Plaintiffs are the owners of a tract of land 100 feet square at the southeast corner of Thirteenth and East Pine Streets in the *Page 172 City of Portland. They made written application to the city officials for permission to erect on said property a one-story concrete and brick building to be used as a store and creamery, but their application was denied because of an ordinance which prohibited the erection of any building on said property to be used for said purpose. Plaintiffs thereupon commenced suit to enjoin the enforcement of said ordinance, contending that the ordinance was unconstitutional and void in that it operated to deprive them of their property without due process of law and was a taking of private property for public use without just compensation. From a decree holding said ordinance to be unconstitutional and void the city has appealed.
The ordinance referred to is what is known as a zoning ordinance which divides the city into districts and imposes on all private property in such districts uniform building restrictions relating to use. The ordinance imposes no restrictions as to the height, bulk or area of buildings, but restricts as to use only. Section 3873, Or. L., authorizes the city council by ordinance to divide the city into districts within some of which it shall be lawful and within others unlawful to erect or maintain certain buildings or to carry on certain trades or callings, or within which the height and bulk of future buildings shall be limited, and by Section 3874, Or. L., the council may by ordinance regulate, restrict and segregate the location of industries, the several classes of business, trades or callings, the location of apartment or tenement houses, club-houses, group residences, two family dwellings, single family dwellings, and the several classes of public and semi-public buildings, *Page 173 and the location of buildings or property designed for specified uses, "and may divide the city into districts of such number, shape and area as the council may deem best suited to carry out the purposes of this act," etc.
The property in question is located in what is designated in the ordinance as "Class II. Residential District." The ordinance makes it unlawful for any property owner in said district to erect, alter or maintain therein any building or structure other than single family dwellings, two family dwellings, flats, apartment houses, boarding-houses, hotels, multiple dwellings, parks, playgrounds, truck gardens, farms, and in connection with residential buildings suitable outbuildings such as private garages for not more than three motor vehicles, a pergola, a summer house, a greenhouse or hothouse for private use only, and prohibits the erection, alteration or maintenance in said district of any building used for any other purpose than those expressly designated. It also prohibits the occupants of the buildings authorized by the ordinance from engaging in any professions except such "as are ordinarily carried on in the home, including the home office of a physician, surgeon, or dentist." The ordinance does, however, designate certain "local option uses" which may be made of property within the district upon the consent being obtained of more than 50 per cent of the owners of adjoining or adjacent property within certain prescribed distances. The local option uses thus permitted upon consent of adjoining property owners are a baby home, billboard, boys' and girls' aid home, a church, convent, garage (large or public), a green-house, hospital, provided it is not used for the treatment of insane or narcotic cases, a hothouse, library, *Page 174 monastery, public service building, nursery, old people's home, orphanage, parish house, postoffice, railroad station, refuge home, sanitarium, provided the same is not used for the treatment of insane or narcotic cases, signboard, undertaking parlor, chapel and similar uses. The uses which are absolutely prohibited by the ordinance in districts of the class referred to "include stores, mercantile buildings, manufacturing plants, places of amusement, and similar uses."
The evidence discloses that but one-half block west of plaintiffs' premises, the entire area extending east from the Willamette River to the center of the block between East Twelfth and East Thirteenth Streets and running north and south for several miles is all zoned as a business district wherein the owners of property are authorized to erect and maintain buildings such as plaintiffs' proposed building, and to use such buildings for the purposes proposed by plaintiffs. It also discloses that the same condition exists both to the north and south of plaintiffs' premises, — to the north but a block and a half therefrom and to the south but one block therefrom, and that immediately to the west and south of plaintiffs' premises, between these premises and the district not restricted in respect to store buildings, a part of the land is vacant, and where there are buildings they are, for the most part, old and dilapidated, some of which are used for business purposes.
