
    Cahn v. Guion, Commr. of Bldgs.
    
      (Decided May 30, 1927.)
    
      Messrs. Mooney, Háhn, Loeser <S> Keough, for plaintiff.
    
      Messrs. Gordon é Gordon and Mr. Paul Howland, for defendant.
   Vickery, J.

This cause comes into this court on appeal from the common pleas court of Cuyahoga county.

In the court below Cahn brought this action asking for a mandatory injunction to compel the building inspector of Cleveland, ¥m. I). Q-uion, to reissue several permits to him, or rather, to state it correctly, to compel him to withdraw his withdrawal of the permits that he had théretofore issued to build on five several parcels of land on the west side of West boulevard, between Clifton boulevard and Lake avenue and east of West 110th street.

The situation is rather peculiar, and inasmuch as the plaintiff claims some equities it might be well to advert to a situation which would throw some light on his standing in a court of equity.

The property between West boulevard and West 110th street, to say nothing of further west between Clifton boulevard and Lake avenue, is highly restricted residence property and has been for a great number of years. On Clifton boulevard, within the space, is a line of high class single residences and double houses, and perhaps, in one or two instances, four-suite apartments. On Lake avenue there is high class residence) property — some of the best residence property occupied by the best residences in the city of Cleveland.

On the north side of Lake avenue is the Edge-water Park allotment, which once comprised the estate of the late Mark Hanna, which is now built up almost solidly with a high class of single residences, the county auditor living on the north side within this district, with a fine house, and other houses of equal elegance filling up the entire distance designated.

On the south side of Lake avenue, on the corner of West boulevard, is what is known as Judge Winch’s house, a very high class house, which is or was owned by Richard Peiss. Then there is a vacant lot or two on which there never has been any building, and other high class residence property, and then perhaps another vacant lot, and so on, so that all the buildings that have ever been on this tract of land have been high class residences.

The restriction on this property was about to expire on the 8th day of January, 1927. Apparently the plaintiff in this action became aware of this, and recently, just prior to the proceedings hereinafter stated, bought in these properties. I speak of this, because he cannot say that he was deprived of the use of his property, because it was bought just prior to the events which hereafter transpired — not that he did not have the legal right, not that the law was not upon his side, not that he could not claim all the benefits of the law, but in an equitable proceeding this should be taken into consideration as bearing upon the parties.

There had been some talk about the expiration of these restrictions and an effort was about to be made to protect this property from the building of stores and apartment houses within this district. It was sought to do this by passage in the city council of Cleveland of what is known as a “stop-gap” ordinance; that is, an ordinance that would be so comprehensive and so drawn that it would- serve to prevent the erection of apartment houses and stores or business houses within this district until there could be a proper zoning ordinance prepared. So, by action of council on the 15th day of November, 1926, this so-called “stop-gap” ordinance was passed by the council. It was not passed as an emergency ordinance and so did not go into effect until 40 days thereafter, to-wit, on the 26th day of December, 1926.

Notwithstanding the fact that plaintiff could not at this time erect upon this property any buildings of the character that he seeks to erect, because the restrictions were still in force, he, on the 19th day of November, procured a permit to erect, I believe, stores and an apartment on Clifton boulevard within this district, and later, perhaps on December 9, procured three more permits, and on December 23 procured another, and these are the five permits, the revocation of which he seeks to compel the building inspector to withdraw.

Now it must be borne in mind, as already stated, that this ordinance was passed on the 15th day of November, prior to his getting any of these permits, and the last one he got was three days before the ordinance went into effect. Of course, he could not tell whether it would be effective from that day or not, because petitions had been circulated for a referendum. But more of that hereafter. However, so far as appears now, the ordinance went into effect on the 26th day of December, a petition for referendum having been filed which the clerk found to be insufficient, and an amended petition thereafter being filed which the clerk certified was sufficient, but there has as yet been no vote on the question as to whether there shall be a referendum, which question is still pending in court.

As already stated, the building inspector, upon the passage of this ordinance and its going into effect, revoked these building permits, and it is to that action that these proceedings are brought.

