*1 531 evidence which the chancellor believed on which he finding, say based his and we are nnahle to that he was manifestly wrong. Consequently appealed the decree from must he affirmed. appellant argues money that the transfer of the Savings

in the First Federal & Loan Association awas gift inter vivos or mortis, causa hut we do not think there any argument is money merit in this for the that the reason Savings

inwas & Loan Association from the deposit date of its until the date of death of Mrs. Mamie period during Van Norman entire of time she right joint agreement had under the control with- every penny gift. draw of it. Hence it was not a The decree of the lower court must af- therefore he firmed.

Affirmed. Ethridge Gillespie,

McGehee, J., Holmes, G. JJ., concur. et al. v. Smith

Ballard, Mayor, Etc., No. 40901 December So. 2d *3 Lumpkin, Tupelo, appellants. Bolton, C. R. 8am E. *4 Long Tupelo, appellee. Adams, Adams, & *6 C. J. McGrEHEE, validity

This case involves the of certain ordi- City Tupelo, Mississippi, nances of the with reference procedure adoption, to methods followed their and, they validity application if are then valid, the their appellee, injunction against D. D. who an Smith, obtained their enforcement. appellee brought Chancery

The this suit in the Court County against City Tupelo, Mayor of Lee its Monaghan, seeking enjoin Ballard and Chief Police prosecutions from them successive and convictions of him city police charges violating city in the court on by operation gasoline filling ordinance of a city zoning question station. The two were ordinances respectively. enacted 1946and in 1953, lengthy hearing, chancery perma- After a court nently enjoined appellants prosecuting com- from plainant city zoning ground under the on the ordinances, they appeal both were void. Prom that decree this taken.

I. chancery court held that Mayor was invalid because the minutes of the and Board period of Aldermen for the when it was were not enacted by Mayor signed by and attested Clerk. We agree Recompiled, with that conclusion. Miss. 1942, Code duty keep 3374-97, Sec. makes it the of the clerk to municipal pro- in which shall “he record the minutes, ceedings judgments all orders, ordinances govering keep fully authorities, the same indexed alphabetically, so that all entries on said minutes can be easily governing found. All official actions of the au- municipality only by thorities of a shall be of- evidenced duly ficial entries recorded on such minute book.” requires municipal 1942, 3374-75, Section Code keep an Prior to the amendment clerk to ordinance hook. Chapter prede- of 1950, the Laws Section *7 Mississippi statute, Code of cessor Section provided 1950 for an ordinance book. The likewise pro- in amendment, 3374-75, set Section however, forth recording in for ordinances in some the of vided detail that the The amendment further stated ordinance book. keep municipal must 'the in which he clerk shall minutes judgments proceedings of as all and record the to orders following city. then the the The amendment added 1950 provision: minute book clerk likewise record in

“Said shall said all the of full, all in or lieu title ordinances in thereof, in in of which the ordinances ordinances, instance, each provided for full book be recorded the ordinance shall only In the titles of ordi- Section the event hereof. it neces- book, in the minute shall be nances are recorded sary in the after recordation full, that the ordinance and book, mayor be read and verified subscribed ordinance shall regular meeting by the of to governing and clerk at the municipality authority man- the in the same of by reading, required and ner verification of law the municipality.” subscription to minutes of said municipal laws to These 1950 amendments the legislative that intent manifest the state pro keep municipal minutes which record the clerk shall governing judgments ceedings all orders and authority municipality; the minutes shall and that mayor clerk. be and and read, verified subscribed indirectly quoted what of 1950 states amendment legis directly, but it been evidences have stated could mayor sign clerk attest shall intent lative authority city. governing the minutes during period undisputed this not It is was done comply Failure enacted. when the was requirement mandatory legislative invalidates with this zoning ap- the 1953 ordinance. Since this conclusion plicable necessary to the 1953 it ordinance, is not for us grounds objection to consider the other thereto.

II. zoning Since not invalid, ordinance was it did repeal Tupelo’s August ordinance of 6, 1946. Hence the next issue is whether the 1946 validly applicable ordinance was enacted effect and appellee chancery Smith. The court held that was duly adopted by legally mayor of al- and board pumps gasoline dermen, but when that, Smith installed his map at his station, the which re- use ferred to in the ordinance was not available to Smith public, to the had been lost after and was found until controversy zoning map this that the con- arose; did not *8 form to ordinance; the be- those and reasons, map cause the zones set in forth the were unavailable to inspection Smith for his and notice were, not therefore, to him, the 1946 ordinance was invalid at as to least Smith in the of his construction station.

