The opinion
CARTER, J.
I dissent.
This case presents the issue as to whether the findings of fact of a trial court on conflicting evidence may be ignored in determining on appeal whether a zoning ordinance is being unconstitutionally applied to plaintiffs’ property. Concededly, whether or not the ordinance is so unreasonable or arbitrary as to be unconstitutional is a question of law, but the basic facts upon which the conclusion is based is one of fact for the appropriate tribunal. In the instant case, the majority opinion holds that this court will review and determine not only the law but also the facts. For illustration, it is said: “The appellate courts look beyond such determinations and consider in some detail the basic physical facts appearing in the record, such as the character of the property of the objecting parties, the nature of the surrounding territory, the use to which each has been put, recent trends of development, etc., to ascertain whether the reasonableness of the ordinance is fairly debatable. . . . Similarly, findings which relate to matters of opinion and judgment, such as that property is ‘suitable only’ for certain purposes, are not controlling.” (Emphasis added.) Since when have the appellate courts of *469 this state become trial tribunals ? If expert evidence as to the effect of the ordinance on plaintiffs’ property is admissible at all, its weight and credibility is exclusively for the trial court. It may not believe the experts on one side but believe those on the other. The cases—Skalko v. City of Sunnyvale, 14 Cal. 2d 213 [ 93 P.2d 93 ], and Jardine v. City of Pasadena, 199 Cal. 64 [ 248 P. 225 , 48 A.L.R. 509 ]—cited in the majority opinion, do not hold to the contrary. It is said in the Skalko case: “The question, therefore, is whether under the facts shown by the appellant his rights are now being invaded by the existence and maintenance of the ordinance.” The facts shown by the record are the findings of fact and we cannot go behind them if they are supported by any substantial evidence and we must review that evidence in the light most favorable to the prevailing party. In the Jardine ease, the court held that certain evidence would not support the judgment because it was inherently incredible. Speaking generally and for illustration, it cannot be doubted that if the testimony showed that plaintiffs’ property would be absolutely valueless if the zoning ordinance were applied to it and the court so found, • the appellate court could not, without disregarding settled rules of law, reach any other conclusion than that the ordinance was unreasonable and arbitrary. The same would be true although there was also evidence to the contrary— that plaintiffs’ property was fully usable and valuable for the purpose for which it was zoned if the ordinance was applied to it. For in such a case the trial court would have found the latter evidence not credible, false, or of no weight, in which event there would be nothing left but the first evidence. There would not even be an honest difference of opinion as to the effect the ordinance had on plaintiffs’ property. Therefore, it could not be even reasonably debatable whether the legislative body had a basis for the ordinance. The United States Supreme Court considers the trial court as best suited to determine factual questions involved in constitutional law issues and will be guided by its findings. It. will remand the case to the lower court to take evidence and make findings. (See Chastleton Corp. v. Sinclair, 264 U.S. 543 [ 44 S.Ct. 405 , 68 L.Ed. 841 ]; Hammond v. Schappi Bus Line, 275 U.S. 164 [ 48 S.Ct. 66 , 72 L.Ed. 218 ]; Borden’s Farm Products Co. v. Baldwin, 293 U.S. 194 [ 55 S.Ct. 187 , 79 L.Ed. 281 ]; Polk Co. v. Glover, 305 U.S. 5 [ 59 S.Ct. 15 , 83 L.Ed. 6 ]; 49 Harv.L.Rev. 631; 38 Harv.L.Rev. 6; 21 Am. Bar Assn. JV 805.)
*470 Turning to the findings in the instant case, it appears that “the uses of said land (where plaintiffs’ land is located) for light industrial purposes has increased to the point where said use is now primarily and predominantly light industrial in nature.
