
    No. 684
    TERRACE PARK et (Village) v. ERRETT
    U. S. Appeals, 6th Circuit
    No. 4480.
    Decided April 6, 1926
    291. CONSTITUTIONAL LAW — Power to adopt zoning ordinance cannot be exercised in such arbitrary and unreasonable manner so as to render the ordinance unconstitutional in eifect and operation.
    928. POLICE POWERS — Will not be interfered with unless there is a manifest unreasonable exercise.
   DONAHUE, C. J.

Russell Errett owned a tract of unimproved farm lands in the Village of Terrace Park. The planning commission certified to the village council a proposed zoning ordinance and map, dividing the village into two- districts, residential and business. The ordinance was passed as an emergency legislation in 1923.

Errett was charged with having violated said ordinance, by excavating gravel, and be went into equity asking the Court to enjoin the enforcement of said ordinance in so far as it applies to his property. The ordinance, it is claimed, is illegal and void being in contravention of the Ohio and Federal Constitutions, and that it is unreasonable, arbitrary and unconstitutional in its operation and effect. The village was enjoined from enforcing the legislation against Errett and from this decree the village appealed to the Circuit Court of Appeals, which held:

Attorneys — Peck, Shaffer & Williams & Knight & Phares for Village; Robt. Black, C. C. Benedict & James J. Muir for Errett; Alfred Bettman, amici curiae; all of Cincinnati.

1. Courts will not interfere with the exercise of the police power of a state or municipality, except for a manifest arbitrary and unreasonable exercise of that power.
2. Evidence was offered to show that Errett erected his gravel plant before he had knowledge or notice of the passage of the ordinance.
3. The value of the gravel that may be removed from Erretts property is approximately $50,000, which value would be wholly lost by the operation and effect of the ordinance.
4. This loss is ten times the value of the land for the uses permitted by the ordinance.
5. The business contemplated by Errett on his property is not of a permanent nature; but so temporary in character that the ordinance prohibiting it cannot be justified upon the theory that in the march of progress, the territory will be needed for residential purposes.
6. The health of the citizens of the village will not be imperiled by the operation of this plant which is at a remote distance from their homes.
7. If the ordinance were enforced in its terms or beyond limitation imposed by the lower court, it would be arbitrary and unreasonable and unconstitutional; and not merely regulatory in character but a taking of private property without compensation.

Judgment affirmed.  