*1 305 his that survey. McKenzie’s son testified southwest establish the thereby ners and Andress, what is called Talbert, and father the corner at found corner of Section corner, south that the Merrill that it was establish undertook each Powell River, and a Patsaliga Lan- tree near beech he sent that testified Talbert corner. corner, other stump beech There is and is there now. Merrill locate caster testimony going chains that the Merrill show and west 67 links chains was 9 accepted recognized corner has been and Powell corner. Talbert north links many the SW corner of the true corner Section opinion in his that testified years. east chains and 10 between 8 was placed true Andress Merrill corner. testimony judge heard the ore and chains links north corner chains frequently indicates that record tenus. The corner. the Talbert east of 10 links reference to a testifying a witness map is not identified. point map, but the on surveyor that understand do not We witness and could see the judge The trial placed true this case testified in who advantaged better map was much and Merrill corner. at precisely corner spoke the truth. decide who than are to we testimony running a line due that was There all into consideration took doubtless He proof four miles south North material to a circumstances facts the Merrill strike Merrill corner dis- finding His should decision. testimony that was also corner. There contrary great turbed unless it is locating corner was such method say We cannot evidence. weight Complainant’s surveyors practice. good treated, and, there- when so it is erroneous Merrill not cor- that the corner is testified fore, affirmed. O’Rear be and should im- “thinks it’s an said he rect. Andress Conway, So.2d 65. he does possibility.” testified Powell also is. true corner not know where Affirmed. present south of the Merrill corner lies crossing be- river, one river lies and SW corner tween the Merrill corner LIVINGSTON, J., and C. SIMPSON place while field notes Section GOODWYN, JJ., concur. SW corner Section north place crossings between two river
river of Section 12 and SW
the SW corner
corner of Section 11. hand, nine- Ridgeway, theOn John old,
ty years
time
testified that
one
he
12 in the northwest
owned land
Section
some witness present
that McKenzie’s son *3 Simpson, Lange, McD. Smith
Robt. Birmingham, and Somerville, &
Robinson petitioners. Ball, Montgomery, &Ball Hill, Rushton, Stakely & Johnston Hill, Carter, Montgomery, Stovall &
respondent.
application City petitioners, the Board of Montgomery Commissioners (denominated in said Legisla- act as “the body tive city”) enacted an ordinance amending June Montgomery nance of so as to rezone property real from Residence A and toC Local Business District. On June persons, certain living named described as *4 1,000 owning property or within feet of the property rezoning real affected the nance, City filed with of the Clerk Mont- gomery of appeal notice to the Circuit the Montgomery County, Court provisions of said the statute § “jury trial, July demanded a de On novo”. City Montgomery 1960the certi- Clerk of proceedings fied the of Com- Board missioners re- and the enactment of the zoning ordinance and filed the same with July Clerk of the Circuit On Court. SIMPSON, Justice. petitioners filed in the Circuit Court Montgomery County a motion to dismiss Brought under review proceeding this appeal which subsequently was amended. constitutionality, non, of much vel so The respondent judge motion overruled said n Alabama, 6 of Act General Acts § petition prohibition or this for writ of 1957, Regular seq.) (pp. Session 1134 et appropriate other writ for the is filed here providing any petitioner that for a purpose overruling of reviewing said order n orrezoning property, of his ad- or certain petitioners’ appeal. motion to dismiss the versary property owners, are who aggrieved by any decision, order, legis- or act investigation of the constitu body city lative (here City Com- tionality of an act legislature, we mission) respect petition, such should determine what the constitution n appeal days within 15 from the date expressed just implication 'ts terms decision, order, or the Circuit Court means and depend upon this must the read county city which the is located. ing of the provi constitution The itself. Court, The in such according cause Circuit sions of enactment itself cannot be con provisions to the of said is to be tried § interpretation give sulted to language to the de novo with the right jury if question the constitution. The has been fact, demanded. As a matter of it would ably argued by parties for the counsel that only applies seem the act to Mont- approach we its consideration with due gomery, passed but was general as a law. importance sense of its recognition petitioners, Ball, Jr., The Fred S. Charles principle leg that enactments Ball, Ball, A. A. Richard presumed owners of constitutionally islature are to be real City certain estate located in the this presumption prevails valid and until Montgomery, has pe- which appears beyond been leased to a reasonable doubt that the titioner Sears-Roebuck & Co. When enactment under consideration is invalid agreement made, lease the property expressed obnoxious to terms of the then classified under the zoning ordi- implication constitution or to necessary City nance of the Montgomery by, as Resi- afforded or flowing from, such ex A and C dence districts. Pursuant pressed provisions. state de power of this whether or legal question is strict leg
n “The
constitution:
fined
for an
6, supra, providing
said
shall be vested
state
islative
Commission
ordinance of
from the
of a
consist
shall
legislature,
which
Cir-
questioned property
rezoning the
It
representatives.”
