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BIRDSEY et al. v. WESLEYAN COLLEGE.
18858.
Injunction. Before Judge Atkinson. Bibb Superior Court. December 15, 1954.
HEAD, Justice.
The trial court did not err in overruling the plaintiff's demurrers to the defendant's answer, and in denying the relief sought.
Buford S. Birdsey and 23 other named persons filed a petition against Wesleyan College, seeking to enjoin the defendant, temporarily and permanently, from erecting commercial buildings upon a part of its described property, from conducting any commercial or business venture on the property described, and from devoting its property to any use other than for school, church, or residence purposes. In substance the petition alleged: The defendant, by and through its officers and board of trustees, is about to erect, or cause to be erected, buildings and other structures for commercial purposes on a part of its property, containing approximately 100,000 square feet. The defendant has had an architect make a tentative sketch of proposed business establishments, consisting of a filling station, a drugstore, a variety store, and a general grocery store, and will cause to be conducted therein commercial enterprises and businesses, unless restrained and enjoined. The construction of such establishments will be contrary to valid zoning ordinances, and will be illegal and unlawful. The operation of such commercial establishments will greatly devaluate the property of the plaintiffs. The plaintiffs have a community of interests, being home owners and residents of the area, and being their motion for the benefit of themselves and others similarly situated.
The defendant filed an answer, in which it admitted that certain ordinances attached as exhibits to the petition had been adopted by the City of Macon. It alleged that the original zoning of the area was not the result of a single ordinance or a series of ordinances, but was the result of a number of ordinances at different times, dealing with separate areas. The defendant admitted that plans were being formulated for the improvement of a part of its property. It denied that the construction of the buildings would be contrary to any existing zoning ordinances, or otherwise illegal or unlawful, or would constitute any illegal infringement on the property and rights of the plaintiffs. The defendant alleged: It has no intention that any business located on the property will be operated in any other than a lawful and proper manner. During the 1947 session of the General Assembly, an amendment to the Constitution of Georgia was proposed, and duly ratified at the next general election, adding at the end of art. XI, sec. I, par. VI (Code, Ann., 2-7806), an amendment extending the zoning powers of the City of Macon and Bibb County. The constitutional amendment vested in the City of Macon and Bibb County, separately or jointly, general legislative authority to promulgate zoning and planning laws, rules, and regulations, as a direct grant of authority by the people of Georgia. Pursuant to such constitutional authority, a joint resolution and ordinance of the City of Macon and the County Board of Commissioners of Bibb County was passed and adopted, effective January 1, 1953, establishing a planning and zoning commission, providing for the appointment of the members, and defining its powers. The Macon-Bibb County Planning and Zoning Commission, created by the resolution and ordinance, was duly organized, and has since exercised the jurisdiction and authority conferred upon it. Since the date of its organization the commission has been the only governmental authority exercising any jurisdiction or authority pertaining to zoning, rezoning, districting, or redistricting within the limits of Macon or Bibb County. In June, 1953, the defendant filed with the commission its application for zoning for commercial purposes the area identified on the map attached to the petition. Notice of the application was duly given, and all of the plaintiffs had actual notice thereof, and in subsequent proceedings the plaintiffs, personally or by attorney, were present and participated in the proceedings. On April 5, 1954, the described property of the defendant was rezoned for commercial purposes.
Attached to the answer of the defendant was a copy of the joint resolution and ordinance of the City of Macon and the County Board of Commissioners of Bibb County, establishing a planning and zoning commission, to be known as "The Macon Bibb County Planning and Zoning Commission." The ordinance consists of some seven typewritten pages, and defines in detail the powers of the commission created, the time and place and manner of notice of public hearings and meetings, and all matters to be dealt with by the commission, and in section 4 it is provided in part: "The powers and functions of the Commission shall be to hold hearings on all zoning, districting, re-zoning or re-districting matters whether originated by private parties, by a governmental agency or by the Commission itself; to conduct such hearings as provided by law and its own rules and regulations; and to thereupon pass orders providing for the zoning, re-zoning, districting or re-districting of areas of the City of Macon and/or the County of Bibb."
