permit by the proper authorities to build "two family" houses on lots in the city of Brookline, and had actually begun their erection, that the permit could be revoked and their completion prevented under an ordinance passed after the contracts for building them had been made, and work on them commenced.

In Spector v. Building Inspector, Mass., 145 N. E. 265, decided on the same day, the petitioner had bought land and located in Milton for the purpose of erecting a block of twelve stores. There was then a building code but no zoning law in force there, and he applied for a permit to build the stores. This permit was withheld for the express purpose of delay until the selectmen could have adopted a zoning ordinance declaring the property to be within a "residence" district. The ordinance was adopted and the permit refused, and in sustaining that action the court, in part, said: "The circumstances that the land of the petitioner could be used more profitably for commercial than for residential purposes is of slight significance and of no consequence in the broad aspects of the case. Every exercise of the police power in respect to the use of land is likely to affect adversely the property interests of somebody."

Other cases sustaining laws having some provisions similar to those in question here are State ex rel. Civello v. New Orleans, 154 La. 271, 33 A.L.R. 260, 97 So. 440; Lincoln Trust Co. v. Williams Bldg. Corp. 229 N. Y. 313, 128 N. E. 209; Ware v. Wichita, 113 Kan. 153, 214 Pac. 99, in which this language is found: "The next contention is that the zoning ordinance and the statute which authorizes it have the effect of taking defendant's property or of diminishing its value without compensation. It often happens that a valid exercise of the police power has such effect. The most common examples of this are found in statutes and ordinances relating to the health, safety, or morals of the people. With the march of the times,

however, the scope of the legitimate exercise of the police power is not so narrowly restricted by judicial interpretation as it used to be. There is an esthetic and cultural side of municipal development which may be fostered within reasonable limitations."

State ex rel. Carter v. Harper, 182 Wis. 148, 33 A.L.R. 269, 196 N. W. 451, in which this interesting exposition of the modern doctrine of the police power is found: "The benefits to be derived to cities adopting such regulations may be summarized as follows: They attract a desirable and assure a permanent citizenship; they foster pride in and attachment to the city; they promote happiness and contentment; they stabilize the use and value of property and promote the peace, tranquillity, and good order of the city. . . . It is not necessary for us to consider how far esthetic considerations furnish a justification for the exercise of the police power. But one case has been called to our attention which holds that esthetic considerations alone justify the exertion of that power.

Per

haps the case of State ex rel. Twin Bldg. & Invest. Co. v. Houghton, 144 Minn. 13, 8 A.L.R. 585, 174 N. W. 885, 176 N. W. 159, goes nearly if not quite, as far. Other cases hold that esthetic reasons may be taken into consideration, but that they cannot furnish the substantial basis for the exercise of the power.

It seems to us that esthetic considerations are relative in their nature. With the passing of time, social standards conform to new ideals. As a race, our sensibilities are becoming more refined, and that which formerly did not offend cannot now be endured. The rights of property should not be sacrificed to the pleasure of an ultraesthetic taste. But whether they should be permitted to plague the average or dominant human sensibilities well may be pondered."

Some of the provisions of several of the statutes reviewed in these cases bore no necessary relation to

the public health, morals, safety, or welfare, and manifestly owed their existence to an intention to create certain areas within which persons might reside without fear of being annoyed by the proximity of other dwellings and business enterprise which, while not affecting the public health, the public morals, the public safety, or the public welfare, were nevertheless repugnant to the esthetic sensibilities of that part of the public in whose interest they were drawn. That such a purpose could not be effected if the usual constitutional guaranties are given their ordinary meaning is clear, since in such a case the purpose could only be effected through resort to the power of eminent domain, which would in practice be impossible, and hence it was necessary to support them by an extension of the police power, either in terms, or by some process of reasoning often tenuous and remote, to establish some relation between the laws and some recognized element of the police power.

There are, however, cases in which the power of the state to adopt legislation impairing property rights for any reason less substantial than the protection of the public health, safety, morals, or welfare, has been denied.

In Fitzhugh v. Jackson, 132 Miss. 585, 33 A.L.R. 279, 97 So. 190, the court was dealing with an ordinance making it unlawful for anyone to start a new business enterprise within a residence district unless with the consent of the owners of more than one half the property within a certain distance from the lot affected, and the city council. The petitioner in that case applied for a permit to erect a building for a grocery store. It was refused on the ground that such a use was forbidden by the ordinance. In passing upon the validity of the ordinance, the court said: "The proper operation of a grocery store cannot possibly be injurious to the public health. One of the ordinary uses of property is for personal gain, and

in the lawful use of this property the individual is protected by the Constitution. He must so use it as not to injure others. By using this property for the purpose of conducting a retail grocery store in a lawful manner, he does not injure, in the legal sense, the property of his neighbor. We doubt, but do

not here decide, that under our Constitution the state, under the police power, has the right to pass regulations purely to promote the public convenience or the general prosperity, to the disadvantage and detriment of the individual property holders."

