
    CONSTITUTIONAL LAW.
    [Franklin (2nd) Circuit Court,
    1903.]
    Sullivan, Summers and Wilson, JJ.
    Samuel Borger v. State of Ohio.
    Act 95 O. L. 592. Sec. 6924 Rev. Stat., Unconstitutional.
    The act of May 12, 1902, 95 O. L. 592, Sec. 6924 Rev. Stat., which prohibits the operation of a boiler factory within, four hundred feet of the administration building of the Ohio state penitentiary, is unconstitutional for the reason that such business is not inherently a nuisance and its prohibition in that locality is not required by the interest of the general public and is, in effect, a taking of private property without due process of law.
    Geo. B. Okey & F. A. Davis, for plaintiff:
    The act, in so far as it may be claimed .to affect the plaintiff in error, is in contravention of the following state and federal constitutional provisions :
    Section 1, Art. 1, which guarantees to all men the right to enjoy, defend, acquire, possess and protect property. Palmer v. Tingle, 55 Ohio St. 423, 441 [45 N. E. Rep. 313],
    Section 2, Art. 1, in that it denies to the plaintiff in error the equal protection of the laws. State v. Ferris, 53 Ohio St. 314 [41 N. E. Rep. 579; 30 L. R. A. 218]. (See authorities cited under paragraph seven, upon the construction and application of Sec. 1 of the fourteenth amendment to the federal constitution.)
    Section 19, Art. 1, in that it was a taking of private property for public use without compensation.
    Property, within the meaning of this provision of the constitution, is not confined to corporeal hereditaments, nor is a taking of property within the meaning of this provision limited to a seizure or manual possession. Old Colony & Fall River Ry. Co. v. Plymouth, 80 Mass. (14 Gray) 155, 161; Edson v. Crangle, 62 Ohio St. 49, 65 [56 N. E. Rep. 647] ; State v. Frame, 39 Ohio St. 399, 416; Gilpin v. Williams, 25 Ohio St. 283.
    Section 26, Art. 2, in that the act is not uniform in its operation throughout the state.
    Section 28, Art. 2, in that it impaired vested rights acquired under preexisting laws, created new obligations, imposed new duties and attached new disabilities, and was, therefore, retroactive in its operation. Society for Propagation of the Gospel v. Wheeler, 2 Gall. 139 [22 Fed. Cas'. 756]; Rairden v. Holden, 15 Ohio St. 207, 210; Sturges v. Carter, 114 U. S. 511, 512 [5 Sup. Ct. Rep. 1014]; Kelley v. Kelso, 5 Ohio St. 198.
    Section 1, Art. 4, in that its enactment was the assumption of judicial power by the general assembly.
    The declaring of an act or a thing to be a nuisance is a judicial and not a legislative function. Town of Davis v. Davis, 40 W. Va. 464 [21 S. E. Rep. 906] ; Walker v. Jameson, 140 Ind. 591 [39 N. E. Rep. 869; 28 L. R. A. 679]; Cole v. Kegler, 64 Iowa 59 [19 N. W. Rep. 843^]; Teass v. St. Albans (City), 38 W. Va. 1 [17 S. E. Rep. 400]; Yates v. Milwaukee, 77 U. S. (10 Wall.) 497, 498; Cooley, Const. Lim. (6 ed.) 247.
    Section 1 of the fourteenth amendment to the federal constitution in that it abridges the privileges and immunities of the plaintiff in error; it deprives him of his property without due process of law, and denies to him the equal protection of the laws. Dartmouth College v. Woodward, 17 U. S. (4 Wheat.) 518; 2 Kent’s Commentaries 13; Columbia Bank v. Okely, 17 U. S. (4 Wheat.) 235; Kinney v. Beverley, 3 Va. (1 Píen. & Munf.) 531; Hagar v. Reclamation Dist. No. 108, 111 U.. S. 708 [4 Sup. Ct. Rep. 663]; Yick Wo v. Hopkins, 118 U. S. 356 [6 Sup. Ct. Rep. 1064]; Barbier v. Connolly,- 113 U. S. 27 [5 Sup. Ct. Rep. 357]; Bells Gap Ry. Co. v. Pennsylvania, 134 U. S. 232, 237 [10 Sup. Ct. Rep. 533] ; Gulf C. & S. F, Ry. Co. v. Ellis, 165 U. S. 150 [17 Sup. Ct. Rep. 255], ■ The exercise -of police power must always be reasonable and never arbitrary. Cooley, Const. Lim. (6 ed.) 240; Sipe v. Murphy, 49 Ohio St. 536 [31 N. E. Rep. 884; 17 L. R. A. 184]; Marmet v. State, 45 Ohio St. 63 [12 N. E. Rep. 463]; Tiedeman, Limitations Police Power 194.
    Attorney General Sheets, for the state.
   SUMMERS, J.

