State Ex Rel. Landis v. Valz

• Citation: 157 So. 651,117 Fla. 311
• Parties: STATE ex rel. LANDIS, Atty. Gen. v. VALZ et al.
• Decision Date: 26 November 1934
• Court: United States State Supreme Court of Florida

157 So. 651

117 Fla. 311

STATE ex rel. LANDIS, Atty. Gen. v. VALZ et al.

Florida Supreme Court

November 26, 1934

En Banc.

Original quo warranto proceeding by the State, on the relation of Cary D. Landis, Attorney General, against Fred M. Valz, and others, being members of and together constituting the City Commission of the City of Jacksonville, and others. On demurrer to the information and on motion to quash it.

Demurrer sustained, and writ denied.

COUNSEL John E. Mathews, of Jacksonville, for relator.

Austin Miller and Lester W. Jennings, both of Jacksonville, Carl T Hoffman, of Miami, and Harry B. Fozzard, of Jacksonville, for respondents.

OPINION

ELLIS Justice.

The Jacksonville Kennel Club, Inc., obtained a permit under the provisions of chapter 14832, Laws of Florida Acts 1931, to conduct and operate a race track at a certain location in the city of Jacksonville. The permit became effectual to authorize racing by ratification by a majority of the voters participating in an election in the county held under the provisions of the act.

The Kennel Club intends to operate a dog racing plant upon the property, the location of which is in the city of Jacksonville, and the kind of racing intended to be conducted was set forth in the permit granted by the state racing commission established by the act. By reason of that permit and its ratification by a majority of the voters participating in the election, the Kennel Club, Inc., asserts that it has the power, right, privilege, and franchise to construct, maintain, and operate a dog racing plant upon the land, the location of which was set forth in the permit which was voted upon separately as the act requires.

The city of Jacksonville, Fla., had previously to the granting of the permit to the Kennel Club adopted a zoning ordinance pursuant to a comprehensive plan for the zoning of the city. The ordinance was numbered U-125 and was adopted in September, 1930, and published during that month. It was entitled:

'An Ordinance Adopting a Comprehensive Plan for the Zoning of the City of Jacksonville for the Purpose of Regulating the Location of Trades, Industries, Apartment Houses, Dwellings and Other Structures and Other Uses of Property; Providing Rules, Regulations and Requirements Relative to the Erection of Buildings and Uses of Property in Each of Said Zones; Providing for the Administering and Enforcing of the Same; and Providing Penalties for the Violation of the Several Provisions Hereof.'

The ordinance was adopted pursuant to chapter 9783, Sp. Acts 1923, Laws of Florida. That act was supplemental to and amendatory of chapter 7659, Sp. Acts 1917, which was an act affecting the government of the City of Jacksonville. Chapter 9783, supra, provided in sections 13 and 14 for the adoption of a zoning ordinance by the city, in the interest of 'public health, safety, order, convenience, comfort prosperity or general welfare,' for districting or zoning the city for the purpose of regulating the location of 'trades, industries, apartment houses, dwellings or other uses of property, or for the purpose of regulating the height of buildings or other structures, or the area of dimensions of lots or yards in connection with buildings or other structures, or for the purpose of regulating the alignments of buildings or other structures near street frontages.'

Section 14 of the act requires that no zoning ordinances shall be adopted until a comprehensive plan for the zoning of the city had been prepared and submitted to the mayor and city council by the city commission; that public hearings should be held, of which notice should be given by publishing the same in a newspaper of general circulation once each week for not less than four consecutive weeks. The section prohibited the adoption of an ordinance, measure, or regulation which violates, differs, or departs from the plan or report submitted by the city commissioners unless concurred in by the city commission.

