(dissenting):
I dissent. I believe that we should overrule Bird v. Sorenson, 16 Utah 2d 1, 394 P.2d 808 (1964) because it is out of harmony with all other Utah cases on the subject, conflicts with pertinent statutes and has created an unexplainable dichotomy in our law.
*255The majority opinion perpetuates a paradox in Utah law which was introduced by this Court’s decision in Bird v. Sorenson, supra. Prior to the decision of that case, this Court had held in two clear decisions that where a landowner makes a request to have a city or county commission amend its zoning ordinances so as to permit a different use of his land, the commission exercises its legislative powers in making that decision. Hence the wisdom of the request is a matter which is highly discretionary with the commission, and only if its action is confiscatory, discriminatory or arbitrary will a court of law intervene and set aside its action. Dowse v. Salt Lake City Corp., 123 Utah 107, 255 P.2d 723 (1953); Gayland v. Salt Lake County, 11 Utah 2d 307, 358 P.2d 633 (1961). It was emphasized in the latter case that the making of a zoning change is so much a legislative function and therefore discretionary that the commission in making its decision is not confined to the information presented at the public hearing before the commission but members of the commission may, like legislators, draw upon their general knowledge of
the various conditions and activities in the county bearing on the question of proper zoning, such as the location of businesses, schools, roads and traffic conditions, growth in population and housing, the capacity of utilities, the existing classification of surrounding property, and the effect that the proposed reclassification may have on these things and upon the general orderly development of the county. In performing their duty it is both their privilege and obligation to take into consideration their own knowledge of such matters, and also to gather available pertinent information from all possible sources and give consideration to it in making their determination.
However, when the landowner in Bird v. Sorenson, supra, came to this Court seeking a referendum vote on what we had firmly declared to be a legislative act (a zoning ordinance amendment), he heard a different sound. This Court announced that the amendment of a master zoning ordinance changing the zoning of certain property from residential to commercial use by a city council was an administrative act and not legislative. The only explanation was offered in the following three terse sentences: “We so hold, based upon logic and prior decisions of this Court. [Citing Keigley v. Bench, 97 Utah 69, 89 P.2d 480, 122 A.L.R. 756 (1939); Shriver v. Bench, 6 Utah 2d 329, 313 P.2d 475 (1957); see also: Kelley v. John, 162 Neb. 319, 75 N.W.2d 713 (1956), and 5 Utah L.Rev. 413 (1957).] If each change in a zoning classification were to be submitted to a vote of the city electors, any master plan would be rendered inoperative. Such changes are administrative acts implementing the comprehensive plan and adjusting it to current conditions.” Dowse v. Salt Lake City Corp., supra, and Gayland v. Salt Lake County, supra, were not discussed nor even cited.
Actually, the prior decisions of this Court cited in Bird v. Sorenson do not support its conclusion. In Keigley v. Bench, supra, the voters of the city had approved an ordinance authorizing a bond issue for the construction of an electrical system. A later ordinance adopted by the City Commission changed the financial plan, resulting in stretching payment of the bonds over 20 years and 18 annual payments of principal instead of 15 years with 13 annual payments, as approved by the voters. We held that this subsequent ordinance was legislative in character and was subject to referendum. We there explained that if the later ordinance varies in a material way from the terms of the earlier ordinance, there is the right to have the variance referred. We further explained that whether there was a right to a referendum depended on the question of whether the later ordinance made a new law or was intended to execute one already in existence; this question was to be resolved by inquiring whether such changes might reasonably be viewed as clearly within the ambit of the voters’ intention when the original ordinance was adopted by them. I fail to see how the decision in that case in any way supports the result reached in Bird v. Sorenson since a re-zoning of property from *256residential to commercial by its very nature constitutes a material change and the change was not within the contemplation of the lawmaking body when the master plan was adopted by ordinance.
In the other Utah case relied upon in Bird v. Sorenson, Shriver v. Bench, supra, we held that the setting of salaries for policemen and firemen was an administrative function and thus not subject to referendum. That case does not support Bird v. Sorenson since salaries were set through the actions of administrative officials and went into effect without any action of the lawmaking council of the city. That is not so with changing the zoning of property.
This Court in Bird v. Sorenson also ignored an earlier pertinent decision of this Court on the subject. In Walton v. Tracy Loan and Trust Co., 97 Utah 249, 92 P.2d 724 (1939) this Court held that the authorizing of a non-conforming use (a comer gasoline station) in contravention of a city zoning ordinance was a legislative act, and that such authorization could be given only by the legislative body of the city and could not be delegated to a board of adjustment. It would seem that if the making of a single exception so as to permit a non-conforming use on a street corner is a legislative act, then the amendment of a zoning ordinance to allow a ten acre shopping development would also be a legislative act as in the instant case.
