Goldsmith v. City of Indianapolis
| Decision Date | 25 June 1935 |
| Docket Number | 26,283 |
| Parties | Goldsmith et al. v. City of Indianapolis et al |
| Court | Indiana Supreme Court |
From Marion Superior Court; Ralph B. Gregg, Judge Pro Tem.
Action by the City of Indianapolis and others, comprising the Board of Park Commissioners of said city, against Samuel M Goldsmith and others to restrain the erection of a business building in violation of plaintiffs' zoning restrictions. From a temporary restraining order, defendants appealed.
Affirmed.
Merle N. A. Walker, for appellants.
Edward H. Knight, James E. Deery, H. Nathan Swaim, and A. J. Rucker, for appellees.
This is an appeal from an interlocutory order temporarily restraining the defendants from constructing a business building within 500 feet of property under the jurisdiction of the board of park commissioners of the city of Indianapolis. The procedure under which interlocutory orders are made does not contemplate motions for a new trial, and the statute providing for appeals from such orders contemplates only an exception to the order. The only error assigned which we need consider is that the court erred in granting the temporary injunction.
Appellant Goldsmith was the owner of certain lots located at the southeast corner of Neal avenue and West Washington street in the city of Indianapolis, all lying within 500 feet of a public park which was under the jurisdiction of the board of park commissioners. Section 48-5508, Burns 1933, § 11918, Baldwin's 1934, provides:
". . . Whenever it shall be considered necessary by such board of park commissioners, in order to promote public health, safety, morals or general welfare, such board shall have the power, by general order or resolution, to abate, restrict, forbid or regulate any horse-racing, gambling, offensive or dangerous business or amusement, and to regulate, restrict and forbid the location of trades, industries and commercial enterprises and the location of buildings or 'devices,' designed for uses which, in such order or resolution, are specified as injurious to the public health, safety, morals or general welfare, within five hundred (500) feet of any such park, parkway or boulevard; and the right to restrict the use of such adjacent lands for any such purposes shall be deemed to be included in any gift, donation, acquisition or condemnation in this act provided for. . . ."
In General Outdoor Advertising Co. v. City of Indianapolis (1930), 202 Ind. 85, 172 N.E. 309, 72 A.L.R. 453, it was held that this statute is within the police power of the state, and that an order of the park board prohibiting the construction of bill boards within 500 feet of property under the jurisdiction of the board has a real and reasonable relation to the public welfare, and does not violate constitutional provisions for the protection of property. It is now generally recognized that the character of business which may be carried on and the type of building which may be erected in given localities, have a direct relationship to the public welfare; and zoning ordinances confining legitimate enterprises to a restricted territory are generally upheld by the courts, and must be treated as a legitimate exercise of the police power.
Pursuant to the authority granted by the above quoted statute, the board of park commissioners promulgated an ordinance or order to the following effect:
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