
    Frederic v. Board of Sup’rs, Jackson County.
    (In Banc.
    Dec. 22, 1944.
    Suggestion of Error Overruled Jan. 22, 1945.)
    [20 So. (2d) 92.
    No. 35724.]
    
      H. W. Gautier, of Pascagoula, for appellant.
    H. P. Heidelberg, of Pascagoula, for appellees.
   Griffith, J.,

delivered the opinion of the court.

Acting under chap.. 198, Laws 1944, amendatory of chap, 448, Laws 1938, a rural zoning statute, the board of supervisors of Jackson County adopted an ordinance by which the strip of rural land herein described was declared to constitute Zoning- District No. 1 of the county, and it was ordained that no structure of any kind should be erected on the land except residences, and that no commercial business of any character whatsoever should be conducted within the restricted area. We shall assume for the purposes of the case that all preliminary steps were pursued as required, and no issue has been taken on the facts presented by the objections filed with the hoard, in due time, by the appellant who owns a frontage of 225 feet within the eastern end of the strip.

The strip or area involved is 500 feet wide, measured north and south, and is approximately 3,000 feet long, measured eastwardly and westwardly. It is bounded on the west by the corporate line of the City of Pascagoula, on the south by the shore line of the Gulf of Mexico, on the east by Bayou Chicot, and on the north by a line running parallel with the shore and all along 500 feet distant therefrom. It is not shown by the record whether, in the more than two hundred years since settlements were first made in that community, there has ever been more than one residence upon the entire area embraced within the described strip, hut it appears that within recent years there has been one residence on it and that this has now been converted into a small country clubhouse. There is a paved road extending’ about two thirds of the distance from the city line eastwardly, hut which falls considerably short of reaching appellant’s property, and the only other road within the area is an ordinary county hig’hway running back of the shore line from the west towards the east. The afea has not been platted into lots and blocks, and there are no public conveniences such as transportation facilities, water mains, sewerage arrangements, electric lights or power lines, or telephones. It is in fact as barren of any of these, so far as the record shows, as is the most remote rural area in the county, except such as may have been brought by special arrangement to the clubhouse which has been mentioned.

We have heretofore upheld the validity of the standard zoning statute as applied to municipalities. City of Jackson v. McPherson, 162 Miss. 164, 138 So. 604. Zoning statutes for rural areas have not been before us, and in only a few cases before the courts in other jurisdictions, and there different conclusions have been reached.

We do not find it necessary to consider whether the cited statute as amended is within the constitution. We may concede, without deciding, that from a constitutional standpoint it is vahd. Even so, we must consider whether the ordinance enacted under it is within constitutional limitations. As was said in Taylor v. Village of Glencoe, 372 Ill. 507, 25 N. E. (2d) 62, 65: “In considering the question whether the particular ordinance is, in fact, in the interest of the public welfare, each case must be determined upon its own peculiar facts.' A zoning ordinance may be valid in its general aspects, hut when applied to a particular piece of property and a particular set of facts may be so arbitrary and unreasonable as to result in confiscation of the property. In such an instance, when applied to designated real estate, the ordinance is void.” What was there said as to a particular piece of property has equal application when considering a particular area.

In examining into the validity of an ordinance such as this constitutional limitations are to be viewed in one or the other or perhaps in both of the aspects: (a) that private property shall not be taken or damaged for public use without compensation therefor having first been made to the owner; and (b) that no person shall be deprived of property except by due process of law. A zoning ordinance acquires no facility to avoid constitutional guaranties by the mere device of giving it a name, nor by coupling it with a commendatory preamble. 'The question remains, nevertheless, whether upon the actual facts the ordinance is, in its practical effect, confiscatory of private property for the public use and whether the essential conditions are present which will make it reasonable, — within fundamental concepts of right and justice, —to impose the restrictions for the conservation of the health, morals or welfare of the public;' and the reasonableness of any ordinance is ultimately a judicial question.

It is not our purpose to outline what are the factual conditions which must be present in order to uphold a rural zoning ordinance as reasonable further than, as applicable to a case such as now before us, to state what, in any event, must be regarded as a minimum in requirement when the effort is to create a strictly residential zone. In order that a rural area may be restricted by a zoning ordinance solely to residence purposes, as is the attempt here, and yet escape the rule against confiscation and unreasonableness, one or the other of the three following minimum conditions must be present as an essential foundation:

(1) The area must be, in fact, a residential section manifested by the actual presence of such a number of residences actually inhabited as to disclose that there is a fair or reasonable market demand for that purpose; or absent the above.

(2) The area must have been supplied, as available utilities, with the conveniences of improved roads, water supply, and ready connection for lighting whereby to create therein a market for residence lots at a fair and reasonable price; or absent both of the above.