house of
senate and a
novo
a trial de
right of
with a
cuit Court
powers have
known
is well
our constitution
43 of
42 and
violates §§
municipalities.
In the
delegated
been
powers
separation of
for the
provides
County Rev
early
of Dunn Court
case
n distinct branches:
three
government into
Wilcox,
144, 147, 4 So.
enues of
Executive,
Legislative,
Ju-
recog
the well
this court stated
dicial.
“ * * *
While
principle that
nized
power make
necessary to comment
hardly
It
rule
general
obtains that
assembly
A trial
meaning of a trial de novo.
laws
in the
on the
is vested
acceptation
novo,
constitution,
can
and this
de
within the common
tri
term,
ordinarily
delegated
shall
the case
means
*5
is
bunal,
if it had
denied
yet
tried in
Court
it is nowhere
the Circuit
assembly
dele
to
competent
general
been
that court
before,
tried
and that
to
judgment
power
municipal corporations the
findings
gate
substitute its own
and
by-laws
stated
Or as
enact
and ordinances
that of the lower tribunal.
force
217
Birmingham,
many
may have all the
Thompson
City
particulars
v.
of
gen
406,
validity
Ala.
and
a statute enacted
117
407:
of
So.
commonly
is
assembly itself. This
eral
“ * * *
appeal is allowed
when an
incorporated
granted
in the charters
done
judgment of an
from the
statute
con
cities,
authority
thus
towns and
and
court,
superior
inferior
to a
of sub
comprehends
number
a vast
ferred
novo,
tried de
where the case is to be
per
rights
jects affecting
property
*
**
a new
de novo means
trial
citizen,
covering
liberty
of the
sonal
had,
‘as
been
trial
if no
had ever
trial
regulated by state
of acts
same class
just
originated in
as if it had
theory of munici
American
laws. The
”
circuit court.’
permitted to
legislation
palities is that the
delegation
by them a mere
be exercised
Vinyard
Republic Iron
Steel
See also
&
v.
state;
hence it is
power
of
Co.,
269,
552;
Ala.
87
California
205
So.
all
or ordinances
rule that
laws
established
Board,
v.
Miss.
Co.
State Oil & Gas
power
delegated
virtue
enacted
824,
542,
27 So.2d
544.
sense,
part
are,
much
in a certain
laws
are the
legislation as
system
County
Montgomery
The circuit court of
*
* *
sup-
state,
(Emphasis
part
Department
amade
Judicial
plied.)
of the State of Alabama
139 of the
§
Constitution of 1901. Petitioners contend—
municipal corporation
cityA
correctly
and we think
if—that
power
enact
inherent
have the
does not
circuit court is allowed from
enact-
regulations. White
zoning
and enforce
ordinances,
zoning
ment of
with a trial de
Home,
440,
221 Ala.
Luquire Funeral
v.
possibly
by jury
if
novo and
de-
84;
Adams,
472,
Leary
Ala.
v.
129 So.
manded,
judg-
the conduct
trial and
391;
Bever
Alabama Alcoholic
147 So.
jury
supplant
verdict
will
ment or
City
Birmingham,
Board v.
