Opinion
No. 41941.
February 5, 1962.
1. Zoning — property which had been zoned residential by county did not, when taken into city, come as unzoned property.
Property, which had been zoned residential by county, did not, when it was taken into city, come as unzoned property; and city was authorized to deny request by owner to rezone property from residential to commercial.
2. Zoning — injunction — adequate and speedy remedy at law.
Property owner, whose request to rezone portion of its property was denied, had a plain, adequate and speedy remedy at law, and owner was not entitled to an injunction restraining city from enforcing order denying request to rezone property. Sec. 1195, Code 1942.
Headnotes as approved by Jones, J.
APPEAL from the Crancery Court of Hinds County; W.T. HORTON, Chancellor.
Overstreet, Kuykendall, Perry Phillips, Jackson, for appellant.
I. The city order or ordinance being unreasonable and arbitrary as to appellant's property, then that part pertaining to appellant's property is void and may be enjoined in equity.
A. Zoning, being under the police powers, must promote the safety, health, morals and general welfare to justify the damaging of private property without compensation, and so is subject to judicial review. Ball v. Town Planning Zoning Comm., 151 A.2d 327; City of Hattiesburg v. Pittman, 233 Miss. 544, 102 So.2d 352; Fallon v. Baltimore, 219 Md. 110, 148 A.2d 709; Frederic v. Board of Suprs. Jackson County, 197 Miss. 293, 20 So.2d 92; Jones v. City of Hattiesburg, 207 Miss. 491, 42 So.2d 717; Sec. 17, Constitution 1890; Secs. 3590, 3592, Code 1942; 101 C.J.S., Zoning, Secs. 16, 29.
B. If the order or ordinance is unreasonable or arbitrary as to appellant's property, then it is void. Frederic v. Board of Suprs. Jackson County, supra; Jones v. City of Hattiesburg, supra.
C. Where an order or ordinance is void, it may be enjoined by the Chancery Court. Brooks v. City of Jackson, 211 Miss. 246, 51 So.2d 274; City of Pascagoula v. Krebs, 151 Miss. 676, 118 So. 286; Fitzhugh v. City of Jackson, 132 Miss. 585, 97 So. 90; Knight v. Johns, 161 Miss. 519, 137 So. 509.
II. When subject land was annexed and included within the city limits it was no longer zoned, as the county zoning does not automatically carry over to municipal zoning, and so the order of June 22, 1960 is void. City of Jackson v. Freeman-Howie, Inc., 239 Miss. 84, 121 So.2d 120; Frederic v. Board of Suprs. Jackson County, supra; Secs. 2890.5, 3374-10, 3374-74, 3590, 3591, 3592, Code 1942; 101 C.J.S., Zoning, Sec. 134; Anno. 41 A.L.R. 2d 1463.
III. If the City's order or ordinance is void as to appellant's property, it may be cancelled as a cloud on appellant's title. Church of the Living God v. Curry, 203 Miss. 279, 34 So.2d 494; Evans v. City of Jackson, 202 Miss. 9, 30 So.2d 315.
IV. An appeal to the Circuit Court by bill of exceptions under Section 1195 of the Mississippi Code of 1942 was not an adequate remedy and so appellant was entitled to equitable relief.
A. The hearing before the City Council did not comply with "due process", and so there was nothing to include in a bill of exceptions for judicial review. Love v. Mississippi State Board of Veterinary Examiners, 230 Miss. 222, 92 So.2d 463; Sec. 1195, Code 1942; 73 C.J.S., Public Administrative Bodies and Procedure, Secs. 60, 122, 132, 136.
B. Where the legal remedy is inadequate and the injury irreparable, relief will be granted in Chancery. Moss v. Jourdan, 129 Miss. 598, 92 So. 689; 43 C.J.S., Injunctions, Secs. 25a (2)(a), 119; 101 C.J.S., Zoning, Sec. 340; Griffith's Miss. Chancery Practice, Sec. 436.
