Bilbar Construction Co. v. Easttown Township Board of Adjustment

Dissenting Concurring Opinion Mr. Jus- tice Cohen:

I dissent from that of the part decision majority’s which holds that Mrs. was en- appellant, Macpeak, titled under her father’s will to the “cash (including bank of which he died deposits) possessed.”

Their requires conclusion a strained interpretation provision the will which Mrs. bequeaths to Macpeak “all articles of private possession.” Certain- this class ly descriptive would not embrace normally I “cash” and do not believe that the failure to include “cash” the enumerated items in among the exclusion- clause indicates ary testator intended other- wise. Since “cash” could not be considered as an “ar- ticle of in the private possession” first it was instance, manifestly necessary to mention this specifically item in the clause of exclusion. Company, Appellant,

Bilbar Construction Adjustment. Township Easttown Board of 1957. Before J., Bell, June Argued C. Jones, JJ. Jones Musmanno, Arnold, Cohen, Chidsey, 1957. June 28, him Robert K. with Thomas F. Greenfield, Devine, A. & Thomas Goodis Riley, Bard, Folz, Kamsler, for appellants. Greenfield, Board Township

Theodore 0. for Easttown Rogers, appellee. of Adjustment, H. E. him William

Harold with Hitman, Kohn, & for intervening ap- Kalish Green, Dilworth, Paxson, pellees. him Bodine,

Frederick H. with Pepper, Spotts, & for curiae. Scheetz amicus Hamilton, Frick, . E. John him John David W. Forsythe, with Graig, d d Evans Moorhead MacGoy, E. Knox, Platt, Jr., d amici curiae. and MacElree Platt, Lewis, H. him Anderson, with Carl C. Brewster Rhoads, McCracken, and Montgomery, Robert L. Trescher, & for amicus curiae. Walker Rhoads, him Russell Phillips, C. C. Brewster with Rhoads, H. Mark and Montgomery, Solomon, Walter Rabin, W. for amicus curiae. and Rhoads, Walker McCracken, 1958: Jones, May Opinion Mr. Justice Chief Bilbar Co. and its grantee, Construction Tredyffrin from appealed separately have Company, Construction action of sustaining of the court below the. order Town- Adjustment Board of Easttown Zoning in affirmed the had turn, County, which, Chester ship, refusal of Construction Co.’s Tredyffrin Officer’s Zoning The permit. applicant sought for a building application a specified a on a lot of dwelling to erect permission from por- it to out a proposed lay subdivision which of land in East- unimproved of its 50-.acre tract tion the The refusal of was Township. permit town based that, Qn.the the lot which the upon proposed fact dwell- patently built was deficient area, was. as ing township’s provisions frontage, as under the well According its the ordinance title, ordinance. Township Zoning “The Easttown is known and cited as although August 1940. 1939” enacted Ordinance of inter- before us for ordinance It is the same pretation connection, in another enforcement, and Zoning Case, Devereux Foundation, Inc., (1945). 41 A. 2d part maps by made attached to and

As shown property fronting Road on Greenlawn the ordinance, Township “A” residential. is classified in Easttown dwelling, single-family is a alia, inter a district a such permissible area of minimum on a lot of a structure acre) having square (an a feet not less than 43,560 frontage districts, For less restricted feet. frontages downward lot areas and are scaled minimum maps. incorporated Greenlawn the ordinance and its generally direction, runs in a east-west Road, which boundary part Easttown northern constitutes Township between line is division line its center Tredyffrin Township Town- on the north and Easttown ship on south. acquired

Tredyffrin land Construction Co. its Township in 1948. a least, Easttown At considerable part property abutted on Greenlawn Road consequently, “A” in an residential zone. None- was, applied Tredyffrin theless, the Cónstruction Co. in 1955 Zoning Township to the for a Officer Easttown permit building single-family the erection of dwelling fronting having on a lot on Greenlawn Road, square only frontage area of feet and a 21,000 Zoning understandably Officer feet. refused application certify compliance with the requirements of the ordinance. Adjustment appeal

On its to the Board of from the Zoning Tredyffrin action Officer, Construction Co. urged the Board to conclude from the facts adduced at hearing requirements before it that the the ordinance respect appli- with to lot as relate to the areas, property, arbitrary cant’s are and unreasonable and Zoning concluding that the Officer erred in so certifying compliance zoning in not with the established regulations. Tredyffrin

