Jack Lewis, Inc. v. Mayor of Baltimore

¹⁴⁸ Offutt, L, delivered the opinion of the Court. Acting under the authority conferred by chapter 705 of the Acts of 1927, the Mayor and City Council of Baltimore on March 30th, 1931, adopted Ordinance Eo. 1247, known as the Zoning Ordinance, the purpose of which is to regulate and restrict “the height, number of stories, and size of buildings and other structures, the percentage of lot that may be occupied, the size of yards and other open spaces, the density of population and the location and use of buildings, structures, and land for trade, industry, residence, or other purposes.” Under that ordinance, the city is divided and classified in height, use, and area districts, the outlines of which are shown on maps or plats adopted with the ordinance as a part of it. The use districts are classified as industrial, second commercial, first commercial, and residential. Among other things, it provides that no undertaking establishment, business, or funeral home shall be located in a residential use district (paragraph 8, subsection 32), but does not prevent the continuance of such a use if legally existing at its date (section 11).

The building engineer, the first official charged with the enforcement of the ordinance, is forbidden to issue any permit for the construction, reconstruction, extension, repair, or alteration of any building or part thereof unless the plans and specifications “and intended use of such building” conform to the ordinance, and in case of any prohibited use he is authorized, in addition to' such other remedies as he may have, to institute an appropriate action or proceeding to prevent or abate the same (section 31). From any decision of the building engineer there may be an appeal to the board of zoning appeals by any person aggrieved (section 32), which shall have the following powers: “1. To hear and decide appeals where it is alleged there is error in any order, requirement, decision, or determination made by the- building engineer in the enforcement of this ordinance. ¹⁴⁹ “2. To hear and decide special exceptions to the terms of this ordinance upon which the board is required to pass under this ordinance. “3.

To authorize upon appeal in specific cases such variance from the terms of this ordinance as is necessary to avoid arbitrariness and so that the spirit of the ordinance shall be observed and substantial justice done.” And, by section 33(b), it may “grant a permit when there are any practical difficulties or unnecessary hardships in the way of carrying out the strict letter of any of the provisions of this ordinance.” On January 7th, 1932, Jack Lewis, Inc., an undertaker, filed with the building engineer of Baltimore City an application for a permit to make certain “alterations or repairs” in a private home known as 1804 Eutaw Place in said city, to adapt it to use as a “funeral home.” The proposed location is in territory shown on the use district map, adopted as a part of the zoning ordinance, as a “residential use district,” and the application was refused on the ground that the proposed use would violate section 8 of that ordinance. That decision was affirmed on appeal by the board of zoning appeals, and thereupon the applicant, under section 35 of the ordinance, filed a petition in the Baltimore City Court asking that court to review the decision of the zoning board. An order was accordingly signed, directing the board of zoning appeals to transmit to that court all documents, records, papers, plats, and memoranda relating to the case. The ground alleged in the petition for the relief prayed was that the refusal of the permit deprived the petitioner of his property without due process of law, and amounted to a taking of the same without compensation, that it denied it the equal protection of the law, that it was illegal, arbitrary, unreasonable, oppressive, discriminatory, and confiscatory.

The respondents in their answer or return denied the existence of the grounds for relief alleged in the petition, and the court, after a hearing, dismissed the appeal. From that order the applicant appealed to this court. ¹⁵⁰ Neither in the pleadings, nor in the written or oral arguments in this court, is there any objection to the constitutionality of the use provisions of the ordinance as a whole, nor to the propriety or legality of the classification scheme or plan indicated on the “use district map,” and adopted as a part of the ordinance itself, but the grounds of complaint are (1) that, conceding the legality of the ordinance and such classification, the action of the mayor and city council in excluding funeral establishments from residential use districts is arbitrary, unreasonable, and not justified by any legitimate exercise of the police power, and (2) that the ordinance unlawfully delegates to administrative officials the police power of the State, 'in that it permits them at their arbitrary discretion to grant or withhold permits such as that for which the applicant applied. •Considering these objections in inverse order, it is impossible to distinguish the delegation of power found in section 32, subsection (g-3), and section 33, subsection (b) from that which this court condemned as unlawful in Goldman v. Crowther, 147 Md. 282, 128 A. 50 . The board of zoning appeals is a mere administrative agency, created and empowered to execute the provisions of the ordinance which the mayor and city council as its primary delegate has, in the exercise of the State’s police power, adopted. Eor as it was said in Pocomoke City v. Standard Oil Co., 162 Md. 377, 159 A. 902 , 905: “Where the power is exercised directly by the agency or delegate, the validity of acts done under its .authority is determined by whether its acts in a particular case are upon the facts of such case reasonably necessary to the protection of the public welfare, but, when any part of it is further delegated by the municipality to subordinate officials, the validity of their acts under it may depend upon whether the grant or delegation to such officials vested them with a complete and uncontrolled discretion, or whether it vested them with mere ministerial and administrative functions, to be exercised in obedience to and in conformity with definite rules, guides, and standards.