It is argued strenuously by plaintiff in this action that these permits gave a certain property right that could not be divested by any action of the building inspector, nor by the city council itself, because it is argued that they are within the inhibition- of the Constitution of the United States which provides that no retroactive law shall be passed, nor any law impairing the obligation of a contract. There would be some strength in this argument, if it had not been wholly disposed of by the Supreme Court in the case of State ex rel. Ohio Hair Products Co. v. Rendigs, Bldg. Com’r., 98 Ohio St., 251, 120 N. E., 836, in which the Supreme Court absolutely disposed of this contention. True it is argued, to distinguish this case from 98 Ohio St., 251, 120 N. E., 836, supra, that it was sought in that case to erect a business that was deleterious to health in ,a residence district, while in the instant case there is nothing detrimental, so far as is claimed; that it at least is not a nuisance per se to erect apartment houses and stores, such as it is proposed to erect in the instant case. But the Supreme Court in 98 Ohio St., 251, 120 N. E., 836, supra, held that it was within the police power of the city to zone against such buildings as it was proposed to erect in the Cincinnati district, that it came within the police power of the city and therefore was a valid exercise of police power, and that the man who had procured the permits had procured no property right that was immune to invasion by such legislation. Of course, it must be conceded that an apartment house is not a nuisance per se, and it must be conceded that a store is not a nuisance per se, but is it necessary to have a nuisance per se before the municipality can zone against the erection of certain buildings in a certain area?

The Supreme Court of the United States in the case of Village of Euclid v. Ambler Realty Co., 272 U. S., 365, 47 S. Ct., 114, 71 L. Ed., 303, answered that question, and it must be remembered that in the Euclid Village case it was not sought by the Ambler Realty Company to build buildings that were a nuisance per se. The property that was zoned against, and on which they proposed to erect structures, was vacant property, and it was restricted by the zoning ordinance of Euclid village to residence purposes only. The Supreme Court, in overruling the district court of this district (297 F., 307), held that this was a valid exercise of the police power, and the opinion of Judge Sutherland in that case completely and absolutely disposed of that question, in my judgment, in so far as the instant case in concerned. So we do not think that the plaintiff is entitled to the remedy he seeks upon the first ground of error, the one that he has argued most strenuously in his brief.

There is another ground that he refers to, and that is that the whole ordinance is unconstitutional, that it takes private property without due process of law, in violation of the Constitution of the United States and the Constitution of Ohio. He points out what he regards as a very conglomerate ordinance. He calls attention to the number of districts. I believe the ordinance defines a district as any strip of land on either side of the street between two intersecting streets. Now if I were going to argue this case I should take issue with learned counsel for plaintiff, to the effect that instead of these numerous districts making the ordinance unconstitutional, they would make the ordinance constitutional. In other words, the ordinance is so elastic and so adaptable to the needs of different communities that a community or district can have almost anything wanted by the proper majority, and why not? They are the ones that are interested, and'consequently they should have their say, and, inasmuch as it is submitted largely to the owners of the property in the various districts, it would be difficult to see how it could be attacked as being unconstitutional. Suppose, however, that there were certain districts and certain features of this ordinance that would be unconstitutional because of the taking of property without due process of law, or because of any other infirmity that might exist in it Contrary to the Constitution of'Ohio or of the United States, still, before the plaintiff could avail himself of that, he would have to bring the instant case within that provision of the law. Now, what is there in this instant case that would warrant a court in saying that the ordinance relating to it was unreasonable and deprived the property owner of his just property rights? Here is a high class residence district, one which always has been, sought to be invaded by a man who did not own it until very recently, for the purpose of gaining an advantage in his apartment house proposition from the high class of the neighborhood that had been developed by these residences, without regard to the damage or injury to those who had gone in there in good faith and built their homes. There is nothing in this part of the ordinance, at •least, that is unreasonable or unconstitutional.

Now, it must be remembered that we have three separate departments of government, the executive, the legislative, and the judicial, and when the judicial department is called upon to invade either of the other departments of the government it must be upon very strong grounds indeed. I shall not mention authorities, but the books are filled with them, to the effect that before a court can declare a law unconstitutional it must be clearly and unequivocally so, that it is the duty of the court to sustain the legislation if it can so do by a proper construction of the words. Nay, some courts have gone so far as to say that if the words used bear the meaning intended, even though fantastical, the courts will sustain the legislation. In other words, given the power to legislate upon a subject, just the nicest discrimination of what they should do will not be curbed or interfered with by the courts. The court might take the stand that if it were the legislative authority it might hold otherwise, but, such being the province of the legislative authority, it ill becomes a court to impinge upon that department of the government and thus overrule the representatives of the people elected for the purpose of making the laws. So the whole trend of authorities in the United States has been to the effect that the court will not declare a law unconstitutional unless it is clearly and manifestly so.

Applying that doctrine to the instant case and referring to the complaint in the instant case, to wit, the illegality or unconstitutionality of the ordinance which provides for the zoning of this particular district for residence property only, in what way have the members of council transcended their rights or powers or impinged upon the decisions of our courts upon this proposition? The tendency all over this land is to favor zoning, if it is reasonably and properly done. It has been sustained in New York, Massachusetts, "Wisconsin, all the states, and particularly has it been sustained in Ohio.

