Hadacheck v. Sebastian

While the police power of the State cannot be so arbitrarily exercised as to deprive persons of their property without due process of law or deny them equal protection of the law, it is one of the most essential powers of Government and one of the least limitable—in fact, the imperative necessity for its existence precludes any limitation upon it when not arbitrarily exercised.

A vested interest cannot because of conditions once obtaining be asserted against the proper exercise of the police power—to so hold would preclude development. Chicago & Alton R. R. v. Tranbarger, 238 U.S. 67.

There must be progress, and in its march private interests must yield to the good of the community.

The police power may be exerted under some conditions to declare that under particular circumstances and in particular localities specified businesses which are not nuisances per se (such as livery stables, as in Reinman v. Little Rock, 237 U.S. 171, and brick yards, as in this case) are to be deemed nuisances in fact and law.

While an ordinance prohibiting the manufacturing of bricks within a specified section of a municipality may be a constitutional exercise of the police power—quœre whether prohibiting of digging the clay and moving it from that section would not amount to an unconstitutional deprivation of property without due process of law.

This court cannot consider the contention of one attacking a municipal ordinance that it denies him equal protection of the laws when based upon disputable considerations of classification and on a comparison [p395] of conditions of which there is no means of judicial determination.

In this case, the charges of plaintiff in error that the ordinance attacked and alleged to be ruining his business was adopted in order to foster a monopoly and suppress his competition with others in the same business, is too illusive for this court to consider, the state courts having also refuted it.

The fact that a particular business is not prohibited in all sections of a municipality, does not for that reason, make the ordinance untonstitutional as denying equal protection of the law to those carrying on that business in the prohibited section—conditions may justify the distinction and classification.

In determining whether a municipal ordinance goes further than necessary to remedy the evil to be cured, this court must, in the absence of clear showing to the contrary, accord good faith to the municipality.

Whether an ordinance is within the charter power of the city or valid under the state constitution are questions of state law.

An ordinance of Los Angeles prohibiting the manufacturing of bricks within specified limits of the city, held, in an action brought by the owner of brick clay deposits and a brick factory, not to be unconstitutional as depriving him of his property without due process of law, or as denying him equal protection of the laws.

165 California, 416, affirmed.

facts, which involve the constitutionality under the due process and equal protection provisions of the Fourteenth Amendment of an ordinance of Los Angeles prohibiting brick yards within certain limits of the city, are stated in the opinion.

Mr. Emmett H. Wilson and Mr. G. C. DeGarmo for plaintiff in error:

Although an ordinance is purported to have been enacted to protect the public health, morals or safety if it has no substantial relation to those objects, constitutional rights have been invaded and it is the duty of the court so to adjudge. Yick Wo v. Hopkins, 118 U.S. 356; Lochner v. New York, 198 U.S. 45; Lawton v. Steele, 152 U.S. 133.

The State, or any political subdivision thereof, when [p396] legislating for the protection of the public health, the public morals, or the public safety, is subject to the paramount authority of Federal Constitution of the United States, and is not permitted to violate rights secured or guaranteed thereby. Henderson v. Wickham, 92 U.S. 259; Hannibal Co. v. Husen, 95 U.S. 465; New Orleans Gas Co. v. Louisiana Light Co., 115 U.S. 650; Walling v. Michigan, 116 U.S. 446; Yick Wo v. Hopkins, 118 U.S. 356.

The business of operating brick yards and manufacturing brick is a useful, necessary and lawful occupation and is not a nuisance per se. Huckenstine's Appeal, 70 Pa. St. 102; State v. Board of Health, 16 Mo. App. 8; Phillips v. Lawrence V. B. & T. Co., 72 Kansas, 643; Denver v. Rogers, 46 Colorado, 479; ''Windfall Mfg. Co. v. Patterson, 148 Indiana, 414; Belmont v. New England Brick Co.'', 190 Massachusetts, 442.

