Gorieb v. Fox

• Decision Date: 25 April 1927
• Docket Number: No. 799,799
• Citation: 274 U.S. 603,53 A. L. R. 1210,47 S.Ct. 675,71 L.Ed. 1228
• Parties: GORIEB v. FOX et al. Submitted under Twenty-Third Rule
• Court: U.S. Supreme Court

274 U.S. 603

47 S.Ct. 675

71 L.Ed. 1228

GORIEB

v FOX et al.

No. 799.

Submitted under Twenty-Third Rule April 25, 1927.

Decided May 31, 1927.

Mr. G. A. Wingfield, of Roanoke, Va., for petitioner.

Mr. Charles D. Fox, Jr., of Roanoke, Va., for respondents.

Mr. Justice SUTHERLAND delivered the opinion of the Court.

For the declared purpose of establishing building lines and regulating and restricting the construction and location of buildings, and for other purposes, an ordinance of Roanoke, Va., divides the city into 'business' and 'residential' districts. Another ordinance, as amended July 11, 1924, creates a set-back or building line, with relation to the street, to which all buildings subsequently erected must conform. The line must be at least as far from the street as that occupied by 60 per cent. of the existing houses in the block; the word 'block' being de- fined to mean only that portion on the same side of the street where the new building is proposed, bounded by the nearest intersecting streets to the right and left thereof. The city council by a proviso reserved to itself the authority to make exceptions and permit the erection of buildings closer to the street.

Petitioner owns several building lots within the residential district, upon one of which he has a dwelling house. He applied to the city council for a permit to erect a brick store building upon an adjoining lot, and, after investigation, the council by resolution gave him permission to erect a brick store 34 2/3 feet back from the street line. He thereupon sought by mandamus to compel the council to issue a permit to occupy the lot for his building up to the street line, alleging the unconstitutionality of the set-back ordinance. The judgment of the court of first instance was against him, sustaining the validity of the ordinance and the action of the council. This judgment was affirmed by the state Supreme Court (145 Va. 554, 134 S. E. 914), which held that the ordinance was valid and within the legislative grant of power. Acts of Assembly 1922, p. 46, c. 43.

The ordinances summarized above were those in effect when the permit was granted by the council, and they alone are involved in this inquiry. The attack here is upon the set-back ordinance, and that is assailed as contravening the due process of law and equal protection clauses of the Fourteenth Amendment to the federal Constitution.

It is said, first, that the standard furnished is so vague and uncertain as in reality to be no standard at all, since the houses, or 60 per cent. of them, in any block, may stand at a variety of distances from the street, in which event it cannot be determined from the ordinance whether 60 per cent. of the houses nearest to the street, or 60 per cent. of those farthest from the street, or some other method of calculation, is to govern. But in the present case this contention may be put aside, since (a) the permit was granted and the building line fixed under the proviso which reserved to the council in appropriate cases authority to fix the building line without reference to this limitation; and (b) as to the existing houses in the block in question, the actual differences in respect of the building lines upon which more than 60 per cent. of them stood are so slight as to be entirely negligible upon the question of certainty.

The evidence shows that the varation in the location of 80 per cent. of the existing houses was only one-tenth of a foot, and, ignoring this inconsequential difference, the established building line was slightly over 42 feet back from the street. The line designated for petitioner's building was substantially more favorable to him than this, being more than 7 feet nearer the street. Whether the provision of the ordinance, fixing the line with relation to the location of 60 per cent. of the existing houses, in its general, or in some other specific, application is so vague as to amount to a denial of due process, is a question which does not concern petitioner, since, as applied to the facts in the present case, it is definite enough, and since, in any event, he has been excepted from the operation of the provision, and it does not appear that the alleged unconstitutional feature of which he complains has injured him or operated to deprive him of any right under the federal Constitution. Oliver Iron Co. v. Lord, 262 U. S. 172, 180-181, 43 S. Ct. 526, 67 L. Ed. 929; Chicago Board of Trade v. Olsen, 262 U. S. 1, 42, 43 S. Ct. 470, 67 L. Ed. 839; Dahnke-Walker Co. v. Bondurant, 257 U. S. 282, 289, 42 S. Ct. 106, 66 L. Ed. 239; Jeffrey Mfg. Co. v. Blagg, 235 U. S. 571, 576, 35 S. Ct. 167, 59 L. Ed. 364; Plymouth Coal Co. v. Pennsylvania, 232 U. S. 531, 544-545, 34 S. Ct. 359, 58 L. Ed. 713. The proviso, under which the council acted, also is attacked as violating the equal protection clause, on the ground that such proviso enables the council unfairly to discriminate between lot owners by fixing unequal distances from the street for the erection of buildings of the same character under like circumstances. We cannot, of course, construe the ordinance as meaning that the power may be thus exerted; nor may we assume in advance that it will be exercised by the council capriciously, arbitrarily, or with inequality. It will be time enough to complaint when, if ever, the power shall be thus abused.

The proviso evidently proceeds upon the consideration that an inflexible applicabtion of the ordinance may under some circumstances result in unnecessary hardship. In laying down a general rule, such as the one with which we are here concerned, the practical impossibility of anticipating in advance and providing in specific terms for every exceptional case which may arise, is apparent. And yet the inclusion of such cases may well result in great and needless hardship, entirely disproportionate to the good which will result from a literal enforcement of the general rule. Hence the wisdom and necessity here of reserving the authority to determine whether, in specific cases of need exceptions may be made without subverting the general purposes of the ordinance. We think it entirely plain that the reservation of authority in the present ordinance to deal in a special manner with such exceptional cases is unassailable upon constitutional grounds. Wilson v. Eureka City, 173 U. S. 32, 36-37, 19 S. Ct. 317, 43 L. Ed. 603; In re Flaherty, 105 Cal. 558, 562, 38 P. 981, 27 L. R. A. 529; Ex parte Fiske, 72 Cal. 125, 127, 13 P. 310.

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