The ordinance itself did define the zones. Section city by 1 thereof stated that the was divided “as shown map, zoning August the dated in the 5, 1946, and filed * * * city map office of the clerk all notations, said things references, and other shown thereon be as shall part things much a of this ordinance as if the matters and by map fully set forth said were all herein.” described Although procedural proceed- there a in defect ings enacting of the think ordinance, board we do not City invalidating it has the effect of it. Hawkins v. (1946); West 200 Point, 616, Miss. 27 549 So. 2d Walker City (Miss. 1957). 92 2d Biloxi, So. undisputed The evidence that the also reflects map city’s in as Au offered evidence dated exhibit, gust map zoning is the in the 1946 6, referred to 1946, zoning ordinance. The in effect in 1946 did not statutes municipal provide a zon a of verification for method map. It 3590-3597. 1942, Sections Code use Miss. may incorporated map a be is well-established by Jur., Am. to it. 58 reference in a ordinance Zoning Yokley, Practice Zoning, Law and 132; Section Municipal (2d 1953), S., 71; C. J. 44, Ed. Sections pp. pp. Corporations, 226, 819-820, Section 427, Section Corporations (3rd Municipal Rev. 465; 8 464, McQuillin, 1957), 25.89. Ed. Section map amply map under as the use itself is identified

The industrial, residen- zones, The four 1946 ordinance. general business, are different business, and local tial, corporate colored defined limits are red colors. The describing map legend the colors line. on the Under day longhand, 6th “this for each zone is written ’’ signature of the August, under that is the city mayor clerk. then of the then and the attestation Mississippi,” “Tupelo, Following the words are “Tupelo Planning a distance Committee,” with undisputedly this identified in feet. The witnesses scale map. map being only inconsistency arises connection this referring quoted from the statement ‘‘ ’’ map August handwrit whereas the 5, 1946, dated signatures map on the itself above ten date mayor August manifest 1946. It is clerk is only that this was the error; that this is mere clerical great zoning map *9 ordinance, under the weight think Hence we verifies that fact. of the evidence amply map zoning 1946 is evidence dated that zoning pertaining ordi to the 1946 to be the one shown Newbury conformity therewith. nance, and (1949); port Thurlow, 84 N. E. 2d 450 324 Mass. Adjustment, 47 Del. v. Board of Inc. Auditorium, (1952). 91A. 2d passed by ordinance was the 1953

After map placed on dis- made and a new was board, play city hnng in the office of the tax It assessor. on was map wall in that office. theWith new in use under city what the authorities was the valid 1953zon- assumed zoning map ap- away, ordinance, the 1946 was filed parently being Conway, city building turned over to W. J. inspector. map After this suit was filed Smith, the was found and introduced in evidence. city Conway, building inspector,

W. J. said that after began map, appar- the search for the 1946 Leland Cook, ently surveyor, placed map him advised that he had Mayor’s Conway, in the that office; he, it in that found unexpected place; office after considerable an search, in placed map up hung he then in a frame city morning. hall the next His reason for this was evidently validity because the of the 1953 ordinance was map then under attack, and the usefulness of the 1953 question. involving There have been several cases situa maps by zoning tions where use referred to ordinances misplaced prepared have been lost, or not at all. Where maps properly such were not filed, or made available for public inspection, application par it has been held zoning regulations ticular was invalid because of lack of description definiteness of and location. Anno., 39 A. L. (1955). R. 2d 766, 772-773 However, circumstances here take this case out rule. cited In the first place, map kept the 1946 inwas fact made, filed, and public period during record from 1946 until enact zoning’ ment of the 1953 ordinance, which later ordinance city authorities assumed to be valid. In other words, proper map the 1946 ordinance went into effect with a public away on but it record, was filed after the invalid passed, 1953 ordinance was which the authorities as sumed was valid. We do not think that a ordi repealed by away nance once filing effective can be misplacement map, of the use where this occurred after *10 presumptively

an invalid but valid ordinance had been passed superseding prior zoning ordinance. importantly, appellee

