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streets was forbidden, we might see in such a provision a reasonable exercise of the police power as tending to prevent the collection of crowds upon the streets and sidewalks about the open door of the place where the hawking was going on, or similar obstruction to traffic or interference with the public safety. But that is not the question now before us. Every one has a natural right to sell his own merchandise on his own private property, in his own way, to all who come there to buy; and, if his manner of selling offends, those so offended may stay away. Self-interest would seem to be the only regulation needed in such cases. If, however, the hawker disregards his own self-interest and goes to the extent of causing a breach of the peace or creating a nuisance, there are other laws under which he can be punished or the nuisance abated.

"We are constrained to hold that, as to what the ordinance defines as hawking on private premises, the city in its exercise of the police power may, at the most, only reasonably regulate, and that the license fee of $10 per day, which appears to bear no relation to the cost of supervision and regulation, is excessive, and will amount to a prohibition in many, if not in most, cases."

Assessing Damages to Abutting Property
Through Changing an Established
Street Grade

A decision of the Kentucky Court of Appeals recognizes, as do most other courts, that an abutting property owner has no right to damages on account of the original establishment of a street grade. But the Court holds that where an established grade is changed, the city becomes "liable to the owner of the adjoining property for the consequential damages he suffers. Before

the improvement was made the plaintiff had a property of certain market value. After the improvement was made he had the same property, less what he had been required to pay for the construction of the improvement. He is made whole if he is paid the difference between the fair market value of the property before the improvement was made and its fair market value afterwards less what he paid for the improvement under the assessment by the city. .

"The evidence as to the value of the property in the plaintiff's business before or after the improvement should be excluded. . . But evidence may be admitted as to the purposes for which the property was used, or for which it was adapted, and on all the facts its fair market value, before and after the improvement was made, is to be determined. The controlling facts are the fair market value of the property before and after the improvement.

"It is the duty of the property owner, in cases like this, to minimize the damages to his property, if it can be done with a reasonable expenditure." (Board of Councilmen of City of Frankfort, defendant-appellant vs. Bramell, plaintiff-appellee, 294 Southwestern Reporter, 1076.)

A Statute or Agreement is Essential to a
City's Liability for a Contractor's
Material Bills

In the case of E. I. Du Pont De Nemours & Co. vs. City of Glenwood Springs, Colo., 19 Federal Reporter, 2nd series, 225, the United States Circuit Court of Appeals, Eighth Circuit, decided that defendant city was not liable to plaintiff for

the price of explosives sold a contractor who constructed a tunnel for the city. The Court said:

"In the absence of a statutory requirement that a city pay claims for material furnished to a contractor, or that it withhold funds to insure payment of such claims, no enforceable liability on the part of the city exists therefor. . .

"There was no privity of contract between the city and the plaintiff in this case, no statute requiring the city to pay its claim or to act as a trustee for its benefit, and no agreement by the city to pay the plaintiff if the contractor failed to do so. A rule of law which would require a municipal corporation to pay for material furnished to a person to whom it lets a contract, because of the failure of its officers to require a sufficient bond, or because of their failure to exercise the privilege of withholding from the contractor payment of money due him, until claims for material are paid, would be against sound public policy. As was said in the case of Merwin vs. Chicago. 'A municipal corporation is a part

of the government. Its powers are held as a trust for the common good. It should be permitted to act only with reference to that object, and should not be subjected to duties, liabilities, or expenditures merely to promote private interest or private convenience.'

Toll-Bridge Company's Franchise Conferred
No Exclusive Rights

That a private corporation operated a toll-bridge for sixty years without competition did not preclude the state from establishing a free bridge alongside, holds the Wisconsin Supreme Court in the case of Muscoda Bridge Co. vs. Village of Muscoda 214 Northwestern Reporter, 435. Holding that the Legislature had failed to manifest an intention to give bridge companies exclusive franchises or such indeterminate permits as have been awarded heat, light, water, power, and telephone companies, the Court observes:

"There is a very legitimate basis for the distinction which the Legislature has made between utilities which serve local communities with such necessities as water, light, heat, and power and those utilities whose bridges form a part of the public highways that serve all of the people of the state. If appellant's position is sound, it means that the Legislature has committed to the appellant bridge company, the function of maintaining a part of the public highways of the state for all time, or at least to the time when the state procures a certificate of convenience and necessity that will authorize the construction of such a bridge as the one here in question. In the absence of a learly expressed legislative intent, the statute should not be given a construction that will lead to such an unfortunate result. . . . The state is not required to go to the Railroad Commission or to any other body to secure permission to exercise its governmental function of constructing and maintaining highways over the land or across the waters of its rivers. The state has that inherent power.