A city cannot prohibit the maintenance of a brick yard unless, by reason of the manner of its operation, it becomes a nuisance in fact. Yates v. Milwaukee, 10 Wall. 497; Everett v. Council Bluffs, 46 Iowa, 66; Ex parte Sing Lee, 96 California, 354; In re Sam Kee, 31 Fed. Rep. 680; In re Hong Wah, 82 Fed. Rep. 623; Ex parte Whitwell, 98 California, 73; Stockton Laundry Case, 26 Fed. Rep. 611; Denver v. Rogers, 46 Colorado, 479; Denver v. Mullin, 7 Colorado, 345; Phillips v. Denver, 19 Colorado, 179, 184.

A city council is not empowered to pass an. ordinance making that a nuisance which is not a nuisance per se. The legislative declaration cannot alter the character of a business so as to make a nuisance of that which is not such in fact. Nor will the mere legislative declaration of the existence of a nuisance be accepted as a fact by the courts. Cases supra and Los Angeles v. Hollywood Cemetery, 124 California, 344; Grossman v. Oakland, 30 Oregon, 478.

The power possessed by the city to abate nuisances does [p397] not include power to prevent unless the business is a nuisance per se. Lake View v. Letz, 44 Illinois, 81; In re Smith, 143 California, 371; Hume v. Laurel Hill Cemetery, 142 Fed. Rep. 552, 563; Laurel Hill Cemetery v. City, 152 California, 464, 472; Freund, Police Power, §§ 63, 144; Dillon, Mun. Corp. (5th ed.), § 666; In re Kelso, 147 California, 611; Covington & L. P. R. Co. v. Sandford, 164 U.S. 578, 592; Ruhstrat v. People, 185 Illinois, 133.

In cases of this kind the court must scrutinize the objects and purposes sought to be accomplished by the ordinance in question for the purpose of determining its validity. In so doing they are not limited to matters that appear upon the face of the ordinance, but may consider all the circumstances in the light of existing conditions. Cases supra and Lake View v. Tate, 130 Illinois, 247; Ex parte Patterson, 42 Tex. Crim. Rep. 256; People v. Armstrong, 73 Michigan, 288; Oxanna v. Allen, 90 Alabama, 468; Tugman v. Chicago, 78 Illinois, 405; Cleveland Co. v. Connorsville, 147 Indiana, 277; State v. Boardman, 93 Maine, 73; Kosciusko v. Slomberg, 68 Mississippi, 469; Crowley v. West, 52 La. Ann. 526; Odd Fellows' Cemetery v. San Francisco, 140 California, 226; Pieri v. Mayor, 42 Mississippi, 493; Corregan v. Gage, 68 Missouri, 541; Chicago v. Rumpf, 45 Illinois, 90.

The exercise of the police power cannot be made a mere cloak for the arbitrary interference with or the suppression of a lawful business, cases supra, nor can discriminatory legislation be sustained even though enacted under color of sanitary power. Freund, Police Power, § 138.

A law is not general or constitutional if it imposes peculiar disabilities or burdensome conditions in the exercise of a common right upon a person selected from the general body of those who stand in precisely the same relation to the subject of the law. Pasadena v. Stimson, 91 California, 238; Bruch v. Colombet, 104 California, 347; Darcy v. Mayor, 104 California, 642; [p398] People v. ''Cent. Pac. R. R., 105 California, 576, 584; Cullen v. Glendora Water Co., 113 California, 503; Ex parte Clancy, 90 California, 553; Krause v. Durbrow'', 127 California, 681.

The imposition of dissimilar regulations upon different persons engaged in the same business must be founded upon differences that will rationally justify the diversity of legislation. Ex parte Jentzsch, 112 California, 474; Darcy v. Mayor, 104 California, 642; Ex parte Bowen, 115 California, 372; Ex parte Dickey, 144 California, 237; ''People ex rel. Wineburgh Adv. Co. v. Murphy, 195 N. Y. 126; Phillips v. Denver, 19 Colorado, 179; Belmont v. New England Brick Co., 190 Massachusetts, 442; Commonwealth v. Mahalsky, 203 Massachusetts, 241; Chicago v. Netcher, 183 Illinois, 104; Braceville Coal Co. v. People'', 147 Illinois, 66.