“That although Jefferson Boulevard from Crenshaw Avenue to Vineyard Avenue has been zoned for commercial purposes for many years, little commercial usage has taken place on Jefferson Boulevard other than the usage for light industrial purposes. . . . That the property on Jefferson Boulevard from Crenshaw Avenue to Vineyard Avenue for commercial purposes has a present land valuation of $30.00 per front foot; whereas, said land for light industrial purposes has a valuation of $150.00 to $200.00 per front foot. That a 50-foot lot for commercial purposes as permitted by the Ordinances, has a valuation of $1500.00 per lot; whereas said lot for industrial purposes has a valuation of at least $7500.00 per 50-foot lot; ... . That while the land on Jefferson Boulevard from Crenshaw Avenue to Vineyard Avenue has been zoned for commercial purposes, said land has remained vacant and has had little or no development for commercial purposes, whereas, similar and identical land immediately to the west of Vineyard Avenue has developed solidly for industrial purposes and at present there are only a few lots from Vineyard Avenue to LaBrea Avenue that are vacant, whereas the property east of Vineyard Avenue and zoned for commercial purposes has remained largely vacant. That the property on the south side of Jefferson Boulevard between Vineyard Avenue and LaBrea Avenue, while almost wholly vacant until the zoning of said property for light industrial uses in 1944, is now solidly developed for light industrial purposes,- and there are only 2 vacant lots on Jefferson Boulevard between Vineyard and LaBrea Avenue, whereas in a comparable section of land east of Vineyard Avenue, there are few buildings and 50% of said land is vacant; that the owners of said property have not been able to lease said property for commercial purposes, whereas the owners of the same property have been able to' use and lease said properties for light industrial purposes, .... that the restriction of the use of plaintiffs’ property for light industrial purposes will amount to a confiscation of plaintiffs’ property, which is unsuitable for other than light industrial purposes.
“That the use of plaintiffs’ property, or other property owners who own property on Jefferson Boulevard- between *471 Crenshaw Avenue and Vineyard Avenue, for light industrial purposes, would not interfere with the uses of adjoining property to the north or south of Jefferson Boulevard, nor would it in any way hinder or destroy any vested property rights of other property owners, and that by plaintiffs’ using their property for light industrial purposes the surrounding and adjoining property would not be adversely affected. ...” (Emphasis added.)
Those findings are fully supported by the evidence. For example, Lockhard testified: “Q. Would your business (plumbing) be able to continue, or could you continue your business from the retail trade you receive from the neighborhood? A. No.” An expert testified without objection: “Q. In your opinion, what is the best use that could be put to that property on Jefferson Boulevard, between Vineyard and Crenshaw? In your opinion, could that property be profitably used for a G use? A. I would say it could not, if I would be allowed to explain the answer. The property between Vineyard and Crenshaw could be used for some C uses, such as contractor’s offices and things of that kind, but as a rule when a contractor gets a license for an office, which has always happened, he immediately has to have storage yard. It could be used for a filling station or two. It could be used for a few isolated uses but in general, it could not be used for what we call general G (commercial) purposes. One of the contributing factors of it is this, that the entire buying power of the neighborhood is shut off by public land, south of it by a railroad that has no crossing except at Farmdale. Another contributing factor is that Adams was an old street, and zoned for business; I think, therefore, if all the houses built in there which were originally merely single family residences were adjacent to Jefferson, take a few of them, there would not be enough purchasing power at all, because Adams Street originally had the original stores on it. Another contributing factor is that Crenshaw has been developed as a business street; take the corner of Crenshaw and south of that. North of that they are putting in a department store, the May Company, and other large stores on Crenshaw Boulevard south of this property. The property does not have a chance, in my opinion, of becoming a C-2 Street. It has no purchasing power. Q. You have had occasion to observe Jefferson Boulevard. In your opinion what has been the trend of development on Jefferson Boulevard west of Crenshaw ? A. Industrial uses.” And again: “My summing up of this *472 property is this, as stated before, that Jefferson Boulevard is so situated in relation to Adams Street, and to already developed business on Crenshaw Boulevard, and to its being bound in by that railroad track, that, in my opinion, it will never develop as a C-2 business, except such uses as might be isolated cases which did not depend particularly upon that particular location for their income. ” Another expert (formerly director of the city department of planning) testified without objection: “Q. As the director of the Department of Planning, in your opinion, was Jefferson Boulevard properly zoned for a C-2 zone ? A. Was Jefferson Boulevard in this area for C? Q. Yes. A. I think not. ... Q. In your opinion, could Jefferson Boulevard develop for any other purpose than light industrial use? A. 1 think not. . . . Q. What in your opinion would the effect be on the surrounding neighborhood, on the life of families and the welfare of the people in the surrounding neighborhood if Jefferson Boulevard from Crenshaw to Vineyard was zoned M-l? A. Well, there is a very little amount of frontage available there, and I think the uses that might be permitted under M-l are quite restricted. It provides good employment for the district, and substantial homes, it would brighten the street for activity there, give better protection for the homes and unsightly lots that existed there so many years, it would have a very beneficial effect, particularly so in times of depression, that homes might be available close by. The type of home in that area is that predominantly of working class people, and they would find employment in the adjacent property. Q. You don’t think it would be adverse? A. No, on the contrary, I think it would be very beneficial.” (Emphasis added.)