All that Construction in evi- Co. offered hearing Adjustment dence at before the Board of (in Township zoning addition to the ordi- Easttown nance) testimony was the that, several witnesses Tredyffrin Township under the ordinance and its re- maps, lated the minimum lot areas on the side of opposite Township Greenlawn Road Easttown were prescribed less than those for an “A” residential dis- trict under the Easttown and that ordinance, 21,000 squre proposed by Tredyffrin foot as lots, Construction improved dwellings could greater Co., with with no township widening improve- burden to the for the disposal ment sewage of streets or the than one-acre impose. lots would The fact lot area Tredyffrin Township restrictions ordinance to appellant which the compara- thus made reference for purposes, down-graded tive had re-zoning been Tredyffrin made at the instance Construction Co., developed which had prop- itself, owned, and sold the erties on the north side of Tredy- Greenlawn Road in Township ffrin pointed, which it now as a first, requested reason for a down-grading by Easttown of its “A” residential restrictions and, second, proof as of asserted unreasonableness and arbitrariness of, applied the Easttown applicant’s ordinance property.

Such was the extent of the Tredy- evidence which ffrin Co. Construction introduced before the Board of Adjustment and it offered no testimony additional on the from action of

its the court below the appeal to Construc- Nor did the Bilbar Board of Adjustment. which, subsequent Tredyffrin’s grantee tion Company, months joined appellant as a party on was stipulation, ever to appealed court, had been the after the matter the alleged time touching offer evidence at any any in requirement lot of Easttown’s one-acre invalidity lot areas an “A” zone. evidence as to residential course, of Township was, frontages Tredyffrin had even of whatsoever materiality no relevancy a variance been seeking Construction Co. Tredyffrin not doing. it avowedly for obvious was which, reasons, 2dA. 382 Pa. 401, 406, In Michener Appeal, the of to owner the refusal a variance approved we area in a restricted residentially a dwelling to sought County, Delaware who Township, Haverford a side his on the northern convert which was house, a commercial prop division into township line, road Darby in Upper the road, across directly erty, because, gas two nearby same there were Township, County, hours day, a diner, open twenty-four stations boisterous much noise and loud and with attendant township latter com in a district zoned talk, hardship. It a case of great mercial. was manifestly be about it because there done nothing Yet, in the of the two zoning of the disparity regulations on their sides of respective subdivisions political enough It public thoroughfare. plain same township per restrictions one cannot zoning zoning to control or impinge upon regula mitted fit to contiguous township may adopt. tions see 2d See 99 N.Y.S. Gignoux Village Kings Point, 286. appellants’ irrelevant and immaterial Equally is the as to testimony applicant contention what indo care of way require- would street taking ont lots to lay if permitted disposal meats and sewage “A” residential area in square foot each a 21,000 are not involves, such as this case Public issues, zone. basis. personal ad hoc or either an to be resolved on before record epitomized aptly The court below the grounds understand “We it as follows: do Board the decision objection appellants here regulations Adjustment to be relation to public no substantial involved have no find we Indeed, morals or welfare. safety, relation; such substantial evidence that have no enforce- not interfere with their may we therefore, 364 Pa. Gratton v. Conte, ment on that See ground. evidence that the action 584. Nor is there any those Supervisors establishing regulations, the in its or ca- arbitrary or of the Board was decision, pricious.” to sought have appellants

The contention which the under advance boils the proposition that, down to bald adduced, the and immaterial facts which meagre Easttown the the minimum lot area one which acre, district, “A” residential ordinance for an prescribed is there unconstitutional. presumptively Certainly, is attempt else in this case which to nothing upon that as argument applied the lot area restriction, appellants’ the is unreasonable and property, arbitrary, reasonable that the restriction bears no confiscatory relation to the morals or wel- safety, fare of the The none- community. appellants contend, that Easttown ordinance theless, Township zoning is unconstitutional to their al- applied property though record, applicant presented the Board Adjustment to the court subsequently and upon which the below, appellants now affords rest, basis no for the contention.

