Ward's Appeal

Concurring Opinion by

Mr. Justice Kephart :

In White’s App., 287 Pa. 259 , as stated in the majority-opinion, we held zoning ordinances in their general structure to be lawful exertions of the police power, and that, in their general effect, they do not invade any constitutional right of an owner by depriving him of property without due process of law; but that the ordinance, applied to the facts of a given case, when passing under the, scrutiny of the Constitution, might involve such transgression; if it did, the ordinance as to such act was invalid.

The Supreme Court of the United States, in the Euclid Case, 47 Superior Ct. Rep. 114, likewise referred to, sustained zoning ordinances in general as a comprehensive exercise of police power, and held that, as such, they were not violations of the 14th Amendment. That court left open for future action, as this court did in White’s Appeal, the application to the facts of particular cases on .the test of constitutionality, as was also left open the scope of the provisions there considered, as well as the validity of provisions not involved in that proceeding. As stated on page 121: “It is true that when the provisions set forth in the ordinance____: .come to be concretely applied to particular premises......or to particular conditions, or to be considered in connection with specific complaints, some of them, or even many of them, may be found to be clearly arbitrary and unreasonable. But where the equitable remedy of injunction is sought, as it is here, not upon the ground of a present infringement or denial of a specific right or of a particular injury in process of actual execution, but upon the broad ground that the mere existence and threatened enforcement of the ordinance by materially and adversely affecting values......curtailing the opportunities of market, constitute a present and irreparable injury, the

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court will not scrutinize its provisions sentence by sentence to ascertain......whether there may be......provisions......which if attacked separately might not stand the test of constitutionality.” The constitutionality of the ordinance was sustained “in its general, scope” only.

In considering White’s Appeal, supra, the ordinance was subjected to the test of the state and the federal Constitutions. Our investigation and conclusion as it related to or was covered by our own Constitution was final. The Euclid Case was an appeal from the Federal Circuit Court. The Supreme Court of Ohio did not consider the ordinance in question as it related to the Constitution of that state. The Euclid Case decided that the zoning ordinance in its general features did not offend the 14th Amendment, leaving open its application to a particular case under that amendment, as stated above, as well as the state’s interpretation on its Constitution.

This is illustrated in the case of Smith v. Atlanta, referred to in the majority opinion. The question before that tribunal was whether, in a locality zoning against the erection of business or trade houses, a retail grocery store could be built. The state Supreme Court discussed broadly the question of constitutionality, and, from its references to the decisions of other state and the federal courts, it held such exertion of authority unreasonable as it related to that particular locality, and therefore unconstitutional. Since the court was silent as to the particular constitution, state or federal, it was invoking, it may well be assumed the ordinance was considered invalid under the 14th Amendment. The federal Supreme Court refused an appeal in that case.

Moreover, it is my judgment, subject to what has been said, that, in determining the reasonableness of zoning ordinances which deal so intimately with the affairs of citizens of a state in local matters, the federal Supreme Court will place the burden of determining whether or not an ordinance is reasonable squarely on state courts,

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and will be largely guided by their decisions unless the power is abused. In applying the state and federal Constitutions to the facts before us, our hands are in no way tied. The decisions of other states are helpful only as illuminating the question from the point of view of the various minds considering it.

The Euclid Case held that a mere apprehension of depreciation in value was not of sufficient importance to stay the police power, the property loss, if any, at that time being negligible. In the Atlanta Case, depreciation and adaptability were the grounds of complaint; the ordinance was in process of actual execution, and was not merely a remote threat; the state court held it unreasonable. There is a vast difference between mere apprehension or threat and actuality. Depreciation in value is a relative term. There may be degrees of it, and, where the validity of authority under the police power is concerned, its general scope being lawful, slight inconvenience or curtailment of freedom, standing alone, should not be considered sufficient to sustain unreasonableness in the application of an ordinance.

