(dissenting). I am in full accord with the holding of the opinion of the court written by Mr. Justice Fairchild that zoning ordinances which exclude churches from residence districts do not violate the First amendment of the United States constitution as incorporated into the Fourteenth amendment, if suitable and sufficient locations for churches are provided in other use districts.
It is common knowledge that churches located in residence areas engender traffic congestion, and that such traffic congestion poses a particular hazard to small children residing in the neighborhood. It is a further matter of common knowledge that such traffic congestion, and the parking of large numbers of vehicles in the vicinity of churches, at times when people congregate there, tends to depreciate the value of surrounding residence property. All of these factors afford a reasonable basis for the exercise of a municipality’s police power in order to promote the public welfare in enacting zoning ordinances of the character of the one before us in the instant case.
The fact, that schools may be permitted in a residence district while churches are excluded, does not makfe a zoning ordinance void on the ground that such classification offends the equal-protection-of-the-laws clause of the Fourteenth amendment. This is because of the desirability of having schools within walking distance of the homes of the majority of children who attend. This is not so essential in the case *612of churches and often they are not so conveniently located. If there is any reasonable basis for a legislative classification the courts must uphold the same.
However, I must respectfully dissent from the holding of the opinion of the court that the zoning of the particular tract of land owned by the relator was arbitrary and capricious. The learned trial court in a very well-considered memorandum opinion determined that relator had obtained no vested rights prior to the adoption of the zoning ordinance under attack of November 16, 1956, and the court’s opinion also adopts such view. Therefore, the village board was not precluded by anything which had occurred prior to the passage of such ordinance from failing to include the relator’s property in the newly created “E” districts in which churches were permitted.
This is not a case of the adoption of an amendment to a zoning ordinance which only affected the relator’s property commonly referred to as “spot” zoning. Instead the ordinance was general in scope and created several “E” districts in the village. However, the court’s opinion seems to apply the principles of law applicable to “spot” zoning to arrive at the result that the zoning ordinance of November 16, 1956, was arbitrary and capricious in its application to relator’s property.
Where to draw the line between various use districts provided for in a zoning ordinance is ordinarily a legislative function of the body enacting the ordinance, and the courts will not substitute their judgment for that of such body. This court stated in the zoning ordinance case of Eggebeen v. Sonnenburg (1941), 239 Wis. 213, 219, 1 N. W. (2d) 84:
“As long as the common council acted within the bounds of the legislative field, its discretion is controlling. A court cannot substitute its opinion for that of the legislative body. *613Geisenfeld v. Shorewood, supra [232 Wis. 410, 415, 287 N. W. 683]; Metzenbaum, The Law of Zoning, p. 77.”
The Florida supreme court pointed out in the recent case of Miami Beach v. Hogan (Fla. 1953), 63 So. (2d) 493, that a line must be drawn somewhere between different use districts by a zoning ordinance, and that a court will not substitute its own determination for that of the legislative body in drawing such line.
There is no question but that the relator’s property is entirely suitable for the uses permitted in Class “C” districts. In fact, there was no showing made that its value would bé so adversely affected by being so zoned to such an extent as would amount to the taking of such prdperty without due process of law. Merely because the planning expert engaged by the city and the planning commission recommended the creation of an additional “E” district to include relator’s property did not require the village board to do so, nor did they render such board’s action arbitrary and capricious in failing so to do.
Inasmuch as the avoidance of traffic congestion in residence areas, and protection against depreciation of surrounding property values, are a sufficient basis to support the exercise of the police power to exclude churches from residence-use districts, it is not proper for a court to second-guess the municipal legislative body as to whether a church to be built in some particular location in a residence-use district would produce such harmful results. Therefore, in the instant case it is entirely immaterial what motives prompted the majority of the village board to vote not to include relator’s property in a class “E” district so long as the motive was not to discriminate against a church as such.
5 McQuillin, Mun. Corp. (3d ed.), p. 322, sec. 16.90, states the applicable general rule to be:
*614“Therefore, neither the motives of the members of a municipal legislative body nor the influences under which they act can be shown to nullify an ordinance duly passed in legal form, within the scope of their powers.”
Because of the possibility of zoning ordinances being used to discriminate against minority religious groups, an exception to the above rule probably ought to be invoked to ascertain if the enactment of a particular zoning ordinance has such a motivation. When after inquiring into such issue it becomes apparent that the motives of the legislative body in enacting the ordinance were not to achieve such discriminatory objective, a court should not carry the inquiry further. For example, if the majority of the instant village board were motivated by a belief in the likelihood of undue traffic hazards being produced by a church located on relator’s property, this is the type of motive with which courts should not concern themselves. Certainly the court should not invalidate the ordinance because the stationing of a traffic officer there at certain hours on Sunday, or the installation of traffic lights, would obviate the anticipated traffic hazard.
The trial court’s memorandum opinion, findings of fact, and conclusions of law, make it clear that the trial court found that the village board’s action did not discriminate against the relator’s property on grounds of religion. Such finding is not against the great weight and clear preponderance of the evidence, and, therefore, is conclusive upon this court.
I would affirm the judgment below.