CONCURRING OPINION. I am not in accord with that part of the majority opinion holding in effect that the board of zoning appeals has the power to grant relief under the facts in this case.
The powers of the board of zoning appeals are defined and limited in section 48-2304 Burns 1933, § 11657 Baldwin's 1934. It is therein provided:
"Such board of zoning appeals shall hear and determine appeals from and review any order, requirement, decision or determination, made by administrative official or board charged with the enforcement of any ordinance or regulation adopted pursuant to this act, and shall permit and authorize exceptions to and variations from the district regulations in the classes of cases or in particular situations specified in such ordinance, and they shall hear and try all matters referred to them or upon which they are required to pass under any such ordinance of the common council adopted pursuant to this act."
In the latter part of this same section we find the following provision:
"Where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of such ordinance, the board of zoning *Page 85 appeals shall have power, in passing upon appeals, or petitions for variance from district regulations to vary or modify any of the rules, regulations or provisions of such ordinance so that the spirit of the ordinance shall be observed, public welfare secured or substantial justice done."
It is from the first above quoted part of the statute that the majority opinion finds authority vested in the board of zoning appeals to grant the relief herein sought.
We think it is manifest from the general purpose underlying any zoning ordinance as well as from the provisions in section 48-2304 (§ 11657 Baldwin's), supra, that the power of the board of zoning appeals to vary the application of the provisions of the ordinance is to be exercised sparingly. The common council is the legislative body of the municipality, and power to enact ordinances is vested in it. It could not delegate the power to pass a general zoning ordinance to the board of zoning appeals, or the power to amend such an ordinance. Such an attempt on the part of the common council to do so would be clearly unconstitutional. I do not think the above quoted statute, properly interpreted, gives to the board any such power. To hold that the board of zoning appeals had jurisdiction and authority to relieve appellees' property from the restrictions imposed by the ordinance here in question would by the same reasoning have authority, upon a proper petition, to relieve adjacent property of such restrictions, and when such power is progressively exercised would result in relieving an entire "use district," or at least the major part thereof, of the restrictions imposed by the ordinance. Such action would amount to a substantial amendment to the ordinance, and it is for this reason that we say that the power of the board of zoning appeals must necessarily be narrow and limited. It has so been held by the Appellate Court of Indiana in *Page 86 the case of O'Connor et al. v. Overall Laundry, Inc., et al. (1934), 98 Ind. App. 29, 183 N.E. 134, and this court denied a petition to transfer. It was also held to the same effect in the case of Anna Prusik et al. v. Board of Appeal, etc. (1927),262 Mass. 451, 160 N.E. 312.
If we are correct in our construction of the above statute, then appellee is in a position to make a direct attack in a court of law, challenging the constitutionality of this ordinance on the ground that it violates the fourteenth amendment of the Federal Constitution of the United States in that it denies to him the equal protection of the law and takes his property without due compensation.
It is fundamental that individual rights in the ownership of property existed even before the adoption of our constitution. Such right was not created by the constitution, but it does guarantee to its citizens such right. The constitutional provision, that private property shall not be taken for public use without just compensation or without due process of law, must yield to the interest of the public welfare as expressed through the police power of the state, but only then to the extent that such exercise bears a substantial relation to the promotion of public health, safety, morals or general welfare.
It is made to appear in this case and so determined by the trial court that the zoning of appellee's property in the "use district C," which denies to property owners in such "use district" the right to use their property for certain commercial uses, bears no substantial relation to the public health, the public morals, the public safety or public welfare in its proper sense.
In the case of Nectow v. Cambridge (1928), 277 U.S. 183, 187, 48 S.Ct. 447, the trial court made the following finding:
"`I am satisfied that the districting of plaintiff's land in a resident district would not promote the *Page 87 health, safety, convenience and general welfare of the inhabitants of that part of the defendant, City, taking into account the natural development thereof and the character of the district and the resulting benefit to accrue to the whole City and I so find.'"
The Supreme Court said:
"We quite agree with the opinion expressed below, that a court should not set aside the determination of public officials in such a manner unless it is clear that their action has no foundation in reason and is a mere arbitrary or constitutional exercise of power and no substantial relation to the public health, the public morals, the public safety or the public welfare in its proper sense."
We think the above quotation states the rule applicable to the case at bar and it is supported by numerous authorities, among which are Euclid v. Ambler Realty Company (1926),272 U.S. 365, 47 S.Ct. 114; Forbes v. Hubbard et al. (1932), 348 Ill. 166, 180 N.E. 767; Washington ex rel. v. Roberge (1928),278 U.S. 116, 49 S.Ct. 50; Koch et al. v. City of Toledo (1930), 37 F.2d 336.
It is the duty of the court to so construe a statute so as to avoid constitutional objections if possible. To construe the statute here in question, so as to give the board of zoning appeals the power stated in the majority opinion, in my judgment would render the statute unconstitutional, in that it delegated to a ministerial board legislative power. But if we construe the statute as giving to the board of zoning appeals the more limited power to vary from district regulations or provisions of such ordinance, if and when, the enforcement of the strict letter of the ordinance would work unnecessary hardship upon property owners, and to give force and effect to the spirit of the ordinance, then we avoid the constitutional objection above stated, as such slight variations or modifications would not amount to a *Page 88 change or amendment of the ordinance but would retain and enforce the spirit of the ordinance as written.
We think it was proper for the appellees to present to the court the question of the constitutionality of the ordinance as applied to their property, and, if the evidence was such as to show clearly that the ordinance deprived appellee of his property without due compensation or denied to appellee the equal protection of the law, the court would be justified in holding that the restrictions which so deprived appellee of such constitutional rights would be void as to such property.
The judgment of the court holds that the ordinance herein is void. I think the judgment as entered is too broad, and goes farther than the prayer of the complaint asks and farther than the facts justify. The judgment should only affect plaintiff's property, and as to that property, it should have only relieved it of the unconstitutional restrictions complained of, to-wit, the restriction which denied appellees the right to use their property for the purposes urged.
The record shows that there was a trial by jury and that the judgment of the court was based upon that verdict. While no question is presented as to the validity of a jury trial, for the reason that appellant requested a jury, and therefore could not object thereto, and inasmuch as the verdict of the jury was favorable to appellees, they were also in no position to object on appeal. But such a procedure has no basis in our law of procedure and was clearly unauthorized. The questions here were clearly questions for the court and the judgment should not have been based upon a verdict of a jury. For these reasons I concur in the reversal of this judgment.
Fansler, J., concurs in this opinion. *Page 89