More was not misled Smith any respect as to the of the zone which classification property undisputed It his was located. is it was ‘‘ ’’ in 1946 and classified as local business zone both the 10-year on his corner ordinances. Smith had lease lot, store, tore down a wooden his structure used as building con- erected a brick and tile troversy for his store. The place in the arose because he then desired gasoline front of tanks and meters for the sale his store gasoline. He then knew that both of the ordinances prohibited filling in a local business zone with- stations special applied permit permit. for a but his out application He by well

was refused the board. he was So prohibited of the fact that both aware ordinances filling in a construction of a station local business area, apparently ignore to anyway. but he determined the ordinance construct his station complain cannot words,

In other he temporarily misplaced, map away because was filed property “local he actual notice that his was zoned had applied was and with such notice he business”, permit gasoline in that for a station refused zone. (1952) 148 Me. 2d 817 Pinkman,

Bolduc Atl. plaintiff purchased pertinent. land for a bak- is There sought ery, He but it was classified a residential zone. inspector city enjoin building from enforc- map allegedly against because him, the ordinance sufficiently He define the limits of the zones. did application per- previously building an for a had filed property knowledge that his was his mit, which disclosed application denied in a zone. His residential denying plaintiff the court said relief, In board. to the in- the facts were with reference that whatever map, plaintiff ignor- adequacy not in or loss *11 alleges, anee, as he in effect, about the location Ms property pertinent with reference to the zone He lines. alleged map zoning had in bill that Ms no at was on file present the time of enactment of the ordinance or at the knowledge property time. But Ms that in Ms was a resi- asserting invalidity dential Mm zone from barred ordinance for lack of notice. Yokley, supra, interprets Section Bolduc Pink- supra, Supreme

ham, as follows: “The Judicial Court prohi- zoning of Maine has held that where a operation bakery bited the aof in a business residential application permit building and the zone, baker’s for a bakery knowledge building to construct a Ms disclosed property alleged that the such zone and adapted zoning building requirements, would be to zoning ordinance would not be held invalid because n map the non-existence of the referred to in the ordi- ’’ nance. purpose map of a is, use. course, give property municipality to notice to the owners undisputed of their zone classifications. It is that Smith property had actual notice of his zone classification. map Moreover, the 1946 ordinance had a valid use and good away by pur city faith it was filed after a portedly passed. valid 1953 ordinance was Its temporary misplacement loss does not invalidate the complain 1946 ordinance. And lack Smith cannot zone, notice of his when in fact knew he its classification applied exception for an whieh was denied. it,

III. applica- the 1946 Since ordinance is valid and appellee’s property, question ble to the final is whether, applied him as authorities, is so arbi- trary,- discriminatory unreasonable constitute process a violation of the due clauses of the State chancery Federal Constitutions. The court held that the prohibited gasoline filling 1946 ordinance stations in all except areas industrial zones; number of stations already were located the local business and that zone, permit appellee the refusal of the board to to construct arbitrary station in was, such zone therefore, discriminatory, ruling since the effect of such would keep competition be to out al- those stations ready located in local business zones. So trial court *12 permanently enjoined enforcement of the as appellee. City Tupelo

Main in the Street runs east and west. Park Street runs north and Main south, and bisects right angle. at a Street lot on the Smith’s is located northeast corner of this business and his intersection, property upon faces on Main Street. His is located diagon- southwest ally by of Block 15, corner which is traversed right way & the St. Louis Francisco San Railway, begins which on the southeast corner of running northwesterly block a direction, and, leaves the block a short distance below the northwest corner stipulation thereof. There a is to the record as development vicinity of other lots in on Main Street intersecting and on the north and south streets. Smith’s lot on the southwest corner of the and on the block, opposite corner is a used-car, sales lot. Across the street appellee’s property from is a vacant lot, and to the east shop thereof, a flower two and to west residences, buildings. four or that, five store running Park north Street, south, is to the west Block and Grloster rail- Street is the east. The approximately through crossing road runs the intersec- filling- tion of Main Street and GrlosterStreet. There ais station corner of Main on southwest and Grloster, filling facing another station on the southeast corner Street, Grloster secting and on the northeast corner of that inter- just filling

another station. Grloster On Street filling another north of the railroad is station. On Grlos- ter Street to the south of Main a Street is restaurant and company garage, motor which contains sales business, station. There are other businesses this ‘‘ stipulation local business zone. The states that scatter up ed and down the Main Street” are “several sundry stations at various and on street,” corners they but appellee’s does not how indicate far from are lot. Main Street bisects the from the west and to the east Highway end. Gloster Street is also U. S. No. running 45. Main High Street, west, is four-lane State way No. 6. The record reflects that this intersection very heavy carries volume of traffic.

