dissenting. I concur in the rulings in headnote 1 and the corresponding division of the opinion, on the incidental or preliminary questions. I also concur in substantially all of the general principles stated in the majority opinion, but dissent from some of the inferences drawn therefrom, and also from the Tesult reached. It might be useful to state at the outset a number of general principles which are deemed not fairly open to debate, and which do not require citation of authority.
1. Courts are not concerned with the wisdom and advisability of legislation. Courts will not declare a statute or an ordinance invalid because of constitutional conflict, unless such conflict is clear *848and manifest. Where such conflict is fairly debatable, the doubt will be resolved in favor of the validity of the legislation.
2. The sovereign State possesses inherently, and without constitutional or statutory provision, the right of self-preservation, which is called “police power,” and this power may be delegated to municipalities by appropriate legislation.
3. The definition or the extent of police power has never been adjudicated. All efforts to do so have been held to be incomplete and limited by the facts of each particular case.
4. Under police power, property may be taken or damaged without payment of compensation, but such power is not unlimited.
5. The exercise of such power must bear a substantial relation to the public health, safety, morals, and general welfare of the public. It must be reasonable and not arbitrary. What is reasonable is for the court to decide.
6. “Due process of law in each particular case means, such an exertion of the powers of government as the settled maxims of law permit and sanction, and under such safeguards for the protection of individual rights as those maxims prescribe for the class of cases to which the one in question belongs.” Cooley’s Con. Lim. (8th ed.) 741; 12 C. J. 1188, § 956 and cit.
7. When the constitution of the State or of the United States is duly amended, such amendment takes its appropriate place among the other provisions therein contained, the whole to constitute the fundamental charter. All of the different provisions must be harmonized, if practicable.
8. If an amendment duly adopted necessarily conflicts with some previous provision, the amendment, being the last expression of the sovereign will of the people, will prevail as an implied modification pro tanto of the former provision. The constitution of Georgia was duly amended in the year 1927. That amendment provided that the City of Savannah and other named cities in Georgia should have “authority to pass zoning planning laws whereby such cities may be zoned or districted for various uses and other or different uses provided therein, and regulating the use for which said zones or districts may be set apart, and regulating the plans for development and improvement of real estate therein. The General Assembly is given general authority to authorize said municipalities to pass zoning and planning laws.” Ga. Laws *8491927, p. 127. Prior to that amendment this court held in a number of cases that nuisances per se, or the doing of anything injurious to the public health, safety, morals, etc., of the public could constitutionally be prohibited, notwithstanding such prohibition might entail upon the owner or person affected loss and inconvenience, and even if the effect was burdensome; this because the right of every person to hold property is coupled with the inherent duty not to injure his neighbors. We have also frequently held that a filling-station is not a nuisance per se, but may be operated so as to become such. It is conceded that there is nothing in this evidence to indicate that the filling-station sought to be constructed will be so operated as to become a nuisance. It goes without saying that the amendment could not in any way affect provisions of the Federal constitution. The plaintiff insists that her property is being taken and damaged without due process of law, and without just compensation first.being paid, as guaranteed by the State and Federal constitutions. It is universally conceded by the courts that the first ten amendments to the Federal constitution restrict the Federal Government only, and have no restraint on the States. The question now to be determined is whether the court erred in the application of the principles above stated. At the threshold of this discussion it is necessary to decide whether or not there is a conflict between the constitutional amendment ratified in 1927 and other portions of the constitution of Georgia, the protection of which is invoked. I see no difficulty in harmonizing the amendment with other portions of the State constitution. All may be considered together and due weight given to each. The new amendment constitutes an authoritative declaration on the part of the people of the public policy which has been made a part of the organic law. That policy is that, when duly authorized by law, property may be divided into zones and the improvements made shall be in accordance with restrictions laid thereon by proper authorities, when such restrictions are reasonable and not arbitrary. The property owner, whenever his property rights are interfered with, is guaranteed due process of law.
While constituted authorities have the right to restrict property rights, it must be done in accordance with the “law of the land.” The owner must receive notice and be given an opportunity to be heard. The exercise of the power must bear a reasonable relation *850to the public health, safety, morals, and general welfare. If the restrictive legislation meets these requirements, then under the police power the restriction is valid and constitutional, and the property owner must submit. Whether the action falls within the constitutional sphere of the State or municipality is a question to be decided under the facts of each particular case. Such was the ruling in Village of Euclid v. Ambler Realty Co., 272 U. S. 365 (supra). In that case the court expressly left other cases to be dealt with under their own peculiar facts as they might arise in the future, saying: “What would be the effect of a restraint imposed by one or more of the innumerable provisions of the ordinance, considered apart, upon the value or marketability of the lands is neither disclosed by the bill nor by the evidence, and we are afforded no basis, apart from mere speculation, upon which to rest a conclusion that it or they would have any appreciable effect upon those matters. Under these circumstances, therefore, it is enough for us to determine, as we do, that the ordinance in its general scope and dominant features, so far as its provisions are here involved, is a valid exercise of authority, leaving other provisions to be dealt with as cases arise directly involving them.” Such was the writer’s opinion of the ruling of this court in Smith v. Atlanta, 161 Ga. 769 (supra), and so expressed in a specially concurring opinion submitted when that case arose for a second time in this court. City of Atlanta v. Smith, 165 Ga. at p. 149 (supra). “The purpose of the guaranty [due process of law] is to prevent governmental encroachment against the life, liberty, and property of individuals, to secure the individual from the arbitrary exercise of the powers of government unrestrained by the established principles of private rights and distributive justice, and to protect ^ropertjr from confiscation by legislative enactment.” 12 C. J. 1195, § 961. The term “property,” as used in the constitutional guaranty against taking property without due process, includes not only title and possession, but also the right of control, and the right to make any legal use of the thing owned. 12 C. J. 1212, § 988 et seq.
