LIMITATION ON THE EXERCISE OF POLICE POWER.

Court of Appeals for Hamilton County.

#### Charles C. Meade v. The City of Cincinnati, et al.

Decided, May 23, 1921.

*Municipal Corporations*— Public *Welfare Can Not 'be Based on the Question of Injury or Benefit to Private Property*— Control *of the Character of Structures not Within the Police Poioer, When*— In*validity of Ordinance Relegating Garages to the Rear of Residences.*

1. The police power can not be exercised for purely esthetic purposes.

2. When the refusal by a city to permit the construction of a garage is based on an ordinance providing “except when the commissioner of buildings otherwise approves, minor garages shall he located to the rear of the established line of the houses facing the street” and the question of the public morals, safety, health and public welfare are not involved, such refusal is not a valid exercise of the public power and interference with the construction will be enjoined.

*Boettinger & Street,*for plaintiff.

*Saul Zielonka, City Solicitor,*and *Dennis J. Byan,*and *Max Schiff, Assistant City Solicitors,*for defendants.

Heard on appeal.

Hamilton, P. J.

This proceeding was instituted by the plaintiff seeking an injunction against the defendants restraining the defendants from interfering with the building of a garage on the property of the plaintiff in the city of Cincinnati, and for mandatory injunction to compel the revocation, of the resolution under which the building permit secured from the building commissioner was revoked, and a general prayer for equitable relief.

It appears that in compliance with the building regulations of the city of Cincinnati, plaintiff applied for a permit to construct a garage on his premises at No. 3127 Fulton avenue, Cincinnati, and pursuant to the application, on February 24, 1921, *18a temporary permit was issued to plaintiff to start work and excavate, and later, on the 28th day of February, a permit was issued to erect a garage at the place above stated.

The plaintiff proceeded with the work and some excavating had been done. The location of a garage is in a residential district, where it appears that the houses of the several adjacent properties are located uniformly several feet back from the street line and on a terrace several feet high. The garage is sought to be located by plaintiff on his property (lush with the front street line, and extending back into the terrace upon one corner of his lot, which places the garage several feet in front of the line of houses located as above stated.

The plaintiff alleges that it is impossible for him to construct the garage on any part of said premises, except in front of the dwellings aforesaid, that it is necessary for him to have a garage for the accomodation of his tenants, and that the revocation of the permit, and the interference with the construction of the garage so located, is an invasion of his rights guaranteed by the Constitution of the state of Ohio, and of the United States of America.

The answer, in substance, bases the right of revocation upon a resolution passed by the council of the City of Cincinnati, on the 8th day of March, 1921, which is as follows:

> *“Resolution.*Resolved, That the Commissioner of Buildings be directed to revoke and hold permit for the erection of a garage on Fulton avenue, in front of No. 2135 and No. 2.1.37 Fulton avenue, until such time as the City Planning Commission shall act on same, and a public hearing shall be held by the property owners interested.”

Pursuant to this resolution, the building commissioner revoked the permit.

The defendants further say that the erection and maintenance of a garage, or other structure of the type contemplated to be built at the location -where plaintiff commenced to build the same, would be a great detriment to the neighborhood, in which it is located, would depreciate the value of the property in the *19immediate vicinity thereof and would be contrary to public welfare.

It appears that the building regulations as to character, materials, plans, etc., of the garage sought to be constructed were complied with.

The basic question here for determination is the constitutionality of Section 4 of Ordinance No. 28 (1921), pertaining to the construction and regulation of garages in the city of Cincinnati. The part of Section 4 in question is as follows:

> “Except when the commissioner of buildings otherwise approves, minor garages shall be located to the rear of the established line of the houses facing the street.”

Unless prohibited by this ordinance, and the action of the building commissioner' thereunder, the plaintiff is entitled to the relief prayed for. It is argued that this ordinance is within the police power which municipalities may exercise, and is a reasonable restriction. Thus, two questions are made. First, is the ordinance within the police power? Second, if within the police power, is it a reasonable exercise of that power ?

"While no satisfactory definition has been arived at as to what the meaning of the term “police power” is, the authorities are uniform that such power is only exercised to guard public morals, safety, health .and, under certain limitations, public welfare. How can it be claimed that the location on the owner’s property of the garage invades any of these essentials necessary to bring the matter within the police power ? Could it be said to be more unsanitary in front than in the rear of the premises, or at the side? How does it affect the public morals, or the public safety by reason of such location? The public is not interested unless it in some way interferes with the public. The main contention is that the construction and location in front of the premises is detrimental to the neighborhood, and would depreciate the value of the property in the immediate vicinity, and it is sought by this proposition to raise the question of public welfare. This position is untenable as public public welfare can not be based upon injury to private prop*20erty. It does not follow that because -an ordinance has been enacted for the ostensible purpose of guarding safety, health, comfort, or promoting general welfare, it must be accepted as a proper exercise of' the police power of the state. The rule has been uniformly recognized that the owner of property has the right to make any use of it he desires that does not endanger or threaten the safety, health, comfort or general welfare of the public.

In the case of *Burn*v. *Maryland Realty Co.,*L. R. A. (N. S.), 1917, A. 1216, the syllabus is:

> “The legislature can not, in view of the constitutional protection of property rights, limit the buildings to be erected in a specified section of a municipality to separate and unattached dwellings not less than a specified distance apart.”