In the former case the right to use the power in support of an act pretended to be ¹⁵¹ done under its authority is denied, not because the act is not reasonably necessary to the public welfare, but because the delegation of power is too broad and indefinite, while in the second case ordinarily it is permitted, and the sole inquiry is whether acts done under it are reasonably necessary to the public welfare.” Under these particular provisions the board of zoning appeals is in effect given the power to set aside or annul the ordinance as to any given case with no more definite standard or guide than that siich action may only be taken when there are “practical difficulties or unnecessary hardships” in the way of carrying out its strict letter, or where necessary to “avoid arbitrariness and so that the spirit of the ordinance shall be observed and substantial justice done.” It is, of course, implicit in other provisions of the ordinance that the board is, in the discharge of its duties, to avoid arbitrariness, to do substantial justice, and not to inflict unnecessary hardship, but under our system of written constitutions it is essential that they accomplish those highly desirable objects in conformity with the restrictions, rules, and limitations which the law itself provides and not in disregard of them. The grant of a power such as that conferred by those provisions to1 an administrative agency, such as the board of zoning appeals, must, therefore, to be valid, be so defined and limited that both tire citizen and the board may know with certainty what their rights, privileges, and powers under it are. If there are to be departures from its general plan or scheme, in order to supply the necessaiy elasticity to its efficient operation, they must be protected by such clear and definite guides as those afforded by sections 12, 13, 27, and 29, and may not be left to the unguided discretion of administrative officials. For such phrases as “practical difficulties,” “unnecessary hardships,” “substantial justice,” are too general and indefinite to furnish such a guide, or to mark the limits or control the exercise of the power conferred by those provisions upon the board.

But it is not apparent how the illegality of those particular provisions helps the appellant in this case. They are not in any way essential to, nor does their illegality affect, the ¹⁵² ordinance as a whole, and what it complains of in this ease is that the discretion conferred upon the board to set aside the ordinance, in cases where in their judgment such action would be justified, was not exercised in this case to set it aside as, to it. That is, it says at the same time that the delegation of power is unlawful and cannot be exercised at all, and that it should have been exercised to grant to it a permit which other provisions of the ordinance prohibited. So that the final and substantial question in the case is a very narrow one, whether that provision of the ordinance which excludes funeral establishments, other than those already existing, from a residential use zone, is unlawful.

In dealing with that question we need not consider the constitutionality of the general provisions of the ordinance which deal with residential uses, but only the specific provision which excludes from residential districts funeral establishments, for, as stated, appellant challenges no other part of it except section 32, subsection (g-3), and section 33, subsection (b), which we have already considered, supra. In dealing with the question, it cannot be considered as though it were in a vacuum detached and apart from the facts and circumstances which give it life, reality, and color, but it must necessarily be considered in connection with such facts and circumstances, for they alone can determine whether it is a valid exercise of the police power. It is intimated in appellees’ brief that the case of Euclid Village v. Ambler Really Company, 272 U. S. 365 , 47 S. Ct. 114 , 71 L. Ed. 303 , has in some manner overruled the principles announced in Goldman v. Crowther, supra, but that is not so. The Goldman case was based upon the Constitution of this State, which has not been amended in any manner so as to affect that decision, and it is, of course, unaffected by the decision in the Euclid case, which dealt with the Eederal Constitution and not with the Constitution of this State.

As stated in the case of Goldman v. Crowther, restrictions imposed by the State upon private property in the exercise of its police power can only be justified where they are required for the reasonable protection of the public health, morals, safety, or ¹⁵³ welfare, but, where any such necessity exists, the power may be invoked to sustain them. Pocomoke City v. Standard Oil Co., supra. Whether a restriction in a given case is reasonable or not depends, not so much upon the application of general principles or rules/ as upon the facts and conditions out of which the question arises. The first as well as the last law of nature is self-preservation, and, as laws are made for men and not men for laws, they must, if the law is to be a living thing, be construed with a due regard for the wisdom of that homely and changeless truth.

