Goldman v. Crowther

delivered the opinion of the 'Court.

Daniel Goldman and his wife, as tenants by the entireties, own the property known, as 1513 Park Avenue in a part of Baltimore City which, under Ordinance Ho. 922 of the Mayor and City 'Council of Baltimore Oity, known as the ■“zoning 'ordinance,” is classified as a residence district. Tn May, 1923, Goldman undertook to use the basement of a'four story dwelling on that property for repairing, by hand and am ordinary sewing machine, for hire, used clothing for such patrons as had occasion to require his services. The business which he thu’s carried on required no alteration or repair of the building, and in the opinion of Goldman no permit was necessary to use it for that purpose. He was however informed that by so using-it without a permit he was violating certain ordinances of the Mayor and City Council of Balti *286 m,ore and shortly thereafter he Was arrested for such violation, and while that complaint against him was pending he applied to the inspector of buildings of Baltimore City for a permit to use the premises for the purposes referred to. The inspector of buildings refused to grant the permit, partly at 'least on t'he ground that he was compelled under the zoning law to disapprove applications for such a use of property in a residence district. Goldman .then filed in the Superior Court of Baltimore City a petition in which he asked that a writ of mandamus be issued against the building inspector of Baltimore City and the mayor of .said city, directing them to issue to him a permit for the use of his premises for the purposes referred to above. The defendants answered that petition, and in their answer they averred that the permit was refused not only upon the authority of the zoning ordinance, but as well upon tbe authority of other ordinances of the City of Baltimore vesting a discretion in the building-inspector as to the is'su'anee of permits in such eases, and that in refusing the permit in this case the building inspector acted in the exercise of that discretion. In connection with such issues of fact as were presented .by the petition and the answer thereto, an agreed statement of facts was filed, and from that statement and the admissions found in the pleadings it further appears that the re'al and substantial reason for refusing the permit was that Goldman’s property is located in a residence district of Baltimore City, the outline's of which are fixed by the zoning* ordinance referred 'to. The verdict of the trial court was in favor of the defendants and the writ of mandamus refused, and from the judgment on that verdict this appeal was taken.

The important and controlling, and indeed under the agreed statement of fact the only question presented by the appeal is whether the zoning ordinance of Baltimore City, known *as Ordinance No. 922, in so far as it affects the right of ’the appellant to use his property -in the manner we have described, is a valid and ¿n enforceable enactment, and in dealing with that question it can he said that there is nothing *287 in the record from which it can be inferred that such use is offensive to the eye, the ear, or the nose of a -person of ordinary sensibilities, or that it imperils the public health, welfare or safety, any more than would the Same character of Work if done by Goldman for himself and his family, except that possibly more of it is -done.

This question can be approached by either of two avenue's; one legal; the other political and sociological. If approached by the former the validity of the restraints and prohibitions of the ordinance must depend upon Whether they violate certain definite guaranties and assurances found in the Federal and State constitutions and the law of the land. If -apr proached by the latter, the question is to* an extent freed from the embarrassment of harmonizing any apparently repugnant provisions of the act with those guaranties, since in such case the end to be -accomplished and the benefit to be derived are the main factors to be considered, and the rights of mere individuals may be subordinated to tbe public convenience, upon the principle that such rights ara always subject to the paramount authority of the State to subordinate them to what is -conceived by those -speaking for it to be for the benefit of the State, as representing .all the citizens.

"Which one of these two methods of approach should be used in this case is a question which goes to the root of our system of government, but without referring’ further to that, it is sufficient to say that in our opinion we are not at liberty to examine the quest,ion from any other than a legal standpoint, and therefore we cannot be controlled in our consideration of tbe validity of this ordinance by its possible benefit to- the public, if in point of fact that benefit i*s purchased -by-appropriating the rights and property of individuals to the public use without just compensation, -and by the violation of the guaranties of the State and Federal Constitutions.

We will now examine the statute itself to ascertain just what it is and what it does.