The rule is well established that the burden of prov ing clearly unmistakably unconstitutionality enactment is so legislative upon person asserting. v. Gottschall Pa. 83 A. 286, Campbell, 347, 363, it one who asks to have a de said, law —“That clared unconstitutional himself upon takes the burden all that it is has so proving beyond doubt been so, often declared that has become axio principle matic.” A enactment can be declared legislative void when it only violates fundamental law clearly, such manner as palpably, plainly to leave no doubt or hesitation in minds of the court. Sharpless v. 21 Pa. Mayor 164. In Erie & Philadelphia, North-East Railroad Company Casey, it was 300-301, recognized that “The right ju to declare a diciary statute and to arrest its void, is one in the execution, which, of all opinion courts, is with coupled responsibilities so that it grave never exercised except clear very one cases; department of the government is bound to presume another has acted who rightly. wishes us party to pronounce a law takes him unconstitutional, upon self the burden of all proving, beyond it doubt, is so.” Hadley’s Case, 6 A. 2d 100, 104, “All states as the succinctly practical of the rule, effect are in presumptions favor of the of constitutionality acts and courts are not to be astute in sus finding or taining objections to them. . . .”

The burden heavy resting upon the person asserting of unconstitutionality legislation is one of the most established firmly principles of our law: Loomis v. Philadelphia School District Board 376 Education, Pa. 103 A. 2d 428, 431, 769; v. Flynn 356 Pa. Horst, 51 A. 2d 20, 31, 54; Pennsylvania Trus Company, etc., 345 Pa. tee, Case, 27 130, A. 2d 137-138, 57; Hadley’s Penn supra; Anthracite Case, Mining Co. v. Anthracite

71 178 A. Pennsylvania, 405-406, 318 Pa. 401, Miners of 80; 128 A. Snyder, Pa. 440, 449, 282 Busser v. 291; Sweeney, 556-557, 281 Pa. 550, v. Commonwealth Pa. 14, 11, v. A. Commonwealth 226; Grossman, particu- supra. Campbell, v. 93 A. Gottschall 781; constitutionality ordinances where lar, municipal presumed that the has been attacked we have purpose legislative body to serve acted with their favor of are in all intendments welfare and that 139 A. Liggett’s 118, 109, action. Petition, Whitpain Township 372 Pa. 509, 619; Bodine, Township v. Merion Lower 94 A. 2d 737. also, See, Superior 2d 35. Gallup, 46 A. 158 Pa. Ct. validity presumption of constitutional The same appli equally legislature is that attends an act of municipal enacted whether cable to ordinances borough by city, or of a town the council township. supervisors Public New Orleans See of a City 686; 281 U.S. 682, New Service v. Orleans, Drug City 32 F. 2d Gilchrist 134; Marrs v. Oxford, City Birmingham, 609; 174 So. 234 Ala. 204, Co. v. 168 P. 2d 706. In re 2d 91, Cal. Porterfield, Tax Mercantile Allentown School District dictum in pre A. 2d that “the Case, 161, 166, sumption constitutionality is not as of an ordinance passed Legislature” strong by as that of an Act support to be in the law and is, therefore, has no disregarded. import above is that the burden

The clear proof, legislation is under attack on constitu- when asserting grounds, never is on the one so tional Even there is room for difference shifts. where opinion designed an ordinance is whether question proper public purpose, if serve fairly the courts cannot substitute their debatable, judgment for of the authorities who enacted the

72

legislation. Appeal, Kerr’s 144 Pa. A. 81; 246, Department Highway South Carolina State v. Barn well 303 U.S. and Simon Brothers, Inc., 190-191; 177, v. Town Mass. N.E. 2d 516. Needham, promotion public safety,

While the of the health, checking morals or welfare is the test sub- jectively municipality’s whether a exertion of its con- power stitutional to zone has been do exceeded, courts . apply criteria a vacuum. Someone must be injured by the ordinance’s restrictions in order to raise question, applicable objective the constitutional and the operates arbitrary, is test whether the ordinance in an capricious, discriminatory confiscatory manner ás property complainant. inquiry to the The latter judicial calls for determination. as to the But, former, public question primarily what serves the interest is appropriate legislative body given for the in a situation ponder long to and decide. so as it And, acts within power legislate premises, its constitutional in the independent courts do well not to intrude their ideas particular legislation. Specifi- as to the wisdom of the cally, respect zoning judges with should enactments, not substitute their individual views for those legislators employed as to whether the means are likely safety, to serve the morals or general welfare.

