SCHAUER, J., Dissenting. — Regardless of how beneficial and desirable we personally may think this particular school would be, it is our duty to uniformly apply the law and not, in order to obtain a result here, set a precedent which will have the effect of generally opening residential areas in all cities to private schools. It is particularly important that we carefully consider and apply the law here because this ease appears to be designed as a test case to set the pattern for other communities. The attack is directly upon the classification as between public schools and private schools, and the impact of the ordinance upon petitioner’s “business and property. ’ ’ The petition for the writ is completely silent upon whether the ordinance does or does not provide for [335]variances or nonconforming uses or exceptions, or for administrative procedures in respect thereto, or whether any effort has been made to secure an amendment or exception or other relief.1
The only real issues in this case are two: (1) The ordinance classifies schools, for purposes of zoning, as those which are “under the jurisdiction of the Board of Education of the City of Piedmont,” and those which are not so governed. Is this classification unconstitutional?
- (2) The petitioner attacks the application of the ordinance to its “business and property,” with the charge that “Unless respondents are compelled ... to issue to petitioner the permit which it has requested, and thus authorize the petitioner to construct, erect and establish its proposed school, petitioner’s business and property will suffer irreparable injury.” Does petitioner sustain this attack?
Classification.
Classifying as between public and private ownership or management of a service or business is not new. It is elementary that the conduct of a public school is a public service while the operation of a private school is a private business. The Constitution of California provides in article IX for public schools (see also art. XIII, § 15), and in section 15 of article XVI declares among other things that the public school system is “a matter of general concern inasmuch as the education of the children of the State is an obligation and function of the State.”
General principles applicable to the classification inherent in zoning ordinances are that: “[A] zoning ordinance enacted pursuant to a comprehensive plan of community development, ‘when reasonable in object and not arbitrary in operation, ’ will be sustained as a proper exercise of the police power; every intendment is in favor of its validity, and a court will not, ‘ except in a clear case of oppressive and arbitrary limitation, ’ interfere with the legislative discretion ; [336]it is presumed to be adapted to promotion of the public health, safety, morals and general welfare; and though the court may differ with the zoning authorities as to the ‘ necessity or propriety’ of the regulation, so long as it remains a 1 question upon which reasonable minds might differ, ’ there will be no judicial interference with the municipality’s determination of policy.” (McCarthy v. City of Manhattan Beach (1953), 41 Cal.2d 879, 885-886 [264 P.2d 932] ; Clemons v. City of Los Angeles (1950), 36 Cal.2d 95, 98-99 [222 P.2d 439] ; see also “zoning,” 12 Cal.Jur. 10-Yr.Supp. pp. 166-168, §25,. and cases there cited.) “ [T]he establishment, as part of a comprehensive and systematic [zoning] plan, of districts devoted to strictly private residences or single family dwellings, from which are excluded business or multiple dwelling structures, is a legitimate exercise of the police power. [Citations.]” (Wilkins v City of San Bernardino (1946), 29 Cal.2d 332, 337-338 [171 P.2d 542] ; see also Miller v. Board of Public Works (1925), 195 Cal. 477, 490-491 [234 P. 371] ; Corporation of Presiding Bishop v. City of Porterville (1949), 90 Cal.App.2d 656, 659 [203 P.2d 823].)
It appears clear that the classification — as between private and public schools — attacked by petitioner in the ordinance here involved has not been shown to be such that reasonable .minds may not differ concerning it. The city of Piedmont, a small city with a total area of approximately 1152 acres and a population of less than 12,000, is an “island” entirely surrounded by the city of Oakland. In 1929 a comprehensive zoning ordinance was adopted, dividing the city into four zones designated as Zones A, B, C. and D, respectively. As amended in 1936, but prior to the time petitioner acquired its property here involved, section 3 of the ordinance provides that “No building . . . shall be erected ... in Zone ‘A’, which is . . . intended to be occupied or used for any purpose other than a single family dwelling, church, or public school under the jurisdiction of the Board of Education of the City of Piedmont ...” The zoning provision which thus bans private schools from the single family residential Zone A, was approved by a vote (3,408 to 1,285) of the electors of the city. . Zone A embraces approximately 1137.14 acres, including the land here involved upon which petitioner desires to construct and operate a private school. Such schools are permitted in the other three zones.
