
    Renker, Appellant, v. Village of Brooklyn et al., Appellees.
    (No. 28793
    Decided April 1, 1942.)
    
      
      Mr. Paul Rowland and Mr. Edward C. Osterland, for appellant.
    
      Mr. Michael L. Reams, for appellees.
   Weygandt, C. J.

The first cláím of the plaintiff is that this ordinance has been repealed by implication inasmuch as the council of the village subsequently adopted a zoning ordinance. However, this court finds no basis for such a procedural inference, especially in view of the fact that the council has amended the trailer camp ordinance twice since the adoption of the zoning ordinance.

The substantive claim of the plaintiff is that the amended trailer camp ordinance is unconstitutional in that it has' no relation to the public health, morals or welfare and that it is unreasonable, discriminatory and confiscatory in violation of Sections 1 and 19 of Article I of the Constitution of Ohio, and Section 1 of the Fourteenth Amendment to the Constitution of the United States.

The plaintiff finds fault with the entire ordinance, but he is especially critical of Sections 6, 7 and 8.

The first of these requires the operator of a trailer camp to keep a duplicate daily registration book containing the name and address of each occupant of the trailer camp. One copy must be given to the village marshal.

Section 7 limits the parking of occupied trailers to a period of 60 days. It provides further that no trailer or its occupants may again occupy any camp within the village for a period of 90 days thereafter.

Section 8 makes it the duty of the village marshal to inspect the trailer camp daily.

At the threshold of this discussion it should be observed that this court is not permitted to concern itself with the wisdom or folly of the various provisions of this ordinance. The entire responsibility therefor rests with the village council. The judicial question confronting the court is one solely of power and not in any sense one of policy. Did the village council have the- legislative power to adopt this ordinance ?

Counsel agree that the precise question is one of first impression in this state, and they have succeeded in discovering but two reported decisions by courts of dernier resort in other jurisdictions. The first case is that of Spitler v. Town of Munster, 214 Ind., 75, 14 N. E. (2d), 579, 115 A. L. R., 1395, and the second is Cady v. City of Detroit, 289 Mich., 499, 286 N. W., 805. One of the provisions of the ordinance in the Indiana case required that no person should remain a resident of a tourist camp for a period of more than 30 days. The following pertinent reasoning appears in the opinion:

“Cities and towns have power to establish reasonable regulations for the protection of the lives, health, and property of their citizens * * *. This necessarily implies the power to require the citizen to so use his property as not to defeat such regulations and render them ineffective. Reasonable regulations are not unconstitutional merely because they affect the uses to which private property may be put. This is not a taking of private property. It is an exercise of the police power. * * *
“The town’s building and plumbing code fixes requirements for places of permanent residences. Tourist camps are ordinarily considered as places of tran: sient or temporary abode, and the requirements of this tourist camp ordinance are no doubt less than the code requirements for permanent abodes. The provision-that a person shall not live in a tourist camp for more than thirty days is designed to maintain the transient character of such camps, and the penalty is only a means of enforcing the requirements.”

Then the fifth paragraph of the syllabus reads as follows:

“Town ordinance regulating tourist camps, limiting residence therein to thirty days, and requiring 500 cubic feet of space for the occupant housed, though in excess of state requirements, held not unreasonable exercise of police power and not in conflict with state authority lodged in the state board of health.”

The questioned ordinance in the Michigan case permitted a person to remain in a trailer camp a maximum of ninety days a year. The seventeenth paragraph of the syllabus reads as follows:

“Ordinances having for their purpose regulated municipal development, the security of home life, the preservation of a favorable environment in which to rear children, the protection of morals and health, the safeguarding of the economic structure upon which the public good depends, the stabilization of the use and value of property, the attraction of a desirable citizenship and fostering its permanency are within the proper ambit of the police power * * *.”

