opining that if a use is permitted, any “action by the Board of Adjustment becomes immaterial, for the right exists without benefit of an exception_”
How later courts described this case
- opining that if a use is permitted, any “action by the Board of Adjustment becomes immaterial, for the right exists without benefit of an exception_”
- denying variance where property owner sought to construct beauty store in area zoned for residential use
- defining "such as" to mean "like or similar to the classification or kinds named"
Written by the judges who cited it.
The opinion
W.' O. MURRAY, Chief Justice.
I do not concur in the above opinion. It will be kept in mind that this is not an appeal from an order of the Board of Adjustment but an independent proceeding to have its order declared void for want of jurisdiction.
Under the zoning law the Board did have jurisdiction to consider whether or not the operating of a one-chair beauty shop, such as appellant desired to operate, was a home occupation such as the office of a physician, surgeon, dentist, musician, or artist, and whether there was to be granted a variance or exception to this zoning ordinance.
The construction placed upon the language of the ordinance by the majority is a very strict one and, in effect, holds that the doctrine of ejusdem generis should be applied, and therefore the only offices that can be operated in a D-Apartment District are those named in the ordinance. It occurs to me that the language of the ordinance, in general terms, having granted the right to conduct home occupations in D-Apartment districts, the language following, naming specifically five of these home industries, should not be given such strict construction as to exclude such home occupations as dress-making, a lawyer’s office, an engineer’s office, etc. Just why would the City authorize a doctor, a dentist, a surgeon, a musician or an artist to maintain an office in his home in such a zone and at the same time intend that under no circumstances could a dress-maker, a lawyer, or an engineer maintain an office in his home ? I cannot believe that such was the intention. In construing an ordinance the legislative intent is the thing to be determined.
It further occurs to me that in construing the particular language here used in the ordinance an application of the doctrine of «jusdem generis will defeat rather than uphold the legislative intent. The doctrine of “ejusdem generis” and “expressio unius est exclusio alterius” are not rules of sub *286 stantive law, but are only rules of construction, and are not to be applied where the legislative intent is plain and unambiguous. City of Lexington v. Edgerton, 289 Ky. 815 , 159 S.W.2d 1015 , 151 A.L.R. 1207 ; City of Caruthersville v. Faris, 237 Mo.App. 605 , 146 S.W.2d 80 .
For the reasons above stated, I respectfully enter my dissent.