Plaintiffs contend that the restrictions and limitations which are imposed by the ordinance upon their use of their property constitute a taking for public use without just compensation in violation of Article I, Section 18 of the Constitution of the state, which guarantees *Page 175 that private property shall not be taken for public use without just compensation, and, except in case of the state, without such compensation being first assessed and tendered. Hence, if this restriction upon the use of the premises is an exercise of the power of eminent domain, it cannot be sustained without just compensation being first assessed and tendered, which has not been done. But this ordinance is an attempt to exercise the police powers of the state and not the power of eminent domain, and therefore the case does not come within that constitutional guarantee if the regulation imposed by the ordinance is a valid exercise of the police powers. The power which the city is attempting to exercise under this ordinance is one which cannot be exercised at all unless there can be found some justification for its exercise under the police power of the state, while if the restriction is a valid exercise of the police power, the injury resulting to plaintiffs is of no importance for in such case the law affords no remedy whereby compensation can be recovered for any loss or injury which may result to plaintiffs therefrom.
That a municipality in the exercise of the police powers delegated to it by the legislature may regulate the conduct of an individual or the use of his property is beyond dispute, but before the municipality can lawfully do so, the regulation must have some reasonable relation to some end within the competency of the municipality. It is not within the competency of a municipality to regulate or restrict the lawful use of property unless such regulation or restriction tends, in some degree, to promote or secure the public health, safety, morals or general welfare of the inhabitants of the municipality, and, if such regulation *Page 176 or restriction bears no real or substantial relation to the accomplishment of one of these ends, it cannot be justified as a valid or proper exercise of the police power, and such regulation or restriction is itself unauthorized and void. Hence, any restriction or limitation by any law-making body, under the guise of the police power, limiting the right of the owner to make any lawful use of his property cannot be justified unless such use is or may become, in some way, detrimental to the general welfare of the municipality or to the public health, safety and morals of the inhabitants of the community. If the restriction or limitation upon the lawful use of property goes beyond that, it is a taking of private property for a public use for which compensation must be made and comes within the rule that "while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking." Pennsylvania CoalCo. v. Mahon, 260 U.S. 393 (67 L. Ed. 322,43 Sup. Ct. Rep. 158, 28 A.L.R. 1321).
It is a mistake to believe that under the law the state or a municipality of the state has, in any case, a choice of exercising either the power of eminent domain or the police power, as it pleases. When it comes to imposing regulations restricting or limiting the lawful use of property, unless such restriction is one which can lawfully be imposed by a proper and valid exercise of the police power, it can only be imposed by the exercise of the power of eminent domain for which compensation must be made, as, otherwise, such restriction would be a taking of the property in violation of the federal Constitution. This is so because of the very nature of our state and national governments and of the division among them of the powers of government, each of which is supreme *Page 177 within its respective sphere. Upon the adoption of the Constitution of the United States which thereby created a dual form of government, that of the states and that of the federal government, the police powers of the states were not granted to the federal government but were reserved to the states themselves. At the same time and by the adoption of the federal Constitution certain powers were granted to the federal government which, because of the grant, the states were thereafter prohibited from exercising. Among these, upon the adoption of the fourteenth amendment, the power was granted to the federal government to enforce the provision contained in the federal Constitution that "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws."
Since each government is supreme within its own sphere, the exercise of these respective powers by the state or by the national government requires that the police powers of the state restricting the use of property should be exercised only when reasonably necessary for the accomplishment of some proper end within the competency of the state, and makes any regulation by the state restricting the owner's right to make a lawful use of his property a violation of the federal Constitution unless such restriction is essential to the accomplishment of such end, in which case the provisions of the federal Constitution do not apply. But, if the restriction is one which, under the guise of the police power, limits the lawful use of property and bears no relation to the welfare of *Page 178 the public or to the public health, safety and morals, so far as the restriction imposes a limitation upon the use of property, it is a taking of private property either for a private use or for a public use without compensation, and, in either event, violates both the state and federal Constitutions; while, if it is a proper exercise of the police power of the state, then the restriction is not a violation of either of said Constitutions. When properly understood, no conflict can arise in the exercise by the states or by the federal government of their respective powers.