In Spann v. Dallas, 111 Tex. 350, 19 A.L.R. 1387, 235 S. W. 513, the question presented was stated by the court in this way: "Whether under the authority of the police power the citizen may be denied the right to erect, and in effect the right to own, a storehouse in a residence portion of a city, for the conduct of a lawful, inoffensive, and harmless business."

In discussing that question it said, in part: "Property in a thing consists nor merely in its ownership and possession, but in the unrestricted right of use, enjoyment, and disposal. Anything which destroys any of these elements of property to that extent destroys the property itself. The substantial value of property lies in its use. If the right of use be denied, the value of the property is annihilated and ownership is rendered a barren right. Therefore a law which forbids the use of a certain kind of property strips it of an essential attribute and in actual result prescribes its ownership. The police power is a grant of authority from the people to their governmental agents for the protection of the health, the safety, the comfort, and the welfare of the public. While this is true, it is only a power. It is not a right. The powers of government, under our system, are nowhere absolute. They are but grants of authority from the people, and are limited to their true purposes. The funda

mental rights of the people are inherent, and have not been yielded to governmental control. They are not the subjects of governmental authority. They are the subjects of individual authority. Constitutional powers can never transcend constitutional rights.

The

police power is subject to the limitations imposed by the Constitution upon every power of government; and it will not be suffered to invade or impair the fundamental liberties of the citizen, those natural rights which are the chief concern of the Constitution, and for whose protection it was ordained by the people.

To secure their property was one of the great ends for which men entered into society. The right to acquire and own property, and to deal with it and use it as the owner chooses so long as the use harms nobody, is a natural right. It does not owe its origin to constitutions. It existed before them. It is a part of the citizen's natural liberty,-an expression of his freedom,-guaranteed as inviolate by every American Bill of Rights. It is not a right, therefore, over which the police power is paramount. Like every other fundamental liberty, it is a right to which the police power is subordinate."

In State ex rel. Penrose Invest. Co. v. McKelvey, 301 Mo. 1, 256 S. W. 474, in dealing with a comprehensive zoning ordinance regulating the use of property and dividing the city of St. Louis into five use districts, the court held that it was not within the scope of the police power. A like conclusion was reached upon somewhat similar facts in Ignaciunas v. Risley, 98 N. J. L. 712, 121 Atl. 783, by the supreme court of New Jersey, and, upon appeal to the court of errors and appeals of New Jersey, it was held that the mere erection of a store building within a residence district fixed by a zoning ordinance did not endanger the public health, safety, or general welfare, N. J., 125 Atl. 121. In State ex rel. Lachtman v. Houghton, 134 Minn. 226, L.R.A.1917F, 1050,

158 N. W. 1017, it was held that a zoning ordinance prohibiting the erection of any building except for residential purposes in a residence district could not be sustained under the police power, in so far as it applied to ordinary store buildings, and to the same effect is Willison v. Cooke, 54 Colo. 320, 44 L.R.A. (N.S.) 1030, 130 Pac. 828.

From what we have said, the cases last cited which deny to the state the right to restrict the use of private property unless the restriction bears some definite and substantial relation to the public health, morals, safety, or welfare, are in accordance with the views repeatedly expressed by this court, and from which it will not now depart.

We will now apply the principles stated in these decisions and in the decisions of this court to the matter immediately before us, which is whether these provisions of Ordinance No. 922 of Baltimore city, which regulate the use of property in residence districts in that city, are, in so far as they apply to the use of the appellant's property, a valid exercise of the police power.

From an examination of the maps which form a part of the ordinance, it appears that the residence zones or districts of Baltimore city comprise a number of separated areas varying in extent, irregular in outline, and located without apparent reference to any definite plan, but which nevertheless in the aggregate include a very large part of the total area of that city. And by reference to the ordinance it appears that in those districts no land or building can be used and no buildings erected except for one of fifteen specified uses, to which reference has already been made, unless specially authorized by the board of zoning appeals. These restrictions are wholly arbitrary and have no logical relation to -zoning for esthe public welfare, thetic reasons but rest solely upon

-validity.

esthetic grounds. Under the provisions of §§ 3 and 7d and 7g of article 3 of the ordinance, a neighbor

hood drug store might be forbidden, and a crematory permitted, a bakery forbidden and sewage disposal plant permitted, an office building prohibited and a refuse dump permitted, a grocery store forbidden and an amusement park allowed. Nor is there any rule or standard prescribed to guide the discretion of those intrusted with the administration of the ordinance in deciding what shall be allowed or what forbidden, any more definite than that, in any departure from the letter of the law the spirit of the ordinance shall be preserved, public safety, and welfare secured, and substantial justice done. But as the ordinance itself is based upon the theory that its prescriptions are in the interest of the public welfare, it is not clear how any departure from them can be justified on that ground; for if the restrictions are not necessary to the public welfare, there can be no justification for them at all, and in fact there is none. Their only apparent purpose was to prevent the encroachment of business establishments of any kind upon residential territory, regardless of whether they affected in any degree the public health, morals, safety, or welfare. In effecting that purpose they take from the property owner the right to use his property for any purpose not sanctioned by the letter of the ordinance or allowed by the practically unfettered discretion of the board of zoning appeals, and deprive him of privileges guaranteed by article 23 of the Maryland Bill of Rights.

