It is not my custom to write extended dissenting opinions but the case at bar is so important and the consequences of the reversal of the decree of the court below would be so far reaching, I do not feel that I will be justified in permitting the prevailing opinion to pass without comment. I am frank to admit that the theory of the majority is supported by many reputable authorities, and perhaps by a majority in number of the later authorities, who seem to be much taken with the prevailing idea in regard to the "city beautiful" as contradistinguished from the somewhat old-fashioned idea of the "city useful."
It has been my lot to see the City of Portland grow from a little muddy village into its present condition of progress and beauty. From Fourth Street on the west side of the Willamette to the last building on the heights west of the city, it has grown, in my memory, from a sparse collection of residences interspersed with small business buildings. These later were succeeded by more conspicuous *Page 154 business buildings while the residences retreated westward to that part of the city where we now find them and which constitute one of the principal attractions of the city. As business conditions required, the eastern portion of the West Side, the residential district, moved still farther west until now, where the early residences and the small business buildings of fifty or sixty years ago occupied most of the territory, we find that same portion covered with magnificent business buildings, banks, hotels and other structures, which are at once the pride of and credit to the city, while farther west, its residential district exceeds in beauty that of any other city in the northwest. And all this has been accomplished gradually, without the aid of any so-called zoning ordinance, but in obedience to the natural exigencies of business.
The same conditions, to a limited extent, have existed on the East Side, and I confess that, in spite of learned opinions to the contrary by many courts, I have always felt that when a man invested his means in a lot and proceeded to improve it by the erection of any sort of building, which in itself, or in the manner intended to be used, was not a nuisance, it was his right so to do; and that any abridgment of that right, for the benefit of the public, or for the sake of beauty or other esthetic reason, constituted a taking of his property without compensation.
As is said in the prevailing opinion, the plaintiff still has his property, but, before the zoning ordinance was passed, he had an unrestricted right to use it for any business not constituting a public or private nuisance. Now, he must confine its use to a particular object, or leave it vacant and unremunerative. *Page 155 "You take my house when you take that which doth support my house," says Shakespeare, and I do not see any way around the proposition that, when the public deprives an owner of an element, which goes to make up the value of his property, to wit, the right to use it for any lawful purpose, not a nuisance or dangerous to the community, it takes from him an interest in his property, and is for that reason unconstitutional.
The case is very well stated by Mr. Justice BURNETT, but a brief restatement may not be unprofitable.
The respondents in this case sought to erect a building on their land in East Pine Street, City of Portland, for the purpose of conducting a grocery store, milk and creamery business, but could not do so because of the zoning ordinance enacted November 4, 1924, which classified this property, on which the proposed store was to be built, as residential. Suit was brought to enjoin the city authorities from enforcing the provisions of this ordinance on the ground that they contravened the due process of law clause of the fourteenth amendment to the Constitution, and also the state Constitution. The lower court declared the ordinance void as depriving the plaintiffs of the proper use of their property in contravention of their constitutional rights, and the city authorities have appealed to this court.
The ordinance enacted November 4, 1924, affecting the entire City of Portland, divides the city into zones, and restricts these zones to certain uses. In the residential zones, only single dwelling-houses and outhouses can be constructed, and all business is restricted, except that usually carried on in homes such as dentistry or medicine. Then there are other *Page 156 zones less exclusive and in which two family houses can be built as well as apartment houses, and then there are zones for business. And in this manner the entire city, having a population of approximately 300,000 people and covering hundreds of square miles, is put under the exclusive control of this zoning ordinance both as to the kind of buildings to be built and the nature of the business to be carried on in the different localities.
The zoning ordinance also has the so-called local option feature giving a majority of the neighbors in certain localities the right to modify the rigor of the ordinance and allowing by vote some prohibited business to be carried on, or building constructed. Another feature is the power given to change the boundaries of the zones, thus giving it elasticity at the mere will of the council without any external utilitarian standard.