age Control
judgment
legislative body,
Municipal
aof
cor
402,
considered
matter legislative was in the discretion of the author seems, therefore, It apodictic that page 650, Ala. at ities.” —250 right So. appeal from the legislative en page 2d city actment the to the circuit court with a trial de provided novo as in said 6§ Again: was intended to clothe circuit court city “Here acting legislative Commission is power with in the field of legislative exercise passing zoning ordinances, which is strict- func- decision by unbridled inhibited esthetic or the ly legislative function constitution, jury as to whether ordinance our stated sections questions contain their wrong? These and else- in all cases so well reasoned our answer, viz., cir- matter is without own power where. To transfer Such deci- clearly judicial invasion of realm of interference. be an cuit court would legislative prop- beyond rightly sion is entrusted to legislative field and body city the local neces- resort that knows functions court. The er only having been ad- leg- sities acts after in such cases is confine (cid:127)courts board, experienced power by bounds whose sole islative within constitutional vised an n City unreasonable, recommend, or un- against arbitrary, i. e.: is to McQuillin, supra, there is no occasion action, Planning lawful and if Commission. of re- p. seq. that character for the exercise of 25.219 et view, the court duty then no there is confronting The situation us here perform. repeat, enactment of To quite provided and not different ordinances is provides which function Tit. Code properly appeal by party un- the circuit aggrieved circuit court could judg final
dertake would
to determine whether
court with trial de novo from a
arbitrarily,
Adjustment
Zoning
not the
Commission acted
ment of the Board of
unlawfully
enacting
very
cor
unreasonably, or
court has
towns and cities. This
supra,
authorities,
Adjustment
includ-
rectly
ordinance. See
held that
Board of
and,
McQuillin.
ing
performs
quasi
functions
therefore,
judicial review
amenable
further,
the result
To rationalize
Donaldson,
the circuit court.
Nelson v.
underlying
theory of the statute
con-
50 So.2d
allowing an
de
sideration
pointed
in which is
body
out that while no
by any person
novo to the circuit court
legislative power
vested the
abdicate
aggrieved
the enactment of
delegating
its
functions
city,
legislative body of
ordinance
*7
body,
equally well estab
to another
“it is
possible
quite
for the circuit
would make
legislative body may delegate
the
lished that
court,
jury,
completely
with without
or
body
power to execute
subordinate
the
to a
nullify such an
Such result
ordinance.
laws,
legisla
the
administer its
where
by
judicial
the gov-
branch of
effected
the
body
standard reason
tive
has formulated a
purely legislative
in a
ernment
matter
would
ably
govern
clear to
action
such sub
the
judgment of
the
the circuit
be to substitute
body”.
supplied.) See
(Emphasis
ordinate
body
the law
making
for that of
court
City of Birm
Water Works
also
Board
municipality. Manifestly,
such
result
the
ingham Stephens,
262 Ala.
So.2d
v.
present
run counter to our
form of
would
267;
case,
v. Board
Arant
of Ad
Arants
in contravention to 43
government and
§
The
justment,
271 Ala.
organic
judiciary
prohibiting
law
the
our
prop
Donaldson case
Nelson
stresses the
legislative
invading the
domain.
appeal
osition that the
783 from a
uniquely
Adjustment
further
how
the Board
to al
To
demonstrate
decision of
nonconforming use,
the
illogical
variance,
unconstitutional
con-
low a
is
etc.
provision
quasi
body
pose
judicial
we
some
sim-
the decision of
estab
sidered
held, by
Suppose
by
legislature
be
ple questions.
it could
lished
to execute and ad
zoning laws,
imag-
where the legisla
elaborate stretch
minister
some
ination,
appeal
By
body
lie.
has formulated the
that such
tive
standards
Adjustment
jury
Board
standard would
or
court which the
what
should be
making
determining
governed
its
whether
decisions. The sit
guided
be
instantly confronting
be
us is entirely
should
overruled or annulled?
uation
nance
different,
the guiding
guide
standard be the
since no
whim of
standard
Would
cir-
appeal
wrongness
passed
cuit
on
in-
formulated and
laws
under this dele-
gated
deed
formulated,
the cir-
if
none could be
since
more than
the laws had
cuit
not,
passed
legislature
and could not
vested
been
itself.
annul,
or over-
to enact or
Respondent
contends that
offi
Indeed,
rule
read
zoning ordinances.
if we
capacities, executive,
act in all three
cers
Stephens
case, supra,
im-
correctly, it
judicial,
legislative, and
without constitu
pliedly held that a
different result would
objection.
tional
This
statement is
if the
reached
action of the Water Works
found
some
our
ex
cases such as State
property.
Board
rezoning
had been a
Lane, supra,
rel. Wilkinson v.
