permit was refused solely on the ground that the business which he proposes to operate is in a residence district. If there was no other ground than that for its refusal, it should have been issued; but because that does not clearly appear, the order appealed from will be reversed, and the cause remanded for such further proceedings in accordance with the views expressed in this opinion as may be proper.

Order reversed, with costs, and cause remanded for further proceedings.

Bond, Ch. J., dissenting:

It is always well to remind ourselves how limited is the function of a court in such an inquiry as this. The judges have not been commissioned by the people to survey the conditions existing in the state or city from time to time, and decide what governmental regulation is desirable and wise for the future. To the legislative branch of the government, and in this connection to the officials of the city government, that function has been given in its entirety. And on any question of the desirability or wisdom of future regulation the conclusion of that branch of the government, and of that branch only, is called for. The courts can, in any instance, consider only the narrow question whether provisions of the Constitutions of the United States or the state prohibit the action decided upon by the legislative branch; and, in this particular case, consider only whether the constitutional provision that individuals shall not be deprived of their property without due process of law, or, as the state Constitution has it. "but by the law of the land" (article 23 of the Bill of Rights), is contravened by the zoning ordinance which the city government has decided upon and passed. And if that step is one dictated by the judgment of the proper legislative officials in an attempt to exercise the function committed to them, with any foundation for their concluding that the health, morals, safety, or welfare of the community

which they have to care for, demand it, then there would be no ground for declaring the constitutional provisions violated. The ideas of the court on the reasonableness of the measure have no bearing. In the case of State v. Hyman, 98 Md. 596, 64 L.R.A. 637, 57 Atl. 6, 1 Ann. Cas. 742, this court had to consider the validity of an act of legislature for the regulation of tailoring establishments, and Chief Judge McSherry, in passing on the questions now raised, adopted this statement of the law: "For it must now be considered as an established principle of law in this country, that there are no limits whatever to the legislative powers of the states, except such as are prescribed in their own Constitutions or in that of the United States; consequently, that the courts, in the performance of their duty to confine the legislative department within the constitutional limits of its power, cannot nullify and avoid a law, simply because it conflicts with the judicial notions of natural rights or morality or abstract justice.' Parker & W. Pub lic Health & Safety, § 8, and cases cited in note 2. The legislature being the sole depository of the lawmaking power, it is not for courts of justice to say that a given enactment passed in virtue of the police power, and having a direct relation to it, is void for unreasonableness, because, if courts undertook to exercise such an authority, they would in effect exert a veto on legislation."

"It is to be remembered," said the Supreme Court of the United States. in Hadacheck v. Sebastian, 239 C. S. 394, 60 L. ed. 348, 36 Sup. Ct. Rep. 143, Ann. Cas. 1917B, 927, "that we are dealing with one of the most essential powers of government, one that is the least limitable. It may, indeed, seem harsh in its exercise, usually is on some individual, but the imperative necessity for its existence precludes any limitation upon it when not exerted arbitrarily."

The development of city plans and

zoning ordinances is a recent one, and does involve a considerable extension of the power to restrict an individual's use and control of his property. There have, of course, been restrictions imposed in the past, growing with the problems which have arisen as the city has grown. Disturbances have been repressed; noises, smells, smoke, restricted for the comfort and convenience of other citizens, and sanitary restrictions imposed. But this ordinance is concerned, not with any such injurious uses of properties. Other ordinances have already provided for those things. This one is concerned with a mere difference in the character of activity on the premises, business, or dwelling, with the mere presence of the one or the other in the specified areas. The portion of the ordinance with which we now have to deal is a deliberate effort to separate the business of the city from the dwellings in so far as that is practicable in an old city. That is precisely what we are to consider, and all we are to consider. And we are to decide whether the deprivation of any owners of so much of their freedom in the control or use of their properties in order to accomplish that end can be considered within the scope of the powers committed to the government.

