Opinion
No. 5945.
Decided June 30, 1934. Motion for Rehearing Overruled October 24, 1934.
Zoning — Due Process — Gasoline Filling Station — Residential Section.
It is not a denial of due process or equal protection of the law to deny applicant permission to erect a gasoline filling station upon property duly classified in zoning ordinance as dwelling or residential section of city, even though said application was filed before the zoning ordinance was passed. Lombardo v. City of Dallas, ante, p. 1, followed.
Error to the Court of Civil Appeals for the Eighth District, in an appeal from Dallas County.
Suit by Ed McEachern against the Town of Highland Park, its Mayor, Board of Aldermen and City Secretary, seeking a mandatory injunction prohibiting the said defendants from interfering with him and preventing the construction of an oil and gasoline filling station on property owned by him in the Town of Highland Park, from prosecution or attempting to prosecute the said McEachern for the violation of a building ordinance then in effect, and from including said property in the terms of any zoning ordinance prohibiting the construction of any buildings thereon other than private residences. Also seeking to have declared void the building ordinance then in effect and ordering the said city authorities to issue to him a permit to erect a gasoline filling station on said property, of which he was the owner in fee simple.
During the pendency of said suit the governing authorities of the Town of Highland Park passed a zoning ordinance, based upon the authority of an Act of the 40th Legislature, Ch. 283, p. 424, authorizing cities and incorporated villages to enact zoning regulations, and plead such zoning ordinance in defense of its refusal to issue the permit.
Judgment in favor of the town of Highland Park was affirmed by the Court of Civil Appeals ( 34 S.W.2d 676) and McEachern brings error to the Supreme Court.
Judgment of Court of Civil Appeals affirmed.
Goggans Ritchie, of Dallas, for plaintiff in error.
The zoning ordinance pleaded by defendants in justification of their action is invalid because it deprives plaintiff of his property without due process of law, in violation of the due process clause of the Fourteenth Amendment to the Constitution of the United States. Euclid v. Ambler Realty Co., 272 U.S. 365, 47 Sup. Ct., 114, 71 L.Ed., 303, 54 A. L. R., 1016; Nectow v. City of Cambridge, 277 U.S. 183, 72 L.Ed., 842, 48 Sup. Ct., 447; Washington ex rel Seattle Title Trust Co. v. Roberge, 278 U.S. 116, 49 Sup. Ct., 50, 73 L.Ed., 210; Houston T. C. Ry. Co. v. City of Dallas, 98 Tex. 396, 84 S.W. 648.
H. P. Edwards, and McBride, O'Donnell Hamilton, all of Dallas, for defendants in error.
The zoning ordinance relied upon by the appellees in this case is not in conflict with the Fourteenth Amendment to the Constitution of the United States, and is due process of law. Scott v. Champion Bldg. Co. 28 S.W.2d 178; Aurora v. Burns 319, Ill., 84, 149 N.E. 784; State ex rel Cevillo v. New Orleans, 154 La. 271, 97 So. 440, 33 A. L. R., 260; Zahn v. Board of Public Works, 274 U.S. 325, 71 L.Ed., 1074, 47 Sup. Ct., 594.
This is a zoning case, here by writ of error. We refer to the opinion of the Court of Civil Appeals for a statement of the case. 34 S.W.2d 676.
The principal question involved is the validity of the zoning ordinance of the City of Highland Park, an incorporated town adjacent to the City of Dallas. The ordinance is a comprehensive one, similar in purpose to the zoning ordinance held valid by us in the case of Lombardo v. City of Dallas, this day decided, ante, p. 1.
It is unnecessary to discuss the validity of the ordinance before us, since it is in its general effect plainly valid under the Lombardo Case just mentioned and the authorities therein cited. The lot upon which the plaintiff in error desires to construct a gasoline filling station is a residence lot in a dwelling or residential district as zoned by the City. There is nothing peculiar to or incident to the property which would make the zoning ordinance inapplicable to it. A residence is on the property now, and so far as this record shows it is suitable for that purpose. Under the Lombardo opinion and the authorities cited it is not a denial of due process or equal protection of the law to refuse the plaintiff in error the permit, or deny him the right to erect a filling station thereon in violation of the zoning ordinance. There is no merit in plaintiff in error's insistence that because he applied for a permit and filed a suit upon its refusal before the zoning ordinance was enacted, the ordinance can not be invoked against him. The Court of Civil Appeals made a correct disposition of that question.
In addition to the authorities cited in the opinion of the Court of Civil Appeals, see also City of Tucson v. Arizona Mortuary, 34 Ariz. 495, 272 P. 923; Miller v. Board of Public Works of Los Angeles, 195 Calif., 477, 234 P. 381; Ware v. City of Wichita, 113 Kan. 153, 214 P. 99.
The judgment of the Court of Civil Appeals is affirmed.