Alderman GrusBallard testified that there was con- highways point, tinual traffic from the at this and dur- periods day heavy certain there awas load of nearby peo- local traffic from factories, as well from ple coming into town to work. The railroad traffic also problem point. picture creates a at this The entire creat- “quite problem Tupelo ed a traffic for the ’’ through coming diagon- handle. The railroad the area *13 ally going blocks traffic in all four directions. substantially

Alderman C. C. Eason testified same effect.

Appellee highways Smith himself testified that three together large in come this area and that a there is amount of traffic; that the railroad the block. cuts across prop- O. B. who lives across the street from the Shotts, erty, coming heavy admitted that there was traffic through the area. Mayor James L. Ballard testified that the location of ‘‘ property

an additional station a on this creates traffic hazard”; that the four the cor- stations on ner or near in it have been for a number those locations years highway of “before this was there.” appellee’s property

The 1946 ordinance classifies as prohibits business, local and 3 Section the construc- gasoline filling a tion of station such zone. Section 7 Mayor (h) (g) and authorize and subsections from the to authorize Aldermen variation Board of “exceptional hardship”, zoning cases rule injury granted “only without such relief can be where ’’ public interest. to the applied appellee previously for a varia- stated, had As appeal application He was denied. did tion 1195. authorized Code Section from as denial, pertinent judicial of mu in a review tests nicipal zoning set forth ordinances are actions under Clarksdale, So. in Holcomb Miss. Complainant sought (1953). to have de there 2d restricted insofar it clared invalid purposes. property wanted He use of his residential apartment an This for house. commercial, classified as upheld the ac of the bill and Court affirmed dismissal prin Laying basic tion ciples, authorities. down the property the Court said that the classification judicial legislative matter, for is rather than a extent, “as boundaries of zones.” The size, are the generally courts will not in such matters or interfere municipal judgment their substitute own ity, although zoning subject judicial is review “as to discriminatory, arbitrary, reasonable, whether it is con fiscatory an abuse of The Court will not discretion. validity municipality’s set aside the classification if its invalidity fairly only debatable, but will do so after its is clear.” pre

It was further said Holcomb that all sumptions validity indulged must be in favor of presumed It is ordinances. to be reasonable and *14 public good. presumed legislative for the It that the body investigated it and found conditions that the such appropriate. assailing action which took was The one validity proof has the burden of to establish arbitrary ordinance is invalid or as to unreasonable

547 property, convincing his and this must be clear and evidence. large litigation many has

There been a amount of dealing gasoline filling cases with the stations. Mississippi pertain Two cases to this business. In Dart City Gulfport, (1927), 147 Miss. 534, So. city proceeded original zoning under the act, Missis- sippi Chapter Subsequently, Laws 1924, 195. in 1926, changed respects. and 1946 the act was in several city permit Dart filling had obtained a to a station, erect preliminary while proceeding he was with work, city passed prohibiting an ordinance the erection of filling station certain which zones, included that em- bracing property. permit. his It then revoked Dart his chancery filed an action in court to have the ordinance property. Testimony void his declared as to showed congested prop- that there awas traffic area near this erty. complainant, appellant, rendering In a decree for give the court held that the law did power absolutely prohibit to of a erection upon property, only power station an owner’s but regulate pro- and restrict. The ordinance assumed to hibit the erection in this mu- zone, and this exceeded the statutory nicipality’s authority. Hence was held be invalid for this reason. comparison Chapter 308,

A with the of Laws of 1926, very statutes in effect 1946 reveals little differ- except ence, in Code Section 3590.

However, the decision in Dart has since been case considerably City In v. McPher- modified. of Jackson ap- (1932), 162 Miss. 138 So. son, McPherson plied City permit to the erect a Jackson for station on southeast corner the intersection North and Carlisle The lot was zoned State Streets. permit residential. The and was affirm- refused appeal. ed on The Court considered the reasons for zon- ing, they necessary held were sound modern