When it is considered that the entire City of Portland is subject to this ordinance, and that it constitutes a direct limitation on all the building and business carried on, its far-reaching scope is seen and raises the question of the source of such power vested in the city officials without any guide but their own will and the ordinance.
If it were not for the strange theory, which has grown up in many jurisdictions, that the police power is of so expansive a nature that it may overshadow and overrule constitutional rights, it would require no great degree of persuasion to convince us that the ordinance was void. There is, however, much respectable authority to the contrary, which requires a careful examination of the principles involved so that the court will not lightly set aside an ordinance, *Page 157 which, because of its enactment, has every presumption of validity in its favor.
The respondents here are owners in fee of the land located on East Thirteenth and Pine Streets. The store, which they propose to erect upon it from the evidence, is an ordinary retail store for their own profit, including a creamery where milk products are manufactured and distributed. Such a store on the property would be profitable. A dwelling-house might not. There is no semblance of a nuisance in the nature of the proposed business. A grocery-store, where groceries are sold, milk, cream and butter distributed and lunches served to customers, cannot be held either a nuisance or a quasi nuisance. Neither can we anticipate that it may become a nuisance: Boyd v. Board ofCouncil of Frankfort, 117 Ky. 119 (77 S.W. 669, 111 Am. St. Rep. 240); Ignaciunas v. Town of Nutley, 99 N.J.L. 389 (125 A. 121). There is nothing in the evidence to show that such a business or store building would affect detrimentally the public health, public morals, public safety or general welfare of the City of Portland although there is a mild pretense that it might do so. It is condemned by the ordinance merely because it is a business. The appellants' answer recites:
"Defendants admit that said zoning ordinance classifies the property mentioned in said supplemental complaint, and a large area adjacent thereto, as a residential district and prohibits the erection therein of any building for a commercial or industrial purpose."
The question then is whether a legitimate business can be prohibited or the construction of a useful *Page 158 building interfered with when it is prima facie outside of the scope of the police power.
A lawful business, harmless in its nature and not dangerous to the public either directly or indirectly, cannot be subjected to any police regulation whatever: 6 R.C.L. 219.
A fortiori it cannot be completely prohibited: Adams v.Tanner, 244 U.S. 590 (61 L. Ed. 1336, 37 Sup. Ct. Rep. 662, Ann. Cas. 1917D, 973, L.R.A. 1917F, 1163); Hill Military Academy v.Pierce (U.S.), 45 Sup. Ct. Rep. 571; Ex parte Dickey,144 Cal. 234 (77 P. 924, 103 Am. St. Rep. 82, 1 Ann. Cas. 428, 66 L.R.A. 928); State v. Redmon, 134 Wis. 89 (114 N.W. 137, 126 Am. St. Rep. 1003, 15 Ann. Cas. 408, 14 L.R.A. (N.S.) 229);Vanhorne's Lessee v. Dorrance, 2 Dall. 304 (1 L. Ed. 391, Fed. Cas. No. 16,857).
In Goldman v. Crowther (Md.), 128 A. 50, it is said:
"Private use and ownership of property has always been regarded by the courts of this state as one of the most valuable privileges guaranteed by its constitution, as one of the most durable and solid foundations of its government, and as indispensably necessary to the prosperity and welfare of the people, and the substitution of communal or state ownership for that system has not heretofore been regarded as within the powers of the court or the legislature."
The fourteenth amendment to the federal Constitution protects personal property rights from state interference, and all the states have similar constitutional provisions, but property burdened or regulated within the police power of the state is not in conflict with the due process of law clause of the Constitution, for the reason that the proper exercise *Page 159 of the police power does not constitute a taking contrary to due process of law. So that in every case we must determine whether a taking under the police power is justified according to its limitations. The police power must have its limitations, otherwise it would transcend the Constitution and nullify the due process of law clause. Vested rights cannot be impaired or destroyed under the pretense that the taking is under the police power when the contrary is the fact. While the police power in its nature is difficult to define, because it covers such a multitudinous number of special instances for its exercise, nevertheless the principle upon which it operates is not difficult to apprehend. Every well-governed state must have the power to regulate its internal affairs and the duties and obligations which each member of the body politic owes to his neighbor. The principle, upon which the police power is based, is best expressed in the maxim: sic utere tuo, ut alienum nonlaedas.