The plaintiffs demurred and moved to strike the defendant's answer, attacking the constitutional amendment set out in the answer upon a number of grounds. The plaintiffs also amended their petition, attacking the constitutional amendment on grounds similar to those contained in their demurrers and motion to strike.
The defendant filed two amendments to its answer, and on each occasion the plaintiffs renewed their demurrers and motion to strike. The renewed demurrers and motion to strike the answer as amended were overruled. Thereafter the parties entered into a stipulation of fact, and by agreement the matter was presented to the court to bear and determine all issues of law and fact. A judgment was rendered denying the relief prayed. The plaintiffs except to the order overruling their demurrers, and to the judgment denying the prayers of their petition.
The plaintiffs contend that the Macon-Bibb County Planning and Zoning Commission was without authority to rezone the property of the defendant. The validity or invalidity of the rezoning of the defendant's property must be determined, first, on the validity of the constitutional amendment of 1948, and, second, on the extent of the powers granted therein, provided the amendment is not invalid.
In 1947 the General Assembly proposed a constitutional amendment to art. XI, sec. I, par. VI (Code, Ann., 2 7806), which provides: "Whatever tribunal, or officers, may be created by the General Assembly for the transaction of county matters, shall be uniform throughout the State, and of the same name, jurisdiction, and remedies, except that the General Assembly may provide for Commissioners of Roads and Revenues in any county," etc., by adding a new paragraph to such section to read as follows: "And except that the City of Macon and Bibb County may, through their respective governing authorities, separately or jointly, promulgate zoning and planning laws, rules and regulations, and administer the same, and/or appoint agencies or agency for adopting zoning and planning laws, rules, and regulations, and for administering the same, the governing authorities or their designated agencies being authorized to condition the application of any zoning and planning and the administration of the same according to any presently existing zoning or planning law, any that may hereafter be enacted or according to any that may be resolved or ordained by either or both or by their designated agency or agencies." (Ga. L. 1947, pp. 1240, 1241). This amendment was ratified in the general election of November, 1948.
The amendment must be construed in connection with previous amendments to the Constitution granting to Macon and Bibb County authority to pass zoning ordinances and regulations. This is true for the reason that effect is to be given, if possible, to each section, clause, and word of a written Constitution, and in interpreting a provision of the Constitution, the courts will consider the object sought to be accomplished, and will deal with the provision under consideration in the light of the conditions and circumstances under which it was framed. Wellborn v. Estes, 70 Ga. 390; Park v. Candler, 114 Ga. 466 (40 S. E. 523); McCollum v. Bass, 201 Ga. 537 (40 S. E. 2d 650).
When an amendment to the Constitution has been proposed by the General Assembly and ratified by the voters, the amendment will not be declared void on the ground that it does not accord with some other provision of the same Constitution. If an amendment, duly adopted, is in conflict with some previous provision, the amendment, being the last expression of the sovereign will of the people, will prevail as an implied modification pro tanto of the former provision. Hammond v. Clark, 136 Ga. 313, 314 (10) (71 S. E. 479, 38 L. R. A. (NS) 77); McWilliams v. Smith, 142 Ga. 209 (82 S. E. 569); Stewart v. County of Bacon, 148 Ga. 105, 108 (95 S. E. 983); DeJarnette v. Hospital Authority of Albany, 195 Ga. 189, 204 (23 S. E. 2d 716).
The Constitution of 1877 did not provide for zoning, and it was held that municipal ordinances purporting to zone or restrict the use of property, prior to 1928, were unconstitutional and void. Smith v. City of Atlanta, 161 Ga. 769 (132 S. E. 66, 54 A. L. R. 1001); Morrow v. City of Atlanta, 162 Ga. 228 (133 S. E. 345); City of Atlanta v. Smith, 165 Ga. 146 (140 S. E. 369).
In 1927 the General Assembly proposed a constitutional amendment (Ga. L. 1927, p. 127), duly ratified in November, 1928, which provided: "The General Assembly of the State shall have authority to grant to the governing authorities of the cities of Atlanta, Savannah, Macon, [and other named cities] . . . authority to pass zoning and planning laws whereby such cities may be zoned or districted for various uses and other or different uses prohibited therein, and regulating the use for which said zones or districts may be set apart, and regulating the plans for development and improvement of real estate therein." Constitution of 1877, art. III, sec. VII, par. XXV (Code of 1933, 2-1825).