It is to be further noted that Kelley v. John, supra, a Nebraska case relied upon by this Court in Bird v. Sorenson, was overruled early this year in Copple v. City of Lincoln, 210 Neb. 504, 315 N.W.2d 628 (1982) insofar as it held that an amendment to a zoning ordinance was an administrative or executive act. Ohio and Minnesota in recent years have ruled amendments to zoning ordinances to be legislative acts. Forest City Enterprises, Inc. v. City of Eastlake, 41 Ohio St.2d 187, 324 N.E.2d 740 (1975); Denney v. City of Duluth, 295 Minn. 22, 202 N.W.2d 892 (1972), the latter case rejecting Kelley v. John.
This Court in Bird v. Sorenson further justified its holding because “If each change in a zoning classification were to be submitted to a vote of the city electors, any master plan would be rendered inoperative.” That sentence is not clear to me since no one has suggested in any of the reported cases that “each change in a zoning classification” had to be or should be submitted to a vote of the city electors. It will be only in a very few instances where aggrieved landowners or citizens will go to the expense and effort of obtaining a referendum. Since zoning changes usually only affect a relatively small area of property and only a relatively small number of people, the governing board and administration should be able to defend their action against attacks by such minor interests. If, however, a majority of the voters reverse the action of the city or county lawmaking body, so it be — the voice of the people has been heard. Government, after all, belongs to the people it serves.
The last sentence in the opinion in Bird v. Sorenson, in justification of the decision there reached, states: “Such changes are administrative acts implementing the comprehensive plan and adjusting it to current conditions.” I fail to understand how an amendment to a zoning ordinance which changes the zoning for certain property from residential to commercial, or vice ver-sa, is an implementation of the comprehensive plan. Changes which persons have sought in zoning ordinances which have been brought before this Court, Dowse v. Salt Lake City Corp., supra, Gayland v. Salt Lake County, supra, and now this case, all involved major deviations from the master plan, not implementations. I have no quarrel that a zoning change may be an adjustment to current conditions, but if it is done by rezoning property to an entirely different use that certainly is a legislative act.
Bird v. Sorenson also is in conflict with U.C.A.1953, § 10-9-5 relating to the enactment and amendment of the zoning ordinance of cities and towns in this state. It provides:
Before enacting the zoning ordinance, the legislative body shall hold a public hearing thereon ... The zoning ordinance, *257including the maps, may be amended from time to time by the legislative body after 15 days’ notice and public hearing; but all proposed amendments shall be first submitted to the planning commission for its recommendation which shall be returned to the legislative body for its consideration within 30 days. (Italics added.)
That statute appears to be a clear recognition by the legislature that the enactment of an amendment of a city zoning ordinance is a legislative act. Furthermore, § 10-3— 701 provides:
Except as otherwise specifically provided, the governing body of each municipality shall exercise its legislative powers through ordinances.
In conclusion, our decision in Bird v. Sorenson rests upon faulty underpinnings. The majority opinion recognizes that a majority of jurisdictions have decisions contrary to ours, but in a valiant attempt to save the decision in the name of stare deci-sis lauds it as “a reasoned determination persuasively based on prior Utah authorities.” That praise is undeserved. It is neither “reasoned,” “persuasive” nor “based on prior Utah authorities.” It is in disharmony with every other Utah case on the subject including our most recent pronouncement, Crestview-Holladay Homeowners Assn. v. Engh Floral, Utah, 545 P.2d 1150 (1976). The majority opinion does not explain how amendments to zoning ordinances can be legislative on one occasion but administrative on another.
The legislative-administrative distinction has been severely criticized as unworkable, 1 Antieau, Municipal Corporation Law, § 4.34, Page 4^62 to 4-65, and one court has labeled the distinction as amorphous. Durran v. Cassidy, 104 Cal.Rptr. 793, 28 Cal.App.3d 574, 579 (1972). If this Court is going to continue to cling to the distinction, considerable clarification is needed in its application to zoning ordinances. In past years many cities in Utah have had a commission form of government where a three or five member commission was the city’s executive, administrative and legislative body. There was good reason then for inquiring whether one of its acts was done in its administrative or legislative capacity. Today, many cities have adopted the mayor-council form where administrative and legislative duties are divided between a mayor and a council. The two functions have been separated. Acts of the city council, as in the instant case, in amending its zoning ordinance in a material and significant manner, abruptly changing the zoning of ten acres of residential property to permit a shopping development on the city’s major highway, in derogation of the city’s master plan which had been adopted by ordinance less than four months earlier, is unmistakably a legislative act. The plaintiffs who may sustain a loss in the value of their nearby residential properties and whose comfort may be disturbed by the commercial development, are granted the right to referendum by the Utah Constitution. This Court should not restrict or deny that right by indulging in technical and fine distinctions which are not understandable and do violence to the fabric of the law.
All authorities agree that referendum laws are to be interpreted liberally in favor of the electorate. I would reverse the trial court’s ruling and allow this amendment to the zoning ordinance of a city to be submitted to its voters.
DURHAM, J., concurs in the dissenting opinion of HOWE, J.