V. The decisions of this Court do not provide that Section 1195 is the exclusive remedy in a case of this kind.
A. The few Mississippi cases denying injunctions are based on obvious adequate remedies at law. City of Hattiesburg v. Pittman, 233 Miss. 544, 102 So.2d 352; Henry, Insurance Commissioner v. Donovan, 148 Miss. 278, 114 So. 482; Illinois Central R. Co. v. Public Service Comm., 220 Miss. 439, 71 So.2d 176; Mississippi Valley Gas Co. v. City of Jackson, 236 Miss. 81, 109 So.2d 637; Moore v. Town of Duck Hill, 151 Miss. 840, 119 So. 324; Scott, Mayor v. Lowe, 223 Miss. 312, 78 So.2d 452.
B. A legislative act is subject to judicial review in equity. Ballard v. Smith, 234 Miss. 531, 107 So.2d 580, 74 A.L.R. 2d 152; Board of Suprs. Clay County v. McCormick, 207 Miss. 216, 42 So.2d 177; Board of Suprs. De Soto County v. Pidgeon-Thomas Iron Co., 114 Miss. 274, 75 So. 117; Board of Suprs. Quitman County v. State, 205 Miss. 43, 38 So.2d 314; Yerger v. Greenwood, 77 Miss. 378, 27 So. 620; Sec. 3590, Code 1942.
C. Two zoning cases from the Chancery Court were heard without this Court questioning the lack of equity jurisdiction. Ballard v. Smith, supra; Holcomb v. City of Clarksdale, 217 Miss. 892, 65 So.2d 281.
VI. This case is not within the prohibitive rule as to a collateral attack. Brooks-Scanlon Co. v. Stogner, 114 Miss. 736, 75 So. 596; In re Savannah Consolidated School Dist., 208 Miss. 460, 44 So.2d 545; 30A Am. Jur., Judgments, Sec. 852.
Watkins, Pyle, Edwards Ludlam, E.W. Stennett, and W.T. Neely, Jackson, for appellees.
I. The appellant has a full, complete and adequate remedy at law.
A. Section 1195 of the Mississippi Code of 1942, Annotated, affords a plain, adequate remedy at law. Board of Suprs. Clay County v. McCormick, 207 Miss. 216, 42 So.2d 117; Board of Suprs. De Soto County v. Pidgeon-Thomas Iron Co., 114 Miss. 284, 75 So. 117; Faison v. City of Indianola, 156 Miss. 872, 127 So. 558; Yardell v. Madison County, 79 Miss. 212, 30 So. 606; Sec. 1195, Code 1942.
B. Equity jurisdiction is dependent upon the absence of an adequate remedy at law. City of Jackson v. McPherson, 158 Miss. 152, 130 So. 287; Harris v. Smiley, 36 Okla. 89; Illinois Central R. Co. v. Mississippi Public Service Comm., 220 Miss. 439, 71 So.2d 176; Madison County v. Mississippi State Highway Comm., 191 Miss. 192, 198 So. 284; Mississippi Valley Gas Co. v. City of Jackson, 236 Miss. 8, 109 So.2d 637; Secs. 7699, 7700, 7711, Code 1942; 42 Am. Jur., Public Administrative Law, Sec. 232; Griffith's Mississippi Chancery Practice (2d ed.) 431.
II. There is no equity on the face of the bill.
A. Highland Village Land Company is estopped to deny the validity of the city zoning ordinance. Coombs v. Larson, 112 Conn. 236, 152 A. 297; Jones v. Zoning Board of Adjustment of Long Beach, 101 W.2d 102; Walker v. City of Biloxi, 229 Miss. 890, 92 So.2d 227.
B. Highland Village Land Company is collaterally estopped from attacking the order of the City Council. Biloxi-Pascagoula Real Estate Board, Inc. v. Mississippi Regional Housing Authority No. VIII, 231 Miss. 89, 94 So.2d 793; Harvey v. Covington County, 161 Miss. 765, 138 So. 403; Wofford v. Williams, 110 Miss. 637, 70 So. 823.
