The opinion
Conley Byrd, Justice, dissenting. I readily admit that the determination of whether a city will exercise its zoning authority is a legislative matter depending upon the popular will of the inhabitants of a city. Also the determination that property shall be zoned according to single family, multiple family, commercial and industrial uses is a legislative matter. However,. nothing would be more arbitrary than to permit a city to. designate specific property for use as single family, multiple family or commercial purposes without a hearing to make some determination of the facts involved. On the first appeal, Wenderoth v. Freeze, Mayor, 248 Ark. 469 , 452 S. W. 2d 328 (1970), it was pointed out that such hearings affect vital property rights and the rezoning by the City was reversed because appellant did not have ample notice for purposes of appearing and giving evidence before the planning commission.
In Scroggins v. Kerr, 217 Ark. 137 , 228 S. W. 2d 995 (1950), it was pointed out that in some functions city councils act quasi-judicially, as distinguished from their executive and legislative functions.
Of course in matters involving the legislative functions of city councils there is a right of referendum. But a change in the designation for which property may be used from single family to commercial or industrial, in accordance with the criterion established by an existing zoning ordinance, is nothing more than an exercise of a conclusion upon the facts presented or known. However by today’s decision, it is now a legislative matter, subject to the popular will of a city’s inhabitants either through their elected officials or by their own vote in an initiative and referendum or both.
The vice in holding that the determination of use of property in accordance with an existing zoning code classification is a legislative function can be most aptly demonstrated in those cases in which rezoning of property is resisted by commercial competitiors. By today’s decision a commercial competitor, with political muscle, can legally prevent a private owner from using his property for competing commercial purposes through the legislative processes of the city. This is contrary to our Constitution Art. 2 § 19 that monopolies shall not be allowed and also Art. 2 § 22 prohibiting the condemnation of private property for private purposes.
An act of the legislature should be construed to make it constitutional if possible. Therefore zoning or rezoning in accordance with an existing classification established by ordinance is and should be nothing more than a fact determination demonstratable to any fact finder including a jury. Considered in the light that the city’s function is quasi-judicial, the act in question would be constitutional.
The absurdity of classifying a city’s action in categorizing property for use purposes as legislative in character is demonstrated by the fact that the other Section of Act 134 of 1965, the Act here under attack, authorizes a city to exercise zoning jurisdiction over property lying outside its corporate limits and along a navigable stream for a distance of five miles in either direction. Thus by today’s decision a number of farmers along the Arkansas River and other navigable streams will find the use of their property controlled by the political whims of city inhabitants and themselves without a voice or a vote even on a referendum. Legislation without representation has never been favored.
For the reasons stated, I respectfully dissent.