It first divides the City of Baltimore into various districts, classified according to tibe use to which property may be *288 put, the height of buildings which may he erected and the proportion of the whole area which buildings may occupy on lots on which they may be placed.

The outlines of these several districts are fixed by certain m'aps accompanying the ordinance as a part of i'fc. By these maps the entire city is divided first ais to use into' (a) residence districts, (b) first commercial districts, (c) second oommereal districts, (d) industrial districts; and in those districts it is provided that “no building shall be erected or used and no land shall be used for any purpose other than a purpose permitted in the tose’ district in which such building or land is located.”

In a residence district no building or land shall be used and no building shall be erected which is arranged, intended or designed1 to be used except for one or more of these specified uses :

(1) Dwellings; (2) Lodging or boarding houses; dormitories or convents; (3) Hotels, which have more than twenty sleeping rooms; (4) 'Olubs, except clubs th'e chief activity of which is a service customarily carried on as a business; (5) Churches; (6) Libraries or public museums; (Y) Municipal recreation uses; (8) Railroad rights of way; (9) Farming, gardening, nurseries or green houses; (10) Apartment garages, without repair facilities or gasoline filling stations, each apartment of which shall not have over two private motor cars, etc.

In the first commercial districts no land or building shall be used and no building shall be erected for certain specified trades.

No building or l'and shall be used 'and no building erected in the second commercial districts' for any one of eighty-seven specified trades, industries or uses, and no building or land shall he used or erected for any trade, industry or use that is noxious or offensive, hut it permits street car barns, trouble stations, bus garages, electric sub-stations, gas holder stations, public utility distribution shops, telephone exchanges, or places of amusement.

*289 The ordinance further provides that any building or land may be used in industrial districts for any purpose not prohibited within the city limits.

It also contains a general provision authorizing the board of zoning appeals, in appropriate cases, to determine and vary the application of the use district regulations herein efetablished in harmony with their general purpose and intent, and then sets out and limits the extent of the authority thus given the board of zoning appeals to vary the terms of the ordinance, hut authorizes it to permit in any use district: 1. Amusement parks. 2. Aviation fields. 3. Crematories. 4. Public utility plants. 5. Befnse dumps. 6. Sewage disposal plants.

Second. As to height the city is divided into' five height districts, in which the height of buildings erected is required to conform to certain ratios varying as to. the several districts from two and a 'half times the width of the street on which they front to forty feet in height.

Third. As to are'a, the city is divided into six area, dis1tricts, in which' no building may be erected which occupies more than a certain percentage, varying as to each district, of the lot on which it is located, and in which the number of families who may dwell on a given area is fixed.

Tbe inspector of buildings of Baltimore City, called tbe zoning commissioner, is charged witb tbe duty of enforcing the ordinance, and a board of zoning appeals is established and authorized to hear and decide appeals from any order, requirement or decision of the zoning commission in carrying out the ordinances, and there may be an appeal from any order, requirement, &o., of said boiard of zoning appeals to tbe Baltimore City Court, which is required to bear the case represented by tbe appeal de novo and authorized to pass such order in the premises as it may deem, right and proper. It also provides that: “Upon the hearing, any party may appear in person or by agent or by attorney. The board of zoning appeals may reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determina *290 iron appealed from, and shall make such order, requirement, decision or determination as in its Opinion ought to be made iu the premises, and to that end shall hare all the powers of 'the zoning commissioner in accordance with this ordinance. Where there are practical difficulties or unnecessary hardship in the way of carrying out the strict letter of this ordinance and the maps which .are a part here'of, the board of zoning appeals shall, with the concurring vote of five members, have the power in passing, upon appeals', to vary or modify any of the regulations or provisions of this ordinance, relating to the use, construction or alteration of buildings or structures of the use of laud, so that the spirit of the ordinance shall be observed, public safety and welfare secured and substantial justice done. >The rule that the hoard of. zoning appeals shall follow in deciding the various questions referred to in .this ordinance, shall be the protection of living conditions as far as reasonable or the prevention of serious injury to the appropriate use of neighboring property.”

