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(148 N.E.)

this charge in the municipal court of the city, such a delegation, or by virtue of specific of Youngstown, and the defendant was found constitutional authority, the municipality exguilty. Later the building company, defend-ercises such power, it is to be presumed that ant in error here, applied to the court of such power has been legitimately exercised; common pleas of Mahoning county, Ohio, for and that where such power has been legitia temporary order restraining the city of mately exercised there is no taking of private Youngstown, plaintiff in error here, from in- property without compensation merely beterfering in any way with the construction cause some legitimate use of the property of the said apartment house, upon the ground has been restricted. that the construction was carried on under a valid permit and was authorized in the ordinance, and upon the further ground that the ordinance itself was unconstitutional. The temporary order was granted, but, upon hearing, the injunction was refused and the petition dismissed. Upon appeal to the Court of Appeals of Mahoning county a perpetual injunction was issued by the Court of Appeals enjoining the city of Youngstown from interfering in any way with the plaintiff or its contractors in proceeding with the excavation, foundation, and construction of the building.

The Court of Appeals found on the issues joined for the building company except as to the validity of the building permit referred to in the pleadings, which was not determined, and granted the relief prayed for.

The case comes into this court upon allow ance of a motion to certify the record, and also upon petition in error filed as a matter of right: a constitutional question being involved.

C. W. Osborne, City Sol., U. C. De Ford, and J. H. Leighninger, all of Youngstown, for plaintiffs in error.

W. F. Guthrie, and Moore, Barnum & Hammond, all of Youngstown, 1or defendant

in error.

It is conceded, also, that the police power is not unlimited and must not be arbitrarily exercised, that the police power cannot be invoked for purely æsthetic considerations, nor to promote merely private comfort or private welfare, and that while a statute or ordinance is presumed to be valid a mere declaration therein that it is enacted to protect public safety, health, morals, will not render the statute valid as being within the police power unless there is some reasonable relation between such purpose and the regulation prescribed.

There is no difficulty in stating these principles. The difficulty arises in fitting these conceded principles to the facts before us.

The building contemplated contravenes that provision of the ordinance which requires that none but single or two-family houses be built within this district, as it will contain 30 apartments. The main legal question arising in this case is whether a specific use restriction, which prohibits apartment houses from being built within a purely residence section, is constitutional.

Sections 4366-1 to 4366-5, General Code (106 O. L. 455), and sections 4366-7 to 4366-12 (108 O. L., pt. 2, 1175), supplemental thereto, embody the act "providing for a city planning commission in municipalities," and provide that such city planning commission ALLEN, J. The plaintiff in error contends in any municipality may make plans for zonthat the building contemplated by the de- ing the municipality into districts and for fendants in error violates the so-called zon-regulating the structure and location of ing ordinance of the city of Youngstown, and that the Court of Appeals therefore erred in making the injunction perpetual.

The defendant in error contends that the ordinance is unconstitutional, in that it contravenes provisions of both the federal and state Constitutions, namely, the Fourteenth Amendment of the Constitution of the United States, which provides, "Nor shall any state deprive any person of life, liberty, or property, without due process of law," and article 1, § 19, of the Constitution of Ohio, which provides, "Private property shall ever be held inviolate, but subservient to the public welfare where private property shall be taken for public use, a compensation therefor shall first be made in money.

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It is conceded that the state under the police power has the right to limit the use of private property for the purpose of preserving the public health, safety, and morals; that the state can delegate its police power to a municipality; that where, by virtue of

buildings and the use of buildings and land within such districts.

Section 4366-8 provides that after the city planning commission has certified to the council a plan for the zoning of a municipality, then the council in the interest of the promotion of the public health, safety, convenience, comfort, prosperity, or the general welfare, may regulate the location of buildings and other structures, and of premises to be used for trade, industry, residence, or other specific uses, and for said purpose may divide the municipality into districts of such number, shape, and area as may be deemed best suited to carry out the purpose of this section. For each of such districts, regulations may be imposed designating the kinds or classes of trades, industries, residences, or other purposes, for which buildings or other structures or premises may be permitted to be erected, altered, or used, subject to special regulations.