In 1937 the General Assembly proposed a constitutional amendment (Ga. L. 1937, p. 1135), which was ratified in June, 1937, wherein authority to zone and enact planning laws as set forth in the amendment adopted in 1928 might be extended by the General Assembly to any city or county having a population of 1,000 or more.
Under the Constitution of 1945, art. III, sec. VII, par. XXIII (Code, Ann., 2-1923), the General Assembly has the power to grant to municipalities and counties authority to pass zoning and planning laws, "whereby such cities or counties may be zoned," in practically the identical language of the amendments of 1928 and 1937 to the Constitution of 1877.
The constitutional amendment of 1948, granting zoning powers to the City of Macon and Bibb County, is much broader in its scope than the act of 1939 (Ga. L. 1939, p. 1140), amending the charter of the City of Macon. This act simply authorized the City of Macon to zone, in the language of the constitutional amendment. Under the charter amendment of 1939, the City of Macon could enact valid ordinances for rezoning property. Schofield v. Bishop, 192 Ga. 732 (16 S. E. 2d 714); Snow v. Johnston, 197 Ga. 146 (28 S. E. 2d 270). The 1948 amendment to the Constitution, applicable to Macon and Bibb County, conveys all authority over zoning to such agency as Macon and Bibb County might create for the regulation of all zoning within the city and county. The direct constitutional authority granted by the amendment, and the joint ordinance and resolution adopted pursuant thereto, fully authorized the action by the Macon-Bibb County Planning and Zoning Commission wherein the property of the defendant was rezoned, after notice and opportunity to the objectors to be heard. Kirkpatrick v. Candler, 205 Ga. 449, 453 (53 S. E. 2d 889).
The plaintiffs contend that, under the ruling of this court in City of Atlanta v. Wilson, 209 Ga. 527 (74 S. E. 2d 455), the constitutional amendment conferring direct constitutional authority upon the City of Macon and Bibb County to enact zoning laws and rules is not restricted or limited in territory and is so broad that the City of Macon and Bibb County might undertake to zone property in other municipalities and counties of this State.
The plaintiffs attack the method of the submission of the amendment, it being contended that neither the voters of Macon, Bibb County, nor the State of Georgia, could vote against the creation of a commission to be set up by the governing authorities of the City of Macon and Bibb County. Generally constitutional amendments are not required to be printed upon the ballot in toto, and under the rulings of this court in Hammond v. Clark, supra, Clements v. Powell, 155 Ga. 278 (116 S. E. 624), and Cartledge v. City Council of Augusta, 189 Ga. 267 (5 S. E. 2d 661), this contention of the plaintiffs was properly overruled.
It is insisted that the City of Macon and the County of Bibb are without authority to act, or to create a zoning commission, under the constitutional amendment of 1948, since there has been no enabling act by the General Assembly. In the amendments of 1928 and 1937 to the Constitution of 1877, and in the Constitution of 1945, it is said that "The General Assembly of the State shall have authority, etc." It is fundamental that, where constitutional power is granted to the General Assembly, the General Assembly must act and delegate its powers under the constitutional amendment. Constitutional amendments may be self-executing. Smith v. Joiner, 27 Ga. 65; Arnett v. Board of Commissioners of Decatur County, 75 Ga. 782; Southeastern Pipe-Line Co. v. Garrett, 192 Ga. 817 (16 S. E. 2d 753); 11 Am. Jur. 689, 72; 16 C. J. S. 104, 51. In the present case the authority granted was to Macon and Bibb County, and the General Assembly was not granted any powers under the amendment which it could delegate.
It is not for the courts to pass upon the question as to whether a constitutional amendment may be wise or unwise. Primarily governmental functions are founded upon the will of the people. Whether it is wiser to have a commission discharging governmental powers under direct constitutional grant, or whether it would be wiser to have the constitutional power delegated to the General Assembly, and by the Assembly duly set forth in a charter amendment, is not before the court for decision. The final choice of the body to discharge the duties pursuant to zoning ordinances and regulations rests with the chosen representatives of the municipality or county, and whether this choice is made under direct constitutional authority alone, or constitutional authority augmented by legislation, is a question that has been determined by the people. The people having spoken in the manner directed by the Constitution and laws of this State, this court is not authorized to substitute its judgment for the expressed will of the people.