By this ordinance all the land in the Oity of Baltimore is subjected to restrictions which limit the number of families who may dwell on it, the use to> which it may be put, the height of buildings which may be constructed ou it, and the proportion of each lot of ground which a building may occupy, except that in the “industrial use district” the land or structures thereon may be used for any lawful purpose. Many of these restrictions relating to the use of property bear no apparent relation to the public health, safety or welfare, nor does the ordinance contain any definite or fixed standards by which the reasonableness or the necessity for the restrictions may be measured or determined, nor arc they necessarily uniform or definite in their application. For after specifying with the most meticulous particularity the nature, extent and application of the restrictions, the board of zoning appeals is .authorized in its discretion to disregard the “strict letter” of the ordinance, and to vary or modify '•any of the regulations or provisions contained in it relating ■to “the use, construction or alteration of buildings or structures or the use of land, so- that the spirit of the ordinance *291 shall be observed, public safety and welfare secured and substantial justice done.” This .sonorous hut vague and cloudy formula is to say the least of it a poor and uncertain substitute for those guaranties of the State and Federal Constitutions which .assure tot every citizen the right to hold and enjoy and use his property in any manner he pleases so long as he does not thereby injuriously affect the health, security, or welfare of his neighbor or the public, as the words health, security and welfare have hitherto been understood in this State. There may also he an appeal from the hoard of zoning appeals to the Baltimore City 'Court, hut that remedy, if anything, increases rather than lessens the difficulty and hardship- which the ordinance inflicts upon the landowner, for it only transfers the discretion from the hoard of zoning appeals, which would presumably have some special hn'owledge and training, to a jury which might have none and who, in the absence of any fixed -or definite rules o-r standards to guide them, .would naturally exercise that discretion vary-, iugly in accordance with the views of different juries.

" Before dealing with the constitutionality of the ordinance in whole or in part, we will refer briefly to the territory upon which it is to operate.

From a small village containing a few scattered houses on the shores of the Patapsco in 1729, Baltimore City has grown into a great maritime city, with a population currently estimated in round numbers- at eight hundred thousand, occupying over eighty square miles. Within its confines are found an infinite variety of commercial and industrial enterprises and .activities. Its commerce is home over the world by great land and Water transportation systems which serve its people-. It includes within its boundaries property devoted to every variety of use, iueludiug residential, commercial, agricultural, industrial, maritime and recreational. It is constantly expanding and -constantly with its growth and changing conditions the use of property in it changes, so that what was formerly residential property has become commercial property, .and property which was at one time most useful for commercial -o-r agricultural purposes is *292 mow most valuable for industrial purposes. Heretofore these changes have been in response to conditions created by the growth of the city, the. increase of its population, the demands of new -enterprises, changes in transportation facilities, changing markets, and various other factors! which cannot be readily -anticipated or controlled. This ordinance at a stroke -arrests that process of natural evolution and growth, and substitutes for it -an artificial and arbitrary plan of segregation, under which the landowner may only use his property for certain designated purposes, and under which he may be forbidden to- use it for the only purpose for which it is adapted and most valuable.

The appellant contends- that in doing that the ordinance appropriates private property to- a public use without compensation to the owner; that it take® the property of the citizen without due process of law; and that it denies to the citizen and landowner of Baltimore City the equal protection o-f the law. It is also contended that it improperly delegates legislative and judicial powers to a municipal administrative agency, and that it illegally extends the jurisdiction of the Baltimore City Court.

In dealing with the questions raised by these objections, in so far as they involve a construction of the Constitution of this State, we are bound by tbe -decisions o-f this Court construing and giving effect to- the provisions of that instrument, relating to and affecting the consideration o-f these questions.

Whether the ordinance is valid or not- depends- mainly upon whether there is any limit to the police power of the State, and whether any rights of the appellant, which are not within those limits but which are within the protection of the Constitution, Federal or State, are violated hv it.

