Carrying out the city plan

by Flavel Shurtleff

A similar ordinance has been proposed for the city of St. Paul:[138]

Section 2. It shall be unlawful to establish or maintain within said district any carpet beating establishment, stone crusher, rolling or planing mill, public laundry, fireworks, soap or cigar factory, machine shop, slaughter house or rendering works, brewery, distillery, tanning, furrier or canning plants, or any hospital or sanitarium, or asylum for defectives, or any establishment, works or factory which by reason of noise, offensive smell or vapor, or unsanitary effect, may be unhealthy or disturbing or injurious to persons or property within said district.

Section 3. Any person violating this ordinance shall be deemed guilty of misdemeanor and punished by a fine of not less than twenty-five, or more than one hundred dollars, or by imprisonment of not more than ninety days, or both fine and imprisonment. Each day of the violation of the prohibition herein contained shall be construed as a separate offense.[139]

4. OFFENSIVE USES OF LAND NOT SUBJECT TO MUNICIPAL REGULATION

There remains a class of occupation which imperils neither the safety nor health of the community and yet is very damaging to the value of land as a place of residence. A business that produces little or no smoke or noise and no odors that are unhealthful may, because of the appearance of the buildings which it occupies or the class of persons which it attracts, be an undesirable neighbor. This is the sort of occupation that the developers of a high class residential district exclude by restrictions in the deed, but the police power has never been extended to preventing or removing structures or occupations which merely disfigure the city’s physical aspect or which bring together people who may be socially uncongenial. It is not held to be within the scope of the police power to guard the amenities of life.

The Missouri legislature of 1891 gave authority to municipalities to exclude by ordinance “the institution and maintenance of any business avocation on the property fronting on boulevards ... and to establish a building line to which all buildings and structures shall conform.” Ordinances based on this legislation were tested in several cases in the supreme court and in each case declared unconstitutional on the ground that the legislation deprived owners of property without due process of law and made no provision for compensation. The theory was advanced by attorneys for the city that the ordinance was passed in pursuance of the police power, but this suggestion was held thoroughly untenable by the court.[140]

An ordinance of the city of Baltimore prohibited the erection of new buildings without a permit, and directed that the permit should not be granted unless in the judgment of the appellate tax court “the size, general character, and appearance of the building will conform to the general character of the buildings previously erected in the locality and will not tend to depreciate the value of the surrounding improved and unimproved property.” In a well considered decision this ordinance was held ultra vires.[141]

An ordinance of Bay St. Louis, Mississippi, prohibited the building of houses, shanties, huts, or tents between the road and sea without a special permit, except such as are known as summer houses for shade only, and “all houses built without a permit shall be nuisances.” The road mentioned in the ordinance was much used by pleasure vehicles, and on the land side were many expensive houses. The ordinance was obviously designed to preserve the view of the gulf from the road and prevent the obstruction of the cool winds from the water. The court found the ordinance unconstitutional, and in discussing the theory that it could be defended in the exercise of the police power, said, “There is scarcely a suggestion that the object of the ordinance is other than to enhance the beauty of the street.”[142]

Offenses to the sense of smell and to the sense of hearing are enjoined on the ground of health, but the medical fraternity has not convinced the legal fraternity that offenses to the sense of sight are damaging to the health. It should be a very interesting task to frame a medico-legal brief which would convince a reputable tribunal of the necessity to give a broader meaning to the phrase “public welfare,” and we should have a decision which would be as influential as the case of Welch vs. Swasey in Massachusetts. One of the greatest authorities on police power says: “It is conceded that the police power is adequate to restrain offensive noises and odors. A similar protection to the eye, it is conceived, would not establish a new principle but carry a recognized principle to further application.”[143] The same authority recognized the difficulty of administering such an extension of the power as applied to the elimination of objectionable signs: “Such regulation would have to define what signs are prohibited and some test would have to be discovered by which to discriminate that which is merely unesthetic from that which is so offensive as to fall under the police power, since the prohibition of all advertising signs would be out of the question.”

Some forms of advertising which are now allowed in practically every city in the United States could be enjoined on the ground of endangering public health. The custom, for instance, of covering the whole side or front of a building with advertisements pictured or lettered in electric lights might be enjoined as an injury to health, since at least the glare interferes with the sleep of occupants of buildings facing such a sign. But, generally speaking, the decisions on this phase of the general subject of the police power as illustrated by the bill-board cases which we are about to discuss are conclusive that whatever may be the effect on the judiciary from the increase in esthetic sentiment, the great consensus of opinion is at present against the exercise of the police power to restrain that form of use of land which is merely offensive to the sense of sight.