"The building of a free wagon-bridge near appellant's toll-bridge does not result in a confiscation of appellant's property. Appellant and its predecessors accepted and operated under a franchise which contained no engagement on the part of the state that another bridge should not be erected or that improvements should not be made that would diminish the amount of its income."

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Zoning Notes

Prepared by Frank B. Williams

Author of "The Law of City Planning and Zoning"

From data collected by the Zoning Committee of New York (233 Broadway)

The Future of Zoning in New Jersey Since the passage recently of the amendment of the constitution of New Jersey declaring that zoning is within the police power of the state, there has been much interest as to the effect of that enactment upon zoning in New Jersey. Recent rulings of Chief Justice Gummere seem to give an indication of what it will be.

As yet there has been no time for the passage of legislation in accordance with the amendment, or the recasting of zoning ordinances under such legislation. A number of builders, thinking that this might be their last opportunity to erect structures not in accord with the present zoning ordinances, likely soon to be supported by enactments under the amendment, have been endeavoring to push cases to a final decision.

In one such case, commented on at length in the Newark Evening News of September 26, the Chief Justice gave a ruling which seems to make these efforts unavailing. The application was for a writ of certiorari reviewing the decision of the Newark Board of Adjustment refusing to allow the erection of an apartment house in a single-family residence district. The issuance of such a writ is discretionary with the Court, and the Chief Justice refused to exercise this discretion contrary to the mandate of the people of New Jersey "placing within the police power of municipalities the right to establish zoning." The Chief Justice has taken similar action in several like cases.

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New Jersey State League of Municipalities for September, 1927, says of the passage of the New Jersey zoning amendment:

"New Jersey is regarded as ultra-conservative in amending its constitution. During fifty-one years, twenty-one amendments have been voted on at five elections. Only two of these have been adoptedand these by narrow margins-and nineteen decisively defeated. Only on two occasions in eightythree years has the New Jersey constitution been amended. The zoning amendment to the constitution was carried by more than 200,000 majority, the greatest in our history, and was carried in nineteen out of the twenty-one counties."

Recent Zoning Decisions

LOUISIANA.-Land Development Co. of Louisiana, Limited, v. City of New Orleans, 113 So. Rep. 768. The ordinance of the city segregating the races, now held by the State Court (in accordance with the decision of the Supreme Court of the United States in Harman v. Tyler, 47 Sup. Ct. Rep. 471) to be unconstitutional.

NEW YORK.-Horwitz v. Schwab, 223 N. Y. Supp. 638. The petitioners had applied to the Building Commissioner of the city of Buffalo for a permit to use a building in a residential district for dry cleaning contrary to the provisions of the ordinance; and on his refusal to issue the permit had appealed to the Board of Appeals, which had sustained the Commissioner. Thereupon the petitioners bring this action of mandamus against the Commissioner to compel him to issue the permit. Held that the proper action was certiorari from the decision of the Board of Appeals.

NEW YORK.-Matter of Clemens Realty Co., Inc., Sup. Ct. N. Y. County, reported in New York Law Journal, August 30, 1927, p. 2106. This is an application for mandamus by a neighboring property owner to compel the Superintendent of Buildings to stay the further construction of a building pending the decision of the Court of Appeals. Held that the petitioner had no right to such a stay. It appeared also that the owner of the realty had not been made a party to these proceedings, which is, in itself, fatal.

NEW YORK.-Matter of Langley and Hopkins v. Rumsey, Supreme Court, Erie County, September 24, 1927. Application for an order compelling the Trustees of the village of East Aurora to grant a permit for sewer and water connections for a lunch room contrary to the terms of a zoning ordinance. The ordinance declares each block in the city to be residential or otherwise on the basis of the number of residences or other uses upon the lots therein; and forbids business in a block thus found to be residential without the consent of three-fourths of the landowners therein and of the Board of Trustees.

Held, that the ordinance was void, first, because

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the zoning was not in accordance with a well-considered plan, as required by the zoning enabling act, and secondly, because it was arbitrary.

NEW YORK.-People ex rel. Hayman (or Hyman) v. Walsh, Supreme Court, Kings County, reported in New York Law Journal, October 4 and 6, 1927. The relator seeks to review the decision of the Board of Appeals refusing to allow on the ground of unnecessary hardship, etc., the erection of a public garage in a business district, contrary to the zoning ordinance. Held, on a careful examination of the neighborhood, that the action of the Board in refusing to allow the variance was arbitrary and should be reversed.