While it is difficult if no-t impossible to- define precisely the limits of the police power, there- -must in the very nature of things he some limit to- it, for otherwise the guaranties of written constitutions- would be little more than mere precatory and directory suggestions without fo-rce o-r life, affording to the citizen only -a false and illusory protection against the invasion o-f his rights by the -State, and his *293 security would depend not upon constitutional guaranties but upon the will of the State in exercising an unlimited police power.

In this State the courts have uniformly held that the police power is not unlimited, hut that wherever it is invoked in aid of any purpose or legislation, such purpose or legislation must bear some definite and tangible relation to the health, comfort, morals, welfare, or safety of the public which must define the farthest boundaries of its territory.

While loose and indefinite expressions may no doubt be found in the books which appear to justify the contention that there is no definite limit to the police power, that contention has not been recognized in this .Court, but what We conceive to be the correct rule -has been stated in Byrne v. Md. Realty Company, 129 Md. 210, where it was said: i(It does not follow that because a statute has been enacted for the ostensible purpose of guarding the safety, health, comfort or promoting the general welfare, it must be accepted as ,a proper exercise of the police power of the State; nor can a statute which is, in fact, a proper exercise of such power, be declared void merely because it results in circumscribing limits of individual conduct to narrower bounds. Hecessarily there are limits beyond which legislation cannot constitutionally go in depriving individuals of their natural rights .and liberties. To determine where the rights of the individual end, .and those of the priblic begin, is a question which must be determined by the courts. The Constitution is the highest written law of the State. The courts must obey both the 'Constitution and the statutes, but iu case of conflict between the two, the Constitution must control, and the statute must give way. When there has been an attempt-to exercise the police power of the State by the law-making department of the government, .and the validity of such act is challenged as being an unreasonable invasion of private-rights, the courts must, upon their own responsibility, determine whether in the particular case the constitutional limits have been passed.” Other jurisdictions have gone farther than that, and perhaps the broadest and most sweeping definí *294 tioh. of the .power is to be found in C. B. & Q. R. R. v. Illinois, 200 U. $. 592, where it is said: “We hold that the police power of a state embraces regulations designed to promote the public convenience or the general prosperity, as well as regulations designed to promote the public health, the public morals, or the public safety. * * * Private property cannot be taken without compensation for public use under a police regulation relating strictly to the public health, the public morals, or the public safety, any more than under a police regulation having no relation to such matters, but only to the general welfare.” But in referring to the police power as thus defined, the same court, in Eubank v. City of Richmond, 226 U. S. 142, said: “But necessarily it has its limits and must stop when it encounters the prohibitions of the Constitution. A clash will not, however, be lightly inferred. Governmental power must be flexible and adaptive. Exigencies arise, or even conditions less peremptory, which may call for or suggest legislation, and it may be a struggle in judgment to decide whether it must yield to the higher considerations expressed and determined by the provisions of the Constitution.” By the first case the limits of the police power are extended to cover everything which the courts or the legislature may determine to- be in furtherance of the public convenience or general prosperity, but by the second case it is held that the power as thus defined has its limits and must. Stop, when it readies the prohibitions of the Constitution, and the rule as established by the two oases does not differ substantially or in effect from that stated in Byrne v. Md. Realty Co., supra. If it had any broader meaning, in so far as the guaranties of the State Constitution are involved, we would be inclined to accept the statement of the court in Fitzhugh v. Jackson, 132 Miss. 585: “We doubt, but we do not here decide, that under our Constitution the state under the police power has the right to. pass regulations purely to promote the public convenience or the general prosperity, to the disadvantage and detriment of the individual property holders,” but in the view we take of the question it is unnecessary to decide that point.