As establishing petitioner’s failure to show invalidity of the ordinance, it may be pointed out in the first place that [337]although the majority opinion declares that the only question involved in this controversy is ‘1 Whether the city of Piedmont may, by [a comprehensive zoning] ordinance, constitutionally prevent the construction of a building to be used for private school purposes in an area [a single family residential zone] where public schools are located,” it appears to be conceded by petitioner for the writ that the city does not have power or the legal right to exclude public schools, which are under the jurisdiction of the board of education, from its single family residential Zone A, which is here involved. (See Cal. Const., art. IX; see also Butterworth v. Boyd (1938), 12 Cal.2d 140, 152 [82 P.2d 434, 126 A.L.R. 838]; Gerth v. Dominguez (1934), 1 Cal.2d 239, 242 [34 P.2d 135] ; Ward v. San Diego Sch. Diet. (1928), 203 Cal. 712, 715-717 [265 P. 821] ; Esberg v. Badaracco (1927), 202 Cal. 110, 115-119 [259 P. 730].) A public school district has the power of eminent domain and may be allowed, by condemnation, in a proper case, to acquire property for a school site. (See e.g., Long Beach City H. S. Dist. v. Stewart (1947), 30 Cal.2d 763 [185 P.2d 585, 173 A.L.R. 249] ; State ex rel. Britton v. Mulloy (1933), 332 Mo. 1107 [61 S.W.2d 741].) It follows that, as contended by the city, if it is without power to exclude public schools from Zone A, then its zoning ordinance which excludes private but not public schools from that zone cannot fairly be held to invalidly discriminate against private and in favor of public schools. The general classification as between public schools and private schools is set up by the Constitution itself.2 Thus it seems indisputable that the classification here involved is not, as such, vulnerable to petitioner’s attack.
[338]Turning now to the application of the ordinance under the circumstances of the case and as affecting petitioner’s “business and property, ’ ’ the following defects in its case appear: It has not been established as a fact that there are no adequate areas in which private schools may be built which would be reasonably accessible to residents (either children or adults) of the city of Piedmont. As already stated, Piedmont, a small city, is entirely surrounded by the city of Oakland, and, further, petitioner’s property is actually bounded on one side by a boulevard which is entirely within Oakland. Thus, not only has it been here shown that there are approximately 15 acres of land within Piedmont which are outside residential Zone A and upon which private schools are permitted under the zoning ordinance, but it has not been shown that there is no available and reasonably accessible land within the surrounding city of Oakland upon which private schools are permitted. It seems obvious, therefore, that petitioner has failed to establish either that it is being oppressively and arbitrarily prevented from operating a private school catering to residents of Piedmont, or that Piedmont residents are being prevented from attending private schools; those wishing to attend, or to send their children to, private schools may, so far as appears, utilize such schools in Oakland or elsewhere in the San Francisco Bay area as it may be presumed they have done in the past. Furthermore, there is a complete absence of showing of an attempt by the city of Piedmont or by any other governmental unit to compel attendance at public schools only, or to take away the right of any parents to direct the upbringing or education of children under their control. Whether or not any particular property owner is or is not permitted to carry out his desires for future development of his particular property into a private school obviously has no bearing upon the rights of either adults or children to attend private schools. (See Corporation of Presiding Bishop v. City of Porterville (1949), supra, 90 Cal.App.2d 656, 660.)
In the next place, Piedmont, under the terms of its freeholders’ charter, is “primarily a residential city,” and has been recognized as such by this court. (Reynolds v. Barrett (1938), 12 Cal.2d 244, 246, 249 [83 P.2d 29].) It is stipulated that petitioner’s projected school would not be under the jurisdiction of the Board of Education of the city of Piedmont, but would be “owned and operated by petitioner” and would be constructed and operated next door to land on
[339]which ‘1 are a Roman Catholic Church, and a rectory occupied by priests of said Church who serve Corpus Christi Parish in the Archdiocese of San Francisco of such Church. ’ ’ Thus it is indicated the proposed private school would draw pupils not only from Piedmont but from surrounding San Francisco Bay area communities, whereas, presumptively, only Piedmont children attend public schools located in that city. If the city is compelled to permit petitioner’s contemplated private school, then it would seem that it will be equally compelled to permit other private schools in its single family residential zone. That is, it must permit all private schools to enter equally unless this court is prepared to examine and censor or itself prescribe the projected curriculum, or other basis of classification, of each private school which proposes to construct a building and playground and commence business in Piedmont’s Zone A. It is elementary that “The power of the legislature to impose restrictions on a lawful calling must be exercised in conformity with the constitutional requirement that such restrictions must operate equally upon all persons pursuing the same business or profession under the same circumstances. . . . Hence, if a statute allows one class of persons to engage in what is presumptively a legitimate business while denying such right to others, it must be based upon some principle which may reasonably promote the public health, safety, or welfare.” (11 Am.Jur. 1046-1047, § 285.) This court cannot in good conscience create a classification which it could not sustain if created by the Legislature.