The first objection is based upon the supposition that, in respect to uses which are not nuisances, the ordinance has for its object merely an esthetic improvement. With time and the increase of general prosperity and comfort, it has become increasingly difficult to draw any reasonable distinction between annoyance and discomfort through one sense, such as smell, and that through some other senses that may be described as esthetic ones. And however it may be analyzed, there is a widespread dislike of having business uses invade residence districts, to such a degree that the entry of any business use, with its threat of further business development, is a source of distress to many owners of homes, and tends to cause depre38 A.L.R.-93.

ciation and sacrifice of the homes. The fact is that the conceptions of the people as to the comfortable and desirable mode of living have been changing; the dwelling places generally desired by city dwellers now are those in more open areas, more or less gardened, and removed from business activities; in about the same conditions, indeed, as those which the present ordinance attempts to establish for homes within the city limits. This modern preference is strong, and it will prevail to the extent of taking dwellers beyond the city limits to live if they cannot get the desired conditions inside the limits. side the limits. Rapid transit enables them to live outside the city while continuing to work in it, and a greatly increasing number are doing so. For a long time now, efforts have been made in the development of new residential areas in the city to prevent the environment objected to by covenants in deeds; but this has not proved entirely successful, and, if successful, restrictions by this means are not entirely desirable, because they continue and bind the areas to which they are applied indefinitely in the future, in spite of almost all change, and so may become too burdensome to property owners there in course of time. In 1912 an act of assembly (chapter 693) was resorted to for the protection of an area being developed in the northwestern portion of the city, by requiring that houses there be built entirely detached, 10 feet apart if built of masonry, 20 feet apart if of frame; but this was held beyond the power of the state government, because there was no substantial reason for treating the one kind of building or the other as affecting the health or welfare of the citizens, which it was the duty of the state to protect, and the legislature could not for purely esthetic purposes invade property rights that are guaranteed by the Constitution. Byrne v. Maryland Realty Co. 129 Md. 202, L.R.A.1917A, 1216, 98 Atl. 547. The present general

ordinance is, apparently, the next step.

This aversion to the proximity of business uses may all be without any basis in reason, but it is nevertheless real, and the law cannot disregard the real importance of the illogical in practical affairs. In Baltimore v. Fairfield Improv. Co. 87 Md. 352, 40 L.R.A. 494, 67 Am. St. Rep. 344, 39 Atl. 1081, in which relief was sought by neighbors from the proximity of a leper duly placed out to board among them by the city. Judge McSherry, for this court, replying to an argument that the evidence showed the danger of contagion to be negligible, said: "It is not, in this case, so much a mere academic inquiry as to whether the disease is in fact highly or remotely contagious; but viewed as it is by the people generally, its introduction into a neighborhood is calculated to do a serious injury to the property of the plaintiff there located."

And the cases which have sustained ordinances against the opening of undertaking establishments in residence districts, or have without ordinances held such a use properly enjoined, have proceeded upon a similar recognition of the materiality of some aversions which are not based upon physical injury. Saier v. Joy, 198 Mich. 295, L.R.A. 1918A, 825, 164 N. W. 507; Meagher v. Kessler, 147 Minn. 182, 179 N. W. 732; St. Paul v. Kessler, 146 Minn. 124, 178 N. W. 171; Osborn v. Shreveport, 143 La. 932, 3 A.L.R. 955, 79 So. 542; Beisel v. Crosby, 104 Neb. 643, 178 N. W. 272; Cunningham v. Miller, 178 Wis. 22, 23 A.L.R. 739, 189 N. W. 531; Tureman v. Ketterlin (1924) 304 Mo. 221, 263 S. W. 202. And see note in 23 A.L.R. 745. The authorities are not in agreement on the power to enjoin that use, however. Westcott v. Middleton, 43 N. J. Eq. 478, 11 Atl. 490; Koebler v. Pennewell, 75 Ohio St. 278, 79 N. E. 471. The upholding of ordinances directed against Chinese laundries affords another illustration. Barbier v.

Connolly, 113 U. S. 27, 28 L. ed. 923, 5 Sup. Ct. Rep. 357; Soon Hing v. Crowley, 113 U. S. 703, 28 L. ed. 1145, 5 Sup. Ct. Rep. 730.