Chief Justice SHAW defines the police power by way of regulation, and not confiscation, in Commonwealth v. Alger, 7 Cush. (Mass.) 53, 84, as follows:
"We think it is a settled principle, growing out of the nature of well ordered civil society, that every holder of property, however absolute and unqualified may be his title, holds it under the implied liability that his use of it may be so regulated, that it shall not be injurious to the equal enjoyment of others, having an equal right to the enjoyment of their property, nor injurious to the rights of the community. * * Rights of property, like all other social and conventional rights, are subject to such reasonable limitations in their enjoyment, as shall prevent them from being injurious and to such reasonable restraints and regulations established by law, as the legislature, under *Page 160 the governing and controlling power vested in them by the constitution, may think necessary and expedient. * *
"But he is restrained; not because the public have occasion to make the like use, or to make any use of the property, or to take any benefit or profit to themselves from it, but because it would be a noxious use, contrary to the maxim, sic utere tuo, utalienum non laedas. It is not an appropriation of the property to a public use, but the restraint of an injurious private use by the owner, and is therefore not within the principle of property taken under the right of eminent domain."
This maxim comprehends a regulatory rule as distinguished from a confiscatory rule. All matters relating to the public health, public morals, and public safety are clearly within the police power. The chief trouble in the definition of the police power seems to be to ascertain the limitations of the general welfare phase of the police power. When can the police power be exercised for the general welfare? Can a man's property or vested rights be interfered with apart from matters relating to the public health, public morals or public safety, and be placed alone on the grounds of public welfare apart from these considerations? In other words, is the general welfare alone a sufficient basis for the exercise of the police power apart from any other reasons? We believe that, generally speaking, it is not. A man's vested rights cannot be taken away for the general welfare without just compensation. Property taken for the general welfare alone is equivalent to a taking for public use and comes more properly within the field of eminent domain. If we are to allow the taking of private property for the general welfare alone *Page 161 and without regard to the injurious use of such property, we have reached the point in our judicial evolution where private property has no further protection except the whim of the dominant majority. There is no escape from the logic of this situation. The Supreme Court of the United States in a large number of recent decisions has emphatically pronounced against the doctrine that the general welfare alone, either real or fancied, is a sufficient ground for the exercise of the police power.
In Hill Military Academy v. Pierce (U.S.),45 Sup. Ct. Rep. 571, the Supreme Court held that no theory of general welfare could take away from the parent the right to supervise the education of his own child.
In Meyer v. Nebraska, 262 U.S. 390 (67 L. Ed. 1042,43 Sup. Ct. Rep. 625, 29 A.L.R. 1446), it was decided that the liberty of the children to acquire a foreign language could not be prohibited by the delusive notion that the learning of a foreign language was detrimental to the public welfare.
In Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (67 L. Ed. 322, 43 Sup. Ct. Rep. 158, 28 A.L.R. 1321), it was decided that the state for the general welfare could not prohibit the mining of coal by the miners in such a way as to protect the surface property of the surface dwellers, but could mine to the full extent of their right.
In Eubank v. Richmond, 226 U.S. 137 (57 L. Ed. 156,33 Sup. Ct. Rep. 76, Ann. Cas. 1914B, 192, 42 L.R.A. (N.S.) 1123), where a city ordinance restricted the use of private property and established a building line within a certain distance from the street beyond which no building could be constructed, the ordinance was held void. *Page 162
In Chastelton Corp. v. Sinclair, 264 U.S. 546 (68 L. Ed. 841, 44 Sup. Ct. Rep. 405), the order of the rent commission of the District of Columbia cutting down rents for apartments in Washington was declared unconstitutional by Mr. Justice HOLMES as an unwarranted interference with private business.
