Walker v. City of Biloxi, 40295
| Decision Date | 21 January 1957 |
| Docket Number | No. 40295,40295 |
| Citation | 92 So.2d 227,229 Miss. 890 |
| Parties | Mrs. Myrtle WALKER and Mrs. Deedy Baxter v. CITY OF BILOXI. |
| Court | Mississippi Supreme Court |
Rushing & Guice, Biloxi, for appellants.
Thos. J. Wiltz, Biloxi, for appellee.
This appeal is from a decree of the Chancery Court of Harrison County enjoining the appellants from the operation of a commercial business in a residential district of the City of Biloxi in violation of a zoning ordinance. The City of Biloxi filed its bill of complaint against the appellants alleging substantially the following facts:
Mrs. Myrtle Walker was the owner of the west 77 feet of Lot 10, Block 2, Keller Addition (Avondale), on which property there is a two-story building facing Highway 90 and Beach Boulevard; that Mrs. Walker purchased the property in November 1950; that the property was located in a residential section; that during the year 1952 the appellant, Mrs. Deedy Baxter, with the assistance and acquiescence of the appellant Mrs. Walker, started the operation of a ladies'-ready-to-wear shop in the residence; that the operation of the commercial business was in violation of the zoning ordinance of the City of Biloxi, and also that it constituted a nuisance; that on May 16, 1940, the City of Biloxi adopted a zoning ordinance, No. 790, which classified the property of the City of Biloxi into five districts, namely; (1) single family residence districts; (2) two family residence districts; (3) general residence districts; (4) commercial districts, and (5) industrial districts. The property of the appellant, Mrs. Walker, was located in a two-family residence district and any commercial business was prohibited in said district.
The appellants answered the bill admitting the operation of the commercial business and contended that the ordinance establishing the zoning districts was void, and in addition thereto, plead other affirmative defenses.
The chancellor, after a full hearing in which a number of witnesses testified, found that the premises of the appellant, Mrs. Baxter, was in a residential neighborhood and that the operation of the commercial business was in violation of the zoning ordinance of the City of Biloxi, and further found that the operation of the business constituted a nuisance and enjoined the appellant, Mrs. Walker, from the use and rental of said property for commercial purposes in connection with said use as a commercial activity, and enjoined the appellant, Mrs. Baxter, from further violation of the zoning ordinance in the operation of the ladies'-ready-to-wear shop.
The sole question before us is the validity of the zoning ordinance. Counsel for appellant argues with much force that the ordinance was void in that the municipal authorities did not comply with Sections 3592 and 3593 of the Mississippi Code of 1942, which sections set out the procedure to be followed in adopting zoning laws, and cite the case of Morris v. City of Columbia, 184 Miss. 342, 186 So. 292. Our examination of the record reveals that the municipality did not follow the procedure announced in the above cited case; that although notice was given, it was not for fifteen days as required by the statute. It further appears that a hearing was held and the ordinance later adopted on May 15, 1940. This did not comply with the law, Brooks v. City of Jackson, 211 Miss. 246 51 So.2d 274. If timely attack had been made in the case at bar, we would have to hold that the ordinance was void as was held in the cited cases; however, in those cases timely attack was made on the ordinances involved. The case now before us presents a different question. The record shows that this ordinance has been in effect since 1940, and has been amended thirty-two times. It is also shown that the population of the city of Biloxi, according to the 1940 census, was 17,475;...
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