May a city, acting under the state’s authority, enforce an ordinance which establishes a district into which trade or business cannot enter, and will such regulation prevent the erection of a retail grocery or, drug store? The first part of this question is answered in White’s Appeal, where it was held a reasonable exercise of authority. Is the proposed retail grocery or drug store included in that prohibition? When discussing this question, we of necessity consider reasons applicable to the general as well as the particular exercise of authority. If the prohibition includes such stores, it should be based on a “substantial relation to the public good,” a public good that has direct connection with health, morals or safety. In ascertaining the public good by which the particular application of a zoning ordinance is to be sustained, care should also be taken that we do not permit such an instrument to become one of oppression

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in favor of a selected few or one whereby favoritism may be practiced without hindrance, and that it does not become a regulation of business as such, not through prices or rates, as in the case of service companies, but in a manner more closely resembling the legislative regulations of professions, trades and occupations such as medicine, engineering and mining.

There is no doubt legislation of this type is gradually extending its scope, and we are living in an era of regulation ; the chief aim of some reformers seems to be the regulation by the government of the affairs of those in every walk in life, — until the regulator himself is specifically affected, then it is all wrong. Here we have regulation of the use of property owned in fee.

If the proposition before us was to prohibit generally retail grocery or drug stores in every residential district, or in all cases, I would disagree absolutely with any such rule. It would be wholly arbitrary and unreasonable. The majority opinion does not attempt any such thing although this case is on the border line.

It has been stated, a retail grocery or drug store is a lawful business which does not threaten the public health or endanger the public safety. It does not impair the public comfort or the welfare of a community. As ordinarily conducted, they are not places of noise or disturbance, generally speaking. The trade is reputable and honorable. Only highly sensitive persons would feel aggrieved at the business. It is not, by any means, a nuisance, but an imperative need in life, not, however, to be located of necessity in numbers in a residential district. All of which should be considered in cases like the one before us.

On the other hand, one or a number of citizens who own property along a given street, used and occupied as residences, should not have their ownership depreciated in value merely to satisfy the personal wish of one property owner. Here we meet again depreciation, as discussed above,

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The chief reasons which move me to concur in the decision in this case are: First, there are a number of stores in this same block, and it is proposed to add another; collectively, such trades, by building a number of business houses, have no more right to turn this locality into a business section, at the expense of the resident property owners, by greatly depreciating or increasing the value of their properties, than do the residents to exclude every store. In the enforcement of all zoning ordinances, of course some must, to a slight degree, be hurt; the question is one of degree, and, in balancing the equities, the great weight lies with those first in the locality who have made it a place for homes. There should be some security in a home. It is not the case of barring all stores in the neighborhood, but of preventing an increase in their number. Second, appellant bought this property with the zoning ordinance staring him in the face. He knew it prevented him from doing the thing he is now trying to do, before he invested his money. Property owners, by a restrictive covenant in a deed, may thus limit the use of the property, and subsequent owners cannot complain since they knew it when purchasing the land. Here, when appellant bought, in September, 1926, the ordinance had been passed and was in active operation. Knowing this, he cannot complain of the order made in the court below.

I consider the building now standing as though it did not exist. It is ready to fall down, and a new one is proposed to be erected in which to start the store business. With the knowledge of these conditions on the ground, the court below was clearly warranted in finding that, apart from the question, of depreciation in value, the zoning restriction as to this place should be enforced.

In the Atlanta Case, it was alleged the property was well adapted and specially valuable for business purposes, because of its proximity to the railroad and for other reasons. For the same reasons, the owner claimed that her property was practically valueless if she should

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be restricted to a residential building. At tbe time of tbe suit, tbe property was vacant and had no earning capacity. She paid the taxes and interest on the money invested in the property. On this showing, the Supreme Court of Georgia said she had a right to erect a retail store and the United States Supreme Court refused an appeal.

Under the facts in this case, there is no question of money value or other circumstances to move the court, merely a question of doing something regardless of injury or any other question. If this store is permitted, then, with other stores now or soon to be erected, this section will be turned into a business section.

For these reasons and those stated in the majority opinion, I concur in the judgment.