Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1925-03-04

Has the Legislature the right ana
| authority under the Constitution to
enact a law according to the terms
of the following Bill?"
We also acknowledge the receipt
Of copy Of another order passed by
the House Of Representatives Febru-
airy 3, 1925. relating to the same
pending bill, by which an answer to
the following supplemental question
Is requested:
Has the Legislature the power
under the constitution to authorize
cities and towns to limit buildings
according to their use or construc-
ton to specified districts thereof"
Before answering the questions
propounded we thing it proper to
avoid any possibility of misappre-
| tension as to our views Of the char
acter and scope Of the pending bill.
| We, therefore, take occasion TO point
| out that the bill in question does not
| by it's terms limit the use, height or
| construction Of buildings: it is not a
''Zoning law" An apt definition Of
| coming is the regulation by districts
| of building development and uses of
property" Harry. Law Review, May
| 1924. page 1874.
We regard the proposed law as an
enabling act, delegating to cities and
incorporated villages authority to ex-
ercise the police power. 1t relates
| solely to action by municipalities I'M
der the police power; there Is no
provision whatever for the exercise
Of the power of eminent domain,
with attendant compensation.
The underlying question. then, is
! whether the Legislature may dele
gate to the legislative bodies of cit
les authority to exercise the police
\ NJ
| The ordinary form Of city charter
| granting authority to enact ordinan-
ces not inconsistent with the con-
stitution and laws of the state is a
delegation of authority to exercise
the police power. Reinman VS. Little
| Rock, 237 U. S. III, SO l.. Ed. 900.
The term incorporated villages" is
not applicable in Maine; the term
| refers to form of municipality
| found In some other states, having,
we understand. some type of legisla-
tive body. such as a council. Our viii
! iage corporations are not the same; ;
they have no legislative bodies; the
Inhabitants conduct their affairs in
| open meeting as inhabitants of towns
| do.
| Again. although the proposed bill
| may lawfully delegate authority to
exercise the police power, every or
cinance enacted by city govern
ment must stand or fall on it's own
merits. A favorable opinion, there
fore, on any part of the proposed
bill must not be understood as an
| opinion that an ordinance supposed
to he framed under it will necessari-
! ly be valid.
with these reservations, turning
to section one Of the proposed bill,
! We answer:
oa9 Regulation of the height of
buildings. We are of the opinion
| That such regulation is a valid exer-
i else OF the police power and may be
accomplished by the creation of dis
tricts. WEIGH VS. Swasey, 1873 Mass.
36i: affirmed PA L. S. 81. Cochran
vs. Preston 1OS Nd. 220. Aver vs..
Somrs. on Height of Buildings in
Boston 242 Mass. so.
! tb) Regulation of the construction
or buildings. This is also a valid ex-
ercise of the police power. We al
ready have in this State very compre-
hensive authority for such regulation.
X. 5. chap. 4. sec. 50, Par. VIII. Houl-
ton VS.. Titcomb 102 Maine a72: 10 T..
Il. A. On. 81 $50. Lewiston VS.. Grant
| l20 Maine 1874.
| CO. Regulation of the location and
use of buildings for trade. We can
not make more definite answer tina
/ 10 say that the location Of some kinds
/ OF business is undoubtedly subject to
| regulation under the police power f..
,. chap. 20, sec. 8; Renman vs. Little
/ rock supra Hadacheck vs.. Sebastian
~ L. ). 394. GO l.. Ed. 34S: and IL
4 Eds heen held that regulation under
/ ne police power is not confined to the
! suppression of what is disorderly. Of
! fensive or unsanitary. c. h. & @, Ry.
! co. VS.. Illinois 200 L. s. SOL, 592; so
| il. Ed. $50, COO. Beacon VS.. Walter
204 L. S. 81, 3ls; 81 L. Ed. 499. 500.
/ (d) Regulation of density of pop
| ulation Just what method Of regula.
! ton is proposed. and to what extent,
i We are not advised. Undoubtedly the
regulation of the height of buildings
serves to regulate 10 some extent the
density of populations: so does the reg
ulation of the construction Of build
inSs in the interest of sanitation and
health. Both of these forms of rcgu-
iation are valid under the police pow
er But If regulation of density Of
! population is attempted by the estah-
hshment Of building lines. it prob
! ebiy cannot lie justified under the no
lice power, as stated in the following
/ paragraph.
! (e( Regulation of the percentage of
| lot that may be occupied, the size of
yafds' courts and other open spaces.
/ such regulation involves the establish
ment of building lines The weight
i OF authority seems to be. that build
ing lines cannot be justified under the
(, police power, az A. l. f. GSl. > Dill
lon, Nun. Corp. 5th Ed sec. sos, /
Lewis, En-. Domain I'd Ed. Sec HAY.
| but must be accomplished by the exer-
| else of the right Of eminent domain
T, with compensation; such by law Of
this state Is the method for the estab-
liShmcnt of parks. Il. S. chap 4, sec
| 81.
f The bill provides for appeals
to a board Of adjustment from an adj
mfnistrativc official. We have been
unable TO discover what powers are
| conferred. or what duties are imposed
/ upon an administration official. Any
| opinion on such a provision must be
based upon the ordinance as enacted.
CD The bill also confers authority
TO make special exceptions to. and to
authorize variance from, the terms of
an ordinance. Upon such general pro-
visions we are unable to give an
i opinion as to the proposed delegation
of authority. 1t Is we'll settled that
there cannot he arbitrary discrimina-
ton in municipal regulation on the
subjects proposed. City Council of
| Montgomery vs.. West lac Ala. 311;
123 Am. st. 3S, note on page Sc.
1t is obvious that any opinion as to
| the validity OF administrative details
| of regulatory ordinances must be
based upon the exact language of the
ordinance as enacted. Compare Eu-
bank VS.. Richmond, 22e L. S. 1877, 81
l.. Ed. 156, with Thos. Cusack Com
| nanN VS.. Chicago. 90 L s 1oe CT T