necessary to exercise the powers granted to the counties in Section 1; Section 1 being a grant of powers.

In Opinion by the Justices, 249 Ala. 88, 30 So.2d 14 (1947), it was stated that:

'It is a well recognized rule of law that in the enactment of statutes reasonable precision is required. Indeed, one of the prime requisites of any statute is certainty, and legislative enactment may be declared by the courts to be inoperative and void for uncertainty in meaning. This power of the court may be exercised where the statute is so incomplete, so conflicting or so vague and indefinite, that the statute cannot be executed And the court is unable by the...