When the government, State or municipal, takes away from the property owner the right to so improve his property in his own way, his property has been to a degree taken or damaged. Courts and text-writers have, without exception so far as I am aware, agreed that the right to use and develop one’s property as the owner may *851desire, provided the use is lawful and not unduly injurious to his neighbor is a valuable property right. In this case the evidence, because it is without conflict, demands a finding that the property of Mrs. Howden without restriction is worth double what it is with the restrictions imposed; therefore it is assumed that no one will deny that under the restrictive legislation she has been denied a right in her property of relatively great value. “A denial of due process of law results from any statute, whether State or Federal, which takes away any of the essential attributes of private property, or imposes unreasonable restrictions on its use.” 12 0. J. 1215, § 991, and cit. The issues and the material portions of the evidence involved have been fairly stated by Mr. Justice Hines, and it is unnecessary to repeat them here. All of the evidence introduced by Mrs. Howden tends to show that the property is no longer suited to residential purposes; that she has been unable to sell the same if the restrictions can be constitutionally enforced. Attention is directed especially to the evidence introduced by the city, which does not differ materially from that offered by Mrs. Howden. It is all in accord with the appraisal of the Real Estate Board. One witness does testify that the property could be utilized for an apartment-house, but other evidence introduced by the city shows that it would be suitable and “could be used only for cheap apartments.” The witnesses for the city testified that the property without restrictions would be worth $12,000, and that with restrictions it would be worth probably half; and furthermore, one of the witnesses, engaged in the real estate business for twenty-five years, testified that he knew the property, and that “it would not be desirable as an apartment-house on account of the hospital being across the way.” So that under the evidence it is my opinion that a finding was demanded that the use sought to be made of the lot was lawful; that it was not a nuisance; that nothing indicated that it would be so operated as to become a nuisance; that the lessening of the value amounted to fifty per cent., and even then with no probability that the owner could find any purchaser with the restrictions enforced; and that the net result of the enforcement of the restrictions would be that the only use available would be for the owner to continue to occupy it as a residence, although it had ceased to be desirable for residence purposes.
Applying the principles above stated, the exercise of the power *852of restriction in this case bears no substantial relation to the public health, morals, and safety of the public; is unreasonable and arbitrary, and therefore does not fall within the police power as delegated to the municipality; and denies to petitioner due process of law, and is a taking of her property without just compensation. If I am wrong as to a conflict with our State constitution, I am confident that the ordinance, as applied in this case, deprives the owner of due process guaranteed by the Federal constitution. For these reasons it was error to deny mandamus" absolute requiring the grant of a permit to the plaintiff according to her prayer. Where, under the facts, such restrictive legislation does not legitimately fall within what is known as the police power of the State, the only other way private property may be taken for public purposes, as sought to be done in this case, is by the exercise of the right of eminent domain, in which case the property owner must be paid just compensation. It has been held by the Supreme Court of the United States, with reference to the fifth amendment to the Federal constitution with regard to the taking of property without just compensation, that the limitation in such fifth amendment “is merely a limitation upon the use of the power. It is no part of the power itself, but the condition upon which the power may be exercised.” U. S. v. Jones, 109 U. S. 513 (3 Sup. Ct. 346, 27 L. ed. 1015).
It may not be out of place to make some reference to the arguments used in the majority opinion. In the opinion written by Mr. Justice Hines lie states: “The courts have, however, for some time been taking more and more liberal views of the zoning power; and . . a new principle seems to have been introduced, the California court holding that ‘the establishment of strictly residential districts by zoning ordinances may be justified because it is for the protection of the civic and social values of the American homed” I must confess that I am stumped by the expression that such “ordinances may be justified because it is for the protection of the civic and social values of the American home.” Whatever that may mean, it would seem to be'sufficiently elastic to permit to be done whatever the court may by “construction” so decree. Yerily, property rights, under that rule, rest upon frail support. No one in this day contends that the right of private ownership of property is absolute. If held, it must be so used as not to injure un*853reasonably the rights of others. It is also said in the majority opinion that “the majority of recent cases upon this subject uphold the constitutionality of zoning statutes and ordinances.” I concede the correctness of the last statement of my learned brother, for whose opinions I entertain the greatest respect. The American courts have very generally approved the constitutionality of governmental destruction of property rights, rights which have, from the beginning of struggling America, been a constant incentive and inspiration to the industrious and frugal to build for the future. Is the breaking down and destruction of that incentive a worthy achievement of the courts of America? Only time will demonstrate. I am not blind to the apparently overwhelming tendency to weaken and destroy individual enterprise and self-reliance, and to more and more magnify the powers of government, and to encourage more and more the citizen to seek whatever he wants from a munificent, generous, and all-powerful government. The history of this and other modern developments of urban life discloses a consistent policy of selecting leading and trustworthy citizens to inaugurate the work of such boards and commissions. This is intended to, and does, inspire public confidence and approval. Such selections may for awhile be limited to trustworthy citizens. While this continues, widespread popularity is gained for- the practice. But as to future boards created by municipal .governments, what may we expect, in the light of recent history? Such popularity is partly based also upon the fact that the contest is ever between the many in favor of restriction against one or a few. It is only human nature for one to believe sincerely in the justness of that which redounds to his own interests or appeals to his desires. For these reasons, it is the duty of the courts, the last palladium of the weak against the strong, the few against the many, to construe strictly these limitations upon individual property rights, and to administer justice under the law and the evidence. Truth is the object of every legal investigation.