548 arbitrary was classification centers; urban that this Judge En Banc with or The decision unreasonable. opinion George Ethridge dissenting. Dart Neither cited Gulfport. City there McPherson case, v. of Since the municipal zoning upholding have been several decisions types prohibition in cer of of construction certain City 227 Biloxi, 92 2d tain zones. v. of So. use Walker City Gulfport, (Miss. 1957); 211 Miss. Palazzola v. of City Gulfport (1951); Daniels, v. 52 611 of 737, So. 2d City (Miss. 1957); 93 of Pontotoc v. 97 2d 218 White, So. City (Miss. Hattiesburg 1957). v. But of 2d 852 see So. Hattiesburg, Miss. Pittman, 102 So. v. 352; Jones followed Dart has not been 2d 717. The case So. as it decision, since held that the McPherson insofar types municipality power prohibit of certain had no designated However, or zones. construction business judicial over ac the court has review retained as outlined Holcomb Clarksdale. tions, Many authorities discussed the numerous have dealing zoning’ gasoline filling’ cases with the stations. filling sta is that such substance the decisions highly affect tions involve inflammable commodities city authorities the flow of traffic. The and hazards may considera take these and other circumstances into filling proper zoning determining tion in stations. Corporations, Municipal 25.178, Section McQuillin, p. says: “Regulation may seq. be directed, et public safety, preventing too the interest of to the end many filling in a small area. A court cannot stations multiplication eyes that a close its the fact comparatively locality in a small increases stations danger public notwithstanding the care and caution * * * may with be conducted Con- which business govern grant special per- or siderations denial exceptions em- mits, variances as to stations among following: Danger brace others the of fire explosion; property; surrounding of fill- traffic; number *16 ing vicinity; stations in hazard to school un children; necessary hardship; justice. and substantial It has been safety public observed that the is the ultimate controlling Mayor and consideration.” Hoffman v. and City Council of Md. Baltimore, 593, 187 51 Atl. 2d 269. p. See also Ibid. 452, 13; footnotes 12 62 S., C. Mu J. nicipal Corporations, pp. (15), Section 227 549-550, 24 Filling Jur., Am. Gasoline Stations, 10, Sections An 11; 42 notations, A. L. R. 49 A. L. 978, 767, 256, R. 55 A. L. R. 79 L.A. R. 918. Municipal Corporations,

9 McQuillin, Section 26.114, p. grant 239, filling states: “The denial a or of station permit may governed by or license be considera- various including following: zoning; proximity tions, to buildings people schools, churches, theaters, other where filling gen- meet, other stations; and, somewhat more public erally, safety. convenience, welfare and The re- grant permit filling to fusal for the construction of ’’ congested proper. in a station business district is Dick- v. inson 4 Plainfield, Inhabitants of 122 L. 63, N. J. 2dAtl. 91. Zoning Appeals

In Mrowka v. Board of of Town of Plainville, 134 Conn. 149, 55 Atl. 2d 909, was held appeals members of a board of are re- entitled to gard personal facts them learned from observation surrounding traffic and location, conditions con- sidering application ap- denying for certificate proval gasoline for location of stations. p.

In 8 McQuillin, Ibid., 452, footnote it is said: 13, “Zoning regulation excluding gasoline service stations unnecessary hardship theory cannot be varied as on gasoline nearby that other service stations were situated congestion by correspond- traffic would be relieved Young establishment across the street. Women’s Appeals Hebrew Association v. of Standards Board reversing of New 266 N. York, 270, 751, Y. 194 N. E. 242 App. Div. 271 N. Y. S. 1104.” Supp. 6 253 N. Y.

In v. Misc. Roth, Ballard (1931), the fact there were numerous it was held that eight gasoline district, within the marked other stations proposed within two blocks of which were ap helped petitioner’s question, in nowise location plication, might reason hut that fact this constitute “any refusing such addition for the board allow appli refusing other station cases number.” For ground on the cations for an additional station peril materials inflammable hazards traffic and from premises, Olp Brighton, Misc. on see Town Supp. (1940), Y. in N. N. affirmed 19 Y. 2d 546 1079; *17 McKinney City Supp. Ark. Rock, v. of Little 201 2d 956; Zoning (1941); Board 167 Dadukian v. 146 S. W. 2d 618, (1949). Appeals, 123 of 135 Conn. Atl. 2d say: Zoning, “The Am. 192 and Jur., Sections city general that, more, that mere without is fact rule against zoning a vio- a ordinance officials fail to enforce city enforcing estop subsequently not from lator does * * * against him. justification ordinarily regarded “It is as no municipal zoning offi- that of a violation against violators. have other cials failed enforce it ^[*] Sfc * The annotation ? ? A. L. R., 1509, 1517, states: “It uniformly that that the mere fact has been held almost permitted persons zoning a to violate have been some preclude regulation not enforcement limit does its fire against another.” many support principle L. R. cases of this A. cites