In the instant case the plaintiff introduced considerable evidence to show that he had made improvements in his camp and that the enforcement of the ordinance would constitute a serious discrimination against him. No useful purpose would be served by an extended recital of the facts. Suffice it to observe that the plaintiff is to be commended for attempting to improve his camp, but in spite of his efforts, the thing he has on his hands is still a trailer camp with the increased and unavoidable difficulties inherent in any effort to accommodate permanently a large, mixed group of people confined to limited space and equally limited facilities intended for transients alone. It is true that the ordinance imposes upon trailer camp owners and guests certain regulations not applicable to other residents of the municipality. However, in return for this disadvantage they receive from the municipality certain concessions not available to other residents. As illustrative of this, the evidence discloses that the average trailer is approximately 7 feet in width and 17 feet in length, thus having a floor area of but 119 square feet, with as many as five people living therein. No trailer is equipped with a toilet or shower. In contrast with, this, the building code of the village requires a minimum area of 700 square feet in houses with one floor, occupied by other residents; and of course toilet and bathing facilities are likewise required as indispensable to public health.

A study of the record demonstrates that trailers and trailer camps have their proper place in present-day life when they are used as temporary accommodations for transients as originally intended, but they cannot be expected to meet the more exacting requirements of a permanent home.

Indulging the required presumption of constitutionality, it can not properly be held that the village council did not possess the legislative power to provide the foregoing regulations in order to meet the difficult problems presented. The decrees of the lower courts must be affirmed.

Decree affirmed.

Turner, Matthias and Zimmerman, JJ., concur.

Hart and Williams, JJ., dissent.

Bettman, J., not participating.

Hart, J.,

dissenting. The plaintiff in this case is the owner and operator of a trailer park or camp in the village of Brooklyn, and in this action seeks to enjoin the enforcement of an ordinance of that village regulating trailers and trailer camps, insofar as it prohibits the parking of occupied trailers in a trailer camp for a period of more than 60 days; insofar as such ordinance makes him vicariously guilty of an offense in permitting a trailer or its occupants to remain in his trailer camp for a period longer than 60 days or to permit a trailer or the occupants thereof to reenter the camp for 90 days after the expiration date of a former occupancy; insofar as such ordinance prohibits the occupants of a trailer from entering his park for 90 days after a former occupancy in any other trailer camp in the village; and insofar as such ordinance requires the manager or caretaker of his trailer camp to provide a duplicate registration book and keep a complete daily record in duplicate of the names and addresses of the occupants of each trailer admitted to his camp site, the automobile license and trailer license numbers, and to turn over each day to the marshal of the village a duplicate copy of all registrations and entries for the previous day, the violation of any section of which ordinance subjects him to conviction and a fine of not less than $25 nor more than $49 for each offense, each day’s operations to constitute a separate offense.

With the rights of the plaintiff or the denial thereof, is bound up the rights of his tenants or renters occupying trailers in his park with reference to the right of contract for parking space, the use and occupancy of their property, and their right to select a place of residence in the village in question.

Section 7 of the ordinance in question, as amended April 29, 1941, is as follows:

“Section 7. Parking of occupied trailers in a trailer camp for a period of more than sixty days shall be prohibited, and no trailer camp licensee shall permit a trailer or the occupants thereof to remain in said trailer camp for a period longer than sixty days; nor shall a trailer camp licensee permit a trailer or the occupants thereof to reenter the trailer camp for ninety days after the expiration date of a former occupancy; and it shall be unlawful for the occupants of a trailer to enter or park a trailer in any trailer camp for ninety days after the expiration date of a former occupancy in any other trailer camp within the village limits.”

• Goncededly, the village has the right to adopt a reasonable zoning plan whereby certain classes of business or residence may be restricted to certain areas, but the ordinance in question is by no’ means a zoning ordinance. Instead, it authorizes the occupancy of a trailer in a trailer camp in the village for a period of 60 days, but thereafter makes its presence unlawful and its -owner and occupant a lawbreaker until the trailer has been removed from the village for a succeeding period of not less than 90 days. The effect of this ordinance is to deny to the plaintiff and his tenants, as occupants of a trailer, the constitutional right of contract and to the latter their constitutional right of free citizenship and locomotion.

