The opinion
Bond, C. J.,
filed the following dissenting opinion, in which Ubneb, J., concurred.-
It is always well to remind ourselves how limited is the function of a court in such an inquiry as this. The- judges have not been commissioned by tbe people to survey tbe conditions existing in the State or city from time to' time and decide what governmental regulation is desirable and wise for the future. To the legislative branch of the giovernment, and in this connection to the officials of the city government, that function has been given in its 'entirety. And on any question of tbe desirability or wisdom of future regulation the conclusion of that branch of the government, and of that branch only, is called for. The courts can, in any instance, consider only the narrow question whether provisions of the constitutions of the United States or the (State prohibit the action decided upon by the legislative branch; and in this particular case, consider only whether the constitutional provision that individuals shall not be deprived of their property without due process of law, or, as -the State Constitution has it, “but by the law of the land” (article 23 of the Bill of Rights), is
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contravened by the zoning ordinance which, the city government has decided upon and passed. And if that step, is one 'dictated by the judgment of the proper legislative officials in an attempt to exercise the function committed to them, with any foundation for their concluding that the health, morals, safety, or welfare of the community which they have to care for demand it, then there would be no ground for declaring the constitutional provisions violated. The ideas of the court on the reasonableness of the measure have no bearing. In the case of
State v. Hyman,
98 Md. 596 , this Court had to consider the validity of an act of Legislature for the regulation of tailoring establishments, and Chief Judge MoSherry, in passing on the questions now raised, adopted this statement of the law: “ ‘For it must now be considered as an established principle of law in this country, that there are no limits whatever to the legislative powers of the State, except such as are prescribed in their own constitutions or in that of the United States; consequently, that the courts, in the performance of their duty to confine the legislative department within the constitutional limits of its power, cannot nullify and avoid a law, simply because it conflicts with the judicial notions of natural rights or morality or .abstract justice.’
Parker & Worthington, Public Health, & Safety,
sec. 8, and cases cited in note 2. * * * The Legislature being the sole depository of the law making power, it is not for courts of justice to say that a given enactment passed in virtue of the police power, ,and having a direct relation to it, is void for unreasonableness, because if courts undertook to exercise such an authority they would in effect exert, a veto on legislation:” “It is to be remembered,” said the ¡Supreme Court of the United States, in
Hadacheck v. Los Angeles,
239 U. S. 394 , “that we are dealing with one of the most essential powers of government; one that is the least limitabla. It may, indeed, seem harsh in its exercise, usually is on some individual, but the imperative necessity for its exercise precludes any limitation upon it when not exerted arbitrarily.”
The development of city plans and zoning ordinances, is a recent one, and does involve a considerable extension of the
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power to restrict an individual’s use and control of his property. There have, of course, been restrictions imposed in the past, growing with the problems which have arisen as the city has grown. Disturbances have been repressed; noises, smells, smoke restricted for the comfort and convenience of other citizens, .and sanitary restrictions imposed. But this ordinance is concerned, not with any such injurious uses of properties. Other ordinances have already provided for those things. This one is concerned with a mere difference in the character of activity on the premises, business or dwelling, with the mere presence of the one or the .other in the specified areas. The portion of the ordinance with which we now have to deal is a deliberate effort to separate the business of the city from the dwelling’s in so far1 as that is practicable in an old city. That is precisely what we are to consider, .and all we are to consider. And we are to decide whether the deprivation of any owners of ,so much of their freedom in the control or use of their properties in order to accomplish that end can he considered within the scope of the powers committed to the government.