The lot of land described in the permit granted to the Kennel Club lies in 'Residence 'B' District,' as the same is indicated on the building zone plan. Section 5 of the ordinance provides that 'no building or premises shall be used and no building or structure shall be erected which is intended or designed to be used, in whole or in part, for any industry, trade, manufacture or commercial purpose or for other than one or more of the following specified purposes.' Then follows nine specifications of the use to which a lot within that district may be put. The first specification is as follows: 'Any use specified above in Section 4(a) and permitted in Residence 'A' Districts.' Subparagraphs 1 to 12 inclusive of paragraph (a) of Section 4 specify the use to which a lot may be put in District 'A."

Those subparagraphs specify family dwellings, offices of physicians, surgeon, dentist, musician, lawyer, architect, teacher, or other professional person residing on the premises, provided there is no display from the street nor advertising except a small professional name plate; municipal recreation buildings, municipal playgrounds and municipal parks, public libraries, public museums, churches and other places of worship, real estate signs, farms and truck gardens, nurseries and greenhouses, cemeteries adjacent to or in extension of existing cemeteries, accessory buildings, including private garages or stables. There are other regulations not necessary to be named.

Section 17 of the ordinance provides that:

'Where it appears there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of the provisions of this Ordinance, the City Commission shall have power in a specific case, after due notice and public hearing, to determine and vary any such provisions in harmony with the general purpose and intent of the Ordinance so that the public health, safety and general welfare may be secured and substantial justice done, and may permit;

'(1) The extension of an existing non-conforming building or the erection of a supplementary building on the same lot, even into a more restricted district all under such conditions as will safeguard the character of the district and of the more restricted district.

'(2) The authorization of a change of a non-conforming use to one no more harmful or objectionable in its opinion.'

The remaining part of subparagraph (2) provides the method of obtaining a public hearing to accomplish the purpose specified in paragraphs No. 1 and No. 2 of the section.

Now the Jacksonville Kennel Club, in October, 1934, applied to Fowler, building commissioner or inspector, for a permit to erect or construct a racing plant on the property described in the permit, which had been obtained and which lies in the restricted district 'B' of the ordinance. Fowler refused to issue the permit unless and until section 17 of the ordinance U-125 shall be fully complied with. So Fowler proceeded in an attempt to comply with the requirements of the ordinance, and a notice of the application of the Kennel Club, Inc., was published.

On October 30, 1934, the Attorney General of the state caused to be filed in this court an information in the nature of a quo warranto in which, among other things, it was alleged that Fred Valz, T. C. Imeson, St. Elmo W. Acosta, Ernest Anders, and P. M. Ulsch, as constituting the city commission of the city, are attempting to comply with section 17 of the ordinance and will in due course usurp the authority and power to issue a permit to the Kennel Club for the construction of a racing plant upon the property mentioned. It was alleged that Fowler, as building commissioner, and the men above named constituting the city commission, claim to have the power to grant a permit for the construction of a racing plant upon the property named under the provisions of section 17 of the ordinance, and that they were then usurping such power.

It is claimed by the Attorney General that the attempted exercise by the respondents of such power is in violation of sections 13 and 14 of the ordinance; that the effect of such a permit would be a rezoning of the area in question without the necessary formalities prescribed by chapter 9783, supra. It is also averred that section 17 of the ordinance is in violation of the charter of the city, as it, in substance, provides for a rezoning of the city by certain officials without the formalities required by the legislative act, but, if the section is valid, it is not applicable to the case under consideration because the Kennel Club, Inc., does not propose to construct an extension of an existing nonconforming building or the erection of a supplementary building on the same lot.

Based upon that information, the Attorney General requested that the persons named as defendants answer to the state by what warrant or authority they claimed to exercise the power named. There was a demurrer to the information and a motion to quash it. They present the questions:

First whether the statute supersedes the ordinance and authorizes the holder of a permit duly approved by a vote of the electors under the provisions of the statute to maintain a racing plant upon the land described, notwithstanding the ordinance; second, if the ordinance is not superseded by the statute, is section 17 of the ordinance valid; and, third, if so, does it authorize and empower the city commission in a specific case, after due notice and public hearing, to permit the erection and maintenance of a racing plant upon the lot which lies within...