Spencer-Sturla Co. v. City of Memphis

• Decision Date: 12 February 1927
• Citation: 290 S.W. 608,155 Tenn. 70
• Parties: SPENCER-STURLA CO. v. CITY OF MEMPHIS.
• Court: Tennessee Supreme Court

290 S.W. 608

155 Tenn. 70

SPENCER-STURLA CO. v. CITY OF MEMPHIS.

Supreme Court of Tennessee.

February 12, 1927

Error to Circuit Court, Shelby County; Ben L. Capell, A. B Pittman, M. R. Patterson, and H. W. Laughlin, Judges.

Proceeding by the City of Memphis against the Spencer-Sturla Company for unlawfully maintaining or aiding and abetting in maintaining an undertaking establishment or mortuary in a residence district. Judgment for plaintiff was affirmed by the Circuit Court and a fine assessed, and defendant brings error. Affirmed.

Ewing King & King and Hunter Wilson, all of Memphis, for plaintiff in error.

E. B. Klewer and T. K. Riddick, both of Memphis, for defendant in error.

SWIGGART J.

This case was instituted by a warrant issued by the judge of the city court of Memphis, charging that the Spencer-Sturla Company had violated an ordinance of the city of Memphis, in that the said company "unlawfully maintained or aided and abetted in the maintenance of an undertaking establishment or mortuary on a lot at the southeast corner of Union avenue and Le Master street, in a district zoned as B residence district, contrary to the provisions of said ordinance."

The judge of the city court having rendered judgment for the city, the Spencer-Sturla Company appealed to the circuit court of Shelby county, where judgment was again rendered against it, and a fine assessed in the sum of $50. Motion for a new trial having been made and overruled, an appeal in the nature of a writ of error was prayed and granted to this court.

The ordinance defining the offense charged in the warrant was adopted by the city of Memphis on November 7, 1922. It divides the entire area within the municipal boundaries into districts, and regulates the height, area, and use of buildings located within the several districts. The general purpose of the ordinance is to exclude industrial and commercial enterprises from residential districts, and to so regulate the construction of buildings, both for commercial and residential purposes, as to properly conserve the health and welfare of persons residing within the city, and to conserve and protect the property rights of owners of land within the several districts.

The ordinance was adopted by the city under the authority of chapter 165 of the Private Acts of the General Assembly for 1921, which applies to all municipalities within the state having a population in excess of 160,000.

The plaintiff in error contends that the statute authorizing the ordinance is unconstitutional, and that the ordinance deprives it of certain property rights guaranteed by the Constitution of Tennessee and the Constitution of the United States.

These contentions having been made, we think the case properly presents for determination the validity and constitutionality of the statute referred to, and of the ordinance in its fundamental and essential particulars, although certain provisions of the ordinance, which are not essential to its validity, and which are not involved by the facts of the present case, need not be considered herein, as will be hereinafter made to appear.

The caption of chapter 165 of the Private Acts of 1921 describes it as an act to empower municipalities having a population in excess of 160,000 inhabitants to provide for the establishment of districts or zones within the corporate limits, and to regulate within such districts or zones, "the use or uses of land, the height, the area, the size and the location of buildings, the required open spaces for the light and ventilation of such buildings and the density of population." The caption also refers to provisions for a "Board of Appeals," and penalties.

The body of the act authorizes municipalities within the class created to regulate and restrict by ordinance the location of trades and industries, and the location of buildings designed for specified uses, and for said purpose to divide the municipality into districts.

The municipalities are authorized by the statute to designate the uses to which buildings may be put within each district created, and to designate the trades and industries which shall be excluded or subjected to special regulations within each district. The regulations which may be specified are directed to be in accordance with a plan "designed to lessen congestion on the public streets, to promote the public health, safety, covenience, and general welfare." It is also directed that such regulations shall be made "with reasonable consideration, among other things to the character of the district, its peculiar suitability for particular uses, the conservation of property values, and the direction of building development." Section 1.

Section 2 of the statute authorizes regulations by ordinance of the height and bulk of buildings erected or altered after the enactment of the statute, and authorizes regulations with regard to the percentage of a lot to be devoted to yards, courts and other open spaces; all such regulations to be uniform for each class of buildings within a given district. It is directed that all such regulations "shall be designed to lessen congestion on the public streets, to secure safety from fires and other dangers, to promote the public health and welfare, including provisions for adequate light, air and convenience of access."

The municipalities are also enjoined in this section to give reasonable regard to the character of buildings erected in each district for which regulations are provided, the value of land, and the use to which it may be put, etc.; all to the end "that such regulations will promote the public health, safety and welfare, the most desirable use for which the land of each district may be adopted, and tend to conserve the value of buildings and to stabilize the value of land throughout such districts."

In section 3 of the statute the municipalities are empowered to create districts in which "the maximum number of families which may be housed in dwellings or tenement houses hereafter erected or altered" may be limited or restricted so as "to limit the overcrowding of land and to avoid undue congestion of population, to facilitate adequate provision of transit, water, sewerage disposal, education, recreation and other public requirements, and to promote the public health, morals, safety, convenience and general welfare."

Section 4 provides for an investigation and report of a "city planning commission" before any ordinance authorized by the statute shall be adopted; and, after the adoption of such an ordinance, protection to property holders against frequent or partial alterations in its provisions is afforded by requiring that, whenever protest from a certain percentage of interested property holders is made against any amendment, supplement, or change, a four-fifths vote of the legislative body of the city shall be required for the adoption of any such amendment.

Section 7 of the statute provides for the continuation in the use and maintenance of buildings and industries established and lawful at the time of the adoption of any such ordinance, notwithstanding their nonconformity to the provisions of the ordinance.

The plaintiff in error first contends that this statute violates article 2,§ 17, of the Constitution of Tennessee, in that the body of the act is broader than its caption. It is argued that the caption indicates only that the municipalities shall have power to regulate "the use or uses of land," while the body of the act authorizes regulation of the use or uses to which buildings located on the land may be put.

Applying the rule that the body of an act may include any provisions germane to the general subject expressed in the caption, and that provisions fairly indicated by the language of the caption may be included in the act, we think it sufficient to say that the recitation of the caption that the act will contain provisions regulating the use of land fairly indicates that the regulations will include the use to which buildings located on the land may be put. See the definition of "lands" in section 63 of Shannon's Code (Code of 1858, § 51), and in Childers v. Coleman, 122 Tenn. 109, 125, 118 S.W. 1018.

It is next contended that the statute authorizes the municipalities to entirely exclude trades and industries, which are lawful in their nature, from specified areas or districts of the city, and that this amounts to a prohibition and not a mere regulation of the use to which land may be put, the caption of the act indicating that only regulation is within the scope of the act.

The caption of the act indicates that the use regulations authorized by the act are to be included in general ordinances dividing the land within the city into districts or "zones," and that the regulations are to be applied to the land "within such zones or districts." The clear implication of the caption is, we think, that the regulations to be authorized may permit land in one zone or district to be put to uses denied for land in another district of the city. It is difficult to perceive how the use of the land included within a district may be regulated without provisions excluding certain uses for specified purposes. We think a provision that the land within a specified district of a city may be used only for residence purposes, or for limited commercial or industrial purposes, is a regulation of the use of the land within the district and not a prohibition of its use. Palmer v. Express Co., 129 Tenn. 116, 157, 165 S.W. 236; Mayor, etc., of Nashville v. Linck, 12 Lea (80 Tenn.) 499.

It is further contended by the plaintiff in error that the statute violates article 1, § 8, of the Constitution of Tennessee, in that it is limited in its application to municipalities having a...