Walls v. City of Guntersville

• Decision Date: 30 March 1950
• Docket Number: 8 Div. 523
• Citation: 45 So.2d 468,253 Ala. 480
• Parties: WALLS v. CITY OF GUNTERSVILLE.
• Court: Alabama Supreme Court

Page 468

45 So.2d 468

253 Ala. 480

WALLS v. CITY OF GUNTERSVILLE.

8 Div. 523.

Supreme Court of Alabama.

March 30, 1950.

Marion F. Lusk, of Guntersville, for appellant.

Starnes & Starnes, of Guntersville, for appellee.

SIMPSON, Justice.

Appeal from a final decree enjoining the violation of a comprensive zoning ordinance of the City of Guntersville, Alabama.

The contest by appellant, in effect, is a challenge to the validity of the ordinance. The primary contention of the appellant is that the ordinance is an unlawful delegation of power and violates federal due process and the mandates of equal protection enjoined by the Fourteenth Amendment. A subsidiary question, which we will dispose of first, relates to the admissibility of the ordinance on technical grounds.

The scope of the inquiry is limited to a consideration of the narrow questions of whether or not the ordinance is void as not having been proven to have been duly adopted and as to whether it is unconstitutional. There is no inquiry otherwise. The appellant rests on the contention that he could proceed with the erection of his building in disregard of any of the provisions of the zoning ordinance by reason of its alleged invalidity.

The case was once before this court when the holding was announced that the ordinance as introduced was prima facie admissable. City of Guntersville v. Walls, 252 Ala. 66, 39 So.2d 567. It was there declared that the introduction of the ordiance book containing the zoning ordinance, with the statutory certificate under hand of the city clerk respecting the adoption, publication, and existence of the ordinance, met the burden of proof resting upon the city and made out a prima facie case, and the burden of proceeding or going forward with the evidence then shifted to the rerespondent, citing Code 1940, Title 7, § 369.

We adhere to that pronouncement, the result of which is that it was not necessary for the appellee to belabor itself with the effort to further prove the existence and validity of the ordinance by the introduction of other documents. We will, therefore, pretermit discussion of the assignments relative to this phase of the case. The ordinance being prima facie valid and admissable and no countervailing evidence having been proffered to establish the contrary, no error prevailed in allowing it in evidence and considering it on final hearing.

Another secondary contention is that the boundaries of the several districts zoned did not appear from the ordinance itself, but only by reference to a map recited therein as being attached to and made a part of it and that the map not being introduced rendered the ordinance inadmissable. Error cannot be predicated on this assignment. Aside from the fact that the zone location of the property was not in dispute, no specific objection on the asserted ground was made to bring the matter to the attention of the court.

Subsumed under this argument is also the insistence that, since the map referred to in the ordinance bore the same date as that of the final passage of the ordinance, this in some way shows that an incomplete ordinance was before the council when originally presented and was not available for public inspection until date of final passage, thus rendering the ordinance void. The presumptions are to the contrary. The city in passing the ordinance is presumed to have done what was necessary to make it valid and unless void on its face, he who challenges it has the burden of showing its invalidity. Titus v. Braidfoot, 226 Ala. 21, 145 So. 423; Rose v. Andalusia, 249 Ala. 333, 31 So.2d 66; Briggs v. Birmingham Railway, Light & Power Co., 188 Ala. 262, 66 So. 95.

The major challenge to the authority of the city to enforce the ordinance is that there is an unlawful delegation of power as regards its enforcement, that arbitrary and despotic power is reposed in the building inspector, and that thus it falls within the interdiction of the Fourteenth Amendment. On a careful review of the authorities, we have concluded that this contention is untenable.

As regards the delegation of power, Section 12 A of the ordinance provides: 'The provisions of this ordinance shall be administered and enforced by the Mayor or the building inspector and or other person delegated by the Mayor to carry out this function for him. This official shall have the power to make inspections of buildings or premises necessary to carry out his duties in the enforcement of this ordinance.'

