It is my judgment that the prevailing opinion and conclusion thereby superinduced — the affirmance of the judgment of the circuit court — is founded upon a misconception of the question presented on the record.
The court is not here concerned with the exercise of legislative discretion in the enactment of the ordinance or legislative abuse of power — the question presented in Leary v. Adams, 226 Ala. 472, 147 So. 391.
The question presented here is the application of the ordinance — the law — to a case where the undisputed facts bring the case clearly within the very letter of the law. The misconception is evidenced by the following utterances in the majority opinion, i. e., "One of the principal purposes of the board of adjustment is to apply the discretion of experts to exceptional instances where permits are desired, not strictly conforming to the regulations provided in the ordinance." To paraphrase these utterances, the principal purpose of the board is to apply the ordinance to instances where the board does not deem it proper to conform to the ordinance as written, fixing property rights and personal privileges. This principle is only applicable to legislative bodies in the enactment or ordination of rules governing property rights and civil conduct, and then must not be arbitrarily applied so as to impinge the principle of equal protection of the law.
In Leary v. Adams, supra, the question involved was the application of legislative power, in fixing legislative policy in the adoption of this particular ordinance, in the preparation of which one of the city's legal experts, according to the evidence in this record, participated as a draftsman. In that case, to quote from the opinion in Leary v. Adams, supra: "The city contends that the board of adjustment was limited in its functions to hear appeals concerning minute details and principally as to height and area only, and was without authority to modify the zoning ordinance as here [there] sought." [Brackets supplied] 226 Ala. 477, 147 So. at page 396. *Page 52
The manifest purpose of the city commission in incorporating subsection (e), paragraph 2, Section 45, was to prescribe a uniform rule of action making the enjoyment of the right provided for and set up in the ordinance, and to relieve the ordinance from the objection that the right to have residence property situated in the district, prior to the adoption of the ordinance, converted into multiple residences left to the arbitrary choice of the administrative municipal officers, without reference to all persons of the class to which the ordinance is intended to be applied.
Non constat, to furnish a definite standard for the control of the municipal officers in the application of the zoning ordinance without which it would violate the provisions of the constitutions, both state and federal, guaranteeing equal protection of the law. 37 Am.Juris. p. 778, § 160 and authorities cited in annotation thereto.
There is a provision in said subsection (e) that in causing a permit to be issued, reasonable conditions may be prescribed. This discretion does not come into being until the board exercises its power to issue the permit and clearly means that it may prescribe the conditions as to the improvement permitted, that is whether the multiple dwelling shall consist of two or more apartments, sufficient entrances and sanitary equipment in respect to the same.
There is no dispute in this case that the appellant's property was located and existed in the territory covered by the district before the ordinance was adopted, and the evidence shows that it had been devoted to the use of two families, there being two kitchen sinks, and that appellant on permits granted by the city authorities supplied three more, providing for as many as five families. It is not controverted that "said dwelling, when so converted [into a multiple dwelling] otherwise complies as to height, area and other requirements, with the regulations" provided in the ordinance for an "A" class residence district, and as to the height and area of the district within which it is located.
The evidence shows without dispute that the controversy provoking this litigation arose on the protest of certain citizens residing in the same area and attingent to the property in question. That there are other duplex apartments, boarding houses, rooming places, in other residences in the same territory, permitted and tolerated by the city authorities without question. There is no such question "of a pig in the parlor" referred to in Zahn v. Board of Public Works,274 U.S. 325, 47 S. Ct. 594, 71 L. Ed. 1074, and quoted in Leary v. Adams, supra. Nobody questions that the appellant and her husband, Dr. White, and their roomers, are respectable, high class citizens, clean and free of disease or contamination and of the same quality of citizens that reside in the immediate territory surrounded by apartment houses, boarding houses, and rooming houses, where more than a single family live in single residences in said district. Appellant offered to show that it was necessary to keep roomers or tenants in the large dwelling to enable her to meet the payments on the mortgage covering the property, in which she had invested her former home and all of her life savings, and this was denied her, on the objection of the appellee, "the Board." We wonder if Ahab lives in this district. I Kings XXI. If it is a question of discretion, this inquiry was pertinent and material. There is, however, a "nigger in the wood pile," as appears from the evidence in this case — appellant has on her property a servant's house in which negroes, who serve people in this residence, live.
It was all right with the building inspector, the evidence shows, for appellant to have four tenants if she would get rid of the negroes, "as he had no authority to change the law."
Section 8 of the ordinance, dealing with "Accessory Uses, Residence Districts," provides: "In either an 'A' or 'B' Residence District, accessory uses shall be * * *. 2. Quarters for servants employed on the premises. Such quarters may be located either within the principal dwelling or in a separate building on the same lot and not less than sixty (60) feet from the front lot line." Appellant's property conforms to this regulation.
It is a familiar principle that: "A law may be fair on its face and impartial in appearance, but if it is administered by public authority with an evil eye and an unequal hand, so as practically to make illegal discrimination between persons in similar circumstances material to their rights, the denial of equal justice is within the prohibition of the Fourteenth Amendment to the Constitution. * * *." 37 Am.Juris. § 161, p. 782; Yick Wo v. Hopkins, 118 U.S. 356, 6 S. Ct. 1064,30 L. Ed. 220; Thompson v. Smith, 155 Va. 367, *Page 53 154 S.E. 579, 71 A.L.R. 604; Bailey v. State of Alabama,219 U.S. 219, 31 S. Ct. 145, 55 L. Ed. 191.
The strained interpretation of the ordinance, by the prevailing opinion, invests the city board with an unbridled discretion and renders the ordinance [Bailey v. State of Alabama, supra], arbitrary and uncertain, depending upon the will of the particular incumbents of the office, and is violative of the constitutional guaranties of equal protection of the law.
Another thought, the statute under which this ordinance was enacted, and the ordinance itself, provide that the board of adjustment shall review the rulings of the superintendent or inspector de novo, and § 719, Tit. 62, Code 1940, provides: "in case of such appeal such board shall cause a transcript of the proceedings in the cause to be certified to the court to which the appeal is taken and the cause shall in such court be tried de novo." These provisions are inconsistent with the holding that the board and the court are invested with an irrevisable discretion in applying the law contrary to its express provisions. The statute also provides: "The board of adjustment shall not be required to return the original papers acted upon by it, but it shall be sufficient to return certified or sworn copies thereof or of such portions thereof as may be called for by such writ. The return shall concisely set forth such otherfacts as may be pertinent and material to show the grounds ofthe decision appealed from and shall be verified." [Italics supplied.]
The record sent up to the circuit court does not disclose on what grounds the appellant was denied the right provided for in the ordinance, and for which she applied. There is nothing in said ordinance or the enabling act that confers power or jurisdiction on the board to restrain the property owner from renting rooms in her dwelling except by criminal prosecution.
In my judgment the prevailing opinion in this case, as well as the judgment of the circuit court which it affirms, is laid in error, and the judgment should be reversed and one here rendered granting the permit I, therefore, respectfully dissent.