In Adkins v. Children's Hospital, 261 U.S. 525 (67 L. Ed. 785, 43 Sup. Ct. Rep. 394, 24 A.L.R. 1238), the law giving to a regularly constituted board and its advisers the power to fix for women a minimum wage sufficient to maintain them in health and good morals was held repugnant to the provisions of the federal Constitution against deprivation of liberty without due process of law.
See also to the same effect: Wolff Packing Co. v. Court ofIndustrial Relations, 262 U.S. 522 (67 L. Ed. 1103, 43 Sup. Ct. Rep. 630, 27 A.L.R. 1280), where Chief Justice TAFT held the Industrial Court Act to fix wages in case of disputes to be invalid.
In Burns Baking Co. v. Bryan, 264 U.S. 504 (68 L. Ed. 813,44 Sup. Ct. Rep. 412, 32 A.L.R. 661), the Supreme Court held unconstitutional a law requiring bakers to make a loaf of bread of certain fixed dimensions. Mr. Justice BUTLER said:
"But a state may not, under the guise of protecting the public arbitrarily interfere with private business or prohibit lawful occupation or impose unreasonable and unnecessary restrictions upon them."
A private business which is harmless cannot be sacrificed on the altar of the public welfare. It is only when it is harmful in its nature or capable of working injury that it may be regulated for the public welfare. Or it might be put in another way, that the public welfare never requires the sacrifice or regulation of a legitimate private business *Page 163 incapable of working harm: Vanhorne's Lessee v. Dorrance, 2 Dall. 304 (1 L. Ed. 391, Fed. Cas. No. 16,857).
The mere act of restricting or curtailing rights of liberty or property cannot of itself and by its own power amount to general welfare, for it is such arbitrary action that the Constitution prohibits. And without there being something to act upon besides a harmless private business, the exercise of governmental prerogative exceeds the scope and purpose of the police power, and becomes mere unauthorized usurpation: Coppage v. Kansas,236 U.S. 1 (59 L. Ed. 441, 35 Sup. Ct. Rep. 240, L.R.A. 1915C, 960).
It follows that any private business in which there is no vice detrimental to the public, but fully legitimate and harmless, cannot be interfered with, burdened or destroyed under the guise of public welfare. It is conceded, of course, that the police power can stop a nuisance according to the maxim, sic utere tuo,ut alienum non laedas.
For these reasons we do not desire to follow the cases from other states in which zoning ordinances affecting vested rights have been held valid although enacted under the guise of general welfare and having no other utilitarian basis except the esthetic tastes of certain groups of citizens living in favorable localities, and who desire segregation apart from stores and business for their own convenience and gratification.
Zoning ordinances created for the supposed general welfare because of esthetic reasons have been held void in the following cases:
Ignaciunas v. Town of Nutley, 99 N.J.L. 389 (125 A. 121). In that case Chief Justice GUMMERE said: *Page 164
"The narrow question, accordingly, which we are called upon to consider in the determination of this case is, Will the erection and user of a combined store and dwelling house upon the lot of the respondent constitute a menace to the health or the safety of the people of the town of Nutley, or to the general welfare of the municipality? That the mere erection of this building, regardless of the use to which it may afterward be put, is likely to be injurious to the health or safety of the residents of the town is asserted, but, practically, not argued by counsel. And, as we see it, no well grounded argument can be made in support of the assertion. * * The bald assertion of counsel is that the mere presence of a store building in the so-called residence district of Nutley is in itself a menace to the public health and the public safety, notwithstanding that the business carried on therein will not constitute such a menace. Both common experience and common sense demonstrate the unsoundness of such an assertion. On what theory can it be said that the restraining of the respondent from erecting a combined store and dwelling house upon his property will tend to promote the general welfare of the community? It is probable that its presence there, without regard to its use, would be objectionable to other property owners in the immediate neighborhood, who would prefer that business places should not be established in that part of the town. But that is quite immaterial, for such property owners have not acquired the right to impose upon owners of other property in the vicinity any restrictions upon the lawful use thereof."