This section does not, as argued, vest in the mayor authority to delegate enforcement of the ordinance to some private individual, a neighbor, etc. The specific limit of this delegated power is the appointment of a building inspector or some other 'official' to execute the function of granting building permits. It is no forbidden delegation of power for the ordinance to authorize the appointment of some official or the selection of some instrumentality for the purpose of ascertaining facts to which the legislation is directed and to put into effect the prohibitive features of such ascertained facts. People of State of New York v. Van De Carr, 199 U.S. 552, 26 S.Ct. 144, 50 L.Ed. 305; Panama Refining Co. v. Ryan, 293 U.S. 388, 426, 55 S.Ct. 241, 79 L.Ed. 446; Wilson v. Eureka City, 173 U.S. 32, 19 S.Ct. 317, 43 L.Ed. 603; Gundling v. Chicago, 177 U.S. 183, 20 S.Ct. 633, 44 L.Ed. 725; Fischer v. St. Louis, 194 U.S. 361, 24 S.Ct. 673, 48 L.Ed. 1018.

The statute armed the city with ample power to adopt ordinances and regulations not inconsistent with state laws or state or federal constitutions in regard to zoning 'to promote health and the general welfare' etc. Code 1940, Title 37, § 777 et seq. And the administration of such an ordinance may, indeed of necessity must, be committed to subordinate officers without offense to any principle of constitutional law. Walker v. City of Birmingham, 216 Ala. 206, 112 So. 823.

But it is said that because of § 8 of the ordinance, the constitution is violated. Section 8 provides: 'Any use whatsoever, not in conflict with any other ordinance of the City, is allowed in an Industrial District, provided that no use shall be permitted which would be offensive because of injurious and obnoxious noise, vibrations, smoke, gas, fumes, odors, dust or other objectionable features, or would be hazardous to the community on account of danger of fire or explosion.'

The property the subject of this litigation is located in an industrial district and it is argued that Section 8 fails to fix any uniform rule of action by which the city, through its delegated agency, may act and that, therefore, there is vested in that agency or official an uncontrolled and arbitrary discretion to determine in the individual cases who should or should not be issued a building permit and to say what is or is not 'offensive' within the meaning of the ordinance and that, therefore, this phase makes the ordinance void as coming within the ban of the Fourteenth Amendment.

Ordinances of the character now under review find their justification in the exercise by the municipality of its police power asserted for the protection of the public welfare and that its enforcement might sometime be arbitrary or discriminatory does not of itself render the ordinance void. Resort to the courts is open for protection in such case. Village of Euclid v. Ambler, 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303, 54 A.L.R. 1016; Leary v. Adams, 226 Ala. 472, 147 So. 391.

The inquiry is not whether in the instance considered appellant has been discriminated against or whether the type of business which he proposes to carry on in the building would be 'offensive because of injurious and obnoxious noise, vibrations, smoke, gas, fumes, odors, dust, or other objectionable features, or would be hazardous to the community on account of danger of fire or explosion,' but whether or not these general proscriptive terms are so vague and indefinite as to furnish no standard of conduct by which the official in charge under the ordinance may be guided. It is quite plain to us that such is not the case.

Certain recognized canons of construction are established to guide decision.

We must be certain that the ordinance is so plainly and palpably inadequate and incomplete as to be convinced beyond reasonable doubt that it offends the constitution or we will not strike it down.

And the modern tendency has been to be liberal in upholding ordinances of this character in order to facilitate their proper administration. The courts have ruled that considerable freedom to exercise discretion and judgement must of necessity be accorded to officials in charge under such an ordinance. Metzenbaum, Law of Zoning, p. 296; 37 Am.Jur. 778, § 160.

American Jurisprudence, supra, as to this modern tendency, notes that: '* * * ordinances need not always prescribe a specific rule of action and * * * some situations require the placing of some discretion in municipal officials, as in cases where it is difficult or impracticable to...