In Kentucky, Georgia, York, New Okla Louisiana, from Virginia. Pennsylvania and West homa, precedents Considering authorities, these and principles judicial of review of actions set and City Clarksdale, of we are of forth Holcomb proof opinion appellee meet his failed to burden that convincing showing by ac- evidence that the clear and Mayor tion of the Board of Aldermen Tnpelo arbitrary, discriminating and unreasonable. It is manifest that the intersection Main and Park and that to the east of Main and Streets, GrlosterStreets Tupelo, crossing together diagonal with the at point presents governing latter to the railroad, city problem. authorities of the a serious traffic Cer tainly say petition appellee’s we can that denial of special permit exception for a to the ordi probable fairly nance is debatable and a has reasonable in the basis evidence. not con The courts should municipalities. stitute themselves as a board primary That must be in the authorities.

Mayor point admitted, Ballard at on one cross-exam- appellee ination, that he had stated he would refuse permit any Sunday operations. he did want because not groceries He had reference to the sale at the store appellee, Walton, station of one son-in-law of the and Helms, fact he intended to another son-in-law, let

operate question. However, the one in he and two testified, shows, aldermen also the record question presented prob- location traffic serious Monaghan lem. Chief of Police he testified that did present any think a station would more traffic *18 problem grocery than a store. But these items testi- mony along must be with the entire record. considered clearly It an demonstrates that the addi- construction point tional station at this the tre- would add to congestion mendous traffic and in immedi- hazards this at that, least, ate and the were not area, authorities acting any without fact in reason or substantial basis of denying appellee’s petition permit. for a chancery in

Hence follows that court error was declaring ap- enjoining in 1946 ordinance invalid and pellants proceedings from under it. pass validity invalidity do not on

We of the They 1932 and 1936 ordinances. not were dealt with 552

by opinion nor were tbe in his and decision chancellor procedure regard of their to the and the facts method adoption developed fully in this record. copies photostatic min of the

Moreover, Mayor of the and Board of Aldermen utes and ordinances legible, part they so are are the most dim not they loosely arranged, pages here and were sent and loosely page one are not in numerical order but stacked Judges one However, on unbound. another and piece together pages legible was able the ordinance copies of 1946. of records and documents Photostatic the ap should mailed the local clerks unless not be here arranged. copies plainly legible properly It are and enough pears that it would be difficult to read wording and 1936 of the minutes ordinances 1932 and they photostated valid ordi to determine whether are nances or not. merely in hold- affirm of the chancellor

We the action think that but we void, ordinance was valid and enforceable. appears in from cost bill that there is

It properly chargeable. cluded in the clerk’s cost items appellee granted a motion this leave to file For reason sixty days final from date of to retax the costs within County judgment. L., A. A. Association, Grin Neshoba Conn Johnson, 927; Inc. v. 2d So. 2d So. 923. State, 97 So. 2d part; judgment part

Affirmed reversed validity appellants as to the here for the rendered 1946 ordinance. except Hol- Hall, Lee concur,

All Justices Justices mes, who dissent. Dissenting: Justice,

Hall, holding respectfully control- in the from the I dissent majority opinion ling decided, case. The has this *19 Tupelo City correctly of of that the ordinance so, incorrectly, was I void, but bas as see that tbe beld, it, 1946 ordinance was and valid enforceable. appreciate fully

I the fact and realize that tbe muni- cipality right tbe bas enact' a law that tbe courts will not with' interfere tbe determination city authorities as to tbe administration of that law “un- say less tbe court can that their action was unreasonable arbitrary”, City beld in v. Hatties- Jones of burg, 207 Miss. 42 So. 491, 2d 717. Bradley City

In that case we tbe cited case of Jackson, 153 Miss. 811, 816, So. wherein it was regulations, beld “All such however, ordinances and they must be reasonable, otherwise will be and non- void question enforeeable; is a of their reasonableness ’’ judicial question. thing Tbe same this was beld City Hattiesburg, Court in tbe recent case al. v. et yet reported Pittman, 102 So. 352, not in tbe 2d State Reports. question

