The case presented here involves the validity of a so-called zoning ordinance adopted by the Town of Boca Raton, which has a population of about four hundred and fifty residents according to the allegations in the pleadings, in so far as such ordinance applies to E. B. Davis, Inc., a Florida Corporation, the owner of a lot in the town upon which the Corporation desired to erect a "filling station."

The Corporation's application for a permit was denied by the town authorities upon the ground that such a structure upon the designated lot would contravene the purpose and inhibitions of an ordinance adopted by the town government in the exercise of its police power to enact zoning regulations, which power was vested in the town by its charter, Chapter 13922 Laws of Florida 1929.

The Circuit Judge, to whom application was made by the Davis Corporation for a writ of mandamus to compel the officials of the town to grant to the applicant a permit to erect a filling station upon the lot designated in the application, after answer to the alternative writ, granted a peremptory writ upon motion. In the order granting the writ the learned Judge said:

"Viewing this record and considering the nature, area and population of the municipality, I am of the opinion that, in so far as it affects relator and the particular land in question, the municipality acted unreasonably and arbitrarily. The actions of the municipality are sufficient to overcome the presumption that the ordinance — as it affects relator — was in any *Page 679 way prompted by consideration of public safety, health, welfare or morals."

I agree fully with that conclusion and think that the law of the case was stated by him clearly. Zoning ordinances in this country are a matter of comparatively recent development in the law of municipal corporations. The desire for order, health and beauty is at the base of such ordinance and much may be said, as has already been said by courts and text writers in support of the exercise of that particular phase of police power, but, as in many instances of the exercise of such power, it not infrequently happens that the persons attempting to exercise the power appear to be "more critical than correct," as England's great Prime Minister, Disraeli, once said.

While the purpose of zoning laws is to regulate, systematize and stabilize the growth of cities and towns by districts and thus promote general order, convenience, health and beauty, the latter consideration often dominates in the enactment of such ordinances. Public art, architectural harmony and beauty, aesthetic matters often are the controlling consideration and reflect the whim, caprice or aesthetic taste of the ordinance-making board or town council, which of course is unsatisfactory as the true purpose of the exercise of the power is not thus attained. In all the circumstances of this case, the population of the town, the obvious lack of any emergency existing in the interest of public health or convenience, the existence of no such extensive and complex ordinance when the application was made for the permit, the hasty passage of the ordinance while the application for a permit was pending, and the ordinance itself, suitable to a city many times the size of Boca Raton, lead me to adopt the conclusion of the learned Judge. *Page 680