The opinion
Hall, Justice,
Dissenting:
I respectfully dissent from the holding in the controlling opinion in this case. The majority has decided, and correctly so, that the 1953 ordinance of the City of Tupelo *553 was void, but bas beld, as I see it, incorrectly, that tbe 1946 ordinance was valid and enforceable.
I appreciate the fact and fully realize that tbe municipality bas tbe right to enact' a zoning law and that tbe courts will not interfere with' tbe determination of the city authorities as to tbe administration of that law “unless tbe court can say that their action was unreasonable and arbitrary”, as was beld in Jones v. City of Hattiesburg, 207 Miss. 491, 495 , 42 So. 2d 717 .
In that case we cited tbe case of Bradley v. City of Jackson, 153 Miss. 136 , 119 So. 811, 816 , wherein it was beld that “All such ordinances and regulations, however, must be reasonable, otherwise they will be void and nonenforeeable; and the question of their reasonableness is a judicial question. ’ ’ Tbe same thing was beld by this Court in tbe recent case of City of Hattiesburg, et al. v. Pittman, 102 So. 2d 352 , not yet reported in tbe State Reports.
Tbe question in this case boils itself down to whether or not tbe city authorities of Tupelo have been making an unreasonable and arbitrary application of tbe city zoning ordinance, but tbe majority opinion undertakes to show tbe validity of tbe 1946 ordinance. That ordinance referred to a zoning map of tbe City and tbe chancellor below bad this map before him and found as a fact, which fact fully appears from tbe record in this case, that tbe 1946 map is not made in accordance with tbe provisions of tbe ordinance, and when tbe majority opinion talks about tbe validity of tbe 1946 map it completely overlooks tbe fact that tbe map does not correspond to tbe ordinance itself. Furthermore, under tbe law, tbe map is supposed to reflect a comprehensive plan for zoning for tbe entire city. In this case tbe city limits bad recently been extended and a large additional amount of territory bad been broug’ht therein which, according to tbe map, was left entirely unzoned, and tbe map, therefore, did not furnish any comprehensive plan of zoning.
*554 Another fact, which is barely mentioned in the controlling opinion, is that the record shows without conflict that the Mayor of Tupelo had a personal grudge against the appellee and personally made an affidavit against him every day that the appellee had some gasoline pumps in front of his newly constructed grocery store, even though at that time the pumps, which are operated by electricity, had never had any electricity connected to them and the appellee at that time was not operating a filling station. The writer cannot tell from the record before us exactly how many of said prosecutions there were, but the prosecutions got so regular that the appellee personally had taken down and transcribed a record of the testimony in ten of these cases and that record is before the Court showing ten successive prosecutions. As a matter of fact the appellee had not violated the zoning ordinance at that time.
Under a permit from the City he had torn down an old frame building located adjacent to the street and had constructed a concrete block and brick veneer building for his grocery store, in lieu thereof, but had set the same back a considerable distance from the street and had left parking areas all around, so that customers would not have to park on the street and obstruct traffic but could drive into his place and park there. After this was done he set up some gasoline pumps in one of the vacant areas in front, a considerable distance from the street and immediately the Mayor started prosecuting him. It is significant to note that according to the record the appellee repeatedly made demand to know under what ordinance he was being prosecuted, that is whether the 1932 ordinance, the 1936 ordinance, the 1946 ordinance or the 1953 ordinance. On many of these prosecutions he was never advised which ordinance the affidavit was made under, and on some of them he was told that it was under the 1953 ordinance which the Court is unanimously of the opinion was void.
*555 In 58 Am. Jur., p. 953 , Zoning, Section 21, it is said: “In considering the validity of zoning laws, the courts must determine whether they are arbitrary or unreasonable in their conception or application, since the zoning power does not extend to unreasonable or arbitrary inter-meddling with the private ownership of property. Accordingly, there are a number of cases in which particular zoning restrictions have been regarded as unreasonable, arbitrary, or oppressive.” (Emphasis supplied.) Numerous authorities are cited in the notes supporting this proposition, including dozens of cases and annotations from American Law Reports.
In 58 Am. Jur., p. 954 , Zoning, Section 22, it is said: “In determining the question of the reasonableness of a zoning restriction, the courts will disregard mere form in order to insure protection of rights injuriously affected by unreasonable and arbitrary action. In this respect, it is worthy of emphasis that although zoning ordinances are not per se invalid, yet when the provisions of such an ordinance come to be applied to particular premises, or to particular conditions, or to be considered in connection with specific complaints, some of them may be found to be greatly arbitrary and unreasonable. Hence, the determination of reasonableness of zoning restrictions must be made in the light of facts presented in each case. The fact that substantial study has been given to the problem of a municipal zoning ordinance before its enactment has been regarded as a matter properly considered in determining its reasonableness.” In the notes under this section there are numerous authorities cited, including annotations in American Law Reports.
Now let us see whether or not the enforcement of any of these ordinances against the appellee was unreasonable, arbitrary, or capricious. Mayor Ballard himself testified that the reason he voted to deny the permit in this case was that the appellee had a son-in-law far removed from the place in question in another section of *556 the City of Tupelo who was operating both a grocery store and a filling station and was using the filling station only as a blind to keep his grocery store open for the sale of goods on Sunday. That was the only reason for the Mayor’s being opposed to the granting of the permit. He did not claim to be considering the question of safety, morals, public health or public interest in reaching his decision.