Although appear some of our recent cases to have ignored “general welfare” as a consideration in ad- judging police power whether the has been constitu- tionally given open exercised in a it is not instance, question important to serious it one of the any inquiry. elements be reckoned with in such Its importance partly lies in the fact that it admits of passing upon aesthetic considerations validity when long ago of a ordinance. As Appeal, Kerr’s recognized A. this court merely zoning cannot sustained “while a ordinance be may ground, in con- on be considered aesthetic questions with Since, nection with of welfare.” planning passing has the urban and suburban of time, adjunct municipal government, of become an accredited progressively become

aesthetic considerations have' persuasive- sustaining reasons for more and more as power. police the exercise of the Supreme In Berman v. the U.S. Parker, 26, 32, upholding unanimously Court of the United States, constitutionality the Re of the District of Columbia development respect said the Act with scope police power: public safety, of the “Public peace morality, quiet, law and order—these are conspicuous examples some of the more the tradi application police pówer municipal tional of the , they merely scope affairs. Yet illustrate the of the power and do not it. delimit See Noble State Bank concept 111. . U.S. . . The Haskell, the public Day-Brite Avelfareis broad and inclusive. See Lighting, Inc. v. 424. Missouri, U.S. The represents spiritual physical, values it are as as well monetary. power aesthetic as Avellas It is -withinthe legislature community the to determine that the should healthy, spacious well, be beautiful as Avellas as as carefully patrolled. clean, well-balanced well as In present Congress agen the the case, its authorized cies have made determinations that take into account variety reappraise Avide of values. It is not for us to expressed clearly concept them.” This of the disregarded question welfare is not on of the constitutionality zoning simply of a ordinance because properties redevelopment utilized in the in the acquired by municipality Berman case through were Supreme points eminent domain. The Court itself out acquire prop- that the use of eminent domain to end to the end.” “the means was merely, erties was question basic and the redevelopment was the “with- was redevelopment, “the object”, i.e., whether words, other Congress.” authority federal govern- valid exercise of the redevelopment a District respect ment’s police power were properties To how the Columbia? inquiry, immaterial. obtained was wholly (cid:127) upheld have number times We ourselves no which bore ordinances constitutionality or morals safety, relation to the health, reasonable rested validity the but whose constitutional community In welfare. general their the upon promotion alone Ad v. Board Inc. Advertising Co., Zoning Landau as A. 2d sustained 387 Pa. 128 we 552, 559, justment, prohibited zoning constitutional a ordinance which from signs being outdoor advertising certain types the even in commercial zones of buildings erected on the An ordinance which prohibited involved. city in held residential districts was erection of billboards 109, 291 Pa. in Petition, to be constitutional Liggett’s 139 619. The exclusion of devoted buildings A. deemed business uses from residential districts was Ward’s police power: exercise of the constitutional 137 A 289 A. 630. ordinance zoning Pa. 458, Appeal, the construction of row was prohibited housing Pa. 87 A. 299. in 370 2d upheld Dunlap Appeal, 31, ordinance to Residential districts restricted by zoning permissible: is Jennings’ Appeal, one-family dwellings A. 621. in just Swade 154, And, recently, Adjustment Board Springfield Town Zoning Pa. A. 2d affirmed we the re ship, an applicant sought fusal a variance to who to con business in the enterprise duct a barn on prohibited a residential zone although his it was property a fact the “the found as court that expressly by below adversely appellant business carried on the did public safety, . . .' affect the morals of the health, prohibition de- business use was of the short, liberately ground solely the re- sustained on promoted given striction welfare in the following excerpt opinion case. The from the pecu- court whereon we affirmed below, per curiam, liarly apposite “If here: we to hold that were Zoning Springfield Township Ordinance of un- applied appellant’s property, constitutional as to the every open prohibited then we would throw zone prohibited uses if it could be shown that the use did against not offend morals, put zoning.” and we would in effect an end to all As to the zoned minimum lot “A” size resi- Township dential district under the ordi- Easttown may nance, Volpe 121 A. 2d Appeal, analogous principle. upheld cited as We there constitutional a ordinance’s minimum re- lot square striction of 20,000 feet in “AA” residential Township ground district in Cheltenham on the requirement bore a reasonable relation safety, general morals or health, welfare of the com- munity. square Since the 20,000 foot minimum lot requirement size highly developed in the more populated densely more Township Cheltenham was possibly what constitutional, could make the 43,560 square prescription foot of the Easttown ordinance any unconstitutional without allowance for considera- topography, tions of existing realty area or character of development in the zoned district as a whole? The supervisors agricultural of rural and Easttown Town- ship hardly can be said to unreasonably have acted or arbitrarily prescribing a minimum lot area of one township’s acre in the “A” residential district which, property acquired embraced moreover, appel- 76 years the ordinance. of after the enactment