It is not important to state the case in detail, or to notice many of the questions argued by counsel.

By an act passed May 12, 1902, 95 O. L. 592, Sec. 6924 Rev. Stat., the general assembly makes it an offense to erect or operate within four hundred feet of the administration department of any state penal institution any boiler factory which may make loud noises. It is admitted that the plaintiff in error erected and operated such a factory within four hundred feet of the administration building of the Ohio state penitentiary, and that he purchased the land on which the factory is located for that purpose; that if the premises cannot be so used they are depreciated $10,-000, and that the members of the general assembly had knowledge before the passage of the act of the fact that the purchase had been made for that purpose. It is said in argument that the managers of the penitentiary wanted the ground for that institution, and procured the passage of the act to aid them in getting it. The plaintiff in error was found guilty in the police court of a violation of this statute and fined. On error the court of common pleas confirmed it, and the case is here on error to that court.

We cannot, of course, inquire into the motives of the members of the general assembly.

It is well settled that a state, in the exercise of its police power, may restrict objectionable trades to certain localities, but “To justify the state in thus interposing its authority in behalf of the public, it must appear, first, that the -interests of the public generally, as distinguished from those of a particular class, require such interference; and, áecond, that the means are reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals. The legislature may not, under the guise of protecting the public interests, arbitrarily interfere with private business, or impose unusual and unnecessary restrictions upon lawful occupations.” Mr. Justice Brown, in Lawton v. Steele, 152 U. S. 133, 136, 137 [14 Sup. Ct. Rep. 499],

“It will probably not be disputed that every one has a right to pursue in a lawful manner, any lawful calling which he may select. The state can neither compel him to pursue any particular calling, nor prohibit him from engaging in any lawful business, providing he does so in a lawful maqner. It is equally recognized as beyond dispute, that the state, in the exercise of its police power, is, as a general proposition, authorized to subject all occupations to a reasonable regulation, where such regulation is required for the protection of public -interests, or for the public welfare. It is also conceded that there is a limit to the exercise of this power, and that it is not an unlimited arbitrary power, which would enable the legislature to prohibit a business, the prosecution of which inflicts no damage upon others.” Tiedeman, Limitations of Police Power Sec. 85.

“If the police regulation of trades and occupations cannot be instituted and enforced, except so far as a trade or occupation is harmful or threatens to be harmful in any way to the public, however slight the restraining may be, so much the more necessary must it be to confine the exercise of the police power to the prevention of the injuries with which the public is threatened by the prosecution of a calling, when the law undertakes to deny altogether the right to pursue the calling or profession. In proportion to the severity or extent of the police control must the strict observance of the constitutional limitations upon police power be required. There is no easier or more tempting opportunity for the practice of tyranny than in the police control of occupations. Good and bad motives often combine to accomplish this kind of tyranny. The zeal of the reformer, as well as cupidity and self interest, must alike be guarded against. Both are apt to prompt the employment of means, to attain the end desired, which the constitution prohibits.

