Clifton Hills Realty Co. v. Cincinnati ( 1938 )

We have examined the application for rehearing and the grounds advanced in support of it. We find nothing advanced that was not considered at the original hearing, and have, therefore, concluded that a rehearing would not be helpful. As a result of our consideration of these grounds, we make these additional observations:

(1) The repeal of a statute may violate the "due process clauses" of our Constitutions. 12 American Jurisprudence, 356, Section 675.

(2) In passing upon the sufficiency of the amended petition, the motives of council were not considered. The opinion makes it clear that its sufficiency was sustained only because of the allegations that the operation of the amending ordinance would be unreasonable and arbitrary, which, upon demurrer, must be construed most favorably to the pleader. The real object or motive in passing legislation is only of importance in determining whether an object coming within the police power will be subserved by the legislation.

(3) There is an express allegation in the amended petition that "the plaintiff and those persons who purchased lots from it have expended more than a million dollars" before the attempted rezoning, and that the change in the zoning would cause irreparable harm "to this plaintiff and to the numerous persons who have built their homes within plaintiff's said subdivision," which we consider a sufficient allegation of an injury to a vested property right.

(4) It is begging the question to assert that an ordinance cannot be enforced after its repeal as the question is as to the validity of the repeal. Nor does the decision holding invalid an attempt to repeal or modify a part of an ordinance do disruptive violence to the established doctrine that no council can bind its successors in office in legislative matters. The ground of invalidity is not that the subsequent council is bound by the action of the prior council, but that both are bound by the Constitution.

It is said that this means that thousands of laws such as those restricting the practice of medicine to doctors, real estate dealing to realtors, undertaking to morticians, etc. "must be held eternally inviolate at the behest of any beneficiary of the special privilege, unless council can show that there is a change in conditions — a mere determination that they should never have been passed would not be sufficient." We do not think this follows for many reasons. In the case at bar there was no legislative determination that the ordinance should never have been passed — just the contrary. A fair construction of the allegation of the amended petition is that the succeeding council recognized that the original zoning ordinance was a proper exercise of the police power, and that the conditions justifying its exercise had increased rather than diminished, and, notwithstanding, it proceeded to modify it by loosening the restrictions upon the use of the defendant's property, while retaining the restrictions upon the plaintiff's property, to the plaintiff's property damage. The licensing of doctors, realtors, and morticians does not seem to have much application.

Hubbard v. Oklahoma City, 177 Okla. 263, 58 P.2d 547, relied upon by counsel for defendants, does not relate to a change of a comprehensive zoning ordinance, with its compensating correlative restrictions. There was a comprehensive zoning ordinance, but the new ordinance did not relate to any provision in that ordinance. The new ordinance changed another ordinance that related to the right to drill for oil. This is made clear by the case from which the court quoted — Keaton v. Brown,171 Okla. 38, 45 P.2d 109. Both opinions were written by the same judge. In Keaton v. Brown, supra, at page 40, he said:

"Protestant relies upon the doctrine announced in the case ofVan Meter v. Manion, 170 Okla. 81, 38 P.2d 557 * * *. That case has no application to the issues presented here for the reason that the court was there dealing with a restrictive covenant in a plat and no issue relating to zoning was involved or considered. Protestant also cites the case of Michigan-Lake Building Corporation v. Hamilton (Ill.), 172 N.E. 710, wherein an amendment to a zoning ordinance was under consideration restricting buildings to 264 feet in height, so as to allow buildings 440 feet high on only four properties within a certain zoned district, and said amendment was held to be arbitrary, unreasonable, and unauthorized. In the case of Kennedy v. City of Evanston (Ill.), 181 N.E. 312, also cited by protestant, an ordinance permitting the construction of apartment houses in a Class A or residence district was held invalid. Neither of these cases is applicable to the facts in this case.

"As we have heretofore pointed out, there was nothing in the original zoning ordinance which prohibited or attempted to regulate drilling for oil and gas in any zone. The ordinance creating the U-7 or oil drilling zone did not, therefore, operate to decrease or increase the restrictions theretofore existing by virtue of any previous zoning ordinance. The power to regulate the drilling for oil and gas, while it was in existence at the time the zoning ordinances were passed, had not been exercised. Therefore no vested rights of protestant were affected by the enactment of the oil drilling ordinances."

(5) Counsel refer us to the opinion rendered by the Court of Appeals of the District of Columbia in Quinn v. Dougherty,30 F.2d 749, which, it is claimed, shows a zoning ordinance was relied on in that case, which is a case similar to Reichelderfer v. Quinn, supra. That part of the opinion of the Supreme Court of the United States, which we quoted, shows that a zoning ordinance was relied on, but the quotation also shows that there was no constitutional defect in the ordinance authorizing the fire-engine house. Manifestly, the establishment of a unit of a fire department is a valid exercise of the police power.

(6) In the brief of the city of Cincinnati it is said: "In a nutshell, the question here is whether the plaintiff shall amend his petition so that specific allegations can be met with specific denials" etc. That is not the question as we view it. The trial court sustained a general demurrer and entered final judgment. If this judgment is sustained, no amendment is possible. If the defendants had or should attack the petition for indefiniteness, the question of amending it would be presented. But on a general demurrer, no such question arises. The allegations, indefinite though they be, must be given a reasonable construction, most favorable to the pleader.

(7) While this is an action for a declaratory judgment, it is in all essentials an action for an injunction. In Nashville, C. St. L. Ry. Co. v. Wallace, 288 U.S. 249, 77 L. Ed., 730,53 S. Ct., 345, the court considered whether it could review a judgment entered under the Tennessee Uniform Declaratory Judgment Act, declaring the state excise tax on gasoline applicable to an interstate carrier. The state court held that the tax so applied did not violate the "commerce clause" of the federal Constitution. Whether the United States Supreme Court could review the judgment depended upon whether the proceeding was a "case or controversy" within the meaning of the federal Constitution. In discussing the question, the court, at pages 262 and 263, said:

"Thus the narrow question presented for determination is whether the controversy before us, which would be justiciable in this court if presented in a suit for injunction, is any the less so because through a modified procedure appellant has been permitted to present it in the state courts, without praying for an injunction or alleging that irreparable injury will result from the collection of the tax.

"While the ordinary course of judicial procedure results in a judgment requiring an award of process or execution to carry it into effect, such relief is not an indispensible adjunct to the exercise of the judicial function."

For these reasons, we adhere to the conclusions originally reached and the application for a rehearing is denied.

Rehearing denied.

ROSS, P.J., and HAMILTON, J., concur.