State v. Fowler

• Decision Date: 17 July 1925
• Citation: 105 So. 733,90 Fla. 155
• Parties: STATE ex rel. SHAD et al. v. FOWLER, City Commissioner of Buildings.
• Court: Florida Supreme Court

105 So. 733

90 Fla. 155

STATE ex rel. SHAD et al. v. FOWLER, City Commissioner of Buildings.

Florida Supreme Court

July 17, 1925

Rehearing Denied Oct. 31, 1925.

En Banc.

Error to Circuit Court, Duval County; George Couper Gibbs, Judge.

Proceeding by the State on the relating of Retta E. Shad and husband for mandamus, to be directed to John Fowler, as Commissioner of Buildings of the City of Jacksonville.On a final order quashing and dismissing an alternative writ of mandamus, the relators bring error.

Order reversed.

Syllabus by the Court

SYLLABUS

Legislature may authorize municipality to regulate uses of property.The Legislature may, pursuant to section 8, art. 8, of the Constitution, authorize a municipality to regulate the uses of property by its owner when no other provision of organic law is thereby violated.

Municipal power reasonably restricting uses of property may be valid.A municipal power, clearly and duly conferred by statute, that reasonably restricts the uses of individual property for the general good, and that does not in effect unduly curtail the organic right to acquire, possess, and protect property or invade property rights without due process or without affording equal protection of the laws, may be valid.

Courts will not enforce doubtful municipal powers.The courts will enforce a due exercise of municipal or police power that is duly conferred and properly exerted, yet a municipality is a governmental agency with limited powers, and where a particular power is not expressly conferred or cannot be fairly regarded as included in or implied from powers expressly conferred, the particular power should not be exerted; and the courts will not enforce doubtful municipal powers.

Zoning ordinances within power definitely conferred and fairly exerted will be enforced.Municipal regulations curtailing the uses of real estate in defined zones of a city with reference to residence or business purposes may be enforced where they are expressly authorized; and questions of reasonableness, not amounting to a violation of fundamental rights, will not prevent enforcement, when the particular power is definitely conferred, and it is justly and fairly exerted.

Authority to materially limit uses of property under police power not inferred from general welfare power.Authority to materially curtail the uses of property under the general police power when health, safety, morals, peace, and comfort are not involved, will not ordinarily be inferred from general welfare powers conferred upon a municipality, particularly when kindred or similar powers are not expressly conferred and have not been customarily exercised pursuant to general powers relating to the public welfare.

Zoning ordinance held not within general welfare or other powers expressly conferred.No express authority having been given the municipality to pass an ordinance forbidding permits for the erection of a building 'to be used for any purpose other than that of a residence, except,' etc., the nature of the regulation contained in the ordinance does not warrant a judicial holding that power to pass the ordinance is included in or may fairly be inferred from the general welfare or other powers expressly conferred.

COUNSEL

P. L. Gaskins and John F. Hall, both of Jacksonville, for plaintiffs in error.

Austin Miller, A. D. McNeill, and J. W. Holland, all of Jacksonville, for defendant in error.

OPINION

WHITFIELD J.

The owner of a lot within a prescribed residential district in the city of Jacksonville, Fla., by mandamus sought to compel the city authorities to issue a permit 'to construct and erect a buildong' on relator's lot, viz, 'a two-story building to be used as stores for the retail of groceries and merchandise on the ground floor thereof, and as flats or apartments for residential purposes on the second floor thereof,' notwithstanding an ordinance of the city 'that no permit shall be issued by the commissioner of buildings or any other person or persons authorized to issue permits for the erection of buildings within the city of Jacksonville for any building to be erected within the territory described in section 1 of this ordinance which is to be used for any purpose other than that of a residence except as is hereinafter provided; that after the passage and publication of this ordinance it shall be unlawful for any person or persons, firm or corporation to establish or engage in any grocery, meat, fruit or any other line of mercantile business of whatsoever kind or nature, within the boundaries of the territory designated in section 1 of this ordinance except as is hereinafter provided,' approved August 4, 1921.

On writ of error, taken to a final order of January 26, 1923, quashing and dismissing the alternative writ of mandamus, the relator, property owner, contends:

'(1) That there is no power delegated by the state of Florida to the municipal corporation of Jacksonville under its charter or by law, for the adoption of the ordinance.

'(2) That the ordinance, by permitting a prohibited building to be erected in the prescribed territory when the consent and approval of neighboring property owners is obtained, constitutes an unlawful delegation of the legislative power of the municipality to individuals, and thereby invalidates the ordinance.

'(3)

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