In that case, as in this, the. main objection was by adjacent property holders, claiming it would depreciate the value of their property, and the court in the opinion in that case says:

> “It would undoubtedly be objectionable to some residents in close proximity to it-, and it would undoubtedly depreciate to some extent the value of some property. But this court has no power, under the plain and settled rules of law, to prevent the construction of the houses. The legislature has no power to pass the act. The act does not relate to the police power, and its enforcement would deprive the appellee, of property rights guaranteed by the Constitution, which can not be invaded for purely esthectie purposes under the guise of police power.”

The language used by the court in the case of *Bosteck*v. *Sams,*95 Md. 400, is much in point here:

> ‘ ‘ It can not be pretended that the citizen has not the common-law right to acquire title to a lot of land, qualified or absolute, in á city as elsewhere, and to build upon and improve it as his taste, his convenience, or his interest may suggest, or as his means may justify, without taking into consideration whether his buildings and. improvements will conform in size, general character and appearance to the general character of the buildings previously erected in the same locality, even though there might be those in whose judgment his so building might, in some *21way, tend to depreciate tbe value of surrounding improved or unimproved property.”

Can it be claimed that the city may by ordinance provide and require that all citizens shall hereafter ■ construct their porches to the front of the building, and prohibit their construction at the side, or other place they may desire, for the reason that all houses in that vicinity already have their porches in front.

> “A citizen has always been supposed to be free to determine the style of architecture, the color of the paint of his house,” the kind of trees that he might plant on his lawn, the sort of clothes he and his family may wear, and could it be claimed that the city by ordinance, under the guise of police power prohibited all these things for the reason that they might shock the esthetic taste of his neighbors. ’ ’

Many cases distinctly hold that the police power can not be exercised for purely esthetic purposes. *Welch*v. *Swasey,*214 U. S. 91; *Com.*v. *Boston Advertising Co.,*188; Mass. 348; 69 L. R. A. 817; *State*v. *Witlock,*16 Ann. cases 765; *Quintini*v. *Bay St. Louis,*64 Miss. 483.

These cases on this question are cited and commented on for the reason that counsel for the defendants urge there is a leaning of the law toward regulation on esthetic grounds. We have found no case to support this proposition Those cited in support thereof by counsel all involve some of the essential elements going to the proper exercise of police power. The question of the right of the individual to interfere with the owner’s use of his own property as he sees fit is settled in the case of *Letts*v. *Kessler,*54 O. S. 73. That case is known as the “spite fence case.” Letts had constructed a high fence on his property line reaching to the roof of Kessler’s house, shutting off his light and air, and was constructed for no useful or ornamental purpose, but for motives of unmixed malice. The court held that Letts had a legal right to construct and maintain said fence and that neither law nor equity could compel its removal.

It may be conceded that the city has the right to regulate and restrict manufacturing and business properties, so as not to *22interfere with purely residential districts under the police power, but this harks back to the question of essential attributes of police power as they involve the matter of smoke, gasses, noisome smells, noises and other objectionable elements going to the safety, health and comfort of the general public. There can be no question but that a city may provide by ordinance the plans and materials for garages, taking into consideration their location.

In the case of *State ex rel*v. *City of Cleveland,*20 O. C. C. (N. S.), 538, the court held:

> “The section of a building code enacted by a municipal council, which prohibits the erection of any buildings for the working of wood or other combustible materials within sixteen feet of any lot line is an unreasonable exercise of the police power and is void.”

The ordinance under consideration is general in its provisions and places the location of a garage within the absolute conti’ol of the building commissioner, as to whether or not it may be placed forward of the established line of the houses facing the street. It does not state what the established line may be other than the hit and miss location of the several adjacent buildings. There could be no reason for the ordinance except upon esthetic grounds. As stated in the petition, and not disputed, the plaintiff has no other location upon which to place the garage. There is no objection as to the plans or materials to be used. It is common knowledge that the modern method of travel is by automobile. It is a matter of common knowledge that the automobile must have shelter. Many of the garages are placed under the houses of the owners. Even had council power to pass a valid ordinance on esthetic frounds, it is a matter of grave doubt as to whether the construction of the garage and the location indicated here would invade the field of esthetieism. But, however, that may be, in view of our holding that the police power can not interfere with private property rights on esthetic grounds, it is immaterial.

In the ease of *Freelich*v. *Cleveland,*99 O. S. 376, the general *23principle is laid down that the state and municipalities may make all reasonable, necessary and appropriate provisions to promote the health, morals, peace and welfare of the community, but neither the state nor municipality may. make any regulations which are unreasonable. This same principle' was announced in *Toledo Disposal Company*v. *State,*89 O. S. 230, and *Fitzgerald*v. *Cleveland,*88 O. S. 338, at page 359. See also *Lenhart*v. *Hamma,*31 O. C. A. 577.

Without pursuing the question further, it is our conclusion that under the settled principles of' law, as above stated, the ordinance and action thereunder is an unreasonable regulation and not a valid exercise of the police power.

A decree may be entered in favor of the plaintiff, and injunction allowed as prayed for.

Cushing and Buchwalter, JJ., concur.