A list provided by property owners opposing petitioner in this proceeding, of the various private schools taken from the classified section of the San Francisco Bay area telephone directories shows at least 176 private schools, including among others, schools affiliated with various religious groups,3 driving [340]schools, language schools, astrology schools, bartending schools, real estate schools, divinity schools, nursery schools, furniture finishing schools, radio schools, labor schools, beauty culture schools, mechanical arts schools, Swedish massage schools, secretarial schools, television schools, success schools, engineering schools, fencing schools, dancing schools, sewing schools, charm schools, dramatic schools, and finishing schools — to name but a few. Presumptively each of such private schools operates lawfully and furnishes instruction which to substantial segments of the population has some special value and desirability over and above instruction furnished in public schools. Some or all of the subjects taught in public schools could, of course, be included in the curriculum of the private schools, if the court deems that important as a basis for classification.
If the city of Piedmont is obliged by this court to permit petitioner to devote its property to private school purposes, in violation of the city’s zoning ordinance, then the conclusion appears indubitably to follow that the city’s doors must likewise be opened, upon demand of any other interested property owner, to any or all other private schools which in the manner of their operation are no more obnoxious to the public peace or quiet, or inherently unlawful, than the school herein authorized, all to the substantial,' if not utter, subversion of the planned residential character of Zone A. Zoning ordinances permitting parochial or church schools but prohibiting other private schools in residential districts have been held arbitrary, capricious, and invalid in State v. Northwestern Preparatory School (1949), 228 Minn. 363 [37 N.W.2d 370, 371], and Lumpkin v. Township Committee of Bernards Tp. (1946), 134 N.J.L. 428 [48 A.2d 798]. Certainly this court cannot discriminate either in favor of, or against, a private school because of a religious affiliation or sponsorship, nor can this court properly undertake to censor or prescribe the curriculum of any lawfully conducted school, whether public or private. Freedom in the field of education is one of the basically protected rights (Pierce v. Society of Sisters (1925), 268 U.S. 510, 535 [45 S.Ct. 571, 573, 69 L.Ed. 1070, 39 A.L.R. 468] ; Meyer v. State of Nebraska (1923), 262 U.S. 390 [43 S.Ct. 625, 67 L.Ed. 1042, 29 A.L.R. 1446]), but this does not mean that a private school is, as to location, immune from the application of comprehensive zoning ordinances.
The majority opinion states, but does not attempt to answer, the cogent factors which may have moved the city council and the electors to approve the exclusion of private schools [341]from the residential zone. The very statement of such factors —the character of the district, the relativity of its surroundings, its school age population, the availability of other property, the conservation of property values, matters affecting traffic control, size of streets, parking, noise, fire protection, overburdening of water mains and sewers, and the peace, comfort and quiet of the district for residential purposes— demonstrates that reasonable minds might differ as to the necessity or propriety of the regulation, and that therefore there should be no judicial interference with the municipality’s determination. That such factors are legitimate considerations in the establishment and maintenance of residential districts is not open to dispute, under the zoning principles established in this state. (See Gov. Code, § 38695, formerly Deering’s Gen. Laws, Act 994, § 2; Miller v. Board of Public Works (1925), supra, 195 Cal. 477, 492-494; Corporation of Presiding Bishop v. City of Porterville (1949), supra, 90 Cal.App.2d 656, 659-661.)