*295 There is a theory which has obtained some recognition, that the guaranties of Written constitutions are not inflexible, and 'that 'the decisions construing them at one period of the state’s history, under conditions existing then, ought not to bind the courts at some later period when conditions have changed, and when from economic, sociological or political considerations it is desirable that a different or more liberal construction be given. That theory is based upon the conception that any constitutional guaranty, no matter how plain and clear it may be, can be dissolved and avoided by the application of tbe police power of the state. That the police power is a real and essential element in the sovereignty of the state cannot be questioned or denied, and 'that written constitutions are presumed to have been made with conscious knowledge of draft fact must be admitted. But it has never been supposed in this State that the police power' is a universal solvent by which all constitutional guaranties and limitations can be loosed and set aside regardless of their clear and plain meaning, nor that it -is a substitute for1 those guaranties, for far-reaching and powerful us it is, it has its limitations. Just what those limits are have not been, 'and in the nature of things, cannot be clearly and definitely marked, except that any exercise of the power which interferes with some right protected by the leltter of .the Constitution must bear Some substantial relation to the public health, morals, safety, comfort or welfare Eor while the existence of the police power may be invoked to determine what rights are guaranteed by the 'Constitution, it can never be invoked to justify an invasion of .those rights once they have been ascertained.

And if in fact this ordinance does appropriate private property to a public use, or if it dloes deprive owners of their property without compensation, then such an invasion of private rights cannot be sustained under the police power unless tbe exercise of those rights menaces the public health, safety or morals.

The danger inherent in any departure from these prin-

*296 ciples is forcibly and clearly pointed out by Mr. Justice Holmes in Penn. Coal Co. v. Mahon, 260 U. S. 415, where speaking for the Court he said':

“The protection of private property in the Fifth Amendment presupposes that it is wanted for public use, but provides that it shall not be taken for such use without compensation. A similar assumption is made in -the decision's upon the Fourteenth Amendment. Hairston v. Danville & W. R. Co. 208 U. S. 598, 605. When this seemingly absolute protection is found to be qualified by the police power, the natural tendency of human nature is extend the qualification more and more until at last private property disappears. But that cannot be accomplished in this way under the Constitution of the United States.

“The general rule, at least, is that while property may be regulated to a certain extent, if regulation goes too far if will he recognized as a taking. * * * We are in danger of’ forgetting that a strong public desire to improve the public condition is not enough to warrant achieving ¡the desire by a shorter cut than the cofistitutional Way of paying for the change.”

And while every ¡one hold'sdiis property subject to the implied condition that his use of -it shall not injure others with equal rights, so long as his use of it does not interfere with or injuriously affect the public he'altb, morals ¡or safety, he will he protected -in his Use and ownership of it against the state or any 'agency or department thereof.

Private us© and ownership of property has always been regarded by the courts of this State as one ¡of the most valuable privileges guaranteed by its Constitution, as one of the most durable and solid foundations of its government, and as indispensably necessary to the prosperity and welfare of the people, and the substitution of communal or state ownership for that system has not heretofore been regarded as within the powers of the courts or the legislature.

In dealing with the validity of the ordinance before us, therefore, we will start with the premise, that if its purpose *297 and provisions can only be justified by invoking the police power of .the state, that they must bear some substantial cognizable relation to the public health, the public security, the public morals, the public welfare, or the public comfort.

'Within the last few years a veritable flood of so-called “zoning” legislation has swept over the country, and in its Wake there has been litigation. In the many decisions of state and federal courts dealing with that litigation, there has been some conflict and some confusion, but since the principles by which w'e must be controlled in passing on the validity of this statute have been repeatedly considered and stated by this Court, we are not concerned in harmonizing those eases, for no ma,titer what the law may be elsewhere, this Court could not be justified upon any ground of expediency in departing from its construction of such fundamental and important constitutional provisions as those involved in this case, when they have been established by its uniform and unbroken .action since those provisions have been a part of ithe organic law of this State. Any other course would necessarily result in chaos, and would tend to substitute for the government of law under which we now live a government under which the rights of citizens would depend, not upon the plain terms of written constitutions, but upon the judgment and opinions of legislative majorities and .the officials composing the many boards, commissions and’ other agencies clothed with executive, judicial, administrative and legislative powers, through which s'o large a part of our government is carried on.