De
wherein
The court held that
was not the status.
such
Graffenried, J.,
page
62 So.
Ala. on
distinguishes
same rationale
in-
page
34 referring to
of our
and 43
§§
Darnell,
stant case from
parte
Ex
said, “A
reading
constitution
these
casual
pointed
76 So.2d
That case
they
ap
sections will disclose
no
have
out that the Personnel
plicability,
Board
ap
and were
never intended
Jefferson
County was,
it,
by the
creating
ply,
enactment
city governments
mere town or
powers
“with
vested
of a
nature”
city
Respondent
to mere town or
officials”.
ap-
(describing them).
And
thus a
then advances in brief the
contention
peal to the circuit court with trial de novo whether
the action of
Commission
proper.
opinion clearly point-
But the
appealed from
judicial, legislative,
out
legisla-
ed
that a
act of
administrative
difference,
makes
for the
no
department
tive
government could not be
plan
Commissioners were
acting under
Citing City
reviewed
a manner.
legislature
established
which in
Birmingham
&
Bell Tel.
Southern
cluded
in
circuit court
Co.,
Telegraph
supra; and Alabama Public
tegral part.
respondent’s
In one of
briefs
Service Commission v. Southern Bell Tel.
following
found:
“Sections
&
Co.,
Telegraph
Ala.
be conceded that in city repeating, a legislative is a ordinance regulation, eral rule the Oil legislative act. The function with the acting legislative Board Gas in a right legislative of the body to determine capacity; opinion we are of matter, propriety wisdom and of the granting exception that in involved needs, superior its opportunity to know the in the instant said case to the community, policy legis and the regulation rule and the said Board lative acts are quasi within acting likewise least a legislative body and the and' capacity. enactment order that a zoning ordinance, character, except as hearing judicial shall be shown, thing hereinabove proceed apart upon past present must judicial Hence, function. such, the statute of such nature facts seeking impose upon the circuit that a trial tribunal find non-judicial exist, function, a matter they or do exclu do while sively within the and discretion making' rules and these conservation legislative body exceptions ques- city, cannot larger thereto the be conferred on the policy. tion is one state branch So that government. what the facts de- made pends upon bearing tipon legis- their questions Other incidental raised re- persons spe- policy lative for which spondent are without merit and seem to special cial training responsibility need little treatment. have been selected.” —27 So.2d opinion concurring Judge estopped, Petitioners are not Griffith argued by point, respondent, more in where question even he reasons to raise the legislature that since the of the constitutionality itself could not of so much delegated providing have the business of regulating a de novo trial in the circuit gas production they oil mat court. sought because rezoning —a Just instance, ter —to the circuit court the first estop under Act them from do raising could not so the indirect device of question constitutional since Also, they trial de novo. the later case right peculiar claim no to Act 729 in Davidson, City Meridian Miss. attempting to property have the rezoned. Mississippi Su The same could have been asserted *10 Court, preme following case, the California under the law had not Act 729 been following pertinent made the observation Montgomery enacted for County place in analogous with reference to an matter: authority General Act. Under beyond “It would have been County Houston Poyner, Bd. Revenue v. Legislature grant 384, to a 236 Ala. 182 So. it seems clear petitioners named principles est are the and “certain underlying enough that persons owning prop- are estoppel, living or equitable described as estoppel pais, or in petitioners erty fol- one feet the real within thousand fact that lacking here so the parties” property Act 729 provided in affected”. Those “named procedure lowed the person severability clauses) the court in the are here before (containing saving attorneys respondent judge, that with their challenging estop from would them this respondent. We think representing de novo part providing appeal for of § Ex jurisdiction. give to this trial the circuit suffices court. 