If any kind or degree of esthetic regulation is ever to be within the legitimate powers of government, the principle controlling it cannot be formulated as yet, and we are not authorized to declare it to be so. This has been decided in Stubbs v. Scott, 127 Md. 86, 95 Atl. 1060; Byrne v. Maryland Realty Co. and Osborne v. Grauel, 136 Md. 92, 110 Atl. 199. And see Opinions of Justices, 234 Mass. 597, 127 N. E. 525, and St. Louis Poster Adv. Co. v. St. Louis, 249 U. S. 269, 63 L. ed. 599, 39 Sup. Ct. Rep. 274; contra, State ex rel. Civello v. New Orleans, 154 La. 271, 33 A.L.R. 260, 97 So. 440. But is the court at liberty to assume that an esthetic purpose was the only one, or even that it was the predominant purpose, in the enacting of the present ordinance? We have not, of course, heard any of the discussions which are reported in the agreed statement of the parties here to have led to the adoption of the ordinance, and we are not informed of the problems which may have been suggested in the routine of the work of the various officials of the city, and which the present plan is expected to solve. We have only vague information of of problems which have already arisen in still larger cities, and for which Baltimore should, therefore, be preparing. Can we confidently say from our own experience that there cannot have been any utilitarian or administrative ends which were thought by the promoters of the plan to demand the separation of business and dwellings as a larger method of handling the congested population with which the officials will have to deal in the future? May not the rapid changes in city traffic problems be met more easily by some such plan? And the increased difficulty of suppressing crime brought about by the use of automobiles for sudden arrival and flight, may there not be some aid for

the meeting of police problems in the zoning plan? Or, more accurately, could not the officials of the city have thought so? And may it not be that the stresses and strains of living in a large modern city, with all its complex activities, have grown to a point where the separation of business from dwelling places offers a material, or even necessary, aid in the maintenance of the health and vigor of the city population? May it not be that, in the growth of our predominantly industrial civilization, we have arrived at a point where special protection is needed for the mere business of living? And is it not permissible to make some arrangement for a crowded city population which promises an improvement over the haphazard jumble which may now result from the uncontrolled wills and interests of neighboring owners? A city is a joint enterprise, and co-operation is almost the first law of its population if their joint living place is to be kept tolerable as the congestion of affairs in it increases. And if we regard property owners as holders of abstract rights, the same in the country as in a city, we may reverse the process to which they commit themselves as residents or beneficiaries of the city. In the Opinion of Justices, 234 Mass. 597, 127 N. E. 525, the supreme judicial court of Massachusetts said on this point: "We do not think it can be said that circumstances do not exist in connection with the ordinary operation of such kinds of business which increase the risk of fire, and which render life less secure to those living in homes in close proximity. Health and security from injury of children and the old and feeble and otherwise less robust portion of the public well may be thought to be promoted by requiring that dwelling houses be separated from the territory devoted to trade and industry. The suppression and prevention of disorder, the extinguishment of fires, and the enforcement of regulations for street traffic, and other ordinances designed rightly to pro

mote the general welfare, may be facilitated by the establishment of zones or districts for business as distinguished from residence. Conversely, the actual health and safety of the community may be aided by excluding from areas devoted to residence the confusion and danger of fire, contagion, and disorder which in greater or less degree attach to the location of stores, shops, and factories. Regular and efficient transportation of the breadwinners to and from places of labor may be expedited. Construction and repair of streets may be rendered easier and less expensive if heavy traffic is confined to specified streets by the business there carried on."

And to the same effect are the subsequent decisions in Building Inspector v. Stoklosa (1924) - Mass. -, 145 N. E. 262, and Spector v. Building Inspector (1924) - Mass. 145 N. E. 265. And to the same effect is State ex rel. Civello v. New Orleans, supra.

