(concurring).
I am in accord with the reversal and remand of this cause solely on the ground that the trial court erred in giving an instructed verdict for the defendant at the conclusion of plaintiff’s testimony; but I am not in accord with the reasoning of the opinion, that the record presents, or tends to present, a fact issue for the determination of the jury.
Whether an ordinance excluding business and trades from residential districts is reasonable, and whether the power conferred on the city authorities is exercised arbitrarily are questions for courts to determine as a matter of law, and are not for jury verdicts. Courts may determine whether or not it appears that the governing body of a city acted arbitrarily, but when *1012the facts are fairly debatable, legislative judgment of the legally constituted board must prevail.
The record here shows the property involved is, as a matter of law, business property, wholly unsuited for residential purposes, and that the city, in zoning it for residential purposes, acted arbitrarily for the sole benefit'of nearby neighbors, and not for the purpose of promoting the general welfare of the community. No debatable fact is here presented; therefore, on another trial, in the absence of any testimony to the contrary, plaintiff would be entitled to an instructed verdict. If it can be said that the eyidence raises the issue of any of the material 'facts upon which the city authorities refused the permit, then the law delegates to the city authorities, and not to the courts or juries, the power and duty of determining those facts, in the exercise of a purely governmental function. Whether a particular ordinance is reasonable or arbitrary is a question of law for the court, and not for the jury. Sansom v. Mercer, 68 Tex. 488, 492, 5 S.W. 62, 2, Am.St.Rep. 505; Riggins v. Richards, Tex.Civ.App., 79 S.W. 84; King v. Guerra, Tex.Civ.App., 1 S.W.2d 373; City of University Park v. Hoblitzelle, Tex.Civ.App., 150 S.W.2d 169.
The Supreme Court of Texas not only refused a writ of error, but has quoted approvingly from the case of King v. Guerra, in which the Court of Civil Appeals, at San Antonio, made it quite clear that the findings of a jury cannot be substituted for those of the governing body, and that the court must uphold the validity of the discretionary and legislative acts of the city officials until and unless it appears, as a matter of law, that there is no opportunity for any conclusion other than that the acts are manifestly and palpably unreasonable, árbitrary and capricious. Judge Gaines, in the Sansom case, held that if there is any controversy as to the existence of the facts upon which the board denied the requested permit, the function of the board was discretionary, and that it cannot be compelled to grant the permit. So, also, in the Riggins case, Judge Key said [79 S.W. 86]: “Human wisdom has never devised a system of government that did not vest final authority in one or more persons; and when that authority involves discretion, and has been exercised, the courts are powerless to grant relief, however unwisely or unjustly it may have befen done.” In the Hoblitzelle case, this Court held that it was the' right and duty of the city authorities to consider and determine the matter, where the material facts are debatable.
I am in accord with the majority to the extent of reversing and remanding the cause, but not that the record here presents ah issue of fact for the determination of the jury. So, on another trial, if the facts are as disclosed by this record, plaintiff’s right to the permit is established as a matter of law. In cases of this kind, there are no jury issues where .the facts are undisputed, or the issues debatable.