Inhabitants of York Harbor Vill. Corp. v. Libby

• Citation: 140 A. 382
• Parties: INHABITANTS OF YORK HARBOR VILLAGE CORPORATION v. LIBBY et al.
• Decision Date: 31 January 1928
• Court: Maine Supreme Court

140 A. 382

INHABITANTS OF YORK HARBOR VILLAGE CORPORATION

v. LIBBY et al.

Supreme Judicial Court of Maine.

Jan. 31, 1928.

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Report from Supreme Judicial Court, York County, in Equity.

Bill for injunction by the Inhabitants of York Harbor Village Corporation against Fred M. Libby and others. On report. Bill sustained, and permanent injunction to issue.

Argued before WILSON, C. J., and PHILBROOK, DUNN, DEASY, STURGIS, and PATTANGALL, JJ.

Willard & Ford, of Sanford, for plaintiff.

Stewart & Hawkes, of York Village, for defendants.

DEASY, J. The Case Stated,—The complainant is a village corporation chartered by Special Act of 1901, c. 481.

By Public Laws of 1925, c. 209, § 1, village corporations are authorized to enact ordinances dividing their territory into zones, and providing that "camping grounds conducted for private gain" shall be restricted to certain zones and excluded from others.

In 1926 the complainant adopted an ordinance dividing the corporation territory into zones A and B, and providing that "no person shall within the limits of zone B conduct for private gain a camping ground or grounds."

The bill alleges that the defendants "threaten, propose, and intend and are now proceeding to make arrangements for the purpose of using [certain land] within zone B for conducting a camping ground or grounds for private gain within zone B."

The answer admits the truth of these allegations. The complainant prays for a permanent injunction.

It is strenuously argued that the legislative act of 1925 and the ordinance enacted under it are unconstitutional and void.

Due Process—Deprivation of Property.— The constitutional limitation relied upon by the defendants and most frequently invoked by litigants, who challenge the validity of state statutes, is the Fourteenth Amendment to the Federal Constitution.

This amendment provides that no state shall "deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Article 1 of the state Constitution contains analogous provisions.

If, by the ordinance complained of, the defendants have been deprived of property, it has been done without the due process of law guaranteed by the Constitution.

Due process requires notice and opportunity for hearing. "Due process," said Webster, "hears before it condemns."

It also requires a judgment of some judicial or other authorized tribunal. Bennett v. Davis, 90 Me. 105, 37 A. 864; Randall v. Patch, 118 Me. 303, 108 A. 97, 8 A. L. R. 65; 6 R. C. L. 457.

The mere ipse dixit of a Legislature or of a municipality exercising delegated legislative authority is not due process.

Have the defendants been deprived of property? The land which, under a deed of conveyance, they have been occupying and using has not been taken from them. But this consideration is not decisive.

The legal right to use and derive a profit from land or other thing is property. Buchanan v. Warley, 245 U. S. 74, 38 S. Ct. 16, 62 L. Ed. 161, L. R. A. 1918C, 210, Ann. Cas. 1918A, 1201.

Before the passage of the ordinance the defendants enjoyed the right of using their land to conduct thereon a "camping ground for private gain." This privilege is now denied them. Thus, it is argued, they have been deprived of property.

This reasoning proceeds upon the erroneous theory that property rights are wholly absolute.

But so-called private property is held subject to the public rights of taxation and eminent domain.

It is also held subject to the implied condition that it shall not be used for any purpose that injures or impairs the public health, morals, safety, order, or welfare. Mugler v. Kansas, 123 U. S. 623, 8 S. Ct. 273, 31 L. Ed. 211; Commonwealth v. Alger, 7 Cush. (Mass.) 85; State v. Robb, 100 Me. 185, 60 A. 874, 4 Ann. Cas. 275; 6 R. C. L. 193.

The enforcement of a condition in subordination to which land or other thing is held is not a deprivation of property.

Due Process—Police Power.—It is one of the manifestations of the far-reaching police power of the states to enforce and give practical effect to these conditions which the law reads into every title deed. 6 R. C. L. 187.

It is said that police power has not been, and perhaps cannot be, defined with precision. 6 R. C. L. 184.

It is not the offspring of constitutions. It is older than any written constitution. It is the power which the states have not surrendered to the nation, and which by the Tenth Amendment were expressly reserved "to the states, respectively, or to the people."

Limitations expressed or necessarily implied in the Federal Constitution are the frontiers which the police power cannot pass. Within those frontiers its authority is recognized and respected by the Constitution and given effect by all courts.