This case was tried at the September 1956 Term and both sides rested and the matter was argued to the chancellor, and the chancellor took the matter under advisement for a decision in vacation. Later, the map which was referred to and adopted by the 1946 ordinance was found and thereupon a motion was made to reopen the case so that this map might be introduced. The motion was sustained and the case reopened and additional proof taken at the January 1957 Term. It was then for the first time that the City introduced two Aldermen who testified that they voted against the permit because they thought it would create a traffic hazard. They were not traffic experts and had had little, if anything, to do with traffic problems, but the Chief of Police, who is constantly confronted with traffic problems, testified that in his opinion the use of this property as a filling station site would not in any manner create a traffic hazard. In fact, the appellee’s lot measures 105 feet by 125 feet. The old frame building extended right up to the edge of the street, but the new building is set back with ample parking space on all sides and ample room for the operation of a gasoline filling station, and it seems to the writer that with all of this additional parking space available cars would no longer have to park on the street but could get completely out of the street and out of the way of all traffic. In fact, the question of a traffic hazard was not even raised on the original trial of this case but came up purely as an afterthought when the case was reopened.
*557 As stated in the controlling opinion, the 1946 map and all of the notations, references and other things shown thereon, were as much a part of the ordinance as if the matters and things set forth in the map were all fully described therein. As I have pointed out, the ordinance itself is directly in conflict with the zoning map. In such instance, what is a citizen to do ? Is he to disregard the zoning map and follow the ordinance or vice versa?
It is ludicrous to read in the opinion that after the 1953 zoning ordinance the 1946 zoning map was filed away, but the opinion of the majority wholly fails to state where it was filed. For months and months the City Building Inspector searched for the map and was unable to find it. It was not on file in the Mayor’s Office or in any other place where it was available for inspection but was stored away in the basement of the City Hall, along with a lot of other useless rubbish, and, as I have heretofore stated, when the map was finally found, after this case had been tried at the September Term and both sides had rested and the case was under advisement in the hands of the chancellor, the City Building Inspector placed the map in the Mayor’s Office. When the map was found, it is true that it was in an unexpected place, to wit, amongst a lot of rubbish down in the basement, but it was not in the Mayor’s Office, as the controlling opinion states.
The controlling opinion states as a fact that the appellee was not misled in any respect as to the classification of the zone in which his property was located, to wit, “local business zone”, but I maintain that when the 1946 ordinance made the map a part of the ordinance, and it was in conflict with the ordinance, there was no way for him to know that his property was zoned for local business.
Another thing of which nothing is said in the controlling opinion is that the ordinance in question prohibited the operation of gasoline filling stations anywhere in the *558 City except industrial areas, but as a matter of fact there were five gasoline filling stations almost within speaking distance of the location in question and there were others scattered at intervals all up and down Main Street and elsewhere throughout the City. So far as the fire hazard is concerned, if any there be, the present method of operating gasoline filling stations is such that there is substantially no fire hazard whatsoever and a check of the records of the city fire department in practically every city will show that there are very few calls of the fire department to gasoline filling stations. The chancellor held, and I think he was eminently correct, that a provision restricting filling stations to industrial areas when there are already many located in other areas was arbitrary and discriminatory in violation of appellee’s constitutional rights, and, as stated by the chancellor, that its actual effect would be to keep out competition for those filling stations located in other areas. In fact, the Mayor testified that in his opinion gasoline filling stations are prohibited under all of the City’s zoning laws of Tupelo. It requires no citation of authorities to show that such a legitimate business cannot be absolutely prohibited by a city.
For the reasons which I have undertaken to set out as briefly as possible, I think the decision of the majority overruling the chancellor’s findings is erroneous and I respectfully dissent therefrom.
Mention is made in the opinion about the shape of the record in this case, particularly the photostatic copies of the exhibits consisting of minute books and the ordinance book of the City of Tupelo. These photostatic copies are directly in conflict with our rules, and in the first place should not have been sent up here, but since they were sent they should not have been just a bunch of loosely assembled pages but should have been copied by typewriter on white paper with black record ink. Some ■of these photostatic copies are so dim that it would prac *559 tically ruin the eyesight of anybody to undertake to read them, and if we had a rule which permitted, them, they would have to be clear copies to be of any value to us. Furthermore, they should have been bound.
It is evident from the fee bill that the clerk entered a charge of 25^ per hundred words for all of this photostatic work.
There are two exhibits consisting of testimony in the trial of the appellee in the City Court. One is ninety-four pages in length and the other is fourteen pages in length. This testimony was evidently taken down by court reporters who were personally hired and paid for by appellee.
The clerk has placed in the record a fee bill for copying four hundred and fifty-five pages, 84,680 words, at 25^ per hundred, $211.70. This is in addition to the fee to the court reporter and the amount of this charge is so patently excessive to the writer as to almost amount to extortion. The cost of this case should be reapportioned to correspond with the true facts as to how many pages and how many words the clerk copied. Attorneys in the chancery clerk’s home town are very reluctant to raise any objection to one of his fee bills, but the abuse in this case is so flagrant that we feel it is our duty to call attention to it.
Lee and Holmes, 33., concur in this dissent.