When we come to examine the previous decisions in Maryland, we find that in Easton v. Covey, 74 Md. 262, 22 Atl. 266, the denial of the permit to establish a livery stable, because it was unsuitable to its surroundings in Easton, was upheld in an opinion by Judge Miller. In State v. Hyman, 98 Md. 596, 64 L.R.A. 637, 57 Atl. 6, 1 Ann. Cas. 742, the court found an act for regulation of tailoring establishments to be within the police power of the legislature; and that case was upon closely similar facts. It prohibited tailoring in dwellings except where licensed by a public official, and vested in that officer a discretion in granting or refusing permits which, on the face of the act, was almost unlimited. And the grounds of attack were also closely similar to those in the present case. Many other occupations have likewise been lawfully subjected to regulation, and public utility regulation is a familiar recent exercise of the police power. Gregg v. Laird, 121 Md. 1, 87 Atl. 1111. The Supreme Court of the United States has upheld a prohibi

tion of the continued manufacture of bricks in a restricted district (Hadacheck v. Sebastian, 239 U. S. 394, 60 L. ed. 348, 36 Sup. Ct. Rep. 143, Ann. Cas. 1917B, 927); of a livery stable (Reinman v. Little Rock, 237 U. S. 171, 59 L. ed. 900, 35 Sup. Ct. Rep. 511); and of billboards (Thomas Cusack Co. v. Chicago, 242 U. S. 526, 61 L. ed. 472, L.R.A.1918A, 136, 37 Sup. Ct. Rep. 190, Ann. Cas. 1917C, 594). And somewhat in advance of most of these decisions is that in the case of Cochran v. Preston, 108 Md. 220, 23 L.R.A. (N.S.) 1163, 129 Am. St. Rep. 432, 70 Atl. 113, 15 Ann. Cas. 1048, in which a restriction on the height of buildings to be erected on Mt. Vernon place in Baltimore city was held valid; and that in Osborne v. Grauel, 136 Md. 90, 110 Atl. 199, which upheld a refusal to issue a permit for a garage because the mayor did not "think garages ought to be built in that community; that it was a very nice class of property out there, and that these garages would depreciate the value of the property, and that the character of the proposed buildings did not conform to the other improvements in the neighborhood." In the case of Cochran v. Preston, supra, the court found that the statute might be justified as necessary to meet a fire hazard of special seriousness, but the propriety of the restriction, if intended to accomplish a purely esthetic purpose, was discussed, and in denying it the court, page 229, said: "Such is undoubtedly the weight of authority, though it may be that, in the development of a higher civilization, the culture and refinement of the people has reached the point where the educational value of the fine arts, as expressed . . in architectural symmetry and harmony, is so well recognized as to give sanction, under some circumstances, to the exercise of this power even for such purposes."

Upon these considerations, the conclusion of Judge Urner and myself on the first and main question,

whether this ordinance can be said to have a purpose which it is the function of the government to effectuate, is that it can be. We take the view that the possibilities pointed out for improvement in living. conditions and in the handling of administrative problems may well have justified the adoption of the separation of business and the dwelling places for the future, under the police power, and that this measure of co-operation required of the citizens is one which the judges cannot say is arbitrary or unnecessarily oppressive. And, proceeding from this conclusion, we think, further, that the vesting of so wide a discretion in the board of zoning appeals by the provisions of the ordinance cannot properly be held an unconstitutional delegation of legislative power.

The nature and magnitude of the undertaking do, as the majority opinion points out, give rise to difficulties in accomplishing it, of legal as well as of practical importance. Discrimination among the many thousands of situations, of particular properties, and of possible uses. is, of course, impracticable, so that the work can be done only by broad classifications, with inevitable disregard of some differences, and presumably with inevitable hardship and injustice in some cases. And as the conditions to be dealt with in such a living city are transitory, no fixed arrangement can be made for them. An agency with little limitation upon its discretion and freedom of action must be set up, and might soon become the chief immediate source of the law and of its administration. But it seems sufficiently clear that the effort is to make unnecessary adaptation within the limits of the plan and purpose indicated in the ordinance, and it is restrained by a provision for appeal. There is nothing novel in the device, nor in the breadth of the discretion delegated. Legislation which has to provide for a large number of special cases of varied facts, or for unforeseeable conditions present or