We have reached the conclusion, therefore, that so much of the ordinance as attempts to regulate and restrict the use of property in Baltimore city is void: First, because it deprives property owners of rights and privileges protected by the Constitution of the state; second, because such deprivation is not justified by any consideration for the public welfare, security, health, or morals apparent in the ordinance itself; and, third, because it does not require that the restrictions shall in

fact be based upon any such consideration. But in reaching this conclusion we do not hold that the use of property in Baltimore city may not be regulated or restricted where such regulation or restriction is based upon such consideration.

In view of this conclusion, it becomes unnecessary to deal with those provisions of the ordinance which undertake to regulate the height of buildings and the areas of yards and open spaces adjacent thereto, as well as the number of families who may dwell thereon. Whether those provisions are valid may depend upon facts which are not before us, for this court has decided that regulations of that general character may be enforced where they are needed for the protection of the public safety, health, or morals, and whether in a given case they are so required must depend upon the circumstances of that case. And although there is no apparent relation between some of the provisions of the ordinance which prescribe the area which buildings may occupy and limit the number of persons who may reside upon a given area, and any legitimate exercise of the police power, nevertheless we refrain from passing upon the validity of those provisions because it may be possible that conditions of which we are not informed by the record may affect their validity.

Courts-power of

Another objection to the ordinance is that it improperly extends the jurisdiction of the Baltimore city manicipality to court, but we do not enlarge juristhink that that contention can be sustained.

diction.

Article 4, § 39, of the Constitution of Maryland, provides that "the general assembly may reapportion. change, or enlarge the jurisdiction of the several courts" of Baltimore city. Article 11A of that Constitution provides that the mayor and city council of Baltimore shall have full power to enact local laws of said city. That this is a "local law" can hardly be questioned, nor can there

be any doubt but that the general assembly could have provided for an appeal from the board of zoning appeals to the Baltimore city court. And since by the direct mandate of the people the mayor and city council of Baltimore is given the right to enact local laws, there seems to be no reason why they have not the same power which the general assembly has to provide for such judicial hearings as may be deemed proper and necessary to the administration of such laws. Any other construction would tend to nullify the purpose of the home rule amendment; for if the city has not the power to provide for such judicial hearing and review as may be necessary to the proper administration of such laws as they may pass under that amendment, its power to legislate would be incomplete and abortive. And when it was given the power to legislate, it must necessarily have been given at the same time such powers as were essential to make that power effective. And since in many instances a judicial hearing and review of questions arising under such legislation is essential to the validity thereof, it must have been intended that it should have the power to provide therefor. And that such is the construction which this court has placed upon that provision of the Constitution is intimated, if not expressly decided, in State ex rel. Baltimore v. Rutherford, 145 Md. 363, 125 Atl. 725. In reaching this conclusion, however, we are not to be understood as deciding that the jurisdiction vested in the Baltimore city court upon appeal by this ordinance is a valid exercise of that power, nor that that court can be required to exercise any other than judicial functions.

A further objection is that the power granted to the board of zoning appeals to disregard, and in effect set aside, the provisions of the ordinance in particular cases, is too arbitrary and indefinite to be sustained. From what we have said it follows that, in our opinion, the real

indefiniteness spect to zoning effect.

of rules with re

ordinance

plied to the "use" provisions of the ordinance; and if it were necessary to decide that question in this case, we would hold it to be invalid in so far as it applied to those provisions. For reasons already given, however, we are not called upon to decide whether it is invalid in so far as it applies to the height and area restrictions, and we will not pass upon that question further than to say that it does not necessarily follow that, because the standards and rules provided to control the exercise of the discretion vested in the board in in passing upon the uses of property are too indefinite, they are insufficient to limit and control that discretion when applied to the location and construction of buildings. For in the one case, the subject of the discretion is intangible, impalpable, and esthetic, while in the other it is material and substantial, and its physical incidents and consequences are capable of being positively and definitely ascertained. "Practical difficulties" and "unnecessary hardships" may have a definite meaning when applied to the construction of a building, but are quite meaningless when applied to the effect which the proximity of a small tailor shop may have on the esthetic sensibilities of persons in its vicinity.

The record before us is unsatisfactory, in that it does not show affirmatively that the petitioner has complied with all the requirements prerequisite to the issuance of the permit applied for; but from the agreed statements of fact we have assumed that he has, and that the