Before dealing with the provisions of this particular ordinance, we will review briefly some of the decisions of this Court bearing upon the questions which the attack upon its validity presents.

In Moale v. Baltimore, 5 Md. 314, the particular question before the Court was whether a provision of chapter 118 of the Acts of 1817,, that no person “shall be entitled to- damages for any improvement- unless the same shall have been made or erected before the laying out of such street” was con *298 stitution'al. The act referred to' provided for the opening of East Biddle 'Street in the City of Baltimore. In dealing with the validity of that proviso this Court said: “While it is clear that the sovereign power has the right * * * to' appropriate private property to- public uses, yet it cannot do the ’latter without making just compensation for it. The sacredness of the rights of property is everywhere recognized by the spirit of the common law, Magna Charta and our Bill of Bights. * * " We held, therefore, that it was mot competent to the legislature to confiscate the property of the citizen, and we-regard the provision of the act of 1817, which 'denies to the proprietor the use of his land, as molthing short of -an act of confiscation.”

In Commissioners of Easton v. Covey, 74 Md. 262, it appeared that the commissioners of the town of Easton had passed an ordinance regelating the erection of new buildings within the corporate limits by forbidding the erection of such'buildings without the obtention of a permit from the commissioners of the town. The Court sustained that ordinance Upon the ground that it was not only useful but essential to the welfare and prosperity of the town that the erection of buildings therein should be regulated.

In Bostock v. Sams, 95 Md. 400, tbe validity of an ordinance of Baltimore City, providing that no new buildings should he erected in that city without a permit and that no such permit should be granted unless in the judgment of the judges of the appeal tax court or a majority of them, the size, the general character, and appearance of the building to he erected should conform to the general character of the buildings previously erected in the same locality, and should not in any way tend to depreciate the value of the surrounding improved or unimproved property, was questioned on the ground that it deprived persons affected of their property without due process of law and that it improperly delegated to the appeal tax court the .authority to refuse such permits. The Court in dealing with that contention in that case said: “Now undoubtedly the proviso- in the ordinance here under *299 consideration attempts to. confer powers that affect the citizen in his right of property and his common law right. It cannot he pretended that the citizen has not the common laiw right to acquire title toi .a lot of land, qualified or absolute, in a city .as elsewhere and to build upon, and improve it as his taste, his convenience or his interest may suggest or as his .means may justify without taking into' consideration whether his buildings and improvements will conform in ‘size, general character' and appearance’ to the ‘general character of the buildings previously erected in the same locality’; even -though there might be those in whose ‘judgment’ his so building might in some way ‘tend to depreciate the value of surrounding improved or unimproved property.’ ” In the same case it was further said ,in reference to that proviso: “The proviso under consideration has no reference to any of the objects specified or provided for in- the authority given the corporation ,to make regulations as to buildings. It contains no suggestion that it was intended toi provide for the public safety; nor to safeguard the health or morals of the community; nor to preserve public order; nor in any way to be promo-tive of any object which calls for the exercise of the police power.”

In State v. Hyman, 98 Md. 596, in passing upon the> validity of an act of the Legislature which required that no room or apartment in any tenement or dwelling house should he used for the manufacture. ..of coats, vests, trousers, etc., without a permit from the chief of the bureau of industrial statistics, this Court held that that ordinance had a definite and substantial relation to the police power because it concerned the public health and welfare.

In Hagerstown v. Balto. & Ohio R. Co., 107 Md. 178, the question before the Court ,was whether .an ordinance of the municipality of Hagerstown making it unlawful for any person without first obtaining a permit therefor to herd cattle or other domestic animals in the city limits within 250 feet of two or more residences unless they were kept in enclosed and covered structures, with only such openings as were necessary for ventilation and .access, was valid. It was held *300 in that case that the ordinance was void because it placed unreasonable, arbitrary and oppressive power in. the hands of the Mayor .and City Oounoil of Hagerstown, and the Oourt in so holding cited Mayor &c. v. Radecke, 49 Md. 230, in support of the principle “that where an ordinance laid down no rules by which its impartial execution could be secured, or partiality and oppression prevented, it would be declared invalid.”

