The times dispatch. [volume] (Richmond, Va.) 1903-1914, 1912-12-07
C|TYMAYC ORRECT
BUILDING RULES
Defects Shown in Text of Opin
ion Rendered by Federal
Supreme Court.
coNFERS ARBITRARY POWER
Invalid Ordinance Gave Majority
Absolute Right to Fix
the Line.

Ways by which the city can correct
the defects In its building line ord!-
nance and re-enact II so as TO pre-
serve the idea Of uniform constipation
On certain blocks are pointed out in
the written opinion delivered by JUS
tice Mckenna. of the United states
Supreme Court, copy of which reached
City Attorney Pollard yesterday. The
Supreme Court. in the case of j. r.
Eubank against the city of Richmond.
reversed the Supreme Court OF APP
peals OF Virginia and remanded the
case for further proceedings.
In effect, the state law granting the
city the power TO fix a building line
is held 10 be valid, and the city's power
to exercise that right under certain
conditions is not questioned. but the
Supreme Court objected 10 that pro-
vision In the city ordinance which pro-
vided that on petition Of the owners
Of two-thirds Of the property on any
block the Committee on Streets must
Tx the line pettioned for.
Gave Committee NO Discretion.
Objection was made that this left no
discretionary power in the hands of
the committee and did not provide
proper hearing for the minority prop
erty owners. The case came up on
review Of the judgment OF the Hust-
ings Court of the city Of Rlchmono
Affirming a fine of $50 imposed in the
Police Court on Eubank for alleged
.o.4tlon of the city's building line
ordinance. Eubank, through Attorney
: : p Patteson, attacked the vandity
Of the ordinance and the statute on
which il was enacted, on the GROUND
that they infringe the Constitution OF
the United States in that they oe-
prived him of his property without que
process of law and denied him the
equal protection of the law. Zoe city
ordinance was based on an act OF the
Legislature Of 1898. the validity OF
which is not questioned in the opinion
Eubank is the owner of lot TWEEN
ty-three wide on the south SIDE OF
Grace street. between Twenty eighth
and Twenty-ninth Streets. He applied
for and received permit on December
10 1908. to erect a detached brick
building to be used as a dwelling &C
cording to certain plans and specln-
cations which has been approved oy
the building inspector. dimensions OF
the building TO be 2S 10y SO by 20 feet
high
Already Has Permit.
On January 9. 1903. the Street Com
rnittee being in session, two-thirds OF
the property owners Oh the block
petitioned for the establishment OF
A building line. and IL WAS estab-
Nshtd-on the line of a majority of the
houses then erected. Eubank was
given notice that the line established
was about fourteen feet pack OF the
true street line and on line WIN
a majority of the houses. and that all
portions Of his house. including the
bav window. must conform TO thai
line. At the time the line was nxeo
the material for the house had oeen
assembled. but no actual construction
had been done The building con-
formed TO the line. with the excep-
ton Of an octagon bay window which
projected about three feet over the
line The State supreme Court sus-
tanned the statute. saying that it was
neither unreasonable nor unusual
The Courts Opinion.
The opinion of Justice NcKeuna
says in part:
whether il is valid exercise OF
the police power Is the question IN
the case. and that power we nave
defined. so far as il is capable of being
defined by general words. q number
Of times. II is not susceptible OF cir
cumstantial precision. II extends. we
rave said. not only to regulations
which promote the public health,
morals and safety. but to those which
promote the public convenience or
the general prosperity But neces-
Sarilv il has its limits. and must stop
when il encounters the pronlpitions
of the Constitution.
The ordinance leaves no discretion
n the Committee on Streets as 10
whether the street line shall or shall
not be established in a given case
The action on the committee is de-
termincd by two-thirds Of the pro-
u.rtv owners In other words, part
Of the property owners fronting on
the clock determine the extent Of use
that other owners shall make Of their
lots and against the restriction they
arc ir1potcnt. This We emphasize.
"Oue set OF o.,ners determines not
only the extent OF use. but the Kind oil
Is. which another set Of owners may
make Of their property In what way IS
the public safety. convenience or vel
fare served by comforting such power.
The statute and ordinance. while cor
ferrins the power On some property
holders TO virtually control and dispose
Of the property rights OF others. Gre
sfes no standard b. which the power
thus gwen is to be exercised. IN
,fhtr words. the property owners who
desire and have the authority 10 ss-
;ahiish tho line may DO so solely Tor
their own interest. or even capri
ciogsiv. Taste or judgment may vary
in iocaisties--indeeG. IL the same local
!tv. There may Be- one taste or judS-
ment of comfort or convenience N
one SIDE 81 a street and didereu; che
OF the other. One person. having
;vo-thirds Ownership % block. may
have the power against numocr haV-
Ing Jess collective Ownership. ms.
a. We have said. = tae vice Of the Dr.
dinanre. and makes q. We think. an
unreasonable exercise OF tAc 1oroe