According to the view we take of this ordinance, it will not be necessary to decide that plaintiff should have carried this to the Board of Appeals. We might, however, say in passing that the plaintiff seems to stand upon a legal right that he has, and, if his argument is correct and sound, it would seem that a mandatory injunction would not be the proper remedy in this action; that, if, as he claims, the building inspector had no alternative but to withdraw his withdrawal of the permit, then a writ of mandamus would be the proper remedy; that the building inspector had a plain duty to perform, and the plaintiff would not and need not invoke the equity powers of the court, but could go into a court of law. But that question is unimportant from the view we take of this case.

There is another and very potent reason why, at this time, at least, the court would be compelled to find for the defendant. We think that the case already cited, State ex rel. Ohio Hair Products Co. v. Rendigs, Bldg. Com’r., 98 Ohio St., 251, 120 N. E., 836, entirely disposes of the plaintiff’s contention with respect to the right to revoke the building permits theretofore granted, and the only other question, as already pointed out, is the unconstitutionality of the ordinance. Strictly speaking, there is no ordinance, for within the timé allowed by the city charter petitions in referendum were filed, or it is claimed they were filed, and whether there were any such petitions depends upon the final adjudication of that question in the case of Dillon v. City of Cleveland, 26 Ohio App., 298, 159 N. E., 369, but in the present instance it appears that there are referendum petitions filed. Consequently the ordinance never went into effect, and the referendum is a right of the citizens of Cleveland, and it puts them in the position, if you please, of a third house of legislation. Until all of the various departments in the legislative branch of the city government have acted, there is no ordinance, the constitutionality of which could be attacked. If, as a matter of fact, the people of the city of Cleveland vote down the stop-gap ordinance under the petitions that are to be disposed of, then there will be no ordinance at all, and consequently it is premature to bring an action to test the constitutionality of a law until it has become a law, for if the people vote the ordinance down any judgment the courts could make upon it would be futile, and it would not be necessary at all to declare it unconstitutional. Therefore, at the present time, there is no ordinance which could be affected by any judgment which the court could make as to its constitutionality. It is just as though a bill in the Ohio Legislature had passed the House of Representatives, we will say, or even had been passed by the Senate, and before it had reached the Governor for signature a suit were started to declare it unconstitutional. In other words, at the present time there is no ordinance, nor was there one at the time when this suit was instituted, but only the skeleton of one, which may or may not become a law, and for this added reason the plaintiff will not be entitled to the relief he seeks.

We think on this whole record that the judgment of the court below ought to be entered in this case. I have read with much interest the learned opinion of the trial judge, and his analysis and conclusions meet our approval. The opinion is written well and couched in as good language as can be used, and his conclusions, we think, are sound ahd right. For that reason, we are of the opinion the plaintiff is not entitled to the relief sought in this action, and there will be a decree for the defendant.

Decree for defendant.

Sullivan, P. J., concurs.

Levine, J.,

dissenting. I am unable to agree with the majority of the court for the following reasons:

It appears that the plaintiff is the holder of five permits to erect buildings on Lake avenue and Clifton boulevard, in the city of Cleveland. One of those permits was issued to him on November 19, 1926, three on December 9,1926, and the other on the 23d of December, 1926. There is a clear showing in the record that, in reliance upon these permits, the plaintiff had arranged his finances, had executed mortgages and entered into contracts, and was about to begin the construction of his buildings, commencing January 2,1927. On the 30th day of December, 1926, the defendant wrote five letters to the plaintiff, in which he revoked these permits, giving as his sole reason for so doing the provisions of Ordinance No. 76158, which is the so-called “stop-gap” ordinance, which is set forth in full in defendant’s answer. If the stop-gap ordinance has not as yet become effective, because suspended by the filing of referendum petitions, then it follows that it furnishes no excuse to the defendant for the intended revocation of the plaintiff’s permits.

In the case of State ex rel. v. Dauben, Bldg. Inspector, 99 Ohio St., 406, 124 N. E., 232, the first paragraph of the syllabus is:

“Statutes or ordinances of a penal nature, or which restrain the exercise of any trade or occupation or the conduct of any lawful business, or which impose restrictions upon the use, management, control or alienation of private property, will be strictly construed and their scope cannot be extended to include limitations not therein clearly prescribed; exemptions from such restrictive provisions are for like reasons liberally construed.”

The defendant claims that the so-called “stopgap” ordinance became effective on December 26, 1926. Of course, that cannot be held to be a correct statement, because the operation of the ordinance was undoubtedly suspended by the filing of a referendum petition, but, conceding that the statement is correct, it still appears that the ordinance did not become effective until three days after the issuance of the last permit issued to the plaintiff. The stop-gap ordinance does not contain any provision authorizing the defendant to revoke permits previously granted. A stop-gap ordinance, if valid, must be construed to have a prospective effect, but never a retroactive effect. It cannot affect permits already issued under the old ordinance.