In Cochran v. Preston, 108 Md. 220, an -ordinance forbidding tbe erection of buildings exceeding a certain beigbt above tbe surface of the street in the vicinity of the Washington Monument, the Peabody library anti art gallery, and several statues, was beld to' be a valid exercise of the police power because its purpose was to protect “the handsome buildings and their contents located in that vicinity, and also the works of art clustered there, from the ravages of fire.”

In Brown v. Stubbs, 128 Md. 129, an ordinance requiring that the assent of the mayor and city council should be obtained before the building inspector could grant an application for a permit to erect any building or structure for exhibiting moving picture shows, &c., was a valid exercise of the police power, because it involved the protection of life .and .property from damage or destruction through fire and panic.

In Stubbs v. Scott, 127 Md. 86, there was an application made to the inspector of buildings of Baltimore City for a permit to erect a building on a lot described in the proceeding's and which was to he used as an automobile sales room and service station. The application was refused on the ground that in the opinion of the mayor and the inspector of building's no permit should be granted for a store building in that neighborhood- and a permit was refused. In reviewing that action this Oourt said: “But in our judgment that was not sufficient to justify .his refusal to grant the permit under the evidence in the record.” And the Oourt further said: “It •cannot’ be denied that less pretentious buildings than those already in a particular neighborhood may be and often are obj ectionable, not only to the owners of those there, but to *301 other residents of the city, but if they comply with building, regulations having reference to protection against fire and other things which can be validly regulated, we know of no way of preventing their erection, unless possibly it be under some very peculiar circumstances, different from those in this ease,” and in the same connection it said: “Opening stores in some neighborhoods may be injurious to surrounding properties occupied for residences, but it would be difficult, if not impossible, to prevent an owner from converting bis residence into a store building, even in the most exclusive part of the city, if he saw proper to do so. * * * But it would be going very far to say that the owner of this lot could not erect stores on it, simply because there are now no stores there, and there are valuable properties of other kinds in the immediate neighborhood.”

In State v. Gurry, 121 Md. 534, in dealing with an ordinance providing for the segregation of white and colored people in different residential districts of the City of Baltimore, although the ordinance was struck down by this Court on other grounds, it was held that it was a valid exercise of the police power on the ground that it tended to preserve peace and prevent conflict and ill-feeling between the white and colored races in that city and to promote its general welfare; but that conclusion was reconsidered in Jackson v. State, 132 Md. 311.

In Osborn v. Grauel, 136 Md. 88, tbe Court dealt with the propriety of the action of the mayor of Baltimore City in refusing to approve an application for a building permit for the erection of a garage, and it was there held that the refusal was justified under the welfare .clause of the city charter, and the Court in sustaining such refusal referred to Storer v. Downey, 215 Mass. 273, where a similar refusal Was justified.heoau.se of the increased fire hazard and the disagreeable incidents of a garage.

In Farmer & Planters Co. v. Salisbury, 136 Md. 617, it was held that an ordinance,.of that municipality forbidding the erection of buildings without a permit was a valid exer *302 cise of the police power granted to it by the General Assembly.

These cases state no new law and the principles announced in them were formerly accepted as sound by the decided weight of authority. But for some time past there has been a steady and constant pressure on the courts to modify them so as to permit encroachments upon individual rights which would not have been tolerated in earlier periods of our history, which completely justifies the comment of Mr. Justice Holmes which we have quoted.

