
    The State, ex rel. Srigley, v. Woodworth, Safety Director.
    
      (Decided June 14, 1929.)
    
      Messrs. Woolley <& Rowland and Mr. R. W. Finsterwald, for relatrix.
    
      Messrs. Jones S Jones, Mr. M. D. Hughes, and Mr. John Bolin, city solicitor, for defendant.
   Mauck, J.

The relatrix in this case, Jennie Srigley, by an original action in mandamus seeks to compel the safety director of the city of Athens to issue to her a permit authorizing her to construct a gasoline filling station on a lot owned by her in the city of Athens. She pleads her willingness to abide by all the lawful rules and regulations covering the erection of such structure, and seeks a permit only in accordance with such laws and regulations. The defendant justifies his refusal to issue the permit under the provisions of Section 13 and following sections of Ordinance No. 512 of the City of Athens, claiming that by virtue of Section 13 the district in which the relatrix’s lot is located is a residence district, and that by Section 14 of that ordinance a filling station may not be erected in a residence district. The relatrix asserts that the defendant derives no authority from Section 13 of the ordinance mentioned, and that so far as that section attempts to confer power upon the defendant it violates both the state and federal Constitutions. The relatrix further claims that if Section 13 of the ordinance is constitutional the defendant has abused his powers in determining that the lot of relatrix is in a residence district, and has, moreover, discriminated against her in granting other licenses within this district and in other districts of a similar nature.

So far as the last question is concerned, we find from the testimony and from an inspection of the territory that the relatrix’s lot is in fact within a residential district, and that any tribunal having power to zone the city would not be abusing its discretion in fixing the locality in question as a residential district. We further find that there has not been any discrimination within or without this district that sustains the relatrix in her claim that the refusal of a permit in the instant case would be an unjust discrimination against her.

The sole question therefore before us is whether or not the defendant, having found that the property of relatrix was in a residential district, had power because of that fact to refuse her a permit to build a gasoline filling station upon the lot in question. In Pritz v. Messer, 112 Ohio St., 628, 149 N. E., 30, the Supreme Court sustained a zoning ordinance which comprehended the entire city of Cincinnati, and under the authority of that case if the defendant in this case could justify his action under an ordinance that zoned the entire city of Athens, he would he warranted in his refusal of a permit in this case. In City of Youngstown v. Kahn Bros. Building Co., 112 Ohio St., 654, 148 N. E., 842, 43 A. L. R., 662, the court had to do with an ordinance of the city of Youngstown that did hot undertake to zone the whole city, but did undertake to exclude from a residential district the building of an apartment house, and held the ordinance unconstitutional on the ground that the public health, morals, and safety of neither the affected district nor the entire municipality would be affected by the erection of such apartment house, and that consequently the ordinance was not constitutional. The fair effect of considering together the two opinions just referred to is that the Supreme Court sustains a comprehensive city-wide ordinance which prohibits the construction of an apartment building1 within a residential district, and refuses to sustain an ordinance containing a like exclusion where only a part of the city is zoned unless it be shown that the block ordinance prevents the erection of a building that would be a nuisance or a place for carrying on a business that would be a nuisance. The Supreme Court of this state has held that a filling station is not a nuisance per se, Powell v. Craig, 113 Ohio St., 245, 148 N. E., 607, and we find nothing in the legislation of the city of Athens, nor in the statutes of the state, that declares a filling station to be a nuisance per se even within a residential district. It may be seriously questioned, therefore, whether a block ordinance, as distinguished from a comprehensive zoning ordinance, may block off a certain portion of a municipality and prevent filling stations from being erected therein without some sort of a showing that they will be inimical to the public health, safety, or morals of the affected district. In the absence of such showing, any such ordinance would seem to fall under the condemnation of the Youngstown case.

If, however, the effect of City of Youngstown v. Kahn, supra, could be avoided, and an ordinance passed excluding filling stations from a particular block of the city, it appears in this case that no such ordinance has been passed. Section 14 of the ordinance under consideration provides that in a residence district no building shall be erected except those named in that section, and that section does not include gasoline filling stations. Section 14 does not, however, undertake to say that the district in which the relator’s lot is located is a residence district. Evidently when this ordinance was passed in 1927 council appreciated the difficulties of passing a comprehensive zoning ordinance covering the entire city, and as a temporary expedient enacted Section 13 as follows: “In the interest of public health, safety, convenience, appearance and general welfare the City of Athens, Ohio, shall be divided into three kinds of districts, viz.: residence, business and industrial. Until a zoning ordinance is passed in the city definitely defining such districts the inspector of buildings shall determine what parts of the city belong in either of these three districts. His decision shall be subject to approval by the mayor and a majority of the members elected to council.”

