Ball v. Jones

LAWSON, Justice

(dissenting).

Resort may be had to the courts where it is made to appear that a zoning ordinance “passes the bounds of reason and assumes the character of a merely arbitrary fiat,” Marshall v. City of Mobile, 250 Ala. 646 , 35 So.2d 553, 555 . We have also said that resort may be had to the courts when the enforcement of a zoning ordinance unlawfully deprives a person of property rights or unlawfully interferes with his right to use his property. Phillips v. City of Homewood, 255 Ala. 180 , 50 So.2d 267 .

The court recognizes this right of court review, but has held that it cannot be invoked by a resort to § 6 of Act 729, approved September 20, 1957, 1957 General Acts, p. 1134.

I cannot agree with this narrow construction of the provisions of § 6 of Act 729, supra.

I know of no reason why the Legislature cannot legally provide for such a review by appeal.

The construction placed on § 6, supra, by the court strikes down most, if not all, of the provisions of § 6, supra, in spite of the severability clause of Act 729 and in spite of the recognized rule that enactments of the Legislature are presumed to be “constitutionally valid.”

In my opinion, the court’s failure to recognize this principle places the entire act in jeopardy, for it may well be insisted that without the appeal feature included in § 6, supra, the act would not have been passed. If the severability clause cannot save the appeal provisions of § 6, supra, the question is presented as to whether it can save the other provisions of Act 729, supra.

I entertain the view, therefore, that the writ of prohibition should not issue without expressing an opinion as to whether the adoption of the rezoning ordinance in question here was a legislative function.

I prefer not to pass at this time on this question of first impression in this state, since an expression by me would not affect the decision.

The time which has been available to me for research since I have been brought into a consideration of this case has not been adequate for me to exhaust the authorities on the question. I find that the courts of other states are not in accord.

As going to show the differences of opinion, I call attention to several cases of courts of other states.

Although it is not cited in support of the statement that the enactment of the rezón *318 ing ordinance is an exercise of a purely legislative function, such is held in the case of Andrews v. Town Board of Town of Dewitt, Sup., 98 N.Y.S.2d 494 , which is cited elsewhere in the court’s opinion. To like effect is the holding of the Court of Appeals of Ohio in Hilltop Realty, Inc., v. Town of South Euclid, 110 Ohio App. 535 , 164 N.E.2d 180 . In Lumb v. Zoning Board of Review of Town of Bristol, R.I., 165 A.2d 504, 507 , the court held: “A town council acting to enact, amend, or repeal a zoning ordinance is engaging in a purely legislative action.” (Emphasis supplied.)

The Superior Court of New Jersey expressed a contrary view in the case of McNamara v. Borough of Saddle River, 60 N.J.Super. 367 , 158 A.2d 722, 726 . That case involved the validity of an amendment of the borough of Saddle River zoning ordinance.

The New Jersey Court said in part as follows:

“The defendant argues that Ordinance No. 105 was enacted in the exercise of a purely legislative function and therefore that there cannot be a judicial review thereof except in special circumstances not present here. The court in Aldom v. Borough of Roseland, 42 N.J.Super. 495 , 127 A.2d 190, 197 (App.Div.1956), did not hold that the function of the council was judicial solely for the reason mentioned in the defendant’s brief.. The opinion cites four reasons for the determination:

“ ‘However, here the function was not exclusively legislative; it partook sufficiently of the quasi-judicial to warrant examination by the courts. The superintendence of the council over the approval by the planning board of the zoning changes, the deliberative function involved in considering the conflicting arguments which arose at the required public meeting, the fact that only one person controls about 90% of the benefited land, and, in the factual setting, the nature of the decision to exercise the police power, which is at the root of all zoning, cannot be ignored.’

“In the factual setting of the present case with its background of public contention described in the Appellate Division opinion, the deliberative function of the council in this exercise of the zoning power was qwa«-judicial. And the process called for the exercise of discretion by the governing body according to the weight of conflicting public considerations making it judicial in quality according to the test established in Pyatt v. Mayor and Council of Borough of Dunellen, 9 N.J. 548 , 89 A.2d 1 (1952). To be taken into account is the fact that the ordinance, although general in terms, affected only a single situation. The council’s action is subject to judicial review.” 158 A. 2d 726 .

In Kelley v. John, 162 Neb. 319 , 75 N.W.2d 713 , the Supreme Court of Nebraska held that the governing body of the City of McCook in adopting a rezoning ordinance was acting in an administrative capacity rather than legislative. The Nebraska court recognized, as does this court, that in adopting an original comprehensive zoning ordinance the municipal authorities act in a legislative capacity, but pointed out the distinction when the municipal action was the adoption of an amendment to the comprehensive zoning ordinance.

For the reasons heretofore indicated, I feel constrained to dissent from the action of the court in ordering the issuance of the peremptory writ of prohibition.