One of the miost striking manifestations of this tendency is the great volume of so-called zoning legislation which has in recent years been written into the laws of the ¿several states, of which the ordinance before us is an apt illustration and which subject private property to an infinite variety and number of restrictions limiting its use, many of which rest for sanction upon no more definite or substantial foundation than that they .are supposed to be in the interest of general prosperity or the public convenience. That the right to hold, enjoy and use property is not absolute but subject to the police power of the .State is axiomatic (6 R. C. L. 194), and that that power may be affected by changing conditions is inevitable and unquestionable, for a use which at one time may be inoffensive and harmless may at another affect the ■security or the welfare of others.with equal rights, and one ■of the sources of the police power 'is the maxim, “Sic utere tiuo ut .alienum, non laedasiSo, property in a populous •■urban community may be properly subjected to restrictions ■which would be unreasonable and arbitrary in a thinly settled rural community, so long as the restrictions bear ,some definite relation to the protection of the public health, morals, safety or comfort. These principles are self evident and are almost universally accepted. But the question before us goes much further than that. It is whether the power tO' hold, use and enjoy property can be restricted or taken away by : the State under the guise of the police power for purely •aesthetic reasons or for any such elastic and indeterminate object as the general prosperity without compensation.

*303 Upon that question the authorities are in sharp conflict, and. the extent of that conflict may he illustrated by reference to some of the cases in which the validity of ordinances similar to that involved in this ease has been considered.

Because of the high standing and wide learning of the court,which decided them the cases most frequently cited in support of the validity of such ordinance are those of the Supreme Judicial Court of Massachusetts. 'The force' of those cases is to some extent affected by the fact that the ordinances involved in them were authorized by a specific provision of tbe state constitution, but they nevertheless illustrate the extreme length to which the police power must be carried to support some of these law®. In Inspector of Buildings v. Stoklosa, 250 Mass. 52, decided October 18th, 1924, that court supported the right of .the City of Lowell to divide its territory into zones to- restrict the use of buildings-for trade industry, tenements and dwellings within such zones, and to require such buildings to conform to regulations as to their construction and use. In Brett v. Building Commissioner of Brookline, 250 Mass. 73, decided the same day, it was held that although Brett had been granted a permit by the proper authorities to build “two family” houses on lots in the City of Brookline, and had .actually begun their erection, that the permit could he revoked,aud their completion prevented under an ordinance passed after the contracts for building them had been 'made, and work .on them commenced. In Spector v. Building Inspector of Milton, 250 Mass. 63, decided on the same day, the petitioner had bought land 'and located in Milton for the purpose of erecting a block of twelve stores. 'There was then a building code hut no zoning law in force there, and he applied fqjr a permit to build tbe stores. Tbis permit was withheld for tbe express purpose of delay until tbe selectmen could bave adopted a zoning ordinance declaring,the property to be within a-“residence” district. The ordinance was adopted and the permit refused, and in sustaining 'that action the court in part said: “The circumstances that the land of the petitioner could he used more profitably for’ commercial than 'for residential *304 purposes is of slight significance and of no consequence in the broad aspects of the case. Every exercise of the police power in respect to the use of land is likely to affect adversely the property interests of somebody.”

Other cases sustaining laws having some provisions similar to those in question here ara State ex rel. Civello v. New Orleans, 154 La. 271; Lincoln Trust Company v. Williams Building Corporation, 229 N. Y. 313; Ware v. Wichita, 113 Kan. 153, in which this language is found: “The next contention is that the zoning ordinance and the statute which authorizes it have the effect of taking defendant’s property or of diminishing its value without compensation. It often happens that a valid exercise of the police power has such effect. The most common examples of this are found in statutes and ordinances relating to the health, safety, or morals of the people. With the march of the times, however, the scope of the legitimate exercise of the police power is not so narrowly restricted by judicial interpretation as it used to be. There is an aesthetic and cultural side of municipal development which may be fostered within reasonable limitations.” State v. Harper, 182 Wis. 148, in which this interesting exposition of the modem doctrine of the police power is found: “The benefits to be derived to' cities adopting such regulations may be summarized as follows: They attract a desirable and assure a permanent citizenship; they faster pride in and ’attachment to the city; they promote happiness and( contentment; they stabilize the use and value of property and promote the peace, tranquility and good order of the city. * * * It is