In Goldman v. Crowther (Md.), 128 A. 50, 55-60, the Supreme Court of Maryland was confronted with a similar situation under the zoning ordinance in Baltimore City. The court said:
"In dealing with the validity of the ordinance before us, therefore, we will start with the premise *Page 165 that if its purpose and provisions can only be justified by invoking the police power of the State, they must bear some substantial cognizable relation to the public health, the public security, the public morals, the public welfare, or the public comfort. * *
"One of the most striking manifestations of this tendency is the great volume of so-called zoning legislation which has in recent years been written into the laws of the several states, of which the ordinance before us is an apt illustration and which subject private property to an infinite variety and number of restrictions limiting its use, many of which rest for sanction upon no more definite or substantial foundation than that they are supposed to be in the interest of general prosperity or the public convenience. * * But the question before us goes much further than that; it is whether the power to hold, use, and enjoy property can be restricted or taken away by the state under the guise of the police power for purely esthetic reasons or for any such elastic and indeterminate object as the general prosperity without compensation. * *
"Their only apparent purpose was to prevent the encroachment of business establishments of any kind upon residential territory, regardless of whether they affected in any degree the public health, morals, safety, or welfare. In effecting that purpose they take from the property owner the right to use his property for any purpose not sanctioned by the letter of the ordinance or allowed by the practically unfettered discretion of the board of zoning appeals, and deprive him of privileges guaranteed by article 23 of the Maryland Bill of Rights.
"We have reached the conclusion, therefore, that so much of the ordinance as attempts to regulate and restrict the use of property in Baltimore City is void."
In Spann v. Dallas, 111 Tex. 350 (235 S.W. 513, 516, 19 A.L.R. 1387), the Supreme Court of Texas *Page 166 declared the city zoning ordinance of Dallas void. The court said:
"The ordinance visits upon ordinary retail stores, engaged in a useful business, conducted in an orderly manner, frequented and availed of by respectable people, and doubtless serving as a convenience to many, all the proscription visited upon common nuisances."
A majority of the cases hold a zoning ordinance based on esthetic grounds void, and it cannot be upheld for fanciful reasons: People v. Chicago, 261 Ill. 16 (103 N.E. 609, Ann. Cas. 1915A, 292, 49 L.R.A. (N.S.) 438); St. Louis v. Dorr,145 Mo. 466 (41 S.W. 1094, 46 S.W. 976, 68 Am. St. Rep. 575, 42 L.R.A. 686); Eubank v. Richmond, 226 U.S. 137 (57 L. Ed. 156,33 Sup. Ct. Rep. 76, Ann. Cas. 1914B, 192, 42 L.R.A. (N.S.) 1123); Clements v. McCabe, 210 Mich. 207 (177 N.W. 722);Willison v. Cooke, 54 Colo. 320 (130 P. 828, 44 L.R.A. (N.S.) 1030); Calvo v. New Orleans, 136 La. 480 (67 So. 338); 2 Dillon on Municipal Corp. (5 ed.), § 695; Byrne v.Maryland Realty Co., 129 Md. 202 (98 A. 547, L.R.A. 1917A, 1216); Quintini v. Board of Bay St. Louis, 64 Miss. 483 (1 So. 625, 60 Am. Rep. 62); Commonwealth v. Boston Adv. Co.,188 Mass. 348 (74 N.E. 601, 108 Am. St. Rep. 494, 69 L.R.A. 817);Fruth v. Board of Affairs, 75 W. Va. 456 (84 S.E. 105, L.R.A. 1915C, 981); State v. Stahlman, 81 W. Va. 335 (94 S.E. 497, L.R.A. 1918C, 77); Varney Green v. Williams, 155 Cal. 318 (100 P. 867, 132 Am. St. Rep. 88, 21 L.R.A. (N.S.) 741); Stateex rel. Lachtman v. Houghton, 134 Minn. 226 (158 N.W. 1017, L.R.A. 1917F, 1050); Handy v. South Orange (N.J.),118 A. 838; State v. McKelvey, 301 Mo. 130 *Page 167 (256 S.W. 495); Ambler Realty Co. v. Euclid, 297 Fed. 307; People v.Walsh, 120 Misc. Rep. 467 (199 N.Y. Supp. 534); City of Utica v. Hanna, 195 N.Y. Supp. 225 (202 A.D. 610); Piper v.Ekern, 180 Wis. 586 (194 N.W. 159, 34 A.L.R. 32); Passaic v.Paterson Bill Posting Co., 72 N.J.L. 285 (62 A. 267, 111 Am. St. Rep. 676, 5 Ann. Cas. 995); Fitzhugh v. Jackson,132 Miss. 585 (97 So. 190, 33 A.L.R. 279).