Surely the inherent differences between public schools on the one hand and those privately operated on the other furnishes clear support for the application by the municipality of the factors enumerated above. For one thing, there are many more private than public schools; many are operated under religious and many under secular domination and the manner of their operation may be as varied as the subjects they teach. In State v. Sinar (1954), 267 Wis. 91 [65 N.W.2d 43, 47], the court in upholding an ordinance which permitted public schools and private elementary schools in a residential zone but excluded private high schools, pointed out that although public and private schools may perform like functions in some respects, nevertheless the public school serves the surrounding area without discrimination, whereas the private school, whether or not sectarian, does not. “The private school imposes on the community all the disadvantages of the public school but does not compensate the community in the same manner or to the same extent. If the private school does not make the same contribution to public welfare this difference may be taken into consideration by the legislative body in framing its ordinance.” (P. 47 of 65 NW.2d.) Further, it appears that the elected Board of Education of the city of Piedmont, which is directly responsive to the people, is required to consult and advise with “the planning commission having jurisdiction of” property proposed to be acquired for new public school sites. See [342]Ed. Code, § 18403.) Standards for such sites are established by the State Department of Education. (Id., §18402.) No such control can be exercised by the city over the location of private schools, if it is compelled to grant petitioner the building permit here sought. Thus, another ground is shown for the reasonable exercise by the municipality of its right to determine zoning policy, and certainly one upon which a reasonable mind could say the regulation here in controversy is at least fairly debatable — and therefore not to be judicially overthrown.
Irreparable Injury to Petitioner’s Business and Property
The record shows that petitioner acquired the land concerned in July, 1954 — some 18 years after4 the amendment of the zoning ordinance to ban private schools from Zone A; the last prior owner of the land was The Roman Catholic Archbishop of San Francisco, a California corporation sole. The same corporation sole owns additional, adjoining, land on which “are a Roman Catholic Church, and a rectory occupied by priests of said Church who serve Corpus Christi Parish in the Archdiocese of San Francisco of such Church.” The school building which petitioner seeks to construct would have dimensions of 204 feet by 65 feet and an area of 13,260 square feet; in addition petitioner’s land has an area of some 16,240 square feet “which is available for incidental and/or school playground uses.”
Petitioner’s land along its east boundary fronts upon the west side of Park Boulevard, all of which boulevard in that area lies within the corporate limits of the city of Oakland and not within the city of Piedmont. Adjacent to petitioner’s land is a “residential area known as ‘St. James Wood,’ which comprises approximately 227 building sites, all of which are restricted, by restrictions of record, to single family residences ; the owners of said property have formed and are members of an association known as ‘St. James Wood Homes Association. ’ If a witness were called for city of Piedmont he would testify that at a meeting of the members of said Association, held June 15, 1954, said members voted (170 to 2) objection to the granting of a permit for the building of petitioner’s proposed school.”
It thus is shown that petitioner’s land was acquired by [343]it with advance knowledge that such land lies in a single family residential zone, and, further, that the adjacent land within the city of Piedmont is used for single family residential, rather than for private business, purposes. Under such circumstances no support is found for petitioner’s assertion of “irreparable injury” to its business and property if it does not secure the private school building permit it seeks.
In Wilkins v. City of San Bernardino (1946), supra, 29 Cal.2d 332, 340, this court said that “An examination of the California decisions discloses that the cases in which zoning ordinances have been held invalid and unreasonable as applied to particular property fall roughly into four categories: 1. Where the zoning ordinance attempts to exclude and prohibit existing and established uses or businesses that are not nuisances. [Citations.] 2. Where the restrictions create a monopoly. [Citations.] 3. Where the use of adjacent property renders the land entirely unsuited to or unusable for the only purpose permitted by the ordinance. [Citation.] 4. Where a small parcel is restricted and given less rights than the surrounding property, as where a lot in the center of a business or commercial district is limited to use for residential purposes, thereby creating an ‘island’ in the middle of a larger area devoted to other uses. [Citations.] ”
Petitioner has alleged no facts showing, and makes no effort to support a claim, that the present case falls into any of the categories above listed, but merely alleges generally that “Unless respondents are compelled ... to issue to petitioner the permit which it has requested and, thus authorize the petitioner to construct, erect and establish its proposed school, petitioner’s business and property will suffer irreparable injury.” The law is settled, however, that “The mere fact that some hardship may be experienced is not material, for ‘ [e]very exercise of the police power is apt to affect adversely the property interest of somebody. ’ ” (Clemons v. City of Los Angeles (1950), supra, 36 Cal.2d 95, 99; Zahn v. Board of Public Works (1925), 195 Cal. 497, 503 [234 P. 388].) “Where it is claimed that the ordinance is unreasonable as applied to plaintiff’s property, or that a change in conditions has rendered application of the ordinance unreasonable, it is incumbent on plaintiff to produce sufficient evidence from which the court can make such findings as to the physical facts involved, as will justify it in concluding, as a matter of law, that the ordinance is un[344]reasonable and invalid. It is not sufficient for him to show that it will be more profitable to him to make other use of his property, or that such other use will not cause injury to the public, but he must show an abuse of discretion on the part of the zoning authorities and that there has been an unreasonable and unwarranted exercise of the police power. [Citation.]” (Wilkins v. City of San Bernardino (1946), supra, 29 Cal.2d 332, 338.) 11 [I]t must be shown that there has been an unreasonable, oppressive, or unwarranted interference with property rights in the exercise of the police power before a zoning ordinance can be held invalid [citations] . . . The burden rests upon the plaintiff to establish the invalidity of the ordinance and its application to the property involved. The plaintiff’s failure to sustain this burden raises a presumption of the existence of such facts as are sufficient to sustain the ordinance. [Citation.]” (Beverly Oil Co. v. City of Los Angeles (1953), 40 Cal.2d 552, 559 [254 P.2d 865].)
