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permit was refused solely on the which they have to care for, demand ground that the business which he it, then there would be no ground proposes to operate is in a residence for declaring the constitutional prodistrict. If there was no other visions violated. The ideas of the

. ground than that for its refusal, it court on the reasonableness of the should have been issued; but be- measure have no bearing. In the cause that does not clearly appear, case of State v. Hyman, 98 Md. 596, the order appealed from will be re- 64 L.R.A. 637, 57 Atl. 6, 1 Ann. versed, and the cause remanded for Cas. 742, this court had to consider such further proceedings in accord- the validity of an act of legislature ance with the views expressed in for the regulation of tailoring esthis opinion as may be proper.

tablishments, and Chief Judge McOrder reversed, with costs, and Sherry, in passing on the questions cause remanded for further proceed- now raised, adopted this statement ings.

of the law: “ 'For it must now be

considered as an established prinBond, Ch. J., dissenting: It is always well to remind our

ciple of law in this country, that selves how limited is the function of

there are no limits whatever to the a court in such an inquiry as this.

legislative powers of the states, exThe judges have not been commis

cept such as are prescribed in their sioned by the people to survey the

own Constitutions or in that of the conditions existing in the state or

United States; consequently, that city from time to time, and decide

the courts, in the performance of what governmental regulation is de

their duty to confine the legislative sirable and wise for the future. To

department within the constitution

al limits of its power, cannot nullify the legislative branch of the government, and in this connection to the

and avoid a law, simply because it officials of the city government, that

conflicts with the judicial notions of function has been given in its en

natural rights or morality or abtirety. And on any question of the

stract justice.' Parker & W. Pub

lic Health & Safety, $ 8, and cases desirability or wisdom of future reg

cited in note 2. ulation the conclusion of that branch

The legis

lature being the sole depository of of the government, and of that branch only, is called for. The

the lawmaking power, it is not for courts can, in any instance, consider

courts of justice to say that a given only the narrow question whether

enactment passed in virtue of the provisions of the Constitutions of

police power, and having a direct rethe United States or the state pro

lation to it, is void for unreasonablehibit the action decided upon by the

ness, because, if courts undertook to

exercise such an authority, they legislative branch; and, in this par

would in effect exert a veto on legisticular case, consider only whether

lation." the constitutional provision that individuals shall not be deprived of

“It is to be remembered," said the their property without due process

Supreme Court of the United States, of law, or, as the state Constitution

in Hadacheck v. Sebastian, 239 U. has it, “but

by the law of

S. 394, 60 L. ed. 348, 36 Sup. Ct. the land” (article 23 of the Bill of

Rep. 143, Ann. Cas. 1917B, 927, Rights), is contravened by the zon

“that we are dealing with one of the ing ordinance which the city gov

most essential powers of governernment has decided upon and ment, one that is the least limitable. passed. And if that step is one dic

It may, indeed, seem harsh in its extated by the judgment of the proper

ercise, usually is on some individual, legislative ofiicials in an attempt to

but the imperative necessity for its exercise the function committed to

existence precludes any limitation them, with any foundation for their upon it when not exerted arbitraconcluding that the health, morals, rily.” safety, or welfare of the community The development of city plans and

(- Md. -, 128 Atl. 50.) zoning ordinances is a recent one, ciation and sacrifice of the homes. and does involve a considerable ex- The fact is that the conceptions of tension of the power to restrict an the people as to the comfortable and individual's use and control of his desirable mode of living have been property. There have, of course, changing; the dwelling places genbeen restrictions imposed in the erally desired by city dwellers now past, growing with the problems are those in more open areas, more which have arisen as the city has or less gardened, and removed from grown. Disturbances have been re- business activities; in about the pressed; noises, smells, smoke, re- same conditions, indeed, as those stricted for the comfort and conven- which the present ordinance atience of other citizens, and sanitary tempts to establish for homes withrestrictions imposed. But this ordi- in the city limits. This modern nance is concerned, not with any preference is strong, and it will presuch injurious uses of properties. vail to the extent of taking dwellers Other ordinances have already pro- beyond the city limits to live if they vided for those things. This one is cannot get the desired conditions inconcerned with a mere difference in side the limits. Rapid transit enthe character of activity on the ables them to live outside the city premises, business, or dwelling, with while continuing to work in it, and the mere presence of the one or the a greatly increasing number are other in the specified areas.