The first objection is based upon the supposition that, in respect to uses which are not nuisances-, the ordinance has for its object merely an aesthetic improvement. With time and the increase of general prosperity .and comfort, it has become increasingly difficult to draw any reasonable distinction between annoyance and discomfort through one sense, such as sme.ll, and that through some other senses that may he described .as aesthetic ones. And however it may be analyzed, there is .a widespread dislike of having business uses invade residence districts, to such a degree that the entry of any business use, with its threat of further business development, is a source of distress to many owners of homes’, and tends to cause depreciation and sacrifice of the homes. The fact is that the conceptions of the people as to- the comfortable and desirable mode of living have been changing; the dwelling places generally desired by city dwellers now are those in more open areas, more or less gardened, and removed from business activities; in about the same conditions;
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indeed, as those which the present ordinance attempts to establish for homes .within the city limits. This modem preference is strong, and it will prevail to the extent of taking dwellers beyond the city limits to live if they cannot get the desired conditions inside the limits. Rapid transit enables them to live outside the city while continuing to .work in it, .and a greatly increasing number are doing so. Eor a long time now, efforts have been made in the development of new residential areas in the city to prevent the environment objected to by covenants in deeds, but this has not proved entirely successful; and, if successful, restrictions by this means are not entirely desirable, because they continue and bind the areas to which they axe .applied indefinitely in the future, in spite of almost all change, and so may become too burdensome to property owners there in course of time. In 1912 an act of assembly (chapter 693) was resorted to for: the protection .of an area being developed in the northwestern portion of the city by requiring that houses there be built entirely detached, ten feet apart, if built' of masonry, twenty feet apart if ,of frame; but this was held beyond the power of the State government, because there was no substantial reason for treating, the one kind of building or the other as'affecting the health or welfare of the citizens, which it was the duty of the State to protect, and the Legislature could not for purely aesthetic purposes invade property rights that are guaranteed by the Constitution.
Byrne v. Md. Realty Co.,
129 Md. 202 . The present general ordinance is, apparently, the next step.
This aversion to the proximity of business uses may .all be without any basis in reason, but it is nevertheless real, and the law cannot disregard the real importance of the illogical in practical affairs. In
Baltimore v. Fairfield, 87
Md. 352, in which relief was sought by neighbors from the proximity of a leper duly placed out to board among them by the city, Judge McSherry, for this Court, replying to an argument that the evidence showed the danger of contagion to be negligible, said: “It is not, in this case, so much a mere .academic inquiry ás to whether the disease is in fact highly or re
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motely contagious; 'but viewed as it is by the people generally, its introduction into a neighborhood is calculated to do a serious injury to the property of the plaintiff there located.” And the cases which have sustained ordinances against the opening of undertaking establishments in residence districts, or have without ordinance® held snob, a use properly enjoined, have proceeded upon a similar recognition of the materiality of some aversions which .are not based upon physical injury.
Saier v. Joy,
198 Mich. 295 ;
Meagher v. Kessler,
147 Minn. 182 ;
St. Paul v. Kessler,
146 Minn. 124 ;
Osborn v. Shreveport,
143 La. 932 ;
Beisel v. Crosby,
104 Neb. 643 ;
Cunningham v. Miller,
178 Wis. 22 ;
Tureman v. Kitterlin,
304 Mo. 221 . And see note 23 A. L. R 745. The authorities are not in agreement on the power to- enjoin that use, however.
