
    The State, ex rel. The Ohio Hair Products Co., v. Rendigs, Building Commissioner.
    
      Municipal corporations — Police power — Obnoxious business prohibited— In residence districts — Constitutional law — Impairment of contracts and retroactive legislation — Building permit — Revocation after ordinance enacted —Mandamus to compel reissue.
    
    1. Ordinance No. 457 —1917, enacted by the council of the city of Cincinnati, October 2, 1917, forbidding the erection or use of buildings in the residential districts of the city of Cincinnati for the storage, cleaning or renovation of uncured animal hair and the by-products thereof, is not unreasonable nor arbitrary and is a valid exercise of the police power.
    2. A building permit issued by the building commissioner of the city of Cincinnati for the erection of a building and factory for the purpose of buying, selling, processing and manufactur- ► ing the hair of animals and packing-house by-products is not ■protected by the constitutional prohibition as to the impairment of the obligation of contracts.
    (No. 15782
    Decided June 11, 1918.)
    In Mandamus.
    This is a proceeding in mandamus instituted in this court and was submitted upon the pleadings and the evidence, the testimony of the witnesses having been taken before a special master commissioner.
    The relator is a corporation organized for the purpose of buying, selling, processing and manufacturing the hair of animals and packing-house by-products, and is located in the city of Cincinnati where its principal business is transacted. Defendant is the duly appointed, qualified and acting building commissioner of the city of Cincinnati, Ohio.
    
      On or about September 1, 1917, the relator, having in view the erection and construction of a proper and necessary building and factory for the purpose of carrying on its business, procured to be made sketchings and drawings thereof which were ’submitted to the defendant preliminary to the preparation and submission of final plans and specifications. These preliminary plans and specifications were approved by the defendant and there was issued to the relator a temporary permit authorizing it to proceed with the excavation for the building. After the issuance of this temporary permit relator acquired a tract of land upon which to' erect its building and factory, situated at the southeast corner of Dane street and Chase avenue in the city of Cincinnati. On or about September 20, 1917, there was submitted to the defendant the final plans and specifications of said proposed building and factory, and on or about September 24, 1917, the defendant, as building commissioner, issued to the relator his permit to proceed with the erection of the building and factory according to the final plans and specifications. Immediately thereafter relator entered into certain contracts for the erection of its building and factory, and the contractors entered upon said work and proceeded therewith until on or about October 4, 1917, when the defendant, as building commissioner, without authority and in violation of law, according to the allegations of the petition, revoked his permit, and refused to again issue the same, although requested so to do, and ordered the relator not to proceed with said work. It is averred in the petition that the relator has complied with all the laws and ordinances of the city of Cincinnati in force at the time of the submission of the final plans and specifications to the defendant, and that the same are in accordance therewith. It is further averred that upon the revocation of said permit the relator was required to and did cease the further prosecution of the work of construction upon its building and factory and has suffered great injury and damage by reason of said revocation; that it will suffer further and great irreparable injury unless the defendant be required and is compelled to reissue said permit; and that it is without any plain and adequate remedy in the ordinary course of the law. The prayer of the petition is that a writ of mandamus issue commanding the defendant as building commissioner of the city of Cincinnati, Ohio, to issue his building permit to the relator as of the date of September 24, 1917, authorizing it to proceed with the erection and construction of its building and factory in accordance with the plans and specifications theretofore by it submitted to him.
    Defendant in his answer admits that the relator is a corporation organized for the purposes set out in the petition and that the permits were issued to it as alleged in the petition.
    He avers that on or about September 20, 1917, a written protest of the owners of the property in said section of said city was filed with the defendant against the erection of the building proposed to be erected by the relator, and on September 25, 1917, there was introduced in the council of the city of Cincinnati an ordinance as follows: “Section 452-1. No building shall be erected or used for the storage, cleaning or renovation of uncured animal hair or any of the by-products thereof, or for the manufacture of any combination of the same requiring the use or handling of animal substances emitting noxious odors, gases, or volatile substances, upon any land or property abutting any public street, alley or natural boundary such as streams of water, well-defined ravines or railway rights of way in the city of Cincinnati, which form any part of a boundary of a residential block or square as defined by section 452 of the code of ordinances of the city of Cincinnati.”
    This ordinance was referred by the council of said city to the committee on health of said council, and on September 27, 1917, a public hearing was had upon said ordinance by this committee. It is averred that said committee made an investigation of and visited places of business where buying, selling, processing and manufacturing of the hair of animals and packing-house by-products was prosecuted, and reported to the council of said city, as a result of said public hearing and said investigations and visits, that in all of said places of business noxious odors, gases and volatile substances are emitted. On' October 2, 1917, said ordinance was duly passed. Section 452 of the code of ordinances of the city of Cincinnati is as follows: “Block Restriction. — No reservoir for the storage of an inflammable, explosive or odorous gas, blacksmith shop, foundry, packing-house, rendering plant, soap factory, tannery, brewery, distillery, grain elevator, ice house, junk shop, laundry or any building, tipple or plant for the handling or distribution of coal or coke, shall be erected in any residence block, or residence square. For the purposes of this section a block or square shall be a section of land bounded by three or more public streets or alleys or -natural boundaries, such as streams of water, well-defined ravines or railway rights of way; and a residence block or residence square shall be a block or square in which more than sixty per cent, of the surface of the land contains buildings or premises used for residence purposes, and a building shall be deemed used for residence purposes when a majority of the floor space of such building is used for residence purposes.”
    It is further averred that the building proposed to be erected by the relator for the uses and purposes set forth in its petition is upon land abutting two public streets in the city of Cincinnati, viz., Chase and Dane avenues, and that Chase and Dane avenues form a part of the boundary of a residential block or square as defined by said Section 452 of the code of ordinances of the city of Cincinnati; that on October 2, 1917, the council of said city of Cincinnati passed a resolution by which the building commissioner was ordered to rescind the permit which he had given for the erection of the building; and that on October 4, 1917, the defendant in accordance with said resolution and ordinances canceled the building permit theretofore issued by him.
    In the reply of the relator it is admitted that the ordinance referred to in the answer was duly enacted by the city council; that said resolution was duly passed and that the defendant canceled and revoked the building permit theretofore issued by him. There is a denial of each and every other allegation contained in the answer.
    