If the ordinance in question is valid as an exercise of the police power, it is authorized

under the statute, and under the home-rule provision of the Ohio Constitution, article 18, § 3, as it deals with a function of local self-government. Hence the question before us is whether an ordinance of the kind set forth by this particular record, covering the particular sort of district established, which pro- | hibits the erection of more than a two-family dwelling in this particular residence district, is a legitimate exercise of the police power. The decision of this question necessarily involves an application of the law to the particular facts in the case, which are conceded. | It will be observed that in distinction to the case of Pritz v. Messer, 112 Ohio St. 149 N. E. 30, this day decided, which construed a comprehensive ordinance that had been thought out, in most careful detail, dealing with every section of the city of Cincinnati, the ordinance in this case covers merely a small fraction of the entire city of Youngstown. Moreover, the instant case differs from the Pritz Case in the fact that the Cincinnati case, upon the record, did not raise the specific question as to whether property can legally be zoned in residence districts so as to exclude apartment houses which in other respects comply with valid building restrictions.

In other words, this is not a comprehensive zoning ordinance, but is a so-called "block" ordinance, relating only to a certain small district of the city of Youngstown. Also the record shows in clear terms that so far as the health and safety of the inhabitants of this apartment house are concerned, there is in the city of Youngstown no more healthful and better spot in which to reside than in this particular district. This is the testimony of the eminent physician who was chairman of the city planning commission. Moreover, there is nothing in the record to indicate that the health, safety, or morals of the district, or of the city of Youngstown, will be impaired by the building of this apartment house, unless it be conceded that an apartment house is a nuisance per se. Hence the case is strongly distinguished upon the facts from the Pritz Case, and, indeed, from all the cases cited to us.

A positive prohibition is imposed by the ordinance upon the erection of an apartment house upon residence territory within the district. Thus the owner is substantially deprived of the use of his property. If this deprivation is reasonably imposed to prevent the use of the property for any purpose directly detrimental to the public health, morals, or safety, such a restriction does not legally constitute a taking of property without compensation and without due process. This is true, for the reason that all property is held subject to the police power of the state, and the state has the inherent right to prevent a citizen from using his property in a way which is harmful to the public health, safety, or morals. 6 Ruling Case Law, 201.

The police power, however, is based upon public necessity. There must be an essential public need for the exercise of the power in order to justify its use. This is the reason why mere æsthetic considerations cannot justify the use of the police power. Haller Sign Works v. Physical Culture Training School, 249 Ill. 436, 94 N. E. 920, 34 L. R. A. (N. S.) 998, and note. It is commendable and desirable, but not essential to the public need, that our æsthetic desires be gratified. Moreover, authorities in general agree as to the essentials of a public health program, while the public view as to what is necessary for æsthetic progress greatly varies. Certain Legislatures might consider that it was more important to cultivate a taste for jazz than for Beethoven, for posters than for Rembrandt, and for limericks than for Keats. Successive city councils might never agree as to what the public needs from an æsthetic standpoint, and this fact makes the æsthetic standard entirely impractical as a standard for use restriction upon property. The world would be at continual seesaw if æsthetic considerations were permitted to govern the use of the police power. We are therefore remitted to the proposition that the police power is based upon public necessity, and that the public health, morals, or safety, and not merely æsthetic interest, must be in danger in order to justify its use.

Does the apartment house per se endanger the public health, morals, or safety? It is true that noise affects health through nerve strain, and the apartment house is attacked upon the ground of noise; but people who live in apartment houses may not of themselves be so noisy as people who live in private houses. The very fact that they have learned to consider the foibles of others living within the same walls often makes them more thoughtful with regard to phonographs and pianos than the people who dwell in private houses. Two-family houses might house families which would make five times as much noise as the people in large apartment houses. There is not per se more danger from fire from an apartment house than from a private house, for modern apartments are apt to be fireproof, as is contemplated in this instance. Perhaps there is even less danger of fire from an apartment house than from a private house of frame and shingle roof. It is argued that an apartment house menaces the public health because it increases congestion of population. We fail to see how removing the congestion from an apartment district, and distributing it in a healthful park surrounding, will injure the health of the city at large; rather will it aid the public health.