Ample authority is cited on the point that a municipal building permit or license cannot arbitrarily be revoked, particularly where, on the faith of it, the owner has incurred material expense. Dainese v. Cooke, 91 U. S., 580, 23 L. Ed., 251; Dobbins v. Los Angeles, 195 U. S., 223, 25 S. Ct., 18, 49 L. Ed., 169; Pratt v. City of Denver, 72 Colo., 51, 209 P., 508; Williams v. Smith, 76 Colo., 151, 230 P., 395; Rehmann v. City of Des Moines, 200 Iowa, 286, 204 N. W., 267; Gallagher v. Flury, 99 Md., 181, 57 A., 672; City of Lowell v. Archambault, 189 Mass., 70, 75 N. E., 65, 1 L. R. A. (N. S.), 458; General Baking Co. v. Street Comrs. of Boston, 242 Mass., 194, 136 N. E., 245; City of Buffalo v. Chadeayne, 134 N. Y., 163, 31 N. E., 443.

Where, after the defendant had obtained a permit for a garage and broken ground therefor, the city amended its zoning ordinance, leaving it apparently to some extent to the judgment of the neighboring property owners to say whether or not a garage should be built, it was held that the subsequent amendment could not affect the defendant’s right to erect a building. Wasilewski v. Biedrzycki, 180 Wis., 633, 192 N. W., 989.

The defendant relies on the case of State ex rel. Ohio Hair Products Co. v. Rendigs, Bldg. Comr., 98 Ohio St., 251, 120 N. E., 836. In my opinion, the Hair Products case can easily be differentiated from the case at bar, because in that case the council of the city of Youngstown directed the building commissioner to revoke the permits for the reason that the buildings proposed to be erected by the plaintiff constituted a nuisance per se. No such claim is made in the case at bar.

Were we to find that the answer of the defendant presents a defense and that the statement assigned in his letter for the revocation of the permits, namely, the adoption of the stop-gap zoning ordinance, constitutes a basis in fact, and were we to hold the stop-gap ordinance was in effect and operation and is applicable to the determination of the question presented in this case, I am constrained to hold that the stop-gap ordinance is not a valid exercise of the police power, for the reason that it is unreasonable and arbitrary in its operation. The evidence presented clearly shows the great confusion which would result from its operation. It is not a scientific structure, but may be denominated the “hit or miss ordinance.”

There is no doubt that municipalities are empowered to pass zoning ordinances, but such power is limited by these essential principles, namely:

(a) That the ordinance must not be arbitrary and unreasonable.

(b) That it must be uniform in its operation.

The right to acquire, own, and enjoy property carries with it the right to use it for proper purposes. As to what is a proper purpose, there can be no question. If the use does not injuriously affect individuals or the public at large, it is consiclered a proper purpose. The attempt of a municipality under the guise of legislation to interfere with such use, when such interference is not necessary for the public good, is a usurpation of the police power. This so-called “stop-gap” ordinance seeks to delegate to the Board of Appeals legislative authority. Under its.provisions the erection of a building forbidden by the stop-gap ordinance may, by order of the Board of Appeals, be held proper to be erected. There is no certainty in the ordinance it-' self. After dividing the city into zoning districts and prescribing the use of the territory in each district, it still makes it possible to appeal from the refusal of the building inspector to issue a permit to erect a certain building forbidden by the stopgap ordinance, and it empowers the Board of Appeals, without reference to the ordinance and its provisions, to permit or to refuse to permit the erection of a forbidden building. This, to my mind, presents a serious defect in the ordinance. Even if this ordinance were held to be a proper and legitimate exercise of the police power, which I emphatically dispute, it destroyed its own validity by enabling the so-called Board of Appeals to undo the provisions of the ordinance itself. Penal laws must be definite and certain, and not conditional or made to depend upon contingencies. The ordinance must be so drawn as to enable a member of the public, by reading its provisions, to determine what is proper under the ordinance, and what would constitute a violation of its provisions. If this ordinance were finally held valid, an anomalous situation would result: One person erecting a building in violation of the provisions of the ordinance would be held subject to arrest, conviction, and punishment. Another person erecting a building in violation of the provisions of the ordinance would be considered within his legal rights, notwithstanding the violation of the ordinance, because the Board of Appeals decrees that he may do so notwithstanding the ordinance. What would be considered a crime on the part of one person would be regarded as entirely legal and proper on the part of another person, merely because a board has so decreed. In my opinion, penal ordinances cannot be so framed.

For the reasons above stated, I dissent from the opinion of the majority of the court, and hold to the view that the plaintiff is entitled to the relief prayed for.  