In using the words "public health, safety, morals, and general welfare" we do not desire to be understood as attempting to intimate that the state cannot delegate to one of its municipalities the power to enact ordinances embracing regulations designed to promote the public convenience, or the general prosperity, or the good order and security of the inhabitants of the city. We assume that the words used include the convenience, prosperity and good order of the inhabitants of a municipality, and everything essential to their welfare and happiness which, so far as under our form of government, can be exercised by a municipality as a valid and proper exercise of the police power when such powers are delegated to it by the legislature of the state. What we wish to be understood as holding is that a regulation imposed by a municipality restricting the lawful use of property must be designed to promote one of said ends, and that if it is not so designed, the regulation restricting such use is not a valid or proper exercise of the police power, and that any restriction restricting the lawful use of property which is not a valid and proper exercise of the police power is a violation of the federal Constitution. *Page 179
Within the limits of the powers conferred by the federal Constitution the federal government is supreme: 12 C.J., p. 743. Hence, if the ordinance in question in restricting plaintiffs' use of their own property is not a valid and proper exercise of the police power, it is void because in contravention of the federal Constitution. Whether or not a particular statute or ordinance is constitutional is necessarily a matter of law, and a statute or ordinance must be tested, not by what has been done under it, but by what the law authorizes to be done under its provisions: 12 C.J., p. 786. But, as was said in PacificPalisades Assn. v. City of Huntington Beach (Cal.App.),237 P. 538, 540:
"Ordinances having that effect (regulating the business of operating oil wells and prohibiting their operation within delineated areas and districts) must be reasonable, and must be for the purpose of protecting the public health, comfort, safety, or welfare. Every intendment is to be made in favor of the lawful exercise of municipal power making such regulations, and it not the province of courts, except in clear cases, to interfere with the exercise of that authority. But, as was recently said by the Supreme Court of the United States, `while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.' Pennsylvania Coal Co. v. Mahon,260 U.S. 393, 415 (67 L. Ed. 322, 43 Sup. Ct. Rep. 158, 28 A.L.R. 1321). Therefore, notwithstanding this general grant of power, it is a thoroughly well-settled doctrine that municipal by-laws and ordinances undertaking to regulate useful business enterprises are subject to investigation in the courts, with a view to determining whether the law or ordinance is a lawful exercise of the police power; or whether, under the guise of enforcing police regulations, *Page 180 there has been an unwarranted and arbitrary interference with the right to carry on a lawful business, to make contracts, or to use and enjoy property." Citing cases.
Plaintiffs propose to construct upon their said property a one-story concrete and brick building, and when constructed to use the same as a store and a creamery for the sale at wholesale and retail of milk and cream. The effect of the ordinance in question is to absolutely prohibit them from constructing said or any building for said purpose, and from making such use of their said property. The use of property is one of the most essential elements of ownership. As has been said: "There can be no conception of property aside from its control and use, and upon its use depends its value." Ambler Realty Co. v. Village ofEuclid, 297 Fed. 307, 318. Property is more than the mere thing which a person owns. It includes the right to acquire, use and dispose of it, and these essential attributes of property are protected by the federal Constitution: Buchanan v. Warley,245 U.S. 74 (62 L. Ed. 149, 38 Sup. Ct. Rep. 6, Ann. Cas. 1918A, 1201, L.R.A. 1918C, 210).
In determining whether the particular restrictions imposed by the ordinance upon plaintiffs' use of their property is a valid exercise of the police power or is a violation of the federal Constitution and therefore void, we copy a statement, with which we are in entire accord, that is contained in the decision of the court in the case of Goldman v. Crowther (Md.), 128 A. 50,51, as follows:
"This question can be approached by either of two avenues: One, legal; the other, political and sociological. If approached by the former, the validity of the restraints and prohibitions of the ordinance *Page 181 must depend upon whether they violate certain definite guaranties and assurances found in the federal and state Constitutions and the law of the land. If approached by the latter, the question is to an extent freed from the embarrassment of harmonizing any apparently repugnant provisions of the act with those guaranties, since in such case the end to be accomplished and the benefit to be derived are the main factors to be considered, and the rights of mere individuals may be subordinated to the public convenience upon the principle that such rights are always subject to the paramount authority of the state to subordinate them to what is conceived by those speaking for it to be for the benefit of the state as representing all the citizens.