lants until prescribed question areas In.any lot as to instance, zoning matter a relative involves under a ordinance upon just depends character its solution type particular locality of and the structural promote improvements designed best community. general safety; welfare of the morals jurisdictions, which have considered In other approxi problem minimum areas of zoned lot sizes, of bearing upheld greater mately an acre or have been problem public health, of relation to reasonable following safety, fur welfare. morals Village Kings pertinent examples: Gignoux v. nish of square feet) (40,000 Dilliard ; 99 N.Y.S. 280 2d Point, acres) (2 Village ; v. North 94 N.Y.S. 2d Hills, Super. Township 21 N.J. Fischer v. Bedminster, acres); (5 Realty v. A. Flora & Investment Co. 2d 757 acres). City (3 362 Mo. 246 S.W. 2d Ladue, lot the few instances where minimum areas have been a case two and one-half acre invalidated—one Page (County 1 Ill. Du v. 2d 491, lots Halkier, (Hitchman 635) N.E. acre lots 2d another three — 306) Township 329 Mich. 45 N.W. 2d Oakland, prescribed decisions that the rationale was properties already excessive in view of the area developed zoning jurisdiction in the same on consid per erably area lot. minimum lot And, course, less may large exclusionary areas not be so as to be ordained private thereby, serve a effect rather than and, Certainly a interest. residénce lot area of one agricultural locality acre rural and in a such as East- Township justifiably adjudged town cannot for exclusiveness. Medinger Appeal,

Our decision appellants pertinency A. 2d which the has no 118; cite,' question Basically, to the instant case. involved municipal authorities attempt by was an Medinger dwellings— inside private areas in floor rooms prescribe hardly could which zoning power an exertion morals or wel- safety, public health, thought promote minimum “a relation between is no logical fare. There minimum and a a dwelling habitable floor area” inside comes peculiarly latter which area It is the lot outside. zoning’s competency. within in the asserted

The thing applicant only built on was that hardship dwellings way suggested salable than readily be more half-acre lots would consequencé, lots and that, built on acre dwellings prove relatively of half-acre lots would the development nor neither allegation more There was profitable. acre entail a loss built on lots would houses proof that both developer. Tredy- the owner or any event, Com- ffrin and Bilbar Construction Construction Co. development project aware, into the fully entered pany zon- knowledge, existing at least bound with in question. See affecting property ing regulations Adjust- at 378. Board of Volpe p. Appeal, supra, has not conclusion been seriously ment and the found, district that “The here, either below questioned is a can be question part lot here in de- which the of the East- present requirements under.the veloped of 1939 and Ordinance would Township Zoning town development.” so a creditable developed, if be, court below affirmed appel- The order at costs. lants’ Opinion Mr.

Dissenting Bell : Justice a unan- Supreme On June 28, 1957, 302 of held that Section the Ordinance opinion imous as applied was unconstitutional Township Eastto'wn of this to petitioners’ majority a property. Today former Justice overrule that Court, including Chidsey, decision and hold that the Ordinance is constitutional. This case has attained monumental relatively simple stature in order to reach its conclusion, because, three present members of this Court have had (1) repudiate and by implication overrule necessary myriad decisions of this and (2) to their con- Court, predicate clusion on the doctrine of unlimited police power —a doctrine which is repugnant birthright to our our traditions, our Liberty, and our Constitution, American of Life. Way