It is also urged that this apartment house will result in congestion of traffic and danger to automobiles. The answer to that contention is that removing part of the congestion of traffic from more crowded areas to

(148 N.E.)

Neither are the people who live in apartment houses less moral per se than those who live in single dwellings. Since an apartment house does not of itself constitute a nuisance, we fail to see how its exclusion from a residence district of the specific kind here created falls within the police power. In other words, the ordinance has no reasonable relation to the public health, morals, or safety.

This is a case of a use restriction pure and simple. Numerous cases have arisen involving use restrictions, for the most part construing ordinances prohibiting the building of business plants or structures within residence districts. In these cases the use restrictions have frequently been held invalid.

districts where there is more space, where districts, the resident families will not inthere are fewer children playing upon the cur the danger of having the district blightstreets, cannot be said to interfere with the ed by the entrance of tenement construcpublic safety. tion. It is possible to see a relation between such a plan and the public health, morals, and safety. It is possible to conceive that such a building development carried out over a long period of years will affect the public health and contribute to the public morals because of the encouragement which it will give to normal home life; because it will tend to eliminate the slum, and, incidentally, will enhance the public safety, rooted as that safety is in proper home conditions and proper public health. There is no such condition in this case. Here a small district bordering upon a park, which itself will never be sold for homes, is cut out of the heart of Youngstown in a line so irregular as to justify the conclusion that the enactment was hastily passed for the purpose, as a witness states, of merely eliminating a proposed fillWe see less reason for excluding an apart- ing station. The uncontroverted testimony ment house from a strictly residence district shows that the building of an apartment than for excluding a store or other business house in this district will not harm the of a nonnuisance character from a strictly health, morals, or safety of the residents of residence district. Ordinances prohibiting the apartment house, nor of the district, nor the establishment of a nonnuisance business of the city of Youngstown. The area of the within a residence district have frequently district is not sufficient ever to make it posbeen held unconstitutional, upon the groundsible to give to the man of small means the that they constitute a taking of private property without compensation. City of St. Louis v. Evraiff, 301 Mo. 231, 256 S. W. 489; Ignaciunas v. Risley, Bldg. Inspector, 98 N. J. Law, 712, 125 A. 783; State ex rel. Westminster Presbyterian Church v. Edgecomb, 108 Neb. 859, 189 N. W. 617, 27 A. L. R. 437.

Moreover, these cases arose under proper zoning ordinances, so called, which carefully districted the territory of the entire city, and were stronger upon the facts in favor of the validity of the ordinance than the instant

case.

If a nonnuisance business cannot be excluded from a residence district, how can an apartment house, which is built for the specific purpose of providing residences, be excluded from a residence district, particularly when the residence district is practically the only district in the city where an apartment house could be built without restricting light and air space and without further congesting traffic and population?

An argument in favor of the validity of the use restriction of this kind does exist. It is that some advantage will result to the public health, safety, and morals from having certain districts kept entirely free from the intrusion of apartment houses, in order that the community in the future may develop large residence districts in which it is reasonably possible and certain that large numbers of small and reasonably priced one and two family houses will be built. The argument is that if such districts are made accessible to the owners of small homes, and apartment houses are excluded from such

opportunity of building a home within this district from which apartment houses are excluded; nor are other similarly restricted districts provided in the city. The discrimination which is thereby made between the district of the wealthy and the district of the poor cannot, under this ordinance, be overcome.

This case is upon all fours with the case of Ingersoll v. Village of South Orange (N. J. Sup.) 126 A. 213, which held a similar ordinance invalid. In fact, this case involves a discrimination more unrelated to the public welfare than the Ingersoll Case or any other case cited to us.

In our opinion, therefore, this particular ordinance, in so far as it undertakes to limit the use of land in this district to residences which can house one or two families only, has no relation to the public health, safety, morals, and welfare, and falls outside of the inherent police power of the municipality, and the ordinance is void and of no effect.

The ordinance provides that within the district no building shall be erected to a height in excess of 21⁄2 stories, or in excess of 35 feet, except churches, schools, or library buildings, which may be erected to 4 stories or 50 feet in height.

The apartment house planned will come within the height limitation of 35 feet, but is contemplated to be 3 stories high, instead of 21⁄2 stories, as required by the ordinance.

