City of W. Univ. Place v. Ellis , 118 S.W.2d 907 ( 1938 )

On Motion for Rehearing. In its motion for rehearing, appellant, for the first time, urges that appellee should have applied to the Board of Adjustment for relief against the restrictions placed on his lot by the Zoning Ordinance. However, "The question of whether or not an ordinance prohibiting the construction of a particular kind of building, or preventing a particular kind of use, at a particular location, is unreasonable, arbitrary, or discriminatory, is a question peculiarly within the province of the courts. An owner of property is entitled to direct access to the courts for the purpose of litigating such question, regardless of whether the zoning ordinance has made provision therefor or not. City of Little Rock v. Pfeifer, 169 Ark. 1027, 277 S.W. 883" — is quoted with approval in City of Amarillo v. Stapf, Tex.Com.App., 101 S.W.2d 229, 233. The authority just quoted also disposes of appellant's contention that the ordinance itself was conclusive on the question of the reasonableness of the restrictions it imposed, so as to prevent an inquiry into its reasonableness in an action in court.

The reasonableness of the policy back of the zoning ordinance as a whole is not involved here. As stated by our Supreme Court in the Lombardo Case (73 S. W.2d page 479), referred to in our original opinion, "Of course, every regulation adopted under the police power must be a reasonable one. * * * `The police power authorizes only such measures as are reasonable; to be valid as an exercise of this power, an ordinance must be reasonable inits operation upon the persons whom it affects, and must not be unduly oppressive — that is, it must appear that the means adopted are reasonably necessary and appropriate for the accomplishment of a legitimate object falling within the domain of the police power.'" (Italics ours.)

Motion overruled.

PLEASANTS, C. J., absent.