NEW YORK.-Prescott v. Pierce, 223 N. Y. Supp. 609. The statute (Laws 1907, ch. 755, as amended by Laws 1917, ch. 505, sec. 4) under which the zoning of the city of Rochester was carried out does not specifically require notice of hearing of changes in plans, but confers power upon the City Planning Advisory Board to hold public hearings upon matters coming before it (Id., Sec. 292). The statute does not contemplate compensation, either in connection with original zoning or later modifications of that zoning.

Held: first, that this statute was not invalid; and secondly, re-zoning on the mere opinion of the authorities without a full opportunity to present the evidence bearing upon the propriety of the proposed change, was arbitrary and void.

NORTH DAKOTA.—Meldahl v. Holberg, 214 N. W. Rep. 802. An undertaking establishment is not a nuisance per se. The establishment in question was not in an exclusively residential district, but in one that was gradually changing to business. Held, that the establishment as conducted could not be enjoined.

PENNSYLVANIA.-Appeal of Loux, Court of Common Pleas, Northampton County, November Term, 1926. The provisions of the zoning ordinance of the city of Bethlehem forbidding in a residential district the erection of a private garage as an "accessory use" upon a vacant lot, or within twenty feet of the street line, are valid.

UNITED STATES.-American Wood Products Co. et al. v. City of Minneapolis; Syver Lowe v. same; both in District Court, District of Minnesota; reported in U. S. Daily, September 21 and 22, 1927.

In the first case the complainants had established factories in a section of the city which had been designated for industrial purposes. More than ten years later the city passed a zoning ordinance_restricting the district for multiple dwellings. The complainants, therefore, although allowed to continue the use of their factories, could not extend them.

The judge expressed the conviction that the property was of little value for multiple dwellings, and that its value for industrial purposes is five to eight times as great as it would be for dwelling-house purposes, "because, while the tracks of the Milwaukee Railway Co. are an advantage to industry, it is a well-known fact that people do not care to live on premises directly adjoining the heavily operated tracks of a railroad. The noise, the dirt, the danger

to children, directly affect the value of such property for such a use."

The purpose of the zoning seems to be to afford housing for the University of Minnesota which is becoming a difficult problem. "It is, of course, necessary that there should be a district surrounding the University for the housing of those who are connected with it, and the problem is one that the city of Minneapolis has to meet."

Held, that the provisions of the ordinance in question should be sustained, as their validity was at least fairly debatable.

The Court, in the course of its long opinion,

says:

"While the public convenience or at least the convenience of that portion of the public living in the section of the city where these properties lieauthorized zoning of the property as 'multiple dwelling,' the ordinance has seriously affected the value of property and is, from our standpoint at least, an unjust and unfair way for the city to limit the use of this property."

"As a matter of justice and good morals, it would seem that a city should pay for damage occasioned by an ordinance of this kind.

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"In my opinion, in practical operation they must almost necessarily give far too little consideration to the rights of many individual property owners and will in many cases in practical effect seriously depreciate the value of property, from which depreciation the owner, in common decency, should be compensated."

These vivid expressions should be read as a part of the opinion as a whole.

In the second case the plaintiff was denied the right to use land in a residential district for a filling-station. "For residential purposes it is of very little value, being too small for use for such purposes. For commercial purposes, and particularly as a site of an oil filling-station, the evidence indicates that it is worth at least $20,000."

The Court, in a short opinion, citing the Zahn, Euclid Village and American Wood Products Co. cases, sustains the ordinance.

The Latest Report of the Department of
Commerce

Under date of July, 1927, the United States Department of Commerce, Division of Building and Housing, has recently issued a report entitled "Zoning Progress in the United States." It consists of an article by Edward M. Bassett on "Zoning and the Courts" and a "Report on Zoning Laws and Ordinances." More than thirty million people, comprising in excess of 55 per cent of the urban population of the United States, now live in zoned communities. Forty-six states and the District of Columbia have laws which permit communities to zone themselves. Of these states, 28 have used all or a large part of the "Standard State Zoning Enabling Act" issued by the Department in 1924. The report gives a complete list of the zoned communities.

THE AMERICAN CITY for December will contain an article on methods of establishing setback lines, comprising the latter part of a very comprehensive paper entitled "The Law of Setbacks," presented by Rollin L. McNitt, President of the Board of City Planning Commissioners, Los Angeles, Calif., and Dean of the Southwestern University Law School, at the Sacramento convention of the League of California Municipalities on September 21, 1927. In addition, the first part of the paper, consisting of a discussion of the legality of setback laws and ordinances, will be summarized.

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