(3) There must have been adopted by the public authorities, or by the owners in conjunction with the public, a comprehensive plan to furnish what is mentioned under numeral (2) and with dependable assurance that such a plan would be brought to fruition within a reasonably short time, so that thereby to produce a demand for the property for residence purposes at a fair market price.

Laying the facts as summarized alongside the requisite minimum conditions as stated, it is at once apparent that the factual situation in the present case falls far short of meeting either oí the requirements, from which it must follow that the ordinance is invalid and of no enforceable effect.

We repeat that we have outlined conditions which as regards residential zoning of rural property, are to be taken as minimum requirements, for this is sufficient to the present case. As subsequent cases are considered, it may, and perhaps will, he that the court will revise and amend these requirements upward. As has been done in cases of municipal zoning laws, Euclid v. Ambler Realty Co., 272 U. S. 365, 397, 47 S. Ct. 114, 71 L. Ed. 303, 54 A. L. R. 1016, the courts will proceed in the development of more precise rules in the matter of rural zoning as the experiences of recurring cases will give further light to the path to he pursued.

We can perceive from this record that the real object which was sought to be served by this ordinance was to prevent the erection and operation by appellant of a large dance pavilion and public clubhouse, the construction of which appellant had begun, and which it was believed would be detrimental to the efficiency and output of an immense shipbuilding- plant, employing more than ten thousand workers located in the adjoining municipality. However worthy the object, it must be obvious that if the entire area here in question cannot be brought at this time within the operation of a zoning ordinance, such as here proposed, then for the stronger reason it cannot be made to apply to a particular piece of property, no larger than that owned by appellant, within that area. In fact, we think it is safe to say that^ a particular object, of the particular character mentioned, directed towards a particular piece of small property, owned by a particular person, is not within the province of the zoning’ laws.

Reversed, and judgment here for appellant.

ON ‘Suggestion of Ebeoe.

Smith, C. J.,

delivered the opinion of the court on suggestion of error.

Counsel for the appellee suggests that we erred in holding that this zoning order appears, from the evidence, to be an unreasonable exercise of legislative power. In support of this contention be say? that tbe bill of exceptions signed by tbe president of tbe board of supervisors does not disclose tbe evidence on wbicb tbe board acted in adopting tbe order, and,- therefore, we must presume that it bad before it evidence wbicb justified its adoption; that tbe facts by wbicb tbe reasonableness of tbis order must be tested was evidently taken by tbe court from tbe protest filed by tbe appellant with tbe board of supervisors, wbicb, be says, according to Adcock v. Board of Supervisors, 191 Miss. 379, 2 So. (2d) 556, should not have been done. These facts appear from tbis protest and from a map of tbe territory involved, referred to in one of tbe orders of tbe board of supervisors made in tbe course of tbis proceeding, and tbe briefs of counsel on tbe original bearing herein proceed on tbe theory that tbe facts so appearing were accepted and acted on as true by tbe board of supervisors.

Tbe bill of exceptions recites what purports to be everything that occurred before tbe board of supervisors while it was considering tbe adoption of tbis order. While it makes no mention of what evidence, if any, that was then considered, it does set forth that tbe appellants’s protest was read to tbe board. Tbe brief of counsel for tbe appellant on tbe original bearing herein sets forth tbe facts on wbicb tbe reasonableness vel non of this zoning ordinance rests practically as disclosed by tbe appellant’s protest before tbe board of supervisors and tbe map above mentioned. Tbe brief of counsel for the appellee did not set forth tbe evidence on wbicb tbis order rested, did not challenge tbe statement of facts of counsel for tbe appellant, and made no claim that tbis protest of tbe appellant and tbis map could not be considered as setting forth tbe facts on wbicb tbis zoning ordinance must rest. Tbis being true, as tbis Court has many times held, be is in no position to raise that question now. Eady v. State, 153 Miss. 696, 122 So. 199, and the cases therein set forth; State v. Tann, 172 Miss. 162, 167, 158 So. 777, 159 So. 539; Mississippi State Board of Health v. Johnson (Miss.), 19 So. (2d) 827; Owen v. State (Miss.), 20 So. (2d) 95.

As1 set forth in paragraph 2 of .rule 7 of this Court, “those briefs are of most assistance to the Court in which there precedes the argument of counsel;' first a concise statement of the case so far as essential to an understand-of the questions presented for determination, . . . .”

When counsel for the appellant complies with this request and counsel for the appellee neither challenges his statement of facts of the case nor sets forth in his brief a different .statement of the facts, he has no just cause of complaint if'this Court accepts the appellant’s statement of facts as being true.

Overruled.  