      Mr. Chas. H. Urban and Mr. Geo. B. Okey, for relator.
    
      Mr. Charles A. Groom and Mr. Saul Zielonka, city solicitors; Mr. Frank K. Bowman, assistant city solicitor, and Mr. Timothy S. Hogan, for defendant.
   Newman, J.

The relator is asking this court to issue a writ of mandamus compelling the defendant to reissue the building permit to erect its building and factory, which it claims was revoked without authority and in violation of law. The defendant in justification of the revocation and of his refusal to reissue the permit relies upon the provisions of the ordinance of October 2, 1917. It is admitted that this ordinance was duly enacted. The motive, therefore, which induced council to enact it is not a subject of inquiry here. This ordinance prohibits the erection or use of a building for the storage, cleaning or renovation of uncured animal hair, or any of the by-products thereof, or for the manufacture of any combination of the same requiring the use or handling of animal substances emitting noxious odors, gases or volatile substances, upon any land or property abutting any public street, alley, or natural boundary, such as streams of water, well-defined ravines or railway rights of way in the city of Cincinnati, which form any part of the boundary of a residential block or square as defined by Section 452 of the code of ordinances of the city of Cincinnati. The building proposed to be erected by the relator is upon land abutting Chase and Dane avenues, and these avenues form a part of the boundary of a residential block as defined by Section 452 of the code of ordinances of the city of Cincinnati.

The validity of the ordinance of October 2, 1917, is challenged by the relator. The presumption, of course, is in favor of its validity, and it is therefore incumbent upon the relator to show that the action of the council of the city of Cincinnati in the enactment of the ordinance in the exercise of the police power is clearly unreasonable and arbitrary. It is conceded by counsel that the guaranties contained in our Bill of Rights and in the Fourteenth Amendment to the Constitution of the United States were not designed to interfere with the police power of the state in the protection of the lives, liberty and property of its citizens and in the promotion of their health, morals, education and good order. But it is urged that this power has its limitations and must stop when it encounters the prohibitions of the constitution, and the claim is made that this is a case where a municipality in the exercise of the police power is attempting to override the constitutional guaranties in order to prevent the completion of a building in process of erection for a business not a nuisance per se, in order to satisfy the demands of a few people,

In the well-known case of Mugler v. Kansas, 123 U. S., 623, which involved the constitutionality of the law of Kansas prohibiting the manufacture or sale within the limits of that state of intoxicating liquors for general use there as a beverage, it is said that under our system there is lodged with and there belongs to the legislative branch of the government the power and authority to exert what are known as the police powers of the state, and to determine, primarily, what measures are appropriate or needful for the protection of the public morals, the public health or the public safety. In the General Code of this state there is an enumeration of powers conferred upon municipal corporations, and the councils of these corporations are authorized to. provide by ordinance or resolution for the enforcement or exercise of them. Among the powers conferred — under the head of health and sanitation — is the following: “Section 3650. To cause any nuisance to be abated, to prosecute in any court of competent jurisdiction, any person or persons who shall create, continue, contribute to or suffer such nuisance to exist; to regulate and prevent the emission of dense smoke, to prohibit the careless or negligent emission of dense smoke from locomotive engines, to declare each of the foregoing acts a nuisance, and to prescribe and enforce regulations for the prevention thereof; to prevent injury and annoyance from the same, to regulate and prohibit the use of steam whistles, and to provide for the regulation of the installation and inspection of steam boilers and steam boiler plants,”