Westcott v. Middleton,
43 N. J. Eq. 478;
Koebler v. Pennewell,
75 Ohio St. 278 . The upholding of ordinances directed against Chinese laundries affords another illustration.
Barbier v. Connolly,
113 U. S. 27 ;
Soon Hing v. Crowley,
113 U. S. 703 .
If any kind o-r -degree of aesthetic regulation is ever to be .wi'thin the legitimate powers of government, the principle controlling it cannot be formulated as yet, and we are not authorized to declare it to be so-. This has been decided in
Stubbs v. Scott,
127 Md. 86 ;
Byrne v. Maryland Realty Co.,
129 Md. 202 ; and
Osborne v. Grauel,
136 Md. 92 . And see
Opinion of the Justices,
234 Mass. 597 , and
St. Louis Poster Adv. Co. v. St. Louis,
249 U. S. 269 ;
contra, State v. New Orleans,
154 La. 271 . But is the'Court at liberty to assume that an aesthetic purpose was the only one, or even that it. was the predominant purpose, in the enactment of the present ordinance? We have not, of course, heard any of the discussions which .are reported iu the agreed statement of the parties here to have led toi the adoption of the ordinance, and we are .not'informed of the problems- which may have been suggested iu the routine o-f the work of the various officials of the city, and which the present plan is expected to solve. We have only vague information of problems which have already .arisen in still larger cities, and for which B.alti
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more Should, therefore, he preparing. C’an we 'Confidently say from our own experience that ¡there cannot have been any utilitarian or administrative ends which were thought by the promoters of the plan to demand the separation of business- .and dwellings as a larger method of handling the congested'population with which the officials will have to deal in the future ? May not the rapid changes in city traffic problems be met more easily by some such plan
?
And with the increased difficulty -of suppressing crime brought about by the use of automobiles for sudden arrival and flight, may there not be some aid for the meeting of police problems in the zoning plan ? Or, more accurately, could not the officials of the city have thought so? And may it not bp that the stresses and strains of living in a large modem city, with all its complex activities, have grown to a point where the separation of business from dwelling places offers a material, or even necessary, .aid in the maintenance -of the health and vigor of the city population? May it not be that in tbe growth of our predominantly industrial civilization we have arrived at a point where special protection is needed for the mere business of living ? And is it not permissible to make some arrangement for a crowded city population which promises an improvement over the haphazard jumble which may now result from the uncontrolled wills and interests of neighboring owners ? A city is a joint enterprise, and oo-operation is almost the first law of its population if their joint living place is to be kept tolerable as the congestion of affairs in it increases. And if we regard property owners as holders of abstract rights, the same in the country as in a city, we may reverse the process to which they commit themselves as residents or beneficiaries of the city. In
Opinion of the
Justices, 234 Mass. 597 , the Supreme Judicial Court of Massachusetts said on this point: “We do not think it can be said that circumstances do not exist in connection with the ordinary operation of such kind's of business 'which increase the risk of fire, and which render life less secure to those living in homes in close proximity. Health and security from injury of children and the old and feeble and
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otherwise less robust portion of the public well may he thought to be promoted by requiring that dwelling houses be separated from the territory 'devoted to trade aud industry. The suppression and prevention of disorder, the extinguishment of fires and the enforcement of regulations for street traffic, and other ordinances designed rightly to promote the general welfare, may he facilitated by the establishment of zones or districts for business as distinguished from residence. Conversely, the actual health and safety of the community may he aided by excluding from areas devoted to residence the confusion and danger of fire, contagion and disorder, which in greater or less degree attach to the location o-f stores, shops and factories. Regular and efficient transportation of breadwinners to and from places of labor may be expedited. Construction and repair of streets may he rendered easier and less expensive if heavy traffic is confined to specified streets by the business there carried on.” And to the same effect are the subsequent decisions in
Inspector of Buildings of Lowell v. Stoklosa,
250 Mass. 250 , and
Spector v. Building Inspector of Milton,
250 Mass. 63 . And to the same effect is
State v. New Orleans,
154 La. 271 .
When we come to examine the previous decisions in Maryland, we find that in
Easton v. Covey,
74 Md. 262 , the denial of the permit to establish a livery stable, because it was unsuitable to its surroundings in Easton, was upheld in an opinion by Judge Miller. In
State v. Hyman,
98 Md. 596 , the Court found an act for regulation of tailoring establishments to be within the police power of the Legislature; and that case was upon closely similar facts. It prohibited tailoring in dwellings except where licensed by a public official, and vested in that officer a discretion in granting or refusing permits which, on the face of the act, was almost unlimited. And the grounds of attack were also closely similar to those in the present case. Many other occupations have likewise been lawfully subjected to regulation; and public utility regulation is a familiar recent exercise of the police power.