APPELLANT IN REPLY.
I. The appellant does not have a full, complete and adequate remedy at law. City of Jackson v. McPherson, 158 Miss. 152, 130 So. 287; Illinois Central R. Co. v. Mississippi Public Service Comm., 220 Miss. 439, 71 So.2d 176; Madison County v. Mississippi State Highway Comm., 191 Miss. 192, 19 So. 284; Mississippi Valley Gas Co. v. City of Jackson, 236 Miss. 8, 109 So.2d 637; Sec. 1195, Code 1942.
II. Appellant is not estopped to deny the validity of the city zoning ordinance of 1950.
III. This suit is not a collateral attack on the June 22, 1960 order of the City Council. Biloxi-Pascagoula Real Estate Board v. Mississippi Regional Housing Authority, 231 Miss. 89, 94 So.2d 793; Brooks-Scanlon Co. v. Stogner, 114 Miss. 736, 75 So. 596; Harvey v. Covington County, 161 Miss. 765, 138 So. 403; McKenney v. Adams, 95 Miss. 832, 50 So. 474; Wofford v. Williams, 110 Miss. 637, 70 So. 823; 30A Am. Jur., Judgments, Sec. 852.
IV. Equity should enjoin a void ordinance or order. Brooks v. City of Jackson, 211 Miss. 246, 51 So.2d 274; City of Pascagoula v. Krebs, 151 Miss. 676, 118 So. 286; Fitzhugh v. City of Jackson, 132 Miss. 585, 97 So. 90; Frederic v. Board of Suprs. Jackson County, 197 Miss. 293, 20 So.2d 92; Jones v. City of Hattiesburg, 207 Miss. 491, 42 So.2d 717; Knight v. Johns, 161 Miss. 519, 137 So. 509.
V. The City of Jackson must have relied on the 1950 zoning ordinance or the county zoning ordinance in its order of June 22, 1960. Sec. 2890.5, Code 1942; Griffith's Mississippi Chancery Practice (2d ed.) 271-272.
VI. The acts and order of the City of Jackson do constitute a cloud on appellant's title. Church of the Living God v. Curry, 203 Miss. 279, 34 So.2d 494; Mississippi State Highway Comm. v. Spencer, 233 Miss. 155, 101 So.2d 499; Sec. 17, Constitution 1890; 101 C.J.S., Zoning, Sec. 29.
Highland Village Land Company, hereinafter referred to as complainant, by bill filed in the Chancery Court of the First Judicial District of Hinds County, sought to enjoin the City of Jackson from enforcing an order denying its request to rezone certain property owned by the said complainant.
(Hn 1) On June 1, 1950, the City of Jackson adopted a general zoning ordinance for the City. At that time the property now owned by complainant was situated outside the City of Jackson. On August 8, 1958, the county adopted a zoning ordinance under the terms of which this land, being outside of the City of Jackson, was zoned by the county as residential property. On November 10, 1958, the county amended its order so that the north 300 feet of complainant's property was zoned to commercial use.
After the foregoing zoning ordinances had been adopted by the city and the county, complainant, on December 8, 1959, purchased the property here involved.
On March 17, 1960, the City of Jackson extended its limits so as to include complainant's property. Thereafter complainant applied to the zoning committee of the City of Jackson to rezone the portion of its property here involved to commercial use.
On May 9, 1960, the zoning committee heard the application and recommended the granting of such change in its report to the City Council. This report contained the following statement: "This request was handled previously by the County Zoning Commission with the request being denied due to residents' protests and deed of covenant restrictions of certain parts of the proposed development. It is now understood that the residents in the area are no longer opposed to this particular development, and proceedings are under way to have the deed of covenant restrictions removed."