The record shows the plaintiff owns a tract of 6.261 acres of land in the village of Brooklyn upon which he has expended $16,500 in addition to the original cost of the land for the purpose of preparing it for a trailer park. He has constructed thereon, to make it a modern trailer camp with all necessary facilities, over 1,300 feet storm water sewer, over 1,500 feet sanitary sewer, over 1,400 feet of water lines for city water service, and over 1,300 feet of electrical wiring with outlets and meters. He has constructed, under the inspection and approval of the village and the state health authorities, utility buildings with insulated and sound proof partitions, containing washrooms and toilet rooms for both sexes, hot and cold water, washing machines, and clothes drying facilities. It is admitted that his camp and its building structures and equipment meet all the stringent ’ requirements of the village ordinance. In fact, the village has issued to the plaintiff for a fee an annual license to operate this particular park. It has also been inspected, approved and certified in all respects by the authorized officials of the state health department.

The record also shows that of the trailer residents in this park, some spend their winters in Florida and 'return to the park for the summer, some are retired people, some are school teachers, some are workers in downtown stores, some work on the railroads and others in .the shops in that neighborhood.

One of the witnesses for the plaintiff is and has been a teacher of social science and history in the Lincoln High School for 15 years. He, with his wife, had resided continuously in a trailer in this park for 13 months preceding the trial of this case. He testified that the camp was free from disease, that there was no disorderly and Immoral conduct, and that there were no offensive odors in the camp; that it was very well kept and states that he finds it “is one of the nicest groups of people that I have come in contact with, as people, as a community.” He testified that there is no crime problem in this camp and that the only time he saw an officer about the camp was when the village marshal came to his trailer one night at ten o’clock to serve an eviction notice upon him.

Another witness who resides in a trailer in this park is engaged in photogravure work. He testified that there is no illness in the camp; that the trailer people are of high character; that the sanitary conditions are good and that there are no offensive odors except occasionally from manufacturing plants outside the park.

Still another witness who is a trailer resident in this park is and has been assistant display manager for the May Company for 19 years. He testified that he, his wife, and son eight years of age, have lived in a trailer in this park since September 4, 1939; that he and his fámily prefer this method of living for the health of his wife and son; that a fine class of people reside in this park and that there is no disorderly conduct.

The only witnesses who appeared for the defense were the village officials. They did not, in fact, controvert any of the above testimony, but testified that three or four people had objected to the location of the camp but they all resided from one-half to two miles from it. The only real complaint made was to the stay-period at the camp.

The drastic and oppressive features of the ordinance in question serve no useful or legitimate purpose. Its unreasonableness is apparent when its operation is considered. It does not remove the trailer park from the village or from the neighborhood. In fact, the continued operation of the park is contemplated and authorized by the terms of the ordinance itself, which provides for the granting of a license to the owner or operator of the park to operate it as a trailer park under sanitary and healthful conditions, as to which there is no complaint so far as plaintiff’s park is concerned. The ordinance, by implication at least, authorizes the very use which the plaintiff is making of his property as a trailer park. The ordinance requires each occupant of a trailer, under severe penalty, to move off his rented lot or park space and out of the park after 60 days occupancy. He is not permitted to park in this or any other trailer park in the village for a period of 90 days, even though he may have been a permanent resident of the village before he chose to live in a trailer. He is not even permitted, during this 90-day period, to go back to the park either with or without his trailer to visit his former neighbors and friends in the park without being subject to arrest under this ordinance. In the meantime, any other trailer and its occupants, no difference how much less desirable than the one which has vacated, may move into the same space or parking lot for 60 days, and still another may do the same for the next period of 30 days, after which the original trailer and its same occupants, having gypsied about the country outside of this particular village for 90 days, may return to the very same location and live in the park under the same conditions as upon the former occupancy for another 60 days when he must again move out. In other words, a trailer may occupy the same space or lot continuously but the occupancy must be by a different trailer and different occupants every 60 days. Under this fantastic merry-go-round system of operation, what has been gained by the village where the park is located or the residents of that village, except to witness the annoyance and inconvenience which has been caused to the plaintiff and his trailer tenants about whose conduct no complaint has been made?