Tbe in this case down boils itself to whether city Tupelo making or not tbe authorities of have been arbitrary city application an unreasonable and of tbe majority opinion ordinance, but tbe undertakes validity to show tbe of tbe 1946 ordinance. That ordi- map nance to a referred tbe chan- tbe map cellor below bad a fact, this before him and found as fully appears which fact from case, tbe record this map that tbe 1946 is not made in tbe accordance with provisions opin- majority tbe and when tbe ordinance, validity map completely ion talks about tbe of tbe 1946 map correspond tbe fact tbe overlooks does not tbe itself. tbe law, under tbe Furthermore, map supposed plan comprehensive reflect for zon- city. In tbe entire this tbe limits bad case recently large been extended and additional amount of territory broug’ht according to bad been therein which, entirely map, map, there- unzoned, tbe was left and tbe comprehensive plan zoning. any fore, did furnish *20 barely is the control- fact, Another which mentioned in ling opinion, conflict is that the record shows without against Tupelo personal grudge Mayor that the had a appellee personally against made an affidavit the and pumps every day appellee gasoline him that the had some newly grocery even store, front of his constructed though pumps, operated at time the which are that electricity, any electricity to never connected had had appellee operating a and at that time was not them filling the record The writer cannot tell from the station. prosecutions exactly many there how before us said appel- regular prosecutions got the were, but so the personally a record lee had taken down and transcribed testimony that record is in ten of these cases and prosecutions. showing before ten successive the Court appellee zon- fact the had not violated the As matter of at that time. permit an old from he had torn down Under building adjacent and had frame located street building brick a concrete block and veneer constructed grocery store, thereof, for his in lieu but had set from same back a distance the street considerable parking so customers around, had left areas all that obstruct park traffic on the street would have place park this After but could into his there. drive pumps up gasoline some in one of was done he set from front, vacant considerable distance areas immediately Mayor prosecuting street and started according significant record him. It to the is note appellee repeatedly know under made demand to being prosecuted, whether what ordinance he was that is ordi- ordinance, the 1936 the 1946 ordinance, many prose- nance or 1953 ordinance. of these On which affi- cutions he was never advised ordinance the under, davit was made on some of them he was told that it was under the 1953 ordinance which the Court opinion unanimously of the was void. p. Zoning,

In 58 Am. Section it is said: Jur., considering validity “In courts laws, they arbitrary must determine whether or are unreason- conception application, able power their since the *21 arbitrary does not to inter- extend unreasonable or meddling private ownership property. with Ac- the of cordingly, particu- there are a in number of cases which regarded lar restrictions have been as unreason- arbitrary, oppressive.” (Emphasis supplied.) able, or supporting Numerous in authorities are cited the notes proposition, including this dozens of cases and annota- Reports. tions from American Law p. Zoning, In 58 Am. Jur., 22, it is said: Section determining question a “In of of the reasonableness disregard form restriction, the courts will mere protection rights injuriously in affect- order to insure of respect, arbitrary In ed unreasonable and action. this worthy emphasis although zoning of ordinances per provisions yet an of such invalid, are not se when the applied particular premises, or ordinance come to be to particular or be in connection conditions, considered may specific complaints, with them be found some of arbitrary greatly Hence, to be and unreasonable. of restrictions determination of reasonableness presented light in each case. must made in the of facts be study given to the fact that has been substantial problem municipal zoning en- before its of a properly regarded a matter consider- actment has been determining *22 January the at Term. It then for taken the was City time that the introduced two Aldermen who first they they against permit testified that thought voted the because They it a traffic hazard. were not would create experts anything, if with little, traffic and had had to do problems, traffic but who is constant- Police, the Chief ly problems, with traffic that in his confronted testified opinion property the use of this station site any In fact, not in a traffic hazard. would manner create appellee’s feet. The old the lot measures 105 feet up edge building right the of the frame extended ample park- building back with street, but the new is set space ample operation ing room for on all sides and the gasoline filling of a it the writer station, seems to space parking that with all of this additional available longer park cars would no have to on but could the street get completely way out the street and out of the question all traffic. In the of a traffic was fact, hazard original not even on trial raised the of this but came case up purely afterthought reopen- anas when the case was ed. opinion, controlling map

As in stated the 1946 things all of the notations, references and other shown part thereon, were as much a of the ordinance as if the things map fully matters and forth in set all were pointed described therein. IAs have out, the ordinance directly map. itself is in conflict with the In such disregard instance, what a citizen to do ? Is he to zoning map and follow the vice versa? opinion