The doing so. For a long time now, efportion of the ordinance with which forts have been made in the develop we now have to deal is a deliberate ment of new residential areas in the effort to separate the business of the city to prevent the environment obcity from the dwellings in so far as jected to by covenants in deeds; but that is practicable in an old city. this has not proved entirely successThat is precisely what we are to con- ful, and, if successful, restrictions sider, and all we are to consider. by this means are not entirely deAnd we are to decide whether the sirable, because they continue and deprivation of any owners of so bind the areas to which they are apmuch of their freedom in the control plied indefinitely in the future, in or use of their properties in order spite of almost all change, and so to accomplish that end can be con- may become too burdensome to sidered within the scope of the pow- property owners there in course of ers committed to the government. time. In 1912 an act of assembly

The first objection is based upon (chapter 693) was resorted to for the supposition that, in respect to the protection of an area being deuses which are not nuisances, the veloped in the northwestern portion ordinance has for its object merely

of the city, by requiring that houses esthetic improvement. With

there be built entirely detached, 10 time and the increase of general

feet apart if built of masonry, 20 prosperity and comfort, it has become increasingly difficult to draw

feet apart if of frame; but this was any reasonable distinction between

held beyond the power of the state annoyance and discomfort through government, because there was no one sense, such as smell, and that

substantial reason for treating the through some other senses that may

one kind of building or the other as be described as esthetic ones. And affecting the health or welfare of however it may be analyzed, there is the citizens, which it was the duty a widespread dislike of having busi- of the state to protect, and the legisness uses invade residence districts, lature could not for purely esthetic to such a degree that the entry of purposes invade property rights any business use, with its threat of that are guaranteed by the Constifurther business development, is a tution. Byrne v. Maryland Realty source of distress to many owners Co. 129 Md. 202, L.R.A.1917A, 1216, of homes, and tends to cause depre- 98 Atl. 547. The present general

38 A.L.R.-93.

ordinance is, apparently, the next Connolly, 113 U. S. 27, 28 L. ed. step.

923, 5 Sup. Ct. Rep. 357; Soon Hing This aversion to the proximity of v. Crowley, 113 U. S. 703, 28 L. ed. business uses may all be without any 1145, 5 Sup. Ct. Rep. 736. basis in reason, but it is nevertheless If any kind or degree of esthetic real, and the law cannot disregard regulation is ever to be within the the real importance of the illogical legitimate powers of government, in practical affairs. In Baltimore v. the principle controlling it cannot Fairfield Improv. Co. 87 Md. 352, be formulated as yet, and we are not 40 L.R.A. 494, 67 Am. St. Rep. 344, authorized to declare it to be so. 39 Atl. 1081, in which relief was This has been decided in Stubbs v. sought by neighbors from the prox- Scott, 127 Md. 86, 95 Atl. 1060; imity of a leper duly placed out to Byrne v. Maryland Realty Co. and board among them by the city. Osborne v. Grauel, 136 Md. 92, 110 Judge McSherry, for this court, re- Atl. 199. And see Opinions of Jusplying to an argument that the evi- tices, 234 Mass. 597, 127 N. E. 525, dence showed the danger of conta- and St. Louis Poster Adv. Co. v. St. gion to be negligible, said: “It is Louis, 249 U. S. 269, 63 L. ed. 599, not, in this case, so much a mere aca- 39 Sup. Ct. Rep. 274; contra, State demic inquiry as to whether the ex rel. Civello v. New Orleans, 154 disease is in fact highly or remotely La. 271, 33 A.L.R. 260, 97 So. 440. contagious; but

viewed as But is the court at liberty to assume it is by the people generally, its in- that an esthetic purpose was the troduction into a neighborhood is only one, or even that it was the calculated to do a serious injury to predominant purpose, in the enactthe property of the plaintiff there ing of the present ordinance? We located."

have not, of course, heard any of the And the cases which have sus- discussions which are reported in the tained ordinances against the open- agreed statement of the parties here ing of undertaking establishments to have led to the adoption of the in residence districts, or have with- ordinance, and we are not informed

