Parkersburg Builders Material Co. v. Barrack
| Citation | 192 S.E. 291,118 W.Va. 608 |
| Parties | PARKERSBURG BUILDERS MATERIAL CO. v. BARRACK. |
| Decision Date | 14 August 1937 |
| Court | West Virginia Supreme Court |
For majority opinion, see 191 S.E. 368.
KENNA, President (concurring).
I agree with the conclusion reached by the majority of the court that the plaintiff in this case has failed to show that the property as to which it seeks injunctive relief is situated in an exclusively residential section of the city of Parkersburg. Inasmuch as the granting of injunctive relief to prohibit or abate a nuisance is, excepting where the nuisance involved is said to be a nuisance per se, dependent upon the neighborhood and surrounding conditions, and inasmuch as the plaintiff in this case has not succeeded in bringing itself within the class of property owners who may maintain this sort of a suit, I am of the belief that that question alone is determinative of this controversy. The plaintiff, not being a property owner in an exclusively residential section simply cannot maintain this suit. When that fact becomes apparent, the suit must be dismissed regardless of other considerations. I, therefore, think that the discussion contained in the majority opinion with respect to the power of a court of equity to enjoin the continuance of a structure or condition on the ground of unsightliness alone is entirely unnecessary to a decision of the case. With all respect for the opinions of my associates, I think that that discussion in addition to being unnecessary, proceeds upon lines that are entirely unsound.
To my mind, the major fallacy of the majority opinion lies in the fact that to sustain its position that unsightliness alone may constitute a nuisance, it depends primarily upon those cases which sustain building regulations, zoning ordinances and the like, as being proper exercises of the police power of the state. There is no dispute about this being the trend of modern decisions, although in this state we are definitely committed to the holding that an ordinance seeking to establish a property line for no other than æsthetic reasons is invalid. Fruth v. Board of Affairs, 75 W.Va. 456 84 S.E. 105, L.R.A.1915C, 981. Although I do not know of any case that has sustained such an exercise of the police power on the ground that æsthetic considerations by themselves justify the exercise of that power, the unmistakable trend is to sustain the exercise of that power in zoning and the like as being promotive of the public health and safety and in furtherance of the general welfare of the community. Metzenbaum on the Law of Zoning, p. 99, par. D. There is to my mind a clear and most decided difference between direct control by the courts through the process of injunction on the one hand, and the control exercised by the legislative branch through the use of the police power on the other.
With respect to the police power, the Supreme Court of the United States has said: "While the police power of the State cannot be so arbitrarily exercised as to deprive persons of their property without due process of law or deny them equal protection of the law, it is one of the most essential powers of Government and one of the least limitable-in fact, the imperative necessity for its existence precludes any limitation upon it when not arbitrarily exercised." Hadacheck v. Sebastian, 239 U.S. 394, 36 S.Ct. 143, 60 L.Ed. 348, Ann.Cas.1917B, 927. The proper exercise of the police power has been held to override both the due process clause and the equal protection clause of the Constitution, so great is the extent of that power. It must never be forgotten by the courts, however, that this great power is lodged in the legislative branch of the government, composed of representatives directly elected by the people for the purpose of making laws. Its exercise is not intended for the courts whose business is to apply existing legal principles.
The majority opinion argues that to extend the law of nuisances so that courts of equity by injunctive intervention may prevent the continuance of things that are unsightly or offensive to the æsthetic sensibilities is in keeping with the liberal spirit of modern judicial decisions exemplified by the very recent attitude of the United States Supreme Court. Without pausing to inquire as to the stability of conviction which may or may not underlie that great court's recent trend, I think that the majority opinion in this case argues along lines that are the antithesis of liberalism. There can be no doubt that it is a vast extension of the former powers of the courts to say that a court of equity may enjoin as a nuisance the continuation of a thing because it is unsightly. So far as I have been able by an exhaustive search to discover, no judicial decision in either England or America has ever so held. The case of Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303, 54 A.L.R 1016, quoted at length in the majority opinion, involves simply the constitutionality of a zoning ordinance. It was, I believe, a case of first impression in the Supreme Court, and is the country's leading authority sustaining comprehensive zoning regulations as proper exercises of the police power. The case has nothing to do with the direct powers of equity courts to abate nuisances. The same thing is true of the case of State v. Harper, 182 Wis. 148, 196 N.W. 451, 33 A.L.R. 269, also relied upon in the majority opinion. Yeager v. Traylor, 306 Pa. 530, 160 A. 108, is quoted in the majority opinion, but a careful examination of the opinion in that case discloses that the question of unsightliness received merely incidental treatment. There an injunction was sought to prohibit the erection of a commercial garage in a residential area. The relief was asked...
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