"Which one of these two methods of approach should be used in this case is a question which goes to the root of our system of government; but without referring further to that, it is sufficient to say that in our opinion we are not at liberty to examine the question from any other than a legal standpoint, and therefore we cannot be controlled in our consideration of the validity of this ordinance by its possible benefit to the public, if in point of fact that benefit is purchased by appropriating the rights and property of individuals to the public use without just compensation, and by the violation of the guaranties of the state and federal Constitutions."
The law upon this question is clearly and tersely stated inWillison v. Cooke, 54 Colo. 320, 328 (130 P. 828, 44 L.R.A. (N.S.) 1030), as follows:
"A store building in a residence section of the city is not desirable from an aesthetic point of view; but restrictions for this purpose alone cannot be upheld, as it is only those having for their object the safety and welfare of the public which justifies restricting a use of property by the owner. * * One of the essential elements of property is the right to its unrestricted use and enjoyment; and as we have seen that *Page 182 use cannot be interfered with beyond what is necessary to provide for the welfare and general security of the public. Enforcing the provisions of the ordinances in question does not deprive the petitioner of title of his lots, he would not be ousted of possession, he would still have the power to dispose of them; but although there would be no actual or physical invasion of his property, he would be deprived of the right to put them to a legitimate use which does not injure the public and this without compensation or any provision therefor. This would clearly deprive him of his property without compensation and without due process of law."
See, also, Spann v. Dallas, 111 Tex. 350 (235 S.W. 513, 19 A.L.R. 1387, and annotation in 19 A.L.R., at page 1395, and the cases there cited).
In the case of Goldman v. Crowther, supra, the question was the validity of an ordinance almost upon all-fours with the ordinance under consideration, and it was held that the ordinance was unconstitutional and void. Applying these fundamental principles to the facts of this case, we conclude that the construction on plaintiffs' property of a one-story concrete and brick store building to be occupied and used for a store and creamery will not, nor is it suggested that it will, increase the fire risks and hazards any more than would the construction of any other building to be used for any of the purposes authorized by the ordinance. The business of carrying on a store and creamery is lawful and if properly conducted at said place cannot be detrimental to the public health, safety, morals or general welfare of the inhabitants of that neighborhood or of the city at large; and, if improperly conducted, by ordinances now in force, the city can prohibit its being thus improperly conducted. The business proposed is one that does not call for the exercise of the police power and any regulation *Page 183 restricting the use of the property for the purposes proposed is arbitrary, unreasonable and beyond the legislative power of the state or of the municipality, and since this ordinance has no relation to any end within the competency of the state, the restriction imposed by the ordinance comes within the prohibition of the federal Constitution and deprives plaintiffs of a property right without due process of law, and, in so far as it affects plaintiffs' right to use their property for the purposes proposed, it is unconstitutional and void.
We think further that an ordinance which prohibits the occupancy of buildings within a class II residential district in the City of Portland for a baby home, a boys' and girls' aid home, a church, a convent, a greenhouse, a hospital, not used for the treatment of insane or narcotic cases, a hothouse, a library, a monastery, a public service building, a nursery, an old people's home, an orphanage, a parish house, a postoffice, or a railroad station, except when consented to by 50 or more per cent of the adjoining property owners holding property within 200 feet of the property to be thus used, is an unreasonable restriction upon the use of property and it cannot be upheld under any valid exercise of the police power; and further, that where the proposed use by the owner is for either or any of said purposes, all of which are lawful and none of which are detrimental to the welfare of the city or to the inhabitants in the immediate neighborhood thereof, the delegation to such adjoining property owners of the power to determine whether the property may be used for said purposes, or any of them, is an unconstitutional delegation by the city to the property owners of the power to determine whether such use of such property may be made or not. *Page 184
For those reasons, as well as for the reasons advanced by Mr. Chief Justice McBRIDE, the ordinance in question, in so far as it affects the use of property within class II residential districts for the purposes above stated, is unconstitutional and void, and that to the extent stated the decision of the lower court should be affirmed.