
    The State, ex rel. Bolce et al., v. Hauser, Commr. of Bldgs. of City of Cincinnati.
    
      Municipal corporations — Zoning ordinances — Glassification or exemption valid — Applicants for permits before enactment— Power to exempt by later ordinance — Constitutional law.
    
    1. Whether the zoning ordinance adopted April 1, 1924, by the city of Cincinnati is constitutionally valid, quaere.
    
    2. If the power to pass such zoning ordinance be conceded, the city council could exempt from its operation any applicants who had filed, in accordance with existing laws, plans and specifications, or corrected plans and specifications, prior to the adoption of such ordinance. The classification or exemption of such persons is not invalid.
    3. As the city council had such powers of classification and exemption in the first instance, when it adopted the zoning ordinance of April 1, 1924, it had power likewise to exempt such class from the operation of such ordinance by a later ordinance, if it deemed that such exempted class had not been justly dealt with or needed relief. This rule applies where no vested rights have been affected thereby.
    (No. 18812
    Decided December 9, 1924.)
    In Mandamus.
    This is an original action in mandamus instituted by the relators in this court, wherein they pray that a writ issue commanding the respondent, as commissioner of buildings of the city of Cincinnati, to rescind his revocation of a building permit theretofore issued to the relators, and ask that the permit be reissued to them, authorizing them to proceed with the construction of a certain building contemplated in an application which is on file in the office of the respondent. The respondent demurred generally to the petition, and this cause was heard upon such demurrer.
    The pertinent facts appearing from the petition are as follows: The Bolees were the owners of certain lots in the city of Cincinnati. Desiring to improve the premises by the contemplated erection, flush with the sidewalk, of a one-story building, for the purpose of housing retail stores, the relators, on March 13,1924, applied to the respondent, as they were required to do by the city’s building code, for a permit authorizing such contemplated construction. The specifications accompanying the application recited, among other things, that the partition walls were to be 9 inches in thickness, instead of 13 inches, as required by such building code. On March 14, 1924, the respondent, as commissioner of buildings, after examining the plans and specifications, issued to the relators a permit for such construction. On May 26, 1924, and before the construction of the building authorized by the permit had begun, the respondent revoked the permit theretofore issued, assigning as a reason therefor that the plans were not in compliance with the building code. On the next day the relators addressed a communication to respondent offering to make the plans conform to the building code in any respect, and especially with regard to making the walls 13 instead of 9 inches in thickness. They also tendered the proper fee, and requested a rescission of the revocation of the permit theretofore issued. The respondent refused to rescind his revocation, being of the opinion that, even if the plans and specifications were corrected in compliance with the building code, the building relators proposed to erect, and its usage, “would now be contrary to the zoning ordinance in force and effect” in the city. At the time of the issuance of the permit to the relator this zoning ordinance had not been adopted. It was adopted on April 1, 1924, and went into effect .May 4, 1924. The zoning ordinance divided the city into zones and districts, and established a zone plan regulating and limiting the usage and location of buildings in the various zones of the city. Under the zone plan so adopted the premises of the relators, upon which this building was to be constructed, were classed as “residence B” property, within a zone wherein buildings to be utilized for retail store purposes could not be constructed, and within which all constructions were to be set back a certain distance from the lot line.
    On September 2, 1924, the city council adopted a second ordinance, which for convenience is called the “Duttenhofer ordinance.” This ordinance became effective on October 7, 1924, and, according to its title, purported to regulate the erection or alteration of buildings by fixing a time within which, corrected, revised, supplemental,, or additional plans and specifications might be filed with the commissioner of buildings, for which applications had been made or permits issued prior to May 4, 1924. The “Duttenhofer ordinance” did not purport to repeal or amend the zoning ordinance theretofore adopted, but did refer to it in express terms, and upon its face sought to give relief to those who had. filed applications for building permits prior to the time when such zone ordinance became effective, to wit, May 4, 1924. It gave such applicants permission within 90 days from its effective date to file supplemental, additional, modified, revised, and completed plans and specifications, which, if done in compliance with the building code in force prior to May 1, 1924, were to be approved by the commissioner of buildings, who was required to issue a building permit accordingly. The “Duttenhofer ordinance” also provided that nothing contained therein should require any change in the plan, construction, or use of a building for which a permit had been issued in accordance with the terms of that ordinance provided the construction under the permit should be commenced within 6 months, certain other portions of the construction completed within 1 year, and the entire building completed within 2 years after the date of said permit.
    The relators allege that'they filed their original plans and specifications, together with their application for a building permit, prior to May 4, 1924, to wit, on March 13, 1924, and that they also filed with the respondent corrected plans and specifications to comply with the building code in force prior to May 4, 1924, and requested the issuance of a permit authorizing the construction of the building shown in their corrected plans and specifications. The respondent, however, refused, to issue or reissue such permit to the relators, wherefore this action in mandamus.
    