With the high tension of the industrial civilization of today, the massing of vast numbers of people in small areas, and the steady progress of sanitary science, it has become apparent that the common safety and welfare require, in congested centers of population, many restrictions on the use of property which could not be justified and would not be tolerated where no such congestion exists. Nor does a due consideration for the public safety and welfare necessarily stop with protection against the spread of disease, the ravages of fire, the hazards of traffic, or the predatory activities of the lawless, but it may properly extend to the maintenance of conditions under which people may live and work in reasonable comfort, and without unnecessary impairment of their physical and mental vigor. To afford that protection it is obvious and inevitable that the use of property in a densely populated city should be subjected to restrictions which in individual cases may be burdensome and oppressive, but which are essential if the whole body of the people are to live in safety and with some measure of comfort. And yet the value of property lies always in the use that may be made of it, and as freedom of use narrows its value may lessen.

But the same organic law, which protects the owner of property in some remote sparsely settled rural locality in his right to use it as he will, applies with equal force to the owner of property in a densely populated city. Consequently there has been in the establishment and the enforcement of restrictions on the use of property in cities a constant struggle between “precedent and progress,” ¹⁵⁴ between the letter and the spirit of the law, and between the rights of property and the rights of men. The burden which that struggle has placed on the court is not new, for some twenty years ago Frederick R. Coudert said: “The courts have indeed to find a middle way between precedent and progress or certainty and justice. ETo infallible method can be found to avoid this dilemma.

Doubtless some courts have gdne to due extreme, others to the other. I can only suggest that constitutional decisions be fairly and fully discussed and that, where the highest courts cannot sustain legislation by fair reasoning and with due regard for that settled precedent without which law is not .differentiated from anarchy, then proper amendment be made to the Constitution.” Certainty and Justice, page 33. But while the language of the Constitution does not change, it may nevertheless mean one thing when applied to one set of facts, and an entirely different and contrary thing when applied to another. To prevent the owner of a farm in the country from keeping a barnyard or a pig pen thereon would probably be held to deprive him of his property without compensation, while to prevent the owner of land in the residential district of a city from maintaining similar conveniences there would not be ■open to the same objection.

To prevent the owner of property in the shopping district of a city, where great numbers of people congregate, from using it as a storage warehouse for high explosives, would not deprive him of his property without compensation, while to prevent an owner of land remote from any habitation might have that effect. So that, in deciding whether denying to the owner of property in a residential use district the' right to use it as a “funeral home,” which appears to be a euphemism for an undertaking establishment, is so unreasonable as to amount to a taking of his property without due process of law and without compensation, the restriction must be considered in connection with the conditions to which it applies. As stated above, the right of the appellees to establish residential use districts is not questioned by the appellant, but his contention is that the use of his property as an undertaking establishment is not ¹⁵⁵ so inconsistent with the residential character of the district •in which it is located, as to justify the denial of his right to so use it. But the State, acting through its delegate, the Mayor and City Council of Baltimore, has said otherwise, and, upon the facts, it cannot be said as a matter of law that its conclusion was either unreasonable or arbitrary.

Such an establishment, considered merely with reference to its incidents, and not its location, is neither a public nor a private nuisance, per se, but to justify its exclusion it need not be either, since such action would be justified if in fact the proposed use would unreasonably and adversely affect the health or comfort of persons, other than the applicant, residing in that district. Erom the character of the applicant, it is highly probable that the business will be conducted in the least offensive and most unobjectionable manner possible, but, even so, it will nevertheless be an undertaking business. That such a use may adversely affect persons residing in the immediate neighborhood of the proposed establishment in the comfortable enjoyment of their homes, and lessen the value thereof for residential purposes, is neither an arbitrary nor an unnatural presumption, but on the contrary it is an inevitable inference from common knowledge of the nature and the minds of men. Because of their mortal nature, the certainty of death and the uncertainty of the time thereof, there is in the human race an instinctive horror of death, and upon the intuitive desire to postpone or avoid it rests the first great law of nature.

Much of the world’s wealth is spent in prolonging life, the severest punishment known to the law is to be deprived of it, and few there are who when the last call comes “leave the warm precincts of the cheerful day nor cast one longing lingering look behind.” Death to the ordinary man is associated always with sorrow and pain, with the loss of those nearest and dearest to him, with severed friendships that may not be renewed, and with the dissolution of ties of love and affection which sweetened his life, and cheered and consoled him in misfortune and adversity. Consequently, to one of normal sensibilities, the