Since the limitation of the number of stories in buildings could be justified under the police power upon the sole ground that

it has reasonable relation to the number of families to be housed in the building, and since we have held that under the facts in this particular case a restriction of this kind upon the number of families in a building to be built within this particular residence district is invalid, necessarily the restriction that houses of 21⁄2 stories only can be constructed within the district is also invalid.

This holding makes it unnecessary to consider the question as to the validity of the permit. Judgment of the Court of Appeals affirmed.

In this case the defendant in error filed a petition, asking for damages by reason of the negligence of the city of Portsmouth in failing to perform its duties in respect to the maintenance of sewers, alleging negligence on the part of the city in the following respects:

"(a) In permitting said sewer to become, and to remain, so clogged and obstructed with refuse, dirt, sand, street accumulations, and débris that the waters could not flow through it; (b) in failing and neglecting to remove such obstructions as had been washed into said sewer at and prior to the times complained of herein; (c) in failing and neglecting to sweep the streets above and adjacent to MARSHALL, C. J., and JONES and MAT- the said sewer, thereby permitting refuse and THIAS, JJ., concur. dirt collected upon said streets to be washed ROBINSON, J., concurs in the judgment. into said sewer by rains until such accumula

Judgment affirmed.

CITY OF PORTSMOUTH V. MITCHELL
MFG. CO. (No. 18895.)

(Supreme Court of Ohio. June 16, 1925.
hearing Denied Sept. 29, 1925.)

(Syllabus by the Court.)

1. Municipal corporations

tions almost filled the sewer; (d) in failing and neglecting to inspect said sewer for the purpose of determining whether it had become clogged and obstructed with refuse, street accumulations, dirt, and sand."

A demurrer was filed to the petition and overruled, and thereafter an answer was Re- filed setting up in substance a general denial, and alleging that the injury suffered by the plaintiff was due to an unprecedented rainfall, and was, in fact, an act of God, and that plaintiff was negligent in storing its materials in a place likely to be flooded, without tak

733 (2)-Opera

tion of sewers proprietary function.

The operation and upkeep of sewers by a ing steps to protect the same. The trial remunicipality is a proprietary function.

2. Municipal corporations

832-Municipality liable for negligence in performance of duty to see storm sewers are not clogged.

When a municipal corporation assumes the control and management of a storm sewer which has been constructed in a public street under its supervision, it is bound to use reasonable diligence and care to see that such storm sewer is not clogged with refuse, and is liable for negligence in the performance of such duty to a property owner injured thereby, after reasonable notice of the clogged condition of such sewer.

3. Municipal corporations 832-Municipality permitting refuse to clog sewer guilty of

maintaining nuisance.

A municipality which collects refuse and dirt upon its streets in the vicinity of the catch-basins of a storm sewer and permits such refuse and dirt to be washed into the same until such accumulations clog and almost fill the sewer is guilty of violation of section 3714, General Code, and is liable to a property owner injured thereby.

Error to Court of Appeals, Scioto County Action by the Mitchell Manufacturing Company against the City of Portsmouth. Judgment for plaintiff was affirmed by the Court of Appeals, and the case comes to Supreme Court on motion to certify record. Affirmed.-[By Editorial Staff.]

sulted in a verdict and judgment for the company. Error proceedings were brought in the Court of Appeals, which affirmed the judgment of the lower court. The case comes into this court on motion to certify the record.

Sherrard M. Johnson, City Sol., of Portsmouth, for plaintiff in error. Bannon & Bannon, of Portsmouth, for defendant in error.