      Messrs. Kelley & Bemke, for relators.
    
      Mr. Saul Zielowika,, city solicitor, and Mr. London L. Forchheimer, assistant city solicitor, for respondent.
    
      
      Mr. Charles O. Rose; Mr. Gerritt J. Fredrilcs, Jr.; Mr. John M. McCaslim; Mr. Henry B. Street; Mr. Robert P. Goldman; Messrs. Taft, Stettinius é Hollister, and Mr. Michael G. Heints, amici curiae.
    
   Jones, J.

For the purposes of this case the demurrer concedes the truth of the allegations contained in the petition. It is therein alleged that the relators by filing their original plans and .specifications on March 13, 1924, and by preparation of their corrected plans and specifications, had complied with the building code of Cincinnati in force prior to May 4, 1924. It is manifest, therefore, that the relators were entitled to a building permit from the respondent, unless the latter was prevented from issuing the same by reason of the adoption by the city council of the two subsequent ordinances relating to the zoning of the city.

The relators contend that they were entitled to a reissue of the building permit by the commissioner of buildings for two reasons: First, that the original zoning ordinance, which became effective May 4, 1924, was unconstitutional and void; and, second, if such ordinance was valid, that the subsequent or “Duttenhofer” ordinance, passed September 2, 1924, excepted the relators from the operation of the original ordinance, and, as relators had filed their corrected plans and specifications prior to May 4, 1924, in accordance with the terms of the “Duttenhofer ordinance,” they were not affected by the zoning ordinance previously adopted.

Since cases involving the constitutionality of various zoning plans are now before this court for future consideration, we announced to counsel that this court would not pass upon the constitutional validity of such ordinances until counsel interested therein should have an opportunity to present their various cases. However, in view of the insistency of counsel in the 'instant case for its early consideration, and because of delay in extensive contemplated improvements by applicants for permits who have complied with the provisions of the “Duttenhofer ordinance,” this court agreed to determine whether the latter ordinance would relieve such applicants for building permits from the operation of the zoning ordinance.

We do not pass upon the constitutionality of the first or original zoning ordinance adopted April 1, 1924. In the posture this case has now taken we will assume that the city council had power to pass that ordinance, and that the same was constitutional and valid.

If valid, was the passage of the second or “Duttenhofer” ordinance of September 2, 1924, relieving those who had applied for building permits, or to whom such permits were issued prior to May 4, 1924, within the power of the city council? The “Duttenhofer ordinance,” although referring to the zoning ordinance, does not purport to amend cr repeal it. It is a separate and independent ordinance which designates a class of persons who are exempted from the operation of the zoning ordinance, and its distinct purpose was to grant relief to those who had made application for permits prior to May 4, 1924, when the zoning ordinance went into effect.

The principal question presented is whether the city council at the time of the passage of the zoning ordinance had the power to make a classification which would exempt those who had applied for or secured permits prior to or at the time of its adoption. If there be a real basis for such classification, and if the same be not unwarranted, or arbitrary, the city council undoubtedly could recognize such class and exempt it from the operation of the zoning ordinance. The city council might well recognize the fact that there were applicants who had secured plans and specifications, had filed the same with the building commissioner, and had expended money upon the faith of the building code as it theretofore existed. We see no reason why the city council could not recognize the fact that such a class existed, and therefore relieve those within the class from the operation and effect of a zoning ordinance adopted by it. As the classification here attempted cannot be held to be unreasonable, the city council undoubtedly had the power to exempt such class from its operation when it adopted the original zoning ordinance. Since that power existed, the' city council likewise had the power, if it deemed that such applicants for permits had not been justly dealt with or needed relief, to do that which it could have done when it adopted the original ordinance. The legal principle here announced is similar to that applied to curative laws validating irregular or void proceedings. It is generally held that a legislative body may pass such laws if in the first instance it had .plenary power over the subject, and at the time could have avoided the irregularity. The constitutional validity of legislative curative provisions is upheld where they do not affect vested rights secured under the original law. So far as this record appears no vested rights have been interfered with. If there be a vested right, it would accrue in favor of those lot owners who had been denied the right lawfully to use their property through the adoption of the zoning ordinance which affected its use. Since the question of the constitutionality of a zoning ordinance and its effect upon vested rights is held in abeyance, we do not pass upon that feature at this time.

It is therefore our opinion that the city council did not exceed its powers in passing the “Duttenhofer ordinance” relieving those applicants who had applied for permits prior to May 4, 1924. For the reasons stated, the writ prayed for should be allowed.

Writ allowed.

Marshall, C. J., Matthias, Day, Allen, and Conn, JJ., concur.  