If we conform to the principles above stated the writ sought should be denied.
Edmonds, J., and Spence, J., concurred.
Respondents’ petition for a rehearing was denied November 23, 1955. Edmonds, J., Sehauer, J., and Spence, J., were of the opinion that the petition should be granted.
The general rule is that “A party aggrieved by the application of a statute or ordinance must invoke and exhaust the administrative remedies provided thereby before he may resort to the courts for relief. [Citations.] ” (Metcalf v. County of Los Angeles (1944), 24 Cal.2d 267, 269 [148 P.2d 645] ; see also Essick v. City of Los Angeles (1950), 34 Cal.2d 614, 622-623 [213 P.2d 492]; Lockard v. City of Los Angeles (1949), 33 Cal.2d 453, 457 [202 P.2d 38, 7 A.L.E.2d 990]; Bernstein v. Smutz (1947), 83 Cal.App.2d 108, 114-115 [188 P.2d 48]; City of San Mateo v. Hardy (1944), 64 Cal.App.2d 794, 797 [149 P.2d 307].)
See Constitution of California, article IX: “See. 5. The Legislature shall provide for a system of common schools by which a free school shall be kept up and supported in each district at least six months in every year, after the first year in which a school has been established.
“See. 6. . . . The Public School System shall include all kindergarten schools, elementary schools, secondary schools, technical schools, and state colleges, established in accordance with law and, in addition, the school districts and the other agencies authorized to maintain them. No school or college or any other part of the Public School System shall be, directly or indirectly, transferred from the Public School System or placed under the jurisdiction of any authority other than one included within the Public School System. . . .
“Sec. 8. No public money shall ever be appropriated for the support of any sectarian or denominational school, or any school not under the exclusive control of the officers of the public schools; nor shall any sectarian or denominational doctrine be taught, or instruction thereon be permitted, directly or indirectly, in any of the common schools of this State.”
Among the names listed are: Baptist Divinity School, Holy Names School, Our Lady of Perpetual Help School, Mt. St. Joseph’s School, Redeemer Lutheran School, Seventh Day Adventist School, West Portal Lutheran School, Zion Lutheran Church and School, St. Anne’s School, St. Anthony’s School, St. Augustine’s School, St. Boniface School, St. Erigid School, St. Charles School, St. Dominic’s School, St. Elizabeth’s School, St. Emydius School, St. Gabriel School, St. Ignatius High School, St. James Boys School, St. John Lutheran School, St. Mary’s Chinese Day School, St. Mary’s Chinese Language School, St. Paul's Grammar School, St. Paul’s High School, St. Philip’s School, St. Stephens School, St. Vincent de Paul School, St. Vincent’s High School, St. Columba School, St. John’s School, St. Joseph High School, St. Joseph’s Grammar School, St. Lawrence O’Toole School, and St. Mary’s School.
See Village of Euclid v. Ambler Realty Co. (1926), 272 U.S. 365 [47 S.Ct. 114, 71 L.Ed. 303, 54 A.L.R. 1016]; Jones v. City of Los Angeles (1930), 211 Cal. 304, 318-321 [295 P. 14],