The foregoing evidence fully sustains the finding of the trial court that to apply the ordinance to plaintiffs’ property would render it practically worthless. That is the fact we must accept. Being such, how can it be said that the ordinance is not arbitrary and unreasonable as applied to it? To hold otherwise is tantamount to saying that the so-called legislative determination is conclusive and may not be reviewed by the courts regardless of the arbitrary and unreasonable character of such determination. If such is the law of this state, and the majority decision so indicates, the cases which hold that such determination is subject to review by the courts when it is attacked as arbitrary and unreasonable, should be overruled. (In re Smith, 143 Cal. 368 [ 77 P. 180 ] ; Pacific Palisades Assn. v. Huntington Beach, 196 Cal. 211 [ 237 P. 538 , 40 A.L.R. *473 782 ]; People v. Hawley, 207 Cal. 395 [ 279 P. 136 ]; Skalko v. City of Sunnyvale, 14 Cal.2d 213 [ 93 P.2d 93 ]; Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 [ 43 S.Ct. 158 , 67 L.Ed. 322 ]; 12 Cal.Jur. 10-Yr. Supp. 164; 58 Am.Jur. 954.)
In essence, what the majority opinion holds is this; That the validity o£ such an ordinance depends upon whether four members of this court think it is reasonable as applied to plaintiffs’ property, they being the judges of both fact and law. Such being the case, the function of the trial court is that of a mere referee to hear the evidence and make his recommendation which has no binding effect as a factual determination. This is indeed a new and unique legal philosophy of law without constitutional or statutory postulate.
In the case at bar the trial court after hearing the testimony of numerous witnesses, examining many maps, charts and diagrams, and the trial judge himself viewing the premises, made elaborate findings of fact to the effect that the application of the ordinance in question to plaintiffs’ property would render it almost valueless. That court then concluded that the ordinance was unreasonable, and therefore, invalid and unenforceable as against plaintiffs’ property. The case was then appealed to the District Court of Appeal, Second District, Division Two, and that court, in a well reasoned opinion prepared by Associate Justice McComb, and concurred in by all the members of that court, affirmed the judgment of the trial court. (85 A.C.A. 202 [ 192 P.2d 110 ].) Now, this court, by a bare majority, reverses the judgment, and, in effect, directs the entry of a judgment upholding the validity of the ordinance. In other words, four members of this court override the view of seven other judges, one of whom heard the witnesses testify and saw the property, and the other six are certainly in as favorable position to determine the reasonableness of the ordinance as the four justices who have joined in the majority opinion. When such a thing occurs, I am constrained to question the soundness of the oft-repeated adage that ‘ ‘ Ours is a government of law—not men. ’ ’
The basic concept in both the Constitution of the United States (Amendments V and XIV) and the Constitution of the State of California (sections 1 and 14 of article I) is that the ownership and occupancy of land are fundamental rights to be enjoyed by all citizens of the United States, and with the exception of the limited field in which the police power operates, these rights cannot be violated without compensation being paid to the owner. It is conceded that zoning of land *474 for particular uses comes within the purview of the police power. It must be likewise conceded that the exercise of this power must be reasonable, and that the determination of whether or not it is reasonable is for the court. Otherwise the rights guaranteed by the constitutional provisions above cited would not be protected. If a city council or a board of supervisors can adopt a zoning ordinance arbitrarily and unreasonably restricting the use to which real property may be put, and such an ordinance is not subject to review by the courts as to its reasonableness, then the value of all privately owned property is subject to the whim and caprice of these constantly changing political boards. One board of supervisors might zone all agricultural land in a certain area for farms of 10 acres each, or limit such farms to 10 cows or less, and the next board might see fit to increase or reduce the area and specify what can be raised on it. Likewise, the number of employees a farmer could hire would also be limited.
This would seem to follow in the face of the holding of the majority in the case at bar that property may be zoned for an industrial use which does not employ over five employees. There is obviously no limit, to which the use of property may be restricted by zoning under the holding of the majority in this case, and the property owner is without relief so far as the courts are concerned.
I do not consider the holding in the majority decision the announcement of a rule of law, but that it simply amounts to a dogmatic declaration that in the zoning field the will of the legislative body is supreme. This never has been, and never should be, the law of this state.