The ordinance in question deprives the plaintiff in error of his property without due process of law and is therefore void. Frorer v. People, 141 Illinois, 171; Ramsey v. People, 142 Illinois, 380; C., B. & Q. R. R. v. Chicago, 166 U.S. 224; Chicago v. Netcher, 183 Illinois, 104; Braceville Coal Co. v. People, 147 Illinois, 66.

In order to sustain the validity of a municipal ordinance it is necessary for the court to determine that its provisions are reasonable. Chicago v. Rumpf, 45 Illinois, 90; Toledo W. & W. Ry. v. Jacksonville, 67 Illinois, 37; Tugman v. Chicago, 78 Illinois, 405; Lake View v. Tate, 130 Illinois, 247; Oxanna v. Allen, 90 Alabama, 468.

The ordinance is unreasonable because the severe measures adopted were not reasonably necessary for the prevention of the acts complained of in reference to the brickyard. Remedies other than confiscation of the property would have been effective. Cases supra and Judson v. Los Angeles Suburban Gas Co., 157 California, 168.

The ordinance is unreasonable because if any nuisance has existed the same may be abated by regulatory rather [p399] than by suppressive and confiscatory measures. The business should be allowed to continue upon eliminating such features, if any, as constituted a nuisance. Cases supra and Green v. Lake, 54 Mississippi, 540; Chamberlain v. Douglas, 48 N. Y. Supp. 710; Pach v. Geoffrey, 22 N. Y. Supp. 275; Yocum v. Hotel St. George, 18 Abb. N. C. (N. Y.) 340; Miller v. Webster, 94 Iowa, 162.

The ordinance is unreasonable because it is not limited with reference to conditions and measures. The danger may be slight and remote while the remedy—entire suppression—could not be more drastic. Cases supra and Freund, Police Power, § 143.

The ordinance is unreasonable because the means adopted are out of proportion to the danger involved. The restraint should not be disproportionate to the danger. Cases supra and Freund, Police Power, §§ 150, 158.

The ordinance is unreasonable because the law will not take cognizance of petty inconveniences and slight grievances. Cases supra and Freund, Police Power, § 178; Joyce on Nuisances, §§ 93, 96; Van de Veer v. Kansas City, 107 Missouri, 83; Susquehanna Co. v. Spangler, 86 Maryland, 562; Tuttle v. Church, 53 Fed. Rep. 422; Gilbert v. Showerman, 23 Michigan, 448; McGuire v. Bloomingdale, 29 N. Y. Supp. 580; Gallagher v. Flury, 99 Maryland, 181.

The ordinance is discriminatory and unreasonable because the district was unreasonably and irrationally created. Cases supra and Freund, Police Power, § 179.

The police power cannot be used for the purpose of protecting property values. Cases supra and Chicago v. Gunning System, 214 Illinois, 62; Const. California, Art. 11, § 11; Cooley, Const. Lim. (7th ed.), 837.

The provision of the city charter (§ 2, sub. 22), giving the city general power to make and enforce peace and sanitary regulations is modified and limited by the specific power given (§ 2, sub. 13) to "restrain, suppress and [p400] prohibit" certain named occupations. Rodgers v. United States, 185 U.S. 83; In re Rouse, 91 Fed. Rep. 96; Crane v. Reeder, 22 Michigan, 322; Phillips v. Christian County, 87 Ill. App. 481; Felt v. Felt, 19 Wisconsin, 193; Nance v. Southern Ry., 149 N. Car. 366; Hoey v. Gilroy, 129 N. Y. 132; Stockett v. Bird, 18 Maryland, 484; Nichols v. State, 127 Indiana, 406; State v. Hobe, 106 Wisconsin, 411; State v. Dinnesse, 109 Missouri, 434; Frandzen v. San Diego, 101 California, 317.

The city having adopted the special and limited power set forth in the charter (§ 2, sub. 13), did not accept in its entirety the right to enforce the police power of the State as granted by § 11, art. XI of the constitution. Rapp v. Kiel, 159 California, 702, 709; In re Pfahler, 150 California, 71, 81; People v. Newman, 96 California, 605; State v. Ferguson, 33 N. H. 424; Northwestern Tel. Co. v. St. Charles, 154 Fed. Rep. 386; Louis v. ''West. Un. Tel. Co.'', 149 U.S. 465.