The infirmities of this section are twofold. It avows that one of its purposes is to conserve the public convenience and appearance. With that purpose we are in sympathy. It offends one’s sense of propriety that the beauty of a neighborhood should be violated by a filling station that may conform to the requirements of health, safety, and morals, and yet offend all the canons of good taste. It seems unfortunate that the police power is adequate to prohibit offensive sounds and smells, but is helpless against things that are only ugly in appearance. We are, however, admonished by Judge Allen in Youngstown v. Kahn, and such is the undoubted rule, that the police power cannot be invoked by esthetic considerations; that zoning ordinances seeking to promote or protect the beautiful are not authorized ; and that such regulations can only be sustained to protect or preserve the public health, morals, or safety. So far, therefore, as this ordinance sought to preserve the “appearance” of the neighborhood it was unauthorized by law.

If it should be urged, however, that this section of the ordinance might be sustained because it was in the interest of public health and safety, as well as in the interest of public appearance, Section 13 encounters another, and as we view it insuperable difficulty. It indicates the purpose of council at some time to pass a general zoning ordinance. Until such general ordinance is passed, it provides as a stopgap measure that the inspector of buildings shall determine what parts of the city belong in either of the three kinds of districts contemplated. That is to say, the council, until such time as it determines for itself what territory shall be a residence district, delegates to an administrative officer the power to so determine. If the council has power to delegate its authority in this behalf for two years or two days, it has like authority to perpetually abdicate its legislative powers in behalf of a ministerial officer. This it cannot do. A municipal council cannot delegate to another municipal officer the power to decide upon’ legislative matters properly resting in the judgment and discretion of the council. The members of a council are chosen by the people to legislate, and the public is entitled to the judgment and discretion of those elected for that purpose, and not to the judgment and discretion of some other to whom the council may confide it. 19 Ruling Case Law, 896. The editor of the American Law Reports, in 12 A. L. R., 1436, puts it thus: “The generally accepted rule is to the effect that a statute or ordinance which vests arbitrary discretion with respect to an ordinarily lawful business, profession, appliance, etc., in public officials, without prescribing a uniform rule of action, or, in other words, which authorizes the issuing or withholding of licenses, permits, approvals, etc., according as the designated officials arbitrarily choose, without reference to all of the class to which the statute or ordinance under consideration was intended to apply, and without being controlled or guided by any definite rule or specified conditions to which all similarly situated might knowingly conform, — is unconstitutional and void.”

The cases are numerous where a legislative body fixes a standard and then delegates to an administrative officer the power of determining whether in particular instances such standard is conformed to. That is not, however, this case. Certainly there is nothing that can come before the council of greater moment than the prescription of the limited uses to which real property may be put. It thereby affects, for bettér or worse, the value of all property in that locality. It is only in recent years that such power has been sustained at all, and certainly nowhere has it ever been determined that such great power can be delegated by a legislative body to a ministerial officer.

In the instant case it appears that the defendant, the safety director, acting as building inspector, determined for himself and declared to himself that the street upon which the relatrix’s property was located was a residence district. There was no proclamation or publication of that determination. It was recorded in a book kept by the defendant for his own convenience, a book not authorized by law. This determination, if sustained, would have all the force of an act of the General Assembly or an ordinance of the city of Athens; but it would appear in no public record, nor have any legal publication. While a change in the Constitution or statutes of the state or the ordinances of a city would be subject to a referendum, this determination by a single ministerial officer, having all the effect of law, would not be open to a vote by referendum.

The council was without authority pending the passage of a general zoning ordinance to confer upon the defendant the power claimed by him by virtue of Section 13. That section of the ordinance is void.

The relatrix was entitled to a permit under Section 3 of the ordinance, which is admittedly a valid section.

A writ of mandamus is awarded as prayed for.

Decree for relator.

Richards and Lloyd, JJ., concur.

Richards and Lloyd, JJ., of the Sixth Appellate District, sitting in place of Middleton, P. J., and Blosser, J., of the Fourth Appellate District.  