Tredyffrin Construction was the Company owner a 50 acre tract of land unimproved in Easttown Town- under an ship agreement of sale to Bilbar Construction Company. 50 acre tract lies in an area classified “A” Residential under ordinance of East- town Township. Section 302 of the provides ordinance the minimum lot in area residential districts shall be as “In ‘A’ follows: districts shall be one or 43,- acre} 560 square with a minimum feet,1 of 150 frontage feet; ‘B’ minimum in square districts, 21,000 feet with a of 100 frontage feet; in ‘Cl’ districts, 14,000 square feet with a minimum of 75 frontage feet; in ‘C2’ districts, feet 8,500 square with a minimum of 50 frontage feet; ‘D’ in districts, 5,000 square feet with a minimum front- . of 50 feet.” age Certain districts are also zoned “Busi- ness” these districts ; have no minimum lot area or requirements. frontage

Appellants made application to the zoning officer township permit a construct single-family for aon dwelling 21,000 square foot lot (which was part of its 50 acre in “A” tract) residential district. The lot is rectangular shape and has a frontage indicated as 208' x 208', Sometimes Leop- on east Road, feet the south side of Greenlawn depth. The area ard and extends feet Road, although question repeat, Easttown we residential, is, Township largely agricultural. Easttown rural space Township for for demands with the is confronted expanding popu- increasing housing rapidly lation. erected

Directly houses been have road, across the Township Tredyffrin are zoned the on lots which square zoning minimum a feet, at with ordinance 18,000 Immediately footage northwest 85 to the front of feet. permits appellants’ residences ordinance of tract the of 12,000 a minimum lot area to be constructed with ap- square frontage Within with a feet. feet, appellants’ proximately commercial lot is a feet of fronting area on Lancaster Pike. application permit

Petitioners’ a was refused for area did conform to the because the lot not minimum (and requirements frontage) in Resi- of the ordinance Adjustment “A”. of East- zone The Board of dential Township the of Common Court and, turn, town County, affirmed action of the Pleas of the Chester rejected appellants’ zoning that contention officer and applied zoning as to its 302 of the ordinance, section property, is unconstitutional.2 zoning

Appellants a ordinance in this that contend requires purposes for residential area, residential is one unconstitutional lot area of acre, a minimum (1) to it has no reasonable relation because (2) it is or because unreasonable, morals,2 issues, raising Despite unquestioned and of these obvious however, Majority opinion states: epitomized aptly before it fol- below the record as “The court grounds objection appellants : understand ‘Wo do not lows Adjustment that of the Board to be the decision regulation^ no relation to involved have substantial here Indeed, find no health, safety, we evi- welfare. or morals therefore, relation; no such substantial dence have ground. may See on that their enforcement not interfere with we any Conte, evidence that is there 584. Nor v. Gratton establishing regulations, Supervisors those the action ” arbitrary capricious.’ decision, in its the Board Court, Bilbar Construction Com as of the lower This statement contrary out, correctly point

pany the record. We must et al. the formal rules kind not have of this does case recall raising difficulty precise customary pleading most cases. Adjustment* lay questions Board of before Constitutional to, a discretion but has which does have á lower Court before apparent. example, Ja evidence is See additional to consider 268-273, Fetzer, 112 A. 2d 356 cobs . majority Unfortunately, over have lower Court .and possible earliest mo the record. Prom the or failed to read looked question was raised.** ment the Constitutional Furthermore, petition al. to the in the of Bilbar et appeal the decision of the allowance of from Pleas for Common following grounds, alia, Adjustment, inter were set Board of forth: Township applied Zoning regulations of Easttown “The arbitrary, confiscatory and an unreason- lot of Petitioner are proper use, enjoyment upon in and able restraint Petitioner the ' petitioner. of the lot of alienation n Zoning Township, applied “The Ordinance Easttown as to' present location, Petitioner at its has no basis in the lot of the proper police power by Township. exercise said reasonable and testimony proceedings often, and are we Whose records * informed, skimpiest áre of the nature. ** only question raised since the builders did not It" was the exception opening ór a variance. the statement seek either Adjustment Zoning original ap- Board of counsel for the before the Tredyffrin Company, appeal pellant, Construction said: “This position Zoning the refusal of based on the that the Officer to is- requirements permit zoning in error in the a was stated’ sue by Zoning arbitrary are in the Ordinance and unreasonable view surrounding of the location of the lot and the character of the ter- ritory morals, health, .general and its relation to the and welfare- community, . . . .” of the followed The procedure discriminatory.