The legislative body of a city having freeholders' charter may be limited by charter provision in the exercise of the police power conferred upon the city by the constitution of the State. Cases supra.

Mr. Albert Lee Stephens, Mr. Charles S. Burnell and Mr. Warren L. Williams for defendant in error:

For other ordinances prohibiting the maintenance of certain classes of business in residence districts see Ex parte Quong Wo, 161 California, 220; Grumbach v. Lelande, 154 California, 679; In re Montgomery, 163 California, 457; In re Linehan, 72 California, 114.

The police power extends to all the great public needs. Canfield v. United States, 167 U.S. 518; Bacon v. Walker, 204 U.S. 311, 317; C., B. & Q. R. R. v. Drainage Commrs., 200 U.S. 592; Noble State Bank v. Haskell, 219 U.S. 104; Lake Shore Rwy. v. Ohio, 173 U.S. 285; Thorpe v. Railway, 27 Vermont, 140; Pound v. Turck, 96 U.S. 464; [p401] Railroad v. Husen, 96 U.S. 470; ''German Alliance Ins. Co. v. Kansas, 233 U.S. 389; Bracey v. Darst'', 218 Fed. Rep. 98.

Under what circumstances the police power should be exercised to prohibit the conduct of certain classes of business within a certain district is a matter of police regulation for the municipal authorities. New Orleans v. Murat, 119 Louisiana, 1093; Barbier v. Connolly, 113 U.S. 27; Soon Hing v. Crowley, 113 U.S. 703.

It is primarily for the legislative body clothed with the proper power, to determine when such regulations are essential, and its determination in this regard, in view of its better knowledge of all the circumstances and of the presumption that it is acting With a due regard for the rights of all parties, will not be disturbed in the courts unless it can plainly be seen that the regulation has no relation to the ends above stated, but is a clear invasion of personal or property rights under the guise of police regulation. Cases supra and Krittenbrink v. Withnell, 135 N. W. Rep. 376; Odd Fellows Cemetery v. San Francisco, 140 California, 226; Laurel Hill Cemetery v. San Francisco, 152 California, 464; In re Smith, 143 California, 370; Ex parte Tuttle, 91 California, 589, 591; ''Mo. Pac. R. R. v. Omaha'', 235 U.S. 121.

The reasons actuating the legislative body in enacting the regulation need not necessarily appear from a reading of the ordinance itself. Grumbach v. Lelande, 154 California, 685; In re Zhizhuzza, 147 California, 328, 334.

The laws and policy of a State may be framed and shaped to suit its conditions of climate and soil, and the exercise of the police power may and should have reference to the particular situation and needs of the community. Ohio Co. v. Indiana, 177 U.S. 190; Clark v. Nash, 198 U.S. 361; Strickly v. Highland Co., 200 U.S. 527; Offleld v. N. Y. Co., 203 U.S. 372; McLean v. Denver, 203 U.S. 38; Brown v. Walling, 204 U.S. 320; Bacon v. Walker, 204 U.S. 311; [p402] Plessy v. Ferguson, 163 U.S. 537; Welch v. Sweney, 23 L. R. A. (N. S.) 1160.

It is not necessary that a business be a nuisance per se to be regulated. Ex parte Lacey, 108 California, 326; Moses v. United States, 16 App. Cas. D. C. 428; Rhodes v. Dunbar, 57 Pa. St. 275; Breadman v. Tredwell, 31 Law Journal (N. S.), 873; Bassham v. Hall, 22 Law Times, 116; Bumford v. Tumley, 2 B. & S. (Q. B.) 62; Campbell v. Seaman, 63 N. Y. 568.

The question whether the classification of subjects for the exercise of police power is proper is not to be determined upon hard and fast rules, but must be answered after a consideration of the particular subject of litigation. Ex parte Stoltenberg, 134 Pac. Rep. 971.