A great number of states have upheld zoning ordinances based on esthetic reasons.
In Ware v. City of Wichita, 113 Kan. 153, 157 (214 P. 99), the Supreme Court of Kansas said:
"With the march of time, however, the scope of the legitimate exercise of the police power is not so narrowly restricted by judicial interpretation as it used to be. There is an aesthetic and cultural side of municipal development which may be fostered within reasonable limitations."
And in State v. Harper, 182 Wis. 148 (196 N.W. 451, 33 A.L.R. 269), the Supreme Court said:
"The benefits to be derived by cities adopting such regulations may be summarized as follows: They attract a desirable and assure a permanent citizenship; they foster pride in and attachment to the city; they promote happiness and contentment; they stabilize the use and value of property and promote the peace, tranquillity, and good order of the city."
In Miller v. Board of Public Works (Cal.), 234 P. 381 (38 A.L.R. 1479), the Supreme Court of California, upholding the zoning ordinance of the City of Los Angeles according to Judge LENNON, said: *Page 168
"The establishment of such districts is for the general welfare because it tends to promote and perpetuate the American home."
The Supreme Court of Massachusetts, in upholding the zoning ordinance of that state, said in Brett v. BuildingCommissioner of Brookline, 250 Mass. 73 (145 N.E. 269, 271):
"It may be a reasonable view that the health and general physical and mental welfare of society would be promoted by each family dwelling in a house by itself. Increase in fresh air, freedom for the play of children and of movement for adults, the opportunity to cultivate a bit of land, and the reduction in the spread of contagious diseases may be thought to be advanced by a general custom that each family live in a house standing by itself with its own curtilage. These features of family life are equally essential or equally advantageous for all inhabitants, whatever may be their social standing or material prosperity. There is nothing on the face of this by law to indicate that it will not operate indifferently for the general benefit."
These excerpts from the foregoing opinions by the Supreme Court of Kansas, Wisconsin, California and Massachusetts, upholding zoning ordinances, show the flimsy and unsound pretexts advanced as grounds for sustaining them. The Kansas court, in the face of the general rule heretofore sanctioned by all the courts, declares that the police power may be invoked for esthetic considerations. The Supreme Court of Massachusetts and of California declare that it is more healthy to live in a single dwelling-house than in a double dwelling-house. But we cannot take judicial notice of this fact, if it be true, and we doubt that it is true. Such reasons as are given by the foregoing cases for upholding *Page 169 the zoning ordinances do not strike us as substantial. Possible or conjectural good to others is too nebulous a reason to deprive a person of his property when it is an actual fact that these zoning ordinances are usually enacted for solely esthetic purposes. Fictitious reasons having no foundation in fact should not be given as a reason for sustaining their validity. I cannot see how grouping dwelling-houses in one locality, and grouping apartment houses in another locality, and grouping stores in another locality can add to the general welfare. On the contrary,prima facie such a grouping would seem to be detrimental, as it would interfere with natural growth and progress. Uniformity for the sake of uniformity cannot be upheld to advance the general welfare. That the general welfare is advanced by these zoning ordinances is in my opinion at least doubtful, and certainly reasons which are doubtful cannot form the basis of depriving one of his constitutional rights. For that reason I cannot follow the reasoning of the above cases. It is a well-settled rule in the exercise of the police power that the end to be accomplished must come within the scope of the police power and the means to accomplish that end must be reasonably adapted to bring about the desired result. See State v. Redmon, 134 Wis. 89 (114 N.W. 137, 126 Am. St. Rep. 1003, 15 Ann. Cas. 408, 14 L.R.A. (N.S.) 229).
