Kahn Bros. Co.

FARR, J.

Epitomized Opinion

Published Only In Ohio Law Abstract

The Kahn Brothers Co. brought an action for an injunction to restrain the City of Youngstown from interferiog with plaintiff in the construction of an apartment at Wick and Crandall Parks in the City of Youngstown. A temporary restraining Order was granted, but upon final hearing in’ the CommOn Pleas permanent restraining orÚét was réfused and the case dismissed. The evidence disclosed that the Kahn Co- was the owner of three lots in Youngstown and that they had procured a permit in 1923 for the construction of a three story brick apartment on this property in accordance with plans an dspeeifieations approved by the City Building Inspector.

In May; 1920, the City had passed Ordinance N]o. 26380 establishing a zone plan for Wick and Crandall Parksj which involved the 'property in question. After some preliminary steps were taken in the erection of the building various employes of the Company were arrested, whereupon this action was brought. At this point there was a great amount of vacant property and the evidence also disclosed that the apartment was to be strictly modern in every respect. After the Common Pleas Court had dissolved the injunction an appeal was taken to the Court of Appeals. In entering; an order restraining the City from interfering with the construction of this building, the court held:

1. Municipalities may enact ^toning ordinances in proper eases under their police power.

2. A zoning ordinance can only be sustained under the police power where it has a real and substantial relation to the maintenance and preservation of the public peace, morals, order and safety.

3. A zoning ordinance enacted for aesthetic reasons is invalid and an. unconstitutional exercise of the’ police power.

4. The validity of a zoning ordinance depends upon a judicial determination as to whether it is a reasonable or an unreasonable restraint upon the úse of private property in furtherance of public morals, health, safety or welfare.

5. As the apartment in question was not shown to be detrimental to the public health, safety, convenience, comfort, prosperity and the general welfare, any attempt upon the part of the City to interfere with the erection of the same was illegal.