¶1 (Concurring).—Tbe case presented here involves tbe validity of a so-called zoning ordinance adopted by tbe Town of Boca Raton, which has a population of about four hundred and fifty residents according to' tbe allegations in tbe pleadings, in so far as such ordinance applies to E. B. Davis, Inc., a Florida Corporation, tbe owner of a lot in tbe town upon which tbe Corporation desired to erect a “filling station.” Tbe Corporation’s application for a permit was denied by the town authorities upon tbe ground that such a structure upon tbe designated lot would contravene the purpose and inhibitions of an ordinance adopted by tbe town government in tbe exercise of its police power to enact zoning regulations, which power was vested in tbe town by its charter, Chapter 13922 Laws of Florida 1929.
¶2 Tbe Circuit Judge, to whom application was made by tbe Davis Corporation for a writ of mandamus to compel the officials of the town to grant to tbe applicant a permit to erect a filling station upon tbe lot designated in tbe application, after answer to tbe alternative writ, granted a peremptory writ upon motion. In tbe order granting tbe writ tbe learned Judge said:
“Viewing' this record and considering tbe 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 tbe municipality are sufficient to' overcome the presumption that the ordinance—as it affects relator—■ was in any *679 way prompted by consideration of public safety, health, welfare or morals.”
¶3 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.
¶4 While the purpose of zoning law’s 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 ease, 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.