Gregg v. Public Service Commission,
121
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Md. 1. The Supreme Court of the United States has upheld a prohibition of the continued manufacture of bricks in a restricted district
(Hadacheck v. Los Angeles,
239 U. S. 394 ); of a livery stable
(Reinman v. Little Rock,
237 U. S. 171 ) ; and of bill hoards
(Cusack Co. v. Chicago,
242 U. S. 526 ). And somewhat in advance, of most of .these decisions is that in the case of
Cochran v. Preston,
108 Md. 220 , in which a restriction on the height of buildings to he erected on Mt. Vernon Place in Baltimore City was held valid; and that in
Osborne v. Grauel,
136 Md. 91 , which upheld a refusal to issue a permit for a garage because the Mayor did not “think garages ought to be built in that community; that it Was a very nice class of property out there and that these garages would depreciate the value of the property * * * and that the 'character of the proposed buildings did not conform to the other improvements in the neighborhood.” In the case of
Cochran v. Preston, supra,
the Court found that the ■statute might he justified as necessary to meat a fire hazard of special seriousness, hut the propriety of the restriction if intended to accomplish a purely aesthetic purpose was discussed, and in denying it the Court, page 229, said, “Such is undoubtedly the weight of authority, though it may he that in the development of a higher civilization, tire culture and refinement of the people has reached the point where the educational Value of the fine arts, as expressed in architectural symmetry and harmony, is so well recognized as to give sanction, under some circumstances, to the exercise of this power even for such purposes.”
Upon these considerations, the conclusion of Judge Umer and myself on
the
first and main question, whether this ordi- ' nance can he said to have a purpose which it is the function of the government to effectuate, is that it can be. We take the view that the possibilities pointed out for improvement in living conditions, and in the handling of administrative problems^ may well have justified the adoption of the separation of business and the dwelling places for the future, uuder the police power, and that this measure of co-operatiou required of the citizens is one which the judges cannot say is
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arbitrary or unnecessarily oppressive. And, proceeding from this conclusion, we tbink, further, that the vesting of so wide a discretion in the hoard of zoning appeals by the provisions of the ordinance cannot properly be held an unconstitutional delegation of legislative power.
The nature and magnitude of the undertaking do, as the majority opinion points out, give rise to difficulties in accomplishing it, of legal as well as of practical importance. Discrimination .among the many thousands of situations, of particular properties, and of possible uses, is, of course, impracticable, so- that the work can be done only by broad classifications, with inevitable disregard of some differences, and presumably with inevitable hardship and injustice in some cases» And as tbe conditions to be dealt with in such a living city are transitory, no fixed arrangement can he- made for them. An agency with little limitation upon its discretion and freedom of action must be set up, and might soon become the chief immediate source of the law .and of its administration. But it seems sufficiently clear that the effort is to make necessary adaptation within the limits of the plan and purpose indicated in the ordinance, and it is restrained by a provision for appeal. There is nothing novel in the device, nor in the breadth of the discretion delegated. Legislation which has to provide for a large number of special eases of varied facts, or for unforseeable conditions present or future-, mus-t be supplemented by the action of administrative officers with piower to adapt and v-ary the rule as the special cases come before them, one by one. If this were not permissible, then the legislative branch of the government could not deal with some -of the needs of the country or of the community at all, for it can be done in no other way. As early as 1794, O’ongre-s-s passed an act which gave the President p-ower to lay an embargo on shipping! “whenever in bis opinion, the public safety shall so require,” and under regulations to be continued or revoked “whenever he shall think proper.” So another act later conferred upon the President authority to reduce revenue and equalize duties on imports, and for other purposes to suspend by proclamation tbe free introduction of
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sugar, molasses, coffee, tea and hides, when he is satisfied that any country producing such articles imposes duties or other exactions upon the agricultural or other products of the United ¡States which he may deem to he reciprocally unequal or unreasonable; and it was held a valid delegation of power.
Field v. Clark,
143 U. S. 649 . A statute which declared its purpose to exclude the lowest grades of tea from importation, .and then left it to the Secretary of the Treasury to determine the standards to.be applied, was held valid.
