The opinion
SHENK, J., Dissenting.
In my opinion, the decision of this court on the former hearing ( 108 Pac. (2d) 899 ) correctly disposed of the appeal. The many eases there cited wherein zoning ordinances were held to be not in conformity with constitutional and statutory requirements *348 would seem to bring this ease within the rule that the action of the local regulating body is not necessarily beyond judicial scrutiny and direction.
In the majority opinion great stress is laid upon the fact that the plaintiff acquired his property after the enactment of the zoning ordinance and therefore that he is not in position to resist its enforcement. But that fact is not controlling. The leading cases upholding the constitutionality of zoning ordinances in this state (Miller v. Board of Public Works, 195 Cal. 477 [ 234 Pac. 381 , 38 A. L. R. 1479], and Zahn v. Board of Public Works, 195 Cal. 497 [ 234 Pac. 388 ]), were decided on February 27, 1925. Also on that day the case of In re White, 195 Cal. 516 [ 234 Pac. 396 ], was decided. Mr. Justice Lennon was the author of the three opinions. In the White case the petitioner -was discharged from custody in a proceeding in habeas corpus wherein it appeared that the building constructed by him in defiance of the zoning ordinance was constructed after the enactment of the ordinance. Notwithstanding that fact, this court, having in mind the salutary effect of zoning regulations and upholding them when properly enacted, as in the two immediately prior cases, nevertheless set aside the ordinance of the city of Atherton in a proceeding where the ordinance was declared to be unreasonable and void on its face. In the present ease we have the findings of the trial court after an extensive trial and view of the premises by the trial judge. The facts recited in the majority opinion are to my mind sufficient to support the findings and the conclusion that the ordinance under attack had no reasonable relation to the public health, safety, morals- or general welfare.
Carter, J., concurred.
Respondent’s petition for a rehearing was denied August 25, 1941. Shenk, J., Houser, J., and Carter, J., voted for a rehearing.