It is in ludicrous to read that after the map 1953 away, ordinance the 1946 filed was opinion majority wholly

but the of the fails to state where it was filed. For months and months City Building Inspector map searched for the and was Mayor’s unable to It find it. was not on file in the any place Office or in other where it was available for inspection away but was stored in the basement City along Hall, with lot of other rubbish, and, useless map finally Ias have stated, heretofore when the was September after at found, this case had been tried Term and both sides had rested and the case was under chancellor, advisement the hands of the Build- Inspector placed map Mayor’s in the Office. map in an found, is true that it was When unexpected place, amongst a down wit, lot of rubbish Mayor’s basement, Office, but it was not opinion controlling as the states. ap- controlling opinion states as a fact that the

pellee any respect was not misled as to the classifica- *23 property located, wit, in tion of the zone which his was “local but I maintain that when the zone”, business map part it a of the ordinance, made way in there was no ordinance, was conflict with property for local busi- him to know that his was zoned ness. thing nothing in of is said the control-

Another which prohibited opinion question ling that the ordinance in is operation gasoline filling anywhere in the of stations City except matter of fact there but as a areas, industrial speak- filling gasoline within almost stations were five question there were the location distance up Main down Street at intervals all others scattered City. throughout the fire far as So and elsewhere any present method if there concerned, be, hazard is filling operating gasoline that there such stations is substantially a check whatsoever and no fire hazard practically department in of every city of the fire the records very of the few calls that there are will show gasoline filling department The chan- stations. fire eminently that a correct, and I think he was held, cellor provision restricting areas to industrial stations already many in other areas located when there are appellee’s discriminatory arbitrary in violation of chancellor, rights, and, as stated constitutional keep competition be to out that actual effect would its In fact, areas. located other for those stations opinion gasoline filling Mayor his testified City’s zoning prohibited all of the under stations are Tupelo. requires of authorities to no citation It laws absolutely legitimate cannot be business such show by city. prohibited I to set out which have undertaken

For the reasons majority briefly possible, I think the of the decision as overruling respectfully findings I is erroneous and the chancellor’s therefrom. dissent opinion shape about the made in the Mention is photostatic copies particularly case, record this consisting the ordi- of minute books and of the exhibits photostatic Tupelo. These nance book directly copies our and in the rules, in conflict with are up place here, have been sent but since should first just they they not have been bunch should were sent copied pages loosely been but should have assembled paper by typewriter black ink. white with record Some on n ofthese prac- copies photostatic are so dim that would *24 tically eyesight anybody ruin the to to undertake read permitted, they if had a rule which them, and we them, copies any have to be clear to be of value to us. would they Furthermore, should have been bound.

It is evident from the fee bill that the clerk entered a charge per photo- all hundred words for of this 25^ static work. testimony consisting

There are in the two exhibits appellee ninety- trial of the in the Court. isOne pages length pages four and the other is fourteen length. testimony evidently This taken down reporters personally paid for court who were hired and by appellee. placed copying clerk has the record a fee bill for fifty-five pages, words,

four at 84,680 hundred 25^ per to hundred, This is in addition to the fee $211.70. reporter charge the court is so and the amount this patently excessive to the to almost amount writer as reapportioned extortion. The cost of this case should be correspond many pages with how the true facts as to many Attorneys copied. and how chancery in the words the clerk very reluctant to raise

clerk’s home town are any objection in this one of but the abuse bills, his fee duty flagrant to call at- case is so that we feel it is our it. tention to Holmes, 33., concur in dissent.

Lee this Wrecking Corporation al. America, et Carter 2d No. 40946 December So. notes In the ed in its reasonableness.” cited, numerous authorities under this section there are including Reports. in American Law annotations any whether or not the enforcement Now let us see appellee against was unreason- ordinances these arbitrary, capricious. Mayor himself Ballard able, permit deny he testified that the reason voted appellee far a in that the son-in-law this case was had question place another section from the removed grocery Tupelo operating a who was both using store and station and was sta- open only keep grocery tion as a blind to his store Sunday. only goods on That was reason the sale of Mayor’s opposed being granting for the to the permit. question considering He not claim to be did safety, public public health or interest morals, reaching his decision. September Term and This case was tried at the argued chan- both sides rested and the matter was to the matter cellor, the chancellor took the under advise- map which Later, ment for decision vacation. adopted by ordinance was referred to and the 1946 thereupon reopen found motion was made to map might The motion case so this be introduced. proof reopened was sustained and the case and additional