A municipality under the provisions of this section is authorized to regulate and suppress all places that in its judgment are likely to be injurious to the health of its inhabitants or to disturb the people living in the immediate neighborhood by offensive odors. In Fisher v. St. Louis, 194 U. S., 361, 370, Mr. Justice Brown uses this language: “The power of the legislature to authorize its municipalities to regulate and suppress all such places or occupations as in its judgment are likely to be injurious to the health of its inhabitants or to disturb people living in the immediate neighborhood by loud noises or offensive odors, is so clearly within the police power as to be no longer open to question.”

In the instant case, the determination of the question whether or not the ordinance was reasonably necessary for the protection of the health and comfort of those within the locality in question was committed in the first instance to the judgment of the municipal authority. If, in the exercise of the discretion conferred upon it, the municipality acted reasonably, and not arbitrarily, its action is not subject to objection and will not be disturbed.

The business which is proposed to be carried on by the relator is that of buying, selling, processing and manufacturing the hair of animals and packjing-house by-products. This business is prohibited at the place where the relator proposes to carry it on. After the ordinance was introduced in council it was referred to the committee on health, and a public hearing was had by this committee, and it visited places of business in the city of Cincinnati where the buying, selling, processing and manufacluring of the hair of animals and packing-house by-products was prosecuted. As a result of this public hearing and the investigation the committee reported that in such a business noxious odors, gases and volatile substances were emitted, and upon its recommendation the ordinance was passed, council thereby declaring in effect that the business in which the relator was about to engage was offensive and unwholesome. We do not think it can be said that council abused the discretion conferred upon it and that it acted arbitrarily. In the case of Cusack Co. v. Chicago, 242 U. S., 526, 531, Mr. Justice Clarke uses the following language in reference to the power of local legislative authority in the exercise of the police power, which, we think, is pertinent here: “It [the court] will interfere with the action of such authority only when it is plain and palpable that it has no real or substantial relation to the public health, safety, morals, or to the general welfare.” It is suggested by counsel that the evidence of the relator shows that by the modern method to be used by it in the curing of animal hair no offensive odors will escape to the surrounding atmosphere. We do not think that this is material here. It appears from the evidence and from the investigation of the committee in council that the business in which the relator proposes to engage produces disagreeable and unwholesome odors, which interfere with the comfort, and are more or less injurious to the health, of the community where the business is located. We agree with counsel for defendant that the only issue, aside from- the power to enact the ordinance, is whether the class of business sought to be restrained is such as may in good faith be deemed a nuisance within the limit of restraint. We are therefore constrained to hold that it has not been made to appear that the action of council in the enactment of the ordinance had no real or substantial relation to the public health or comfort and that it acted unreasonably or arbitrarily.

The ordinance in question was enacted after the permit was issued to the relator'. The further claim is made that the relator having expended considerable money in the purchase of land and material, and having entered into certain contracts for the erection of the building, and the building being in course of construction, acquired certain vested rights which could not be affected by the ordinance — that the ordinance could not be retroactive. It is not necessary to devote much time to this proposition, for it seems to be well settled that a permit such as was issued in this case has none of the elements of a contract, and may be changed or entirely revoked, even though based on a valuable consideration, if it becomes necessary to do so in the exercise of a legislative power on subjects affecting the public health or public morals. Cooley on Constitutional Limitations, 283; Beer Co. v. Massachusetts, 97 U. S., 25; Fertilizing Co. v. Hyde Park, Id., 659; Butchers’ Union Slaughter-House & Live-Stock Landing Co. v. Crescent City Live-Stock Landing & Slaughter-House Co., 111 U. S., 746; New Orleans Gas Co. v. Louisiana Light Co., 115 U. S., 650; Moore v. Indianapolis, 120 Ind., 483, and Dobbins v. Los Angeles, 139 Cal., 179. In the Dobbins case, which is similar to the one under consideration here, 'it was held: “The fact that the plaintiff had lawfully commenced it's work by purchasing land for a site within the limits allowed by the original ordinance, and had expended money in laying a foundation, and had entered into contracts for the erection of its works, and had secured a building permit from the fire commissioners in pursüance of fire and building ordinances, cannot estop the city from the further exercise of its police power to change the limits so as to make the erection and maintenance of such gas-works unlawful where begun and existing within the changed limits.”

This is a proceeding in mandamus and it has been repeatedly held that the right of the relator to a writ must be clear and there must be shown a plain dereliction of duty on the part of the officer. We think the relator has failed to establish its right to the writ and the same must be refused.

Writ refused.

Jones, Matthias, Johnson and Donahue, JJ., concur.  