The constitutional amendments of 1928 and 1937 herein referred to, and the provision of the Constitution of 1945 relating to zoning, had the effect of superseding decisions of this court which declared zoning statutes unconstitutional and void because they denied due process of law to the owners of real estate embraced in zoning districts. Howden v. Mayor &c. of Savannah, 172 Ga. 833, 843 (159 S. E. 401). The power to zone contained in the Constitution of 1945, and the authority granted to the City of Macon and Bibb County by the amendment of 1948, fully authorize the rezoning of property, and such rezoning does not violate the due-process clause of the Constitution. Howden v. Mayor &c. of Savannah, supra; Schofield v. Bishop, supra; Morgan v. Thomas, 207 Ga. 660 (63 S. E. 2d 659); Village of Euclid v. Ambler Realty Co., 272 U. S. 365 (47 Sup. Ct. 114, 71 L. ed. 303, 54 A. L. R. 1016).
The rezoning of the defendant's property cannot properly be classed as "spot zoning." The property is entirely segregated from that of the plaintiffs by three public streets and other property of the defendant. "Spot zoning" generally relates to action in "lifting out" of a zoned area one unit, or one particular piece of property. While the area rezoned is not extensive (containing approximately 100,000 square feet), it is nonetheless segregated in the manner set forth. The rule that the reasonableness or unreasonableness of a "spot zoning" ordinance is always a question for the court's determination, has no application in the present case. Orr v. Hapeville Realty Investments, 211 Ga. 235 (85 S. E. 2d 20).
The joint ordinance of the City of Macon and resolution of the Board of Commissioners of Bibb County, establishing the Macon-Bibb County Planning and Zoning Commission, expressly delegates to the commission all power and authority of the City of Macon and the County of Bibb essential to the zoning or rezoning of property. It is stipulated that the plaintiffs had notice of public hearings on the application of the defendant to rezone a part of its property, that the plaintiffs, or some of them, filed written objections, and that they, or some of them, employed counsel. The whole proceeding by the zoning commission was adequate and complete as to notice and hearings, and the act of the commission in rezoning the property of the defendant does not fall because the commission may not have adopted a full, complete, and comprehensive zoning plan prior to the rezoning of the defendant's property. All zoning by the City of Macon prior to the creation of the commission was the result of ordinances enacted by the city authorities, and it will not be presumed that the zoning laws and regulations promulgated prior to the creation of the commission were without regard to the needs of the city, its development, growth, and welfare. Whatever plan was in force and effect at the time the commission was created would continue until changed or modified under the powers granted to the commission.
Generally, the owner of land in fee has the right to use his property for any lawful purpose, and any claim that there are restrictions upon such use must be clearly established. Kitchens v. Noland, 172 Ga. 684 (158 S. E. 562); England v. Atkinson, 196 Ga. 181 (26 S. E. 2d 431); Spencer v. Poole, 207 Ga. 155 (60 S. E. 2d 371); McKee v. Hubert, 211 Ga. 329 (85 S. E. 2d 757). The action of the Macon-Bibb County Zoning and Planning Commission in rezoning the property of the defendant had the effect of removing any zoning restrictions that may have existed prior thereto, and granted to the defendant the right to use its property in the manner set forth in its application for rezoning.
Under the foregoing rulings, the trial court properly overruled the plaintiffs' demurrers and denied the relief sought. Other contentions of the plaintiffs not specifically referred to herein have been carefully considered, and none of them shows error in the judgment of the trial court.
McKibben Lane, Turpin, Lane & Mattox, Lewis & Sell, Ed. S. Sell, Jr., Jones, Sparks, Benton & Cork, contra.
Miller, Miller & Miller, Walter T. Johnson, for plaintiffs in error.
ARGUED FEBRUARY 14, 1955 -- DECIDED APRIL 12, 1955 -- REHEARING DENIED MAY 11, 1955.
Saturday May 23 02:48 EDT


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