holding that a county's proposal to construct and operate a sewage-disposal plant was subject to the city's zoning ordinance because the operation of such a facility was a propriety function
How later courts described this case
- holding that a county's proposal to construct and operate a sewage-disposal plant was subject to the city's zoning ordinance because the operation of such a facility was a propriety function
Written by the judges who cited it.
The opinion
On Rehearing
PER CURIAM.
In Jones v. Jefferson County, 206 Ala. 13 , 89 So. 174 , and Hamilton v. Jefferson County, 209 Ala. 517 , 96 So. 628 , it was held that in operating a sewage disposal plant the county was engaged in a governmental function. We are taken to task because in the present case we did not give effect to the statement contained in Alabama Alcoholic Beverage Control Board v. City of Birmingham, 253 Ala. 402 , 44 So.2d 593 , that the prohibitions and restrictions of a zoning ordinance do not ordinarily apply where the operation is in a governmental capacity.
The statement that the prohibitions and restrictions of a zoning ordinance do not ordinarily apply by its own language recognizes that there can be valid exceptions to the rule. While in the foregoing Alabama cases it was held that operation of a sewage disposal plant is a governmental function, those cases were dealing with questions of tort liability and not zoning. Cases in other jurisdictions hold that where zoning is involved, the operation of a sewage disposal plant is proprietary and not governmental. O’Brien v. Town of Greenburgh, 239 App.Div. 555 , 268 N.Y.S. 173 . In Alabama Alcoholic Beverage Control Board v. City of Birmingham, supra, it was explained that the legislature could with reason provide that a liquor store might be included within a zoning ordinance because in such establishment beverages are placed on sale and sold to customers as in other stores and from the standpoint of zoning, such an operation could well be regarded as business within a statute which authorized a city to be divided into business, industrial and residential zones. We refer to this difference in the authorities because it well shows that the general rule referred to above can have valid exceptions. Under the circumstances in this case the exception clearly applies. The city under its zoning power conferred by statute can prohibit the construction and operation of a sewage disposal plant, with all that that operation implies, from being located in a “B” residential district. Davis v. City of Mobile, 245 Ala. 80 , 16 So.2d 1 ; Zoning Law and Practice by Dr. Yokley, Chap. II, §§ 15-25; 37 Am.Juris. §§ 276-279; Ex parte Byrd, 84 Ala. 17 , 4 So. 397 , 5 Am.Rep. 328 .
Application for rehearing overruled.
LIVINGSTON, C. J, and BROWN, LAWSON and STAKELY, JJ., concur.