This court, and indeed all courts of the land, have held that while a state or municipality may make all reasonable, necessary and appropriate provisions to promote the health, morals, peace and welfare of the community, such provisions must not be unreasonable; that the means adopted must be suitable to the end in view, must be impartial in operation and not unduly oppressive upon individuals, and must have a real and substantial relation to their purpose, and not interfere with private rights beyond the necessities of the situation. Froelich v. City of Cleveland, 99 Ohio St., 376, 124 N. E., 212; 8 Ohio Jurisprudence, 358, 359; Wondrak v. Kelley, 129 Ohio St., 268, 195 N. E., 65; Nebbia v. New York, 291 U. S., 502, 78 L. Ed., 940, 54 S. Ct., 505.

While under the police power, legislative bodies may regulate persons and property in the interests of public health, public morals and public safety, this power is limited by constitutional protection so that a citizen may not unreasonably, arbitrarily, or without due process of law, be deprived of his life, liberty and property. This constitutional right of a citizen cannot be abridged or destroyed under the guise of police regulation. Legislative bodies cannot by mere declaration make that a nuisance as a matter of law which is not a nuisance as a matter of fact but may become so only by reason of circumstances.

Personal liberty which includes the right of a citizen to choose his place of abode is one of the natural rights which has been protected by its inclusion as a guarantee in all the constitutions of this country. Crawford v. Brown, 321 Ill., 305, 151 N. E., 911, 45 A. L. R., 1457; Brett v. Building Commr. of Brookline, 250 Mass., 73, 145 N. E., 269; Bamel v. Building Commr. of Brookline, 250 Mass., 82, 145 N. E., 272.

The right of personal liberty includes the power of locomotion, of changing situation, or removing one’s person to whatever place one’s inclination may direct without any restraint except by due process of law. 16 Corpus Juris Secundum, 585, Section 202; Civil Rights Cases, 109 U. S., 3, 27 L. Ed., 835; Pinkerton v. Verberg, 78 Mich., 573, 44 N. W., 579, 7 L. R. A., 507; State v. Austin, 114 N. C., 855, 19 S. E., 919, 25 L. R. A., 283; City of Watertown v. Christnacht, 39 S. D., 290, 164 N. W., 62, L. R. A. 1917F, 903; Eco parte Hudgins, 86 W. Va., 526, 103 S. E., 327, 9 A. L. R., 1361.

By reason of being a citizen of the United States, one automatically becomes a citizen of'the state and the municipality in which he chooses to reside. A person’s right to live in the place of his choice does not depend upon the style or architecture of his abode. So long as he commits no crime and is obedient to reasonable regulations relating to the general welfare, the public health and safety of the community in which he lives, there he may remain. Curran Bill Posting & Distributing Co. v. City of Denver, 47 Colo., 221, 227, 107 P., 261, 264; Edwards v. State of California,____ U. S.,----,86 L. Ed., Advance Opinions, 133. There appears to be nothing unusual about living in a trailer The petition alleges that 600,000 trailers were manufactured in this country in 1937. If this is a fact, it is obvious that there must be a great demand for this ldnd of housing, and whether the demand arises from the standpoint of economy, the quest of pleasure from travel, the demands of health, or the shifting needs of employment, no reason can be assigned as to why the occupants of a trailer should be forced out of any municipality for a particular period of time for the sole reason that they occupy a'trailer.

In my opinion, the features of the ordinance to which attention has been called in this dissenting opinion are unreasonable and, therefore, void.

Williams, J., concurs in the foregoing dissenting opinion.  