Buttfield v. Stranahan,
192 U. S. 470 . Chief Justice White, in the opinion of the Court in that case, said: “Congress legislated on the subject as far as was reasonably practicable, and from the necessity of the case was oompelled to leave to executive officials the duty of bringing about the. result pointed out by the statute. To deny the power of Congress to delegate such a duty Would, in effect, amount but to declaring that the plenary powers vested in Congress to regulate foreign commerce could not be efficaciously exerted.” And again, in
Union Bridge Co. v. United States,
204 U. S. 387 , the Court said: “Indeed, it is not too much to say that a denial to Congress of the right, under the Constitution, to delegate power to determine some fact or the state of things upon which the enforcement of its enactment' depends would be To stop the Wheels of government’ and bring about confusion, if not paralysis, in the conduct of business.” And SO', it was held constitutional for Congress to authorize the Secretary of War to fix and change harbor lines
(Philadelphia Co. v. Stimson,
223 U. S. 605, 635, 638 ) ; and to empower the Secretary of Agriculture to make substantive rules .and regulations covering forest reservations, and to make criminal the violation of those rules (
United States v. Grimaud,
220 U. S. 506 ). All this may be found in conflict, with expressions, and, indeed, decisions, in earlier cases; but there has been an enforced growth and change in constitutional Conceptions as to proper delegation of power to governmental agencies. Senator Elihu Boot, who speaks with the authority of a most profound understanding of our institutions, and of the
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law, said to the American Bar Association in 1916: “As any community passes from simple to complex conditions the only way in which government can deal with the increased burdens thrown upon it is by the delegation of power ¡to be exercised in detail by subordinate agents, subject to the control of general directions prescribed by superior authority. The necessities of our situation have already led to an extensive employment of that method. The Interstate Commerce' Commission, the iSfcate Public Service Commissions, the Federal Trade Commission, the powers of the Federal Reserve Board, the health departments of the states, and many other supervisory offices and agencies1 are familiar illustrations. Before these agencies the old doctrine prohibiting the delegation of legislative power has virtually
retired
from the field and given up> the fight. Thera will be no withdrawal from these experiments. We shall go on; we shall expand them, whether we approve theoretically or not, because such agencies furnish protection to rights and obstacles to wrongdoing which under our social and industrial conditions cannot be practically .accomplished by the old and simple procedure of legislatures and courts as iu the last generation.” And he then proceeded to emphasize the necessity -of having the agencies themselves held under rule. There may be more fight left iu the doctrine prohibiting the delegation of legislative power than is here conceded, but that there has been at least .a change of line seems unquestionable. The discretion under the zoning ordinance is, after all, little or no greater than that vested in the Public Service Commission for its work. We must assume a disposition on the part of the board. to act justly, and if it fails to do so, there is a remedy by appeal, with a jury trial if desired.
State v. Rutherford,
145 Md. 363 . Therefore the danger of oppression seems sufficiently guarded against. The possibility of differences in the standards of different juries does not make the appeal objectionable or unsatisfactory to the individual property owners in whose interest the constitutionality of the ordinance is questioned. In
State v. Hyman, supra,
to which reference has been made several times because of its points
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of similarity, Judge MelSherry, for the Court, answered much the same objection on' the breadth of the administrative discretion thus: “Tested by the principles hereinbefore announced we find nothing in the Act of 1902 which indicates that its design, its purpose or its details have not ,a real .and substantial relation to the police power. It may be conceded that some of those provisions, if harshly administered may be or become oppressive, but it by m> means follows that the law itself is therefore not a legitimate exercise of the poliee power. It is not to be .assumed that the public functionary will act in an oppressive or unlawful manner. Discretion must be reposed somewhere. If an official should transcend the legitimate limits of the authority with which the statute clothes Mm, the injured party is not without redress. Laws are to be upheld rather than stricken down. Every intendment must be made by the courts in favor of the constitutionality of .a statute.”
It is for these reasons our conclusion on the constitutional objections raised has differed from that of the majority.