ALLEN, J. The record reveals the following facts: The defendant in error is engag ed in the business of manufacturing yarns, and owns a building upon a paved street in the city of Portsmouth, Ohio. The basement of the company's building was used for the The city of Portsmouth storage of yarns. had established a sewer system in the vicinity of the factory, and had later improved the streets of the locality by brick paving, by building concrete curbs and gutters, and by connecting them with the main sluices and catch-basins in the sewer. It is stated on behalf of the city that the sewer system has been too flat, that is to say, has lacked the pitch necessary for adequate self-regulation. At the date named in the petition, after an exceedingly hard rainfall, the sewer in front of the company's factory, which is a storm sewer, failed to carry off the water accumu lated upon the streets, and a stream of water

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(148 N.E.)

not flow through the sewer; for failing to remove obstructions washed into the sewer; for neglecting to sweep the streets, so that refuse may not collect upon the streets to be washed into the sewer; and for failing to inspect the sewer, for the purpose of determining whether it has become clogged and obstructed.

poured into the cellar of the plaintiff and | come clogged with refuse, so that water caninjured yarns therein stored. The evidence showed that the storm sewer in question was found for the greater part to be full of dirt and silt after the injury to the plaintiff's property. The record discloses substantial evidence that repeated notice had been given to the city of the condition of the sewers prior to the flooding thereof. A general verdict was returned in favor of the manufacturing company, which is amply warranted by the evidence in the case, if under these facts the city rested under a liabilty.

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The record shows that the city, after cleaning out the storm sewer in question, upon numerous occasions permitted the refuse gathered from the catch-basins to stand upon the street in piles, and that with each succeeding rain this refuse was again washed back into the sewer. This being the case, we have here, not a mere omission upon the part of the city to perform a duty, but a positive act upon the part of the city which has resulted in the accumulation of refuse in the sewer, and the resultant maintenance of a nuisance in the street.

If the city accumulated piles of rubbish in the street, over which an automobile drove in the nighttime, with consequent injury to the driver or to the automobile, the city would unquestionably be liable under section 3714, General Code, which provides:

"The council shall have the care, supervision and control of public highways, streets, avenues, alleys, sidewalks, public grounds, bridges, aqueducts, and viaducts, within the corporation, and shall cause them to be kept open, in repair, and free from nuisance."

The maintenance of these piles of refuse on the street, subsequently washed into the sewers, which in itself might perhaps have been a nuisance, directly resulted in the fact that the streets were not kept open upon the occasion of the storm in question, and were not free from nuisance, by the failure of the storm sewer to remove deep water accumulated upon the street; and, in permitting the conditions which caused this accumulation, the city violated section 3714 above quoted. The next question for decision is whether the city, apart from section 3714, General Code, is liable for negligence in permitting a sewer constructed and operated by it to be

Ample notice of the clogging of the sewer had been given the city, and therefore we are remitted to the single question whether the function of the city under the facts herein pleaded and proved is governmental or proprietary.

It is well established that there is no liability resting upon a municipality for the negligent acts of its officers and agents who are performing governmental functions.

"The nonliability of the city in such cases rests upon the same reasons as does that of the sovereign exercising like powers, and are

distinguished from those cases in which pow

ers are conferred on cities for the improve-
ment. of their own territory and the property
of their citizens."
of Columbus, 58 Ohio St. 538, 546, 51 N. E.
Frederick, Adm'x, v. City
35, 36.

The weight of authority holds that the construction and institution of a sewer system is a governmental matter, and that there is no liability for mere failure to construct sewers. However, the weight of authority is equally decisive in holding that the operation and upkeep of sewers is not a governmental function, but is a ministerial or proprietary function of the city.

[2] The obligation to repair is purely ministerial. When, therefore, a municipal corporation assumes the control and management of the sewer or drain which has been constructed in a public street under its supervision, it is bound to use reasonable diligence and care to keep such sewer or drain in good repair, and is liable in damages to any property owner injured by its negligence in this respect. Tiedeman on Municipal Corporations, § 355; Dillon's Municipal Corporations (5th Ed.) § 1741; Cairns v. Chester City, 34 Pa. Super. Ct. 51. See, also, the notes in 9 A. L. R. 143; 13 Ann. Cas. 470.

A host of decisions have followed this rule, As explained in McCarthy v. City of Syracuse, 46 N. Y. 194, the duty of the city to keep its sewers in repair "involves the exercise of a reasonable degree of watchfulness in ascertaining their condition, from time to time, and preventing them from becoming dilapidated or obstructed. Where the obstruction or dilapidation is an ordinary result of the use of the sewer, which ought to be anticipated and could be guarded against by occasional examination and cleansing, the omission to make such examinations and to keep the sewers clear is a neglect of duty which renders the city liable. Barton v.

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