arbitrary constitu the validity to test these appellants by Archbishop proper: of the ordinance tionality A. 2d Schmalz 587; 389 Pa. 35, O’Hara’s Appeal, Board & Zoning Township Supervisors v. Buckingham permit building “By grant for a house to of the refusal virtue Township by Zoning Easttown upon Officer lot aforesaid the its Adjustment, been has Petitioner decision of the Board of and the property right unduly deprived his use of the reasonable of his to process under all of the circumstances. without due of law Zoning regulations present Easttown of the “The enforcement requirement wit, petitioner, Township applied lot of to as to the petitioner’s present least One have at location must lot in its prior Eifty frontage (150) acre in area in and one Hundred feet any violation of is in direct residence thereon to the erection Constitution United and the the Constitution States Pennsylvania, imposing re- and harsh excessive Commonwealth of type keeping upon property with the in Petitioner’s strictions development existing neighborhood and its and character of the general regard morals and without due relation community.” welfare of recognized expressly presence of this Con- lower petition opinion inter- leave to on stitutional issue its said: vene when it zoning regulation “Every proper ordinance or restriction in a other, every complementary relation so that each has a direct upon property provision operate each and the coordinated whole municipality. substantial relation Each and all must have health, morals, safety, general . . .”. welfare. Court, said, inter alia: “Zon- Bilbar its brief to the lower interfering ing regulations, do with the ordinances and validity upon property, depend substantial free use of for their imposed protection relation of the restrictions to the health, safety community. or welfare of applied

“Can the one acre classification ordi- justified appellant’s grounds nance land be on of health and safety? Clearly sanitation, Apart question from it not. of can- 21,000 disputed square (almost not be that lots of feet a full half acre) adequate requirements are more than to meet all conceivable community.” of health and a residential 82 233; Volpe 132 A. 2d Pa. 389 295, Adjustment, v. 121 2d Jacobs 97; Fetzer, Pa. A. 384 374,

Appeal, it is the 112 Strange say A. 2d 356. 381 Pa. 262, Act or of an the constitutionality to test procedure only permit.3 the majority ordinance which appeal silent on the right law is The zoning Pleas of Common of the Court from a decision irrespective in zoning matters, therefore appeals must be taken to this Court involved, the amount Bench.4 King’s under its jurisdiction power has Pa. National Bank v. 378 Campbell, Delaware County 405, v. 376 Pa. A. 2d Commonwealth 416; Onda, 311, 106 111 A. v. 3 A. 2d Commonwealth 90; Balph, 365, 103 In Delaware National Bank Campbell, 220. County said : “This case (page 316) 378 Court supra, Pa., as and other a certiorari and we possessing do, arose on powers do not, of the Commonwealth courts direct to this brought it was properly King’s Bench, 376 Pa. 103 A. 2d 405, v. Onda, Commonwealth Court: . . . .’’ 90; constitutionality absurdity requiring futility The permit and a raised before a clerk of a ordinance to be dissenting Adjustment vividly pointed in the

Board of out Fetzer, opinion in Jacobs v. 381 Pa. 268-273. jurisdic Superior is an intermediate whose Court Court expressly by statute: "Wein

tion “is limited to matters conferred 333, Society Christopher Appeal, 175 A. 500.” Columbus bach’s 316 Pa. Lombardo, Superior 67, Ct. A. 2d 825. Jurisdiction v . 155 Pa. Superior proceedings appeals Court from Common Pleas to the subject controversy money, arise “if the be either chattels, personal, possession prop or the to real real or of or title really erty, controversy and if also the or value amount thereof greater 24, 1895, 212,' no than . . .”. Act P. L. $5000. of June May 1540, §1, Bily L.P. 184. amended PS Cf. v. Board Property Assessment, Superior 157 Pa. Ct. 250. A. 2d

83 supra, Archbishop Appeal, In 389 O’Hara’s Pa., on “In of the statute Court said: view of the silence subject appeal court of the lower from the order scope broadest of our is certiorari in the review ‘only and to see whether sense we review the record findings is there evidence to sustain the court’s proceeding whether the is from a violation law free Corpora any Food manifest abuse of discretion’: Zoning Adjustment, tion v. Board 384 Pa. 288, 293, 121 A. 2d Kaufman v. 94; Holcomb, Const. Co. Rolling 55 A. 2d Case, 534. Green Golf Club

514, appeal 374 Pa. A. 2d ‘On from we said: 450, 458, 523, zoning a decision of a Pleas in a mat Court Common appellate ter the case comes before an court as on cer sup adequate where there evidence tiorari, port findings proceeding of the below and the is free from error of and there has been no mani law fest abuse of the decision not be re will discretion, ” versed.’