On receipt of said report, the City Council gave notice as required, fixing the date of June 15, 1960 at 10:00 A.M., as the time in which all parties interested might file protests or express approval of same. Thereafter on June 22, 1960, the City Council denied the application for rezoning of said property, the said order of denial containing the following finding:
"It further appearing to the satisfaction of the Council that at the said hearing practically all of the owners of property located and situated within the area proposed to be rezoned, appeared in person or filed written protests against the said rezoning. The Council having heard the evidence and the objections and protests submitted to it and having found from the said evidence that the rezoning of the said property from residential to commercial uses is unnecessary and would be detrimental to the area, depreciate the value of residential property in the neighborhood, and if rezoned, the operation of the commercial establishment on the said property would be a disturbance to the neighborhood from the standpoint of noises, traffic, and the like, and that, therefore, the said petition should be denied."
On August 1, 1960, complainant instituted this proceeding by its bill in chancery asking that the City be enjoined and alleging that the actions of the board were unlawful, oppressive, an abuse of discretion, and beyond the authority of the city; that such action was arbitrary, unreasonable, capricious, an illegal regulation of complainant's property, and constituted a confiscation thereof, and that as applied to complainant's property the same was void and unconstitutional.
Complainant also attacked the hearing before the Council because it was alleged (1) no witness was sworn and no testimony recorded; (2) complainant was not represented by counsel and not afforded opportunity to cross-examine; (3) no attempt to apply rules of evidence; (4) members of zoning committee were not interrogated; and (5) no safeguards afforded complainant in order that it might have a full, fair and complete adjudication of its rights.
However, the bill shows complainant requested the hearing. It does not charge it was prevented in any way from having counsel, having witnesses sworn, cross-examining witnesses, calling members of zoning committee, or asking for invocation of any rules of evidence (the council, however, not being bound by strict rules of evidence), nor that they requested the recording of evidence, nor that they sought and were denied any privilege of any sort at the hearing. Neither does it allege it was denied a bill of exceptions.
On September 9, 1960, petition to intervene as defendants was filed by thirteen citizens, property owners neighboring upon or near the property involved. Order was signed on September 13, 1960, permitting such intervention. On October 13, 1960, the intervenors filed a demurrer and on October 24 the City of Jackson filed its demurrer, both of said demurrers alleging as grounds therefor that there was no equity on the face of the bill and that the complainant had a full, speedy, complete and adequate remedy at law, of which it failed to avail itself.
The demurrer was sustained on December 19, 1960, on the ground that the complainant had an adequate remedy at law by appeal to the circuit court under Section 1195 of the Code of 1942. Hence this appeal.
The question is urged that the action of the City is void because when the city limits was extended and the property taken into the city the zoning ordinances adopted by the county board of supervisors terminated insofar as said property was concerned and such property was unzoned so that the City, until it had taken the necessary legal steps, had no jurisdiction over zoning of this particular property. Some authority is cited for that: 101 C.J.S., Zoning, Section 134; Anno., 41 A.L.R. 2d 1463; City of South San Francisco v. Berry (Cal.), 260 P.2d 1045.
This Court is unable and unwilling to accept as law the proposition that when property which had been zoned by the county was taken into the city it came as unzoned property. The record in this case discloses that property owners were interested in the zoning of this particular property because, as shown by the order of the City Council, they appeared and objected to rezoning it, and as shown by the petition to intervene, they were objecting to it here. In these times when the urban population is increasing so rapidly, and cities generally are expanding as never before, people invest their money in property with an eye to the zoning regulations as the property purchased by them is thereby affected. They have a right to rely upon zoning ordinances and to have same remain in effect unless and until changed by the proper authority, in accordance with law and after due notice and hearing. What was effected here was, as has been expressed, only a change of sovereign so that the City had authority over the property. Of course, the county had no further authority over it and the property owners had a right to have some authority with power over such zoning. Under these circumstances, it could only be the authorities of the City. The complainant itself recognized this when it filed its petition with the City authorities seeking to have the property rezoned. Cf. Walker v. City of Biloxi, 229 Miss. 890, 92 So.2d 227.
