I dissent:
In my opinion the zoning ordinance, in the light of the record, is not only unreasonable but is arbitrary, unjust and unlawful. Manifestly, in certain circumstances, such ordinances are upheld as a proper exercise of the police power on the theory that the public welfare is involved. But, the “public welfare” can be and frequently is a much abused phrase. The courts are the only defense against abuse of power; indeed the people created the courts for just such a *765purpose for the tendency for those in authority to abuse it is proverbial. Whether such action is the result of an ulterior motive or just a lack of judgment is beside the issue. The sole question is whether the ordinance is reasonable, lawfully adopted and does not invade vested rights.
The property involved are lots in a subdivision sold to the public years ago. The deeds contained restrictions. The buyers bought the lots subject to such restrictions. Such restrictive covenants amount to a contract among all of the buyers in the tract. Years later, as homes were built and when the population justified it, a municipal corporation was established which included all or part of the original subdivision. The city council then proceeded to adopt a “zoning ordinance.” The ordinance definitely deprives appellant of a vested right to use the property for purposes that all of the purchasers of lots in the tract agreed it could be used for. The city council is without power to thus invade the constitutional right of contract and as a result divest appellant of a vested right.
The cases cited do not involve this issue, nor is it raised on appeal, nevertheless in my opinion it is controlling in the circumstances.
A petition for a rehearing ■ was denied April 17, 1950. Doran, J., voted for a rehearing. Appellant’s petition for a hearing by the Supreme Court was denied May 25, 1950. Carter, J., and Schauer, J., voted for a hearing.