Schwartz v. Brownlow

• Decision Date: 07 February 1921
• Docket Number: 3450.
• Citation: 270 F. 1019
• Parties: SCHWARTZ v. BROWNLOW et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

270 F. 1019

SCHWARTZ v. BROWNLOW et al.

No. 3450.

United States Court of Appeals, District of Columbia.

February 7, 1921

Submitted December 6, 1920.

Appeal from the Supreme Court of the District of Columbia.

W. G Gardiner, of Washington, D.C., for appellant.

F. H Stephens, P. H. Marshall, and R. L. Williams, all of Washington, D.C., for appellees.

VAN ORSDEL, Associate Justice.

This appeal is from a judgment of the Supreme Court of the District of Columbia refusing a writ of mandamus to compel the Commissioners and building inspector of the District to issue a permit for the erection of a drug store on a lot situated in a residence block in the city of Washington.

The application for the permit was filed with the inspector on May 26, 1920, and approved by the plumbing inspector and structurally approved by the building inspector. The permit however, was refused fused because of an ordinance adopted by the Commissioners three days before, which provided as follows:

'On a residence street where there is no property on the same block occupied and used for business purposes, no permit for the establishment or conduct of a business of any character, retail or wholesale, shall be granted until there shall be filed the written consents of the owners of three-fourths of the property within two hundred feet of the site of the proposed establishment.'

The Commissioners base their authority for adopting this regulation upon the act of Congress of June 14, 1878 (20 Stat. 131), which is as follows:

'Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, that the Commissioners of the District of Columbia be, and they hereby are, authorized and directed to make * * * such building regulations for the said District as they may deem advisable.'

The act then provides that the rules and regulations so made shall have the same force and effect as if enacted by Congress.

Whether the adoption of the ordinance in question was a constitutional exercise of police power by the Commissioners need not be considered, since their action is in direct conflict with the act of Congress of March 1, 1920 (41 Stat. 500), creating a zoning commission, which, among other things, provides:

'Within six months after the passage of this act, and after public notice and hearing as hereinafter provided, the said commission shall divide the District of

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