Section 5 of Chapter 14234, Special Acts 1929, Laws of Florida, amended a section of the Miami Charter to read as follows:

"Section 3 (4). The Commission of the City of Miami may, by ordinance, provide regulations and restrictions governing the height, number of stories, and size of buildings and other structures, the percentage and portion of lot that *Page 600 may be occupied, the size of yards, courts, and other open spaces, and the location, use of buildings, structures, and land for trade, industry, residences, apartment houses and other purposes. Such regulations may provide for a board of appeals to determine and vary their application in harmony with their general purpose and intent, and in accordance with the general provisions of the ordinance."

The majority opinion construes this section as permissive, not mandatory or compulsory in its requirement that the city authorities shall enact a general zoning ordinance and provide a board of appeals incident thereto. The general law on the subject of "zoning" is otherwise. Metxenbaum — The Law of Zoning, Chapter III, page 20.

Zoning measures find their constitutional justification only when the police power is exerted in the interest of the public. There is no such thing as a general legislative power on the part of municipal authorities to control and direct how the private properties of municipal inhabitants shall be held or enjoyed. State of Washington v. Roberge, 278 U.S. 116,49 Sup. Ct. Rep. 50, 73 L. Ed. 210; Euclid v. Amber Realty Co.,272 U.S. 387, 47 Sup. Ct. Rep. 118, 71 L. Ed. 303, Zahn v. Board of Public Works, 274 U.S. 325, 47 Sup. Ct. Rep. 594,71 L. Ed. 1074; Corieb v. Fox, 274 U.S. 503, 47 Sup. Ct. Rep. 675,71 L. Ed. 1228, 53 A. L. R. 1210; Nectow v. Cambridge,277 U.S. 183, 48 Sup. Ct. Rep. 447, 72 L. Ed. 842.

Therefore in order to be constitutional under the due process clause of the Fourteenth Amendment to the Federal Constitution, zoning ordinances must be passed in aid of some "plan" that is general and comprehensive in character when they undertake not only to regulate temporary uses of property but the manner of permanent construction of the buildings erected on affected property. Euclid v. Amber Realty Co., 272 U.S. 387,supra; Eubank v. *Page 601 Richmond, 226 U.S. 137, 33 Sup. Ct. Rep. 76, 57 L. Ed. 156, 42 L.R.A. (N.S.) 1123 A zoning ordinance enacted simply as a piece of guesswork, with no attempt to study the city's problems and no effort to accomplish some general plan adapted to the city's needs in the way of health, safety, prosperity, welfare and the like, and attended by no surety of the existing situation to which it applies is generally unsustainable as a reasonable or valid police regulation. Metzenbaum Law of Zoning, page 130.

Legislators may not, under the guise of the police power, impose restrictions that are unnecessary or unreasonable upon the use of private property or upon the pursuit of useful activities. The right to devote one's real estate to any legitimate use is properly within the protection of the Constitution of the United States. State of Washington v. Roberge, 278 U.S. 116, 48 Sup. Ct. Rep. 50, 73 L. Ed. 210. And where an Act of the Legislature is so framed that those to whom power is delegated are not bound to any definite standard of duty, but are free to withhold consent for selfish reasons, or arbitrarily and subject to their will and caprice, the statutory delegation so attempted in such unrestricted form is repugnant to the due process clause of the Fourteenth Amendment. Yick Wo v. Hopkins, 118 U.S. 356,6 Sup. Ct. Rep. 1064, 30 L. Ed. 220; Eubank v. Richmond, supra; State of Washington v. Roberge, supra; Browning v. Hooper, 269 U.S. 396,46 Sup. Ct. Rep. 141, 70 L. Ed. 330.

It seems to me that Chapter 14234, Acts 1929, in its amendment to the city charter was passed in recognition of the fact that zoning ordinances can only be valid when passed to carry into execution some municipal plan comprehensive in character and ordained in the light of the surrounding facts as shown by a survey and study of the affected area. To construe a statutory delegation of power *Page 602 of this kind as warranting special and particular treatment of particular streets and areas, with no attempt to make any prescribed regulation comprehensive as to plan, would render the statute unconstitutional under the United States Supreme Court decisions as being an unlimited delegation of discretionary power to interfere with private property rights. Therefore I cannot agree with such construction placed upon the statute in the majority opinion.

The constitutional necessity is not for a single comprehensive ordinance or statute but for some general comprehensive plan. Such plan must set up a standard capable of ascertainment by legal means and not leave consent to withhold approval as to particular persons or properties to the whim or caprice of the officials who may be temporarily vested with special authority to give or withhold consent to use one's property as one sees fit. As was pointed out in a very recent case decided by the United States Supreme Court (State of Washington v. Roberge, 278 U.S. 116, supra), every owner of municipal property has the constitutional right to devote his property to any legitimate use he may deem fit. And the exclusion by a zoning law of some particular legitimate use to which a particularly situated property might otherwise be put, is only warranted when subordination or limitation of the right to such particular use is indispensable to the accomplishmentof some general zoning plan! In that case the Federal Supreme Court struck down a provision of law that undertook to authorize a limitation on the use of private property uncontrolled by any standard or rule prescribed by competent legislative authority in order to accomplish a general plan that the Legislature has determined should be accomplished for the benefit of the public health, safety, morals or general welfare.

In Euclid v. Amber Realty Co., 272 U.S. 387, supra, *Page 603 it was held that an ordinance, which of its own force operates greatly to reduce the value of property by unconstitutionally depriving the owner of his liberty to use his property as he sees fit, is subject to injunction to prevent a present invasion of the property owner's rights, or a threat to so invade them. It was further held that it was not necessary to apply for a permit in order to raise the question, because a provision of law requiring application to be made for permits which attaches unreasonable or unlawful conditions to issuance of same, would be itself an unconstitutional invasion of property rights.

In the present case the correct decision of this controversy seems to rest in a large part upon a consideration of all of the surrounding facts and circumstances, in connection with a study of whatever may constitute the whole series of pertinent ordinances that are apparently in effect dealing with the subject of property restrictions in the City of Miami. Mandamus is wholly inappropriate as a remedy to determine rights resting on a showing of particular factual conditions, therefore it was properly denied. So I concur in affirmance of the judgment, but only on the ground that injunction and not mandamus is the appropriate remedy to reach an alleged unconstitutional deprivation of property which can only be decided in the light of the surrounding facts and circumstances that pertain to the particular property in controversy.

ELLIS, J., concurs.