Zoning largely classifications are the discre- within judgment pertinent zoning (or legisla- tion and tive) subject provisions body, to the and limitations the Constitution. The nature and character of neighborhood important and the district are factors may zoning be considered authorities. Zoning, legally and still desirable, while is in a although many buoys uncharted channel sea, and bea- lights prior today, con had been to enable erected, safely commissions to chart their course.

Zoning strictly ordinances must be construed since they derogation rights are in of the unalienable man Appeal, Medinger kind. Lord 368 Pa. 81 A. 2d 121, 533; supra; Appeal, Zoning Lukens v. Board Pa., Adjustment, 367 Pa. 80 A. 2d 765; Kline v. Har risburg, Shapiro Zoning 362 Pa. 68 A. 2d 182; 105 A. 2d United C.P. Board, 299; Asso- 331. A. 2d 382 Pa. ciation v. Zoning Board, are con All ordinances agree authorities for the are enacted if and when stitutional only neces and clearly and are reasonably welfare of the property morals safety, sary 5 communities involved. owners or an Pa. 121 A. 2d 97, 384 Volpe 377, Appeal, 374, of Coun Township, Montgomery ordinance Cheltenham feet lot square a minimum area of 20,000 ty, requiring district zoned half an in a residential acre) (nearly since it a reasonable relation sustained bore was “AA”, The the unanimou of language to health and safety. is to the applicable the Court particularly of sopinion case at bar: have zone land for residen- power to

“Municipalities minimum, establish lot require- purposes tial rea- are provided they connection therewith, ments6 in the districts involved and bear residential sonable for the relation to the health safety reasonable a of 5 justification overruling slightest for the There not is the in Allentown School District Tax of the court unanimous statement constitutionality Case, 161, namely, presumption 370 strong passed by an is as of an Act ordinance accurate, Legislature. proposition only is not I should The but Legislature think obvious. is arm of Gov it is The a constitutional Zoning body; are ernment. Commissions not a constitutional Furthermore, Legislature. at can be abolished whim the May Statutory provides Act of in 52 Construction 1937 Section presumptions ascertaining Zoning for for the intention Com —not Legislature missioners but —the intention which in Section Assembly (60) defined to 101 is be the General of the Common Pennsylvania. wealth of There neither a nor constitutional statutory presumption validity in favor of the an ordinance or Zoning a resolution of Commission or an official act of a although agreed presumed official, we all are that each is to be apart decisis, Even from constitutional. stare each of afore accuracy. demonstrates its said reasons 6 throughout, Italics ours.

85 far as to have even so gone Courts community. municipalities violating hold that without may, from exclude residential Constitution, districts, —for health and trade of reasons —business houses: hotels and Vil including apartment every sort, S. Ambler 365; of Euclid v. U. lage Realty Co., A. 630; Jennings Ap Ward’s 289 Pa. Appeal, A. 621. also: Brosnan’s Ap 330 Pa. See peal, Improve Elkins Park 330 Pa. A. 629 and 161, 198 peal, A. 2d 783. Zoning ment Assn. Case, per feet 7500 square “A area of not less than lot impliedly ‘AA’ district was residential family Im- Park Elkins this Appeal approved lot and a minimum Pa., supra; provement Assn., a one- feet square per family of 4000 requirement Brosnan’s impliedly approved family dwelling supra.” 330 Appeal, Pa., is 104 A. one 2d 118,

Medinger Appeal, point which are directly recent cases of several supra, In Medinger Appeal, rule instant ease. and 200 of Section an held unconstitutional this Coun- Township, Montgomery of Springfield ordinance minimum habi- scale sliding a which prescribed ty, in different properties areas in residential table floor did the ordinance not because districts, residential health morals safety or or or reasonably promote and because it also community, general welfare ” 200 is and Section discriminatory was “arbitrary here that it to ordinance involved is so analogous for provided two-story Section reciting. worth as follows: houses residential minimum floor area;

“AA” —1800 feet habitable “B”—1125 “D”— “C”