, out ordinances held such a use prop- of the problems which may hare erly enjoined, have proceeded upon been suggested in the routine of the a similar recognition of the materi- work of the various officials of the ality of some aversions which are city, and which the present plan is not based upon physical injury. expected to solve. We have only Saier v. Joy, 198 Mich. 295, L.R.A. vague information of problems 1918 A, 825, 164 N. W. 507; Meagher which have already arisen in still v. Kessler, 147 Minn. 182, 179 N. W. larger cities, and for which Balti732; St. Paul v. Kessler, 146 Minn. more should, therefore, be prepar124, 178 N. W. 171; Osborn v. ing. Can we confidently say from Shreveport, 143 La. 932, 3 A.L.R. our own experience that there can955, 79 So. 542; Beisel v. Crosby, not have been any utilitarian or 104 Neb. 643, 178 N. W. 272; Cun- administrative ends which were ningham v. Miller, 178 Wis. 22, 23 thought by the promoters of the A.L.R. 739, 189 N. W. 531; Ture- plan to demand the separation of man v. Ketterlin (1924) 304 Mo. business and dwellings as a larger 221, 263 S. W. 202. And see note method of handling the congested in 23 A.L.R. 745. The authorities population with which the officials are not in agreement on the power will have to deal in the future? May to enjoin that use, however. West- not the rapid changes in city traffic cott v. Middleton, 43 N. J. Eq. 478, problems be met more easily by 11 Atl. 490; Koebler v. Pennewell, some such plan? And the in75 Ohio St. 278, 79 N. E. 471. The creased difficulty of suppressing upholding of ordinances directed crime brought about by the use of against Chinese laundries affords automobiles for sudden arrival and another illustration. Barbier v.

flight, may there not be some aid for

a

(- Md. --, 128 Atl. 50.) the meeting of police problems in mote the general welfare, may be the zoning plan? Or, more accu- facilitated by the establishment of rately, could not the officials of the zones or districts for business as city have thought so? And may it distinguished from residence. Connot be that the stresses and strains versely, the actual health and safety of living in a large modern city of the community may be aided by with all its complex activities, have excluding from areas devoted to resgrown to a point where the separa- idence the confusion and danger of tion of business from dwelling fire, contagion, and disorder which places offers a material, or even nec- in greater or less degree attach to essary, aid in the maintenance of the location of stores, shops, and the health and vigor of the city pop

factories. Regular and efficient ulation? May it not be that, in the transportation of the breadwinners growth of our predominantly indus- to and from places of labor may be trial civilization, we have arrived at expedited. Construction and repair a point where special protection is of streets may be rendered easier needed for the mere business of liv- and less expensive if heavy traffic is ing? And is it not permissible to confined to specified streets by the make some arrangement for a business there carried on." crowded city population which And to the same effect are the subpromises an improvement over the sequent decisions in Building Inhaphazard jumble which may now spector v. Stoklosa (1924) – Mass. result from the uncontrolled wills 145 N. E. 262, and Spector v. and interests of neighboring own- Building Inspector (1924) – Mass. ers? A city is a joint enterprise, - 145 N. E. 265. And to the same and co-operation is almost the first effect is State ex rel. Civello v. New law of its population if their joint Orleans, supra. living place is to be kept tolerable When we come to examine the as the congestion of affairs in it in- previous decisions in Maryland, we creases. And if we regard property find that in Easton v. Covey, 74 owners as holders of abstract rights, Md. 262, 22 Atl. 266, the denial of the same in the country as in a city, the permit to establish a livery stawe may reverse the process to which ble, because it was unsuitable to its they commit themselves as residents surroundings in Easton, was upheld or beneficiaries of the city. In the in an opinion by Judge Miller. In Opinion of Justices, 234 Mass. 597, State v. Hyman, 98 Md. 596, 64 127 N. E. 525, the supreme judicial L.R.A. 637, 57 Atl. 6, 1 Ann. Cas. court of Massachusetts, said on this 742, the court found an act for regupoint: “We do not think it can be lation of tailoring establishments to said that circumstances do not exist be within the police power of the in connection with the ordinary op- legislature; and that case was upon eration of such kinds of business closely similar facts. It prohibited which increase the risk of fire, and tailoring in dwellings except where which render life less secure to those licensed by a public official, and living in homes in close proximity. vested in that officer a discretion in Health and security from injury of granting or refusing permits which, children and the old and feeble and on the face of the act, was almost otherwise less robust portion of the unlimited. And the grounds of atpublic well may be thought to be tack were also closely similar to promoted by requiring that dwelling those in the present case. Many houses be separated from the terri- other occupations have likewise been tory devoted to trade and industry. lawfully subjected to regulation, and The suppression and prevention of public utility regulation is a familiar disorder, the extinguishment of ,