“It has been so often explained and stated, that the police, power must, when exerted in any direction, be confined to the imposition of those restrictions and burdens which are necessary to promote the general welfare, in other words to prevent the infliction of a public injury, that it seems to be an unpardonable reiteration to make any further reference to it. But the principle thus enunciated is the key to every problem arising out of the exercise of police power. Applied to the question of prohibition of trades and occupations, it declares unwarranted by the constitution any law which prohibits altogether an occupation, the prosecution of which does not necessarily, and because of its unenviable character, work an injury to the public. It is not sufficient that the public sustains harm from a certain trade or employment, as it is conducted by some who are engaged in it. Nor is it sufficient that all remedies for the prevention of the evil prove defective, which fall short of total prohibition. Because many men engaged in the calling persist in so conducting the business that the public suffer, and their actions cannot otherwise be effectually controlled, is no justification of a law which prohibits an honest man from conducting the business in such a manner as not to inflict injury upon the public.” Tiedeman, Limitations to Police Power Sec. 102.

“Another more or less common mode of police regulation of employments, is the determination of the localities, in which the trade will be allowed. Very many trades are beneficial to society in general, and it would be unconstitutional to prohibit them altogether, and yet they may be subjected to whatever reasonable regulations may be needed to avert or prevent some special danger, which is threatened by the prosecution of them.

“But the prohibition as to locality must be reasonable, in order that it may not offend the constitutional limitations.” Tiedeman, Limitations to Police Power Sec. 104.

“As long as a trade does not injure the public health, and is the source of no annoyance whatever to the inhabitants of the locality in which it is conducted, it cannot lawfully be prohibited. ' Every man has a constitutional right to follow on his premises any calling, provided it does not in any way interfere with another’s reasonable enjoyment of his premises. But if the prosecution of a certain trade affects another injuriously, the state may so regulate the trade that the injury may be avoided or reduced to a minimum. If the trade is in itself, and necessarily, harmful to one’s neighbors, or to the public health, it may be prohibited altogether. But if it can be prosecuted under certain limitations, so as to avoid injury to others, the police regulation must be confined to the imposition of these needed restrictions, and the trade cannot be absolutely prohibited.

“The police regulation cannot extend beyond the evil to be remedied. Where, therefore, certain trades and employments, which serve some useful purpose'and add something to the world’s wealth, are harmful to the inhabitants of the locality, in which they may be conducted; and the harm may be avoided altogether, or considerably reduced, by confining them to localities, in which the population is sparse and the residences are few, it is altogether permissible to prohibit the prosecution of these trades in other localities. * * * But in all these cases the prohibition must be confined to the removal of the evil to be guarded against. There cannot be an absolute prohibition of a trade in a locality in which it may be prosecuted without annoyance or inconvenience to the neighboring residents.” Tiedeman, Limitations to Police Power Sec. l&2-c.

It seems to us that the amendment of this statute fails to meet the tests mentioned by Mr. Justice Brown. If does not appear that the interests of the public generally require such interference or that this restriction was necessary. We .may concede that the prohibition of the carrying on of such a business within a reasonable distance of the asylum or other benevolent institution of the state or of the public schools or of a seminary might be in the interests of the public or conducive to the public welfare, but what interest of the public is subserved by the prohibition of the carrying on of such a business within four hundred feet of the administration department of a state penal institution? If this amendment is valid, we cannot see why a law prohibiting the carrying on of such a business within four hundred feet of John Smith’s house would not also be valid, and certainly no one would claim that such án act could be justified on any ground of public necessity. And if not required by the public welfare, to permit such a restriction upon the use of this property merely in private interests would be, in effect, to take the plaintiff's property without due process of law. If the business is so conducted as to become a nuisance, John Smith would have a remedy, and so have the managers of the penitentiary, but the business is not necessarily or inherently a nuisance, and it may not, therefore, be declared to be one, nor can it be restricted from being carried on in a certain locality unless in the interests of the public, and no such interest appears. It follows, therefore, that the plaintiff should have been discharged, and that the court of common pleas .erred in affirming the judgment of the police court, and the judgments of these courts are reversed, and the plaintiff discharged with his costs.  