We have seen that private property is held subject to the implied condition that it shall not be used for any purpose that injures or impairs the public health, morals, safety, order, or welfare. Under the police power, statutes and authorized ordinances give this condition practical effect by restrictions which regulate or prohibit such uses.

If the use is actually and substantially an injury or impairment of the public interest in any of its aspects above enumerated, a regulating or restraining statute or ordinance conforming thereto, if itself reasonable and not merely arbitrary, and not violative of any constitutional limitation, is valid. It is not a deprivation of property which the Constitution forbids, but an enforcement of a condition subject to which property is held.

Many and divers uses of property have been held to be so detrimental to the public interest as to be subject to restriction. State v. Robb, 100 Me. 185, 60 A. 874, 4 Ann. Cas. 275; and cases cited. Opinion of Justices, 103 Me. 512, 69 A. 627, 19 L. R. A. (N. S.) 422, 13 Ann. Cas. 745, and cases cited.

Zoning laws are the same in principle as those involved in the above cases. It is stated in Wulfsohn v. Burden, 241 N. Y. 288, 150 N. E. 123, 43 A. L. R. 651, that prior to 1926, 40 state Legislatures had authorized zoning ordinances and 320 municipalities adopted them. Most of these prohibit the carrying on of business in zones set apart for residential purposes. While there are a few authorities contra, most of them sustain zoning laws and ordinances as constitutional and valid.

The Federal Supreme Court in 1926 held valid a zoning ordinance adopted by the village of Euclid, Ohio. In the opinion by Mr. Justice Sutherland it is said that:

"This question involves the validity of what is really the crux of the more recent zoning legislation, namely, the creation and maintenance of residential districts, from which business and trade of every sort, including hotels and apartment houses, are excluded. * * * The decisions of the state courts are numerous and conflicting; but those which broadly sustain the power greatly outnumber those which deny it altogether or narrowly limit it; and it is very apparent that there is a constantly increasing tendency in the direction of the broader view." Euclid v. Ambler Realty Co., 272 U. S. 365, 47 S. Ct. 114, 71 L. Ed. 176.

Three justices dissented, but the majority opinion is supported by cases therein cited from Massachusetts, Louisiana, Illinois, Minnesota, Wisconsin, Kansas, California, and Rhode Island. See, also, the following sustaining authorities: Appeal of Ward, 289 Pa. 458, 137 A. 630; Wulfsohn v. Burden, 241 N. Y. 288, 150 N. E. 120, 43 A. L. R. 651; Des Moines v. Oil Co., 193 Iowa, 1096, 184 N. W. 823, 188 N. W. 921, 23 A. L. R. 1322; Max v. Saul (N. J. Sup.) 127 A. 785; Colby v. Board (Colo.) 255 P. 445; Larrabee v. Bell (D. C.) 10 F.(2d) 986; Harris v. State, 23 Ohio App. 33, 155 N. E. 166; Wadleigh v. Gilman, 12 Me. 403, 28 Am. Dec. 188.

The United States Supreme Court has very recently affirmed the reasoning and conclusions of the Euclid Case. Goriel v. Fox, 274 U. S. 603, 47 S. Ct. 675, 71 L. Ed. 1228.

Our attention has been called to no zoning statute like that under consideration. As above appears, courts of many states and the Federal Supreme Court have held that defined areas or zones may be constitutionally restricted against all business uses. The Maine statute authorizes the restriction of a zone or zones against one business use, to wit, conducting camping grounds for private gain.

The reasons for holding that business in certain areas may be constitutionally treated as so detrimental to the public welfare as to justify legislative restraint are summarized in Euclid v. Ambler Realty Co., supra. Some, at least, of these reasons apply to the business of conducting camping grounds. More especially is this true as respects order and sanitation. There is no evidence, it is true, that camping grounds conducted by the defendants or others have caused any impairment of the public health or order. But the Legislature may properly have considered tendencies. It was not obliged to wait until the horse was stolen before putting a button on the stable door.

It is suggested, but, we think, not proved, that offensiveness to some supersensitive eyes is the only respect in which camping grounds affect the public welfare.

If this were true and proved, we are not prepared to say that we should hold the restrictions to be reasonable and valid—even if one of the reactions were a depreciation in value of surrounding property.

But the fact that "considerations of an aesthetic nature also entered into the reasons for their passage, would not invalidate them." Welch v. Swasey, 214 U. S. 91, 29 S. Ct. 567, 53 L. Ed. 930.

The Legislature has determined that the use of land as camping grounds conducted for business is so injurious or menacing to the public as to justify ordinances confining it to certain zones.

Every presumption being in favor of the constitutionality of legislative...