State v. Du Bose

• Decision Date: 21 April 1930
• Citation: 99 Fla. 812,128 So. 4
• Parties: STATE ex rel. HELSETH et al., County Com'rs v. DU BOSE et al.
• Court: Florida Supreme Court

128 So. 4

99 Fla. 812

STATE ex rel. HELSETH et al., County Com'rs v. DU BOSE et al.

Florida Supreme Court, Division A.

April 21, 1930

Error to Circuit Court, Indian River County; Elwyn Thomas, Judge.

Mandamus proceeding by the State, on the relation of Albert O. Helseth and others, County Commissioners of Indian River County against J. C. Du Bose and others, members of the City Council of Vero Beach, and others. To review an adverse judgment plaintiffs bring error.

Reversed.

COUNSEL

C. P. Diamond, of Vero Beach, for plaintiffs in error.

Vocelle & Mitchell, of Vero Beach, for defendants in error.

OPINION

TERRELL C.J.

The city of Vero Beach in Indian River county, Fla., enacted a 'zoning ordinance' for the purpose of regulating the location, construction, bulk, and height of buildings to be erected therein. Pursuant to this ordinance the board of county commissioners of said county applied to the proper authority for a permit to erect a jail on property owned by the county and covered by the terms of the 'zoning ordinance.' This permit was refused, and on application of the said board of county commissioners an alternative writ of mandamus was directed to the city council of Vero Beach requiring it to grant said permit or to show cause why it should not be granted. A return and motion to quash the alternative writ were seasonably entered. The motion to quash was granted, and a motion for peremptory writ was denied. Writ of error was taken to that order.

Four assignments of error raise these questions: (1) Had the City of Vero Beach power to pass the 'zoning ordinance?' (2) if it had such power, was the 'zoning ordinance' so enacted in accord with the state or federal constitution and (3) if it was authorized to do so the ordinance so enacted was an arbitrary and unreasonable exercise of the power vested in the City of Vero Beach?

Building zone laws made their advent in this country about thirty years ago, and are the product of the ever-increasing complex and difficult problems that affect urban life. Such laws are restrictions on the use of private property that can be justified only in some aspect of the police power asserted in the interest of the public welfare, and cannot be enacted or enforced by municipalities without specific legislative authorization therefor. Euclid v. Ambler Realty Company, 272 U.S. 365, 47 S.Ct. 114, 121, 71 L.Ed. 303, 54 A. L. R. 1016; and cases cited; State ex rel. Shad v. Fowler, 90 Fla. 155, 105 So. 733; Citizens' Insurance Company v. Barnes (Fla.) 124 So. 722.

Chapter 11262, Sp. Acts of 1925, as amended by Chapter 14439, Sp. Acts of 1929 Laws of Florida, being the charter acts of the city of Vero Beach, authorizes the said city to enact zoning ordinances. (See sections 86 to 90 inclusive of the first enumerated act.) Pursuant to authority vested in it by chapter 11262, Sp. Acts of 1925, the city of Vero Beach enacted General Ordinance No. 197, which is quoted in the record and appears to conform generally to such ordinances enacted under the standard state zoning act which has been passed in thirty or more states throughout the country, and has been held valid in most of them. We are not unmindful of some decisions to the contrary. See Euclid v. Ambler Realty Company, supra, citing decisions holding both ways. We think, therefore, the city had power to enact a valid zoning ordinance.

To uphold the constitutional validity of the ordinance under review, defendant in error relies on Euclid v. Ambler Realty Company, supra. An examination of this case reveals many striking parallels, as to facts, with the case at bar. The relief sought in Euclid v. Ambler Realty Company was by injunction to restrain the enforcement of any of the restrictions, limitations, or conditions of the ordinance, the gravamen of the complaint being that the lands of appellee could not be sold for certain enumerated uses because of the general and broad restraints of the ordinance. Against this general assault the court upheld the validity of the ordinance, but it also specifically held that, if ever the provisions of the ordinance set forth in tedious and minute detail came to be concretely applied to particular premises, including those of the appellee, or to particular conditions, or to be considered in connection with specific complaints, some of them, or even many of them, may be found to be clearly arbitrary and unreasonable. In other words, when the attack on a zoning ordinance is on the broad ground 'that the mere existence and thereatened enforcement of the ordinance, by materially and adversely affecting values and curtailing the opportunities of the market, constitute a present and irreparable injury, the court will not scrutinize its provisions, sentence by sentence, to ascertain by a process of piecemeal dissection whether there may be, here and there, provisions of a minor character, or relating to matters of administration, or not shown to contribute to the injury complained of, which, if attacked separately, might not withstand the test of constitutionality.'

Euclid v. Ambler Realty Company, supra, is the leading case in this country on the validity of zoning ordinances generally, that is to say, when such validity is challenged on the broad grounds as therein stated, but in the case at bar the ordinances brought in question is not so challenged. Here it is contended that a concrete application of the provisions of the ordinance to the premises of appellant amounts to an unconstitutional, an arbitrary, and an unreasonable exercise of legislative power. Before this contention can be upheld, it must be shown that the provisions of the ordinance as applied to the locus in question are clearly arbitrary and unreasonable, and have no substantial relation to the public health, safety, morals, or general welfare. Jacobson v. Massachusetts, 197 U.S 11, 25 S.Ct. 358, 49 L.Ed. 643, 3 Ann. Cas. 765; Cusack...