The opinion
*698
LEVINE, J.,
DISSENTING:
It appears that the plaintiff is the holder oí five permits to erect buildings on Lake Avenue and Clifton Boulevard in the City of Cleveland. There is a clear case in the record showing that, in reliance upon these permits, plaintiff his arranged his finances, and executed mortgages and entered into contracts, and was about to begin the construction of his buildings commencing January 2, 1927. On the 30th day of December, 1926, the defendant wrote five letters to the plaintiff in which he revoked these permits, giving as his sole reason for doing so, the provisions of ordinance No. 76158, which is the so-called stopgap ordinance, which is set forth in full in defendant’s answer. If the stop-gap ordinance has not as yet become effective because suspended by the filing of referendum petitions, then it follows that it furnishes no excuse to the defendant for the intended revocation of the plaintiff’s permits.
The case of State ex v. Dauben, 99 OS. 406 , holds that statutes or ordinances of a penal nature, which restrain the exercise of any trade or impose restrictions upon the use of private property, will be strictly construed and their scope cannot be extended to include limitations not therein clearly prescribed, and that exemptions from such restrictive provisions will be liberally construed.
Defendant claims that the so called stopgap ordinance became effective on Dec. 26, 1926. Of course that cannot be held to be a correct statement, because the operation of the ordinance was undoubtedly suspended by the filing of a referendum petition, but, conceding- that the statement is correct, it still appears that the ordinance did not become effective until three days after the issuance of the last permit issued to the plaintiff. The stop-gap ordinance does not contain any provision authorizing the defendant to revoke permits previously granted. A stop-gap ordinance, if valid, must be construed to have a prospective effect, but never a retroactive effect.
Ample authority is cited on the point that a municipal building permit or license cannot arbitrarily be revoked, particularly where, on the faith of it, the owner has incurred material expense.
The defendant relies on the case of State ex Ohio Hair Products Co. v. Rendigs, 98 OS. 251 . In my opinion the Eendigs case can easily be differentiated from the case at bar, because, in that ease, the Council of the City of Youngstown directed the Building Commissioner to revoke the permits for the reason that the buildings proposed to be erected by the plaintiff constituted a nuisance per se. No such claim is made in the case at bar.
Were we to find that the answer of the defendant presents a defense and that the statement, as signed in his letter for the revocation of the permits, namely, the adoption of the stop-gap ordinance, constitutes a basis in fact, and were we to hold that the stop-gap ordinance was in effect and operation and is applicable to the determination of the question presented in this case, I am constrained to hold that the stop-gap ordinance is not a valid exercise of police power, for the reason that it is. unreasonable and arbitrary in its operation. The evidence presented clearly shows the great confusion which would result from its operation. It is not a scientific structure, but may be denominated the “Hit or Miss Ordinance.”
There is no doubt that municipalities are empowered to pass zoning ordinances, but such power is limited by these essential principles, namely: that the ordinance must not be arbitrary and unreasonable, that it must be uniform in its operation. The attempt of a municipality, under the guise of legislation, to interefere with the proper use of property, when such interference is not necessary for the public good, is a usurpation of the police power. This so-called stop-gap ordinance seeks to- delegate to the Board of Appeals, legislative authority. Under its provisions the erection of a building forbidden by the stopgap ordinance may, by order of the Board of Appeals be held proper to be erected. Even if this ordinance were held to be a proper and legitimate exercise of the police power, which I emphatically dispute, it destroyed its own validity by enabling the so-called Board of Appeals to undo the provisions of the ordinance itself. Penal laws must be definite and certain, and not conditional, or made to depend upon contingencies. They must be so drawn as to enable a member of the public, by reading its provisions, to determine what is proper under the ordinance, and what would constitute a violation of its provisions. If this ordinance is to be finally held valid, an anomalous situation would result. One person, erecting a building in violation of the provisions of the ordinance, would be held subject to arrest, conviction and punishment. Another person, erecting a building in violation of the provisions of the ordinance, would be considered within his legal rights, notwithstanding the violation of the ordinance, because the Board of Appeals decreed that he may do so notwithstanding the ordinance.
For the reasons above stated, I dissent from the opinion of the majority of the court, and hold to the view that the plaintiff is entitled to the relief prayed for.