As was stated by Judge Griffith, in City of Jackson v. McPherson, 162 Miss. 164, 138 So. 604; "We answer as we now do because along with nearly all the courts, we have been compelled to see and appreciate that the modern zoning law is essential to meet the requirements of modern conditions. Indeed, we can now see and appreciate that had these laws come earlier, had been earlier perfected and had at an earlier date received approval as to their constitutional validity, an almost incurable situation which now prevails in many large towns and cities could and would have been prevented. But the modern zoning law did not come earlier, because the proposal thus to restrict property owners in the use of their property appeared upon first approach to be in contravention of constitutional rights and as an arbitrary substitution of governmental regulation for that which was believed to belong exclusively to the field of private determination. It was difficult therefore to secure, in the first place, the necessary legislation; and, in the second place, it was even more difficult to obtain the cooperation of those who were adversely affected, and who naturally regarded all such laws and regulations as unjust and as an unwarrantable encroachment upon their private property rights. Those so affected, of course, appealed to the courts, and as was but natural, also, the judges were alarmed at the proposed extension of governmental interference, and the earlier decisions were generally adverse to the proposal.
"But as time and experience further demonstrated the necessities of the situation, legislation persisted in its efforts; and the legislative enactments were improved and perfected so as to meet the specific objections made, and soon thereafter, as the courts themselves became the better convinced that the constitutional guaranties must be allowed to expand in their application and keep pace with the new conditions and new problems of urban life, the earlier decisions were made to give way to the requirements of the new and changing conditions; so that now the modern standard zoning laws, such as the statutes recently enacted in this state, have received the approval, so far as constitutional questions are concerned, of the overwhelming weight of judicial opinion, both state and federal."
(Hn 2) We think the City was authorized to take the action it did and the only question remaining is as to whether complainant had a plain, adequate and speedy remedy at law. Section 1195, Code of 1942, provides for an appeal from municipal orders.
While zoning is a legislative action, this Court has held that appeals under said section lie from either administrative or legislative matters. Board of Supervisors v. McCormick, 207 Miss. 216, 42 So.2d 177.
In Illinois Central R.R. Company v. Public Service Commission, 220 Miss. 439, 71 So.2d 176, the Railroad Company sought to enjoin the Public Service Commission on the ground that the action of the Commission amounted to taking the railroad property without due process of law; that it had no authority to require the railroad to operate as ordered; the bill also charged that the action of the Commission was "arbitrary, illegal, unlawful, unwarranted, and in utter disregard of uncontradicted proof of loss being incurred by the complainant." The Supreme Court said:
"The chancery court was, and we are, requested to sustain those allegations of the bill, and hold the order void, although we have no knowledge whatever of the extent, nature and force of the testimony which was before the Commission. Naturally, it was impossible for the lower court, and it is impossible for us, to say whether the order of the Commission was justified when there was not before the lower court, and is not before us, a scintilla of testimony which was before the Commission. It is clear that the Commission had before it much testimony which we do not have, because the order recites that the patrons along the railroad line testified before the Commission."
The action of the lower court in sustaining a demurrer because of a plain, adequate and complete remedy at law was there affirmed.
Appeal under Section 1195 has been had in zoning cases in which many of the same objections here made were involved. See Hattiesburg v. Pittman, 233 Miss. 544, 102 So.2d 352, and Jones v. Hattiesburg, 207 Miss. 491, 42 So.2d 717.
In the cases of Shender v. City of Philadelphia, 101 A.2d 667, and Jacobs v. Fetzer, et al., 112 A.2d 356, injunctions were sought. They were both Pennsylvania cases and it seems the zoning ordinances themselves gave a right of appeal. The Supreme Court of Pennsylvania held that under such circumstances an equity court had no jurisdiction of a bill seeking to have zoning ordinances declared void as to complainant's land and enforcement thereof enjoined as to such land, because of an adequate remedy by appeal.
We are of the opinion that all questions raised by plaintiff in this bill could have been determined on appeal and the chancellor was correct in sustaining the demurrer. The case is affirmed.
Affirmed.
Lee, P.J., and Kyle, Gillespie and McElroy, JJ., concur.