482; Benson, parte 10 So.2d 243 Ala. 293, So.2d Ala.App. parte Kelley, Ex with agreement Nor are we 431. pro respondent’s a writ of that contention prevent hibition lower court from to be made Probably some comment should ju no which has acting in a matter over it opinion of Mr. reference to the Justice contrary, we improper. risdiction is To only the writes GOODWYN where he proceeding apprised are not be 6 should novo feature de pro adequate. A be writ would ap- leaving in eliminated but cor preventive a than a hibition rather is from the Califor- peal. idea emanated This remedy, prevent usurpation rective to think the case, supra, 542. We nia So.2d jurisdiction by judicial excessive tribunal opinion Mr.. separately concurring Jus- keep limits to within the each court legal expresses correct tice Griffith Mc State rel. which law it. ex confines view, he observed : where Queen Horton, Ala.App. 561; Ala. 14 So.2d affirmed 244 “ * * * * * * all the and thus Prohibition, Key Respond Ala.Dig., No. 1. on authority which could be conferred Boyd Garrison, ent cites de- a review to the courts would be of We support his contention. So.2d 385 Board and Gas whether the Oil termine inapposite regard case as Garrison authority within the its order acted authority holding contention. his so, by statute, and if conferred on prohibition of that case was that a writ of it did making its order then whether in per judge probate from restrain substantially upon facts sufficient so proper. forming a ministerial its sustain action. however, indicate, That case did proper prohibit probate writ be nature re- “The essential judge way in proceeding from in a be of what the it must view such beyond jurisdiction. his The court a matter it at the time before made Board had observed: incongruity its It would order. permit another and remarkable to prohibition writ of “The so-called up ap- to be made different record purpose sought pro- not here circuit court as it would be peal to the probate pro- judge hibiting another and different rec- to allow ceeding way to decide presented to Court on an to be this ord has jurisdiction matter which no he page At it”. page 125, do.”—246 at 19 So.2d Ala. page same situation would confront the cir- in the instant case cuit court should Mr. prevail. view GOODWYN’S respondent, Justice The final contention of Board that the members of the of Com City Montgomery of construction are General rules missioners apposite helpful. parties. authority case of or incon necessary No doubt also enacting sistency language between We likewise hold contention to cited. prearc- parties language in part of a merit. The real inter- statute without *11 ble, preamble controls it ex- proper subjects by because are which of review circuit presses court. in satisfactory the most manner the purpose reason and of the act. Sutherland majority opinion, I it As understand Statutory Construction, Statutes and Vol. precludes reviewing court from circuit 2, p. 342, 4801(3). by the action of the board commissioners preamble of Act Looking to the appeal even if Act No. appeals, pro No. 729 with reference to appeal questions proper- such to confined appeals vides “for or regulating from ly words, before In the court. other ders, decisions, council, actions of majority completely would strike out of body”; commission like provisions ap- Act the right giving responsive preamble regulating to this (of peal questions when are involved. appeals) provides aggrieved that an phase opinion It with I * * * party “may appeal circuit to the agree. am unable to * * * appeal in case of [and] * * * severability Act No. 729 contains clause be the cause in shall such court part providing any Act is that “if quite tried de novo”. It seems evident unconstitutional, declared invalid or provision appeal single part declaration shall affect the not quoted separated can so as clause not be part appears remains.” It to me that the preced- to strike “trial de novo” of the Act can providing for trial de novo ing right appeal. clause giving separated part providing from the our view other construction appeals appeals permit so cir- as to ignore only least plain language not questions court for properly cuit review of statute, prin- but also well known agree reviewable there. Petitioners seem ciple ejusdem generis. this, although thy seek, peti- their Let the Writ Prohibition issue. tion, prohibit the circuit en- court from
tertaining purpose. for any As briefs, stated one of their viz.: LIVINGSTON, J.,C. and MERRILL COLEMAN, JJ., concur. entirely “This is consistent with Pe- and, position fact, titioners’ rein- e., it, i. given forces GOODWYN, J., part concurs and in power by validity statute to review the part dissents, separate as shown his ordinance or opinion. not the but review its wisdom cheerfully trial de novo. We con- LAWSON, dissents, legislature give could J., cede as shown Cir- his separate opinion. Montgomery Court of County cuit particular
power to so review this
all
nance. This was after
done in
STAKELY, J.,
sitting.
Birmingham v.
Louisville and Nash-
Company,
Railroad
ville
ing
purely
of
leg-
ordinance is an exercise
flicting arguments
which arose at
function,
required
islative
is held in the case
public
meeting, the fact that
of Andrews v. Town Board of Town of
person
of
only one
about
controls
90%
Dewitt,
494,
Sup.,
98 N.Y.S.2d
land, and,
factual
benefited
in the
opinion.
cited elsewhere in the court’s
To
setting,
nature of the decision
like
holding
effect is the
of
Court of
police power,
exercise
which is at
Appeals
Hilltop Realty, Inc.,
in
Ohio
v.
ig-
root
zoning,
of all
cannot
Euclid,
Town of
App. 535,
South
110 Ohio
nored.’