In Mugler v. Kansas, 123 U.S. 623 (31 L. Ed. 205, 210,8 Sup. Ct. Rep. 273), Mr. Justice HARLAN said:
"The courts are not bound by mere forms, nor are they to be misled by mere pretenses. They are at liberty — indeed, are under a solemn duty — to took at the substance of things, whenever they enter upon the inquiry whether the legislature has transcended the limits of its authority. If, therefore, a statute *Page 170 purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is a palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the constitution."
General welfare alone apart from the principle sic utere tuo,ut alienum non laedas, or some present public emergency, does not justify the taking of property under the guise of police power.
In the present case property is taken from A and given to B because B is given the right to prevent the beneficial use of A's property and this is done under the guise of public welfare, but it does not appear that such taking is for the public welfare.
In Lawton v. Steele, 152 U.S. 133, 137 (38 L. Ed. 385,14 Sup. Ct. Rep. 499), it is said:
"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, second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon the 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. In other words, its determination as to what is a proper exercise of its police powers is not final or conclusive, but is subject to the supervision of the courts."
I also believe that this zoning ordinance is void in that it places arbitrary power in the hands of the council. *Page 171
It is an essential principle of American constitutional law that this shall be a government of laws and not of men. Giving to the council and neighbors the right to change the boundaries of the zoning law at will and without any external legal standard by which such changes could be made is a grant of arbitrary power:Yick Wo v. Hopkins, 118 U.S. 356 (30 L. Ed. 220, 6 Sup. Ct. Rep. 1064); Eubank v. Richmond, 226 U.S. 137 (57 L. Ed. 156,33 Sup. Ct. Rep. 76, Ann. Cas. 1914B, 192, 42 L.R.A. (N.S.) 1123); Barthet v. New Orleans (C.C.), 24 Fed. 563; State v.Mahner, 43 La. Ann. 498 (9 So. 481); Montgomery v. West,149 Ala. 311 (42 So. 1000, 123 Am. St. Rep. 33, 13 Ann. Cas. 651, 9 L.R.A. (N.S.) 659); May v. People, 1 Colo. App. 157 (27 P. 1010); Baltimore v. Radeske, 49 Md. 230 (33 Am. Rep. 239); Hagerstown v. Baltimore O.R. Co., 107 Md. 178 (68 A. 490, 126 Am. St. Rep. 382); Cicero Lumber Co. v. Cicero,176 Ill. 9 (51 N.E. 758, 68 Am. St. Rep. 155, 42 L.R.A. 696);Noel v. People, 187 Ill. 587 (58 N.E. 616, 79 Am. St. Rep. 238, 52 L.R.A. 287); Richmond v. Dudley, 129 Ind. 112 (28 N.E. 312, 28 Am. St. Rep. 180, 13 L.R.A. 587); Elkart v.Murray, 165 Ind. 304 (75 N.E. 593, 112 Am. St. Rep. 228, 6 Ann. Cas. 748, 1 L.R.A. (N.S.) 940); Bear v. Cedar Rapids,147 Iowa, 341 (126 N.W. 324, 27 L.R.A. (N.S.) 1150). See cases cited in Ex parte Broussard, 74 Tex.Crim. Rep. (169 S.W. 660, Ann. Cas. 1917E, 919, L.R.A. 1918B, 1097).
Upon full consideration of the case, the decision of the lower court should be affirmed.