The length of time daring which a business has existed in a certain locality does not make its prohibition for the future unconstitutional. Tiedeman's Stat. and Fed. Control; Russell v. Beatty, 16 Mo. App. 131; Sedgwick's Stat. and Const. Law, 434; C., B. & Q. R. R. v. Drainage Commrs., 200 U.S. 592; Freund on Police Power, § 529; Case of Morskettle, 16 Mo. App. 8; Powell v. Brookfield Brick Co., 78 S. W. Rep. 648; Bushnell v. Robinson, 62 Iowa, 542; Baltimore v. Fairfield, 87 Maryland, 352; Harmison v. Lewiston, 46 Ill. App. 164; Commonwealth v. Upton, 6 Gray, 473; Rhodes v. Dunbar, 57 Pa. St. 257; People v. Detroit Lead Works, 82 Michigan, 471.

Where the police power restricts constitutional rights, particularly as to property, the value of that property is not material to the issue. Mugler v. Kansas, 123 U.S. 623; Grumbach v. Lelande, 145 California, 684; Western Indemnity Co. v. Pillsbury, 50 (No. 2654) Cal. Dec. 291; Erie R. R. v. Williams, 233 U.S. 685, 700.

The size of the territory affected by the ordinance is no criterion by which to be guided in judging of its discriminatory qualities. Cases supra.

That a statute will result in injury to some private [p403] interest does not deprive the legislature of power to enact it, although a statute may be invalid where its purpose is primarily the destruction of property. Enos v. Hanff, 152 N. W. Rep. 397.

The character and value of property contiguous to the business of plaintiff in error is very much to be considered. Krittenbrink v. Withnell, 135 N. W. Rep. 376.

That similar conditions exist in other localities is no reason why an ordinance regulating and equally affecting every. one in a given locality should be declared unconstitutional.

A statute enacted within the police power will not be adjudged invalid merely because omitted cases might have been properly included in the statute. People v. Schweinler, 214 N. Y. 395; Krohn v. Warden, 152 N. Y. Supp. 1136; State v. Olson, 26 N. Dak. 304.

Every holder of property holds it under the implied liability that its use may be so regulated that it shall not encroach injuriously on the enjoyment of property by others or be injurious to the community. Pittsburg Ry. v. Chappell, 106 N. E. Rep. (Ind.) 403.

People residing in cities are entitled to enjoy their homes free from the damaging results of smoke, soot, and cinders, if sufficient to depreciate the value of their property and render its occupancy uncomfortable. King v. Vicksburg Rwy., 88 Mississippi, 456; Rochester v. Macauley-Fien Co., 199 N. Y. 207.

Brick yards and brick manufacturing plants, as well as all businesses which require the generation of smoke, soot, and gas, have universally been held to be objectionable and may be enjoined or regulated. Cases supra and Booth v. Nonie R. R., 37 Am. St. Rep. 552, 558; McMorran v. Fitzgerald, 106 Michigan, 649; King v. Vicksburg Ry., 117 Am. St. Rep. 749; Rochester v. Macauley-Fien Co., 199 N. Y. 207.

It is immaterial whether injury from gases emitted from [p404] brick kilns is only occasional. Cases supra and Kirchgraber v. Lloyd, 59 Mo. App. 59.

The presumption is in favor of the validity of the ordinance and this presumption has not been rebutted by any evidence produced by plaintiff in error.

Prohibition of industries in certain sections of cities is but a regulation, and is always so treated. Ex parte Byrd, 54 Alabama, 17; In re Wilson, 32 Minnesota, 145; Shea v. Muncie, 148 Indiana, 14; Cronin v. People, 82 N. Y. 318; Newton v. Joyce, 166 Massachusetts, 83; Little Rock v. Rineman, 155 S. W. Rep. 105; St. Louis v. Russell, 116 Missouri, 248; Ex parte Botts, 154 S. W. Rep. 221.

The city has the right to regulate an occupation by confining the conducting thereof within prescribed limits. Cases supra; Grumbach v. Lelande, 154 California, 679; In re Linehan, 72 California, 114; White v. Bracelin, 144 Michigan, 332; 107 N. W. Rep. 1055; Stram v. Galesburg, 203 Illinois, 234; 67 N. E. Rep. 836; New Orleans v. Murat, 119 Louisiana, 1093; 44 So. Rep. 898; Ex parte Botts, 154 S. W. Rep. 221.