recent exercise of the police power. fires, and the enforcement of regula- Gregg v. Laird, 121 Md. 1, 87 Atl. tions for street traffic, and other 1111. The Supreme Court of the ordinances designed rightly to pro- United States has upheld a prohibition of the continued manufacture whether this ordinance can be said of bricks in a restricted district to have a purpose which it is the (Hadacheck v. Sebastian, 239 U. S. function of the government to ef394, 60 L. ed. 348, 36 Sup. Ct. Rep. fectuate, is that it can be. We take

. 143, Ann. Cas. 1917B, 927); of a

the view that the possibilities pointlivery stable (Reinman v. Little ed out for improvement in living Rock, 237 U. S. 171, 59 L. ed. 900, conditions and in the handling of 35 Sup. Ct. Rep. 511); and of bill- administrative problems may well boards (Thomas Cusack Co. v. Chi- have justified the adoption of the cago, 242 U. S. 526, 61 L. ed. 472. separation of business and the L.R.A.1918A, 136, 37 Sup. Ct. Rep. dwelling places for the future, un190, Ann. Cas. 1917C, 594). And der the police power, and that this somewhat in advance of most of measure of co-operation required of these decisions is that in the case of the citizens is one which the judges Cochran v. Preston, 108 Md. 220, 23 cannot say is arbitrary or unnecesL.R.A.(N.S.) 1163, 129 Am. St. Rep. sarily oppressive. And, proceeding 432, 70 Atl. 113, 15 Ann. Cas. 1048, from this conclusion, we think, furin which a restriction on the height ther, that the vesting of so wide a of buildings to be erected on Mt. discretion in the board of zoning apVernon place in Baltimore city was peals by the provisions of the ordiheld valid; and that in Osborne v. nance cannot properly be held an Grauel, 136 Md. 90, 110 Atl. 199, unconstitutional delegation of legiswhich upheld a refusal to issue a lative power. permit for a garage because the The nature and magnitude of the mayor did not "think garages ought undertaking do, as the majority to be built in that community; that opinion points out, give rise to difit was a very nice class of property ficulties in accomplishing it, of legal out there, and that these garages as well as of practical importance. would depreciate the value of the Discrimination among the many property,

and that the thousands of situations, of particucharacter of the proposed buildings lar properties, and of possible uses, did not conform to the other im- is, of course, impracticable, so that provements in the neighborhood.” the work can be done only by broad In the case of Cochran v. Preston, classifications, with inevitable disresupra, the court found that the stats gard of some differences, and preute might be justified as necessary sumably with inevitable hardship to meet a fire hazard of special se- and injustice in some cases. And as riousness, but the propriety of the the conditions to be dealt with in restriction, if intended to accom- such a living city are transitory, no plish a purely esthetic purpose, was fixed arrangement can be made for discussed, and in denying it the them. An agency with little limitacourt, page 229, said: "Such is un- tion upon its discretion and freedom doubtedly the weight of authority, of action must be set up, and might though it may be that, in the devel- soon become the chief immediate opment of a higher civilization, the source of the law and of its adminculture and refinement of the people istration. But it seems sufficiently has reached the point where the edu- clear that the effort is to make uncational value of the fine arts, as necessary adaptation within the expressed

in architectural limits of the plan and purpose insymmetry and harmony, is so well dicated in the ordinance, and it is recognized as to give sanction, un- restrained by a provision for appeal. der some circumstances, to the exer- There is nothing novel in the device, cise of this power even for such pur- nor in the breadth of the discretion poses."

delegated. Legislation which has to Upon these considerations, the provide for a large number of spe

a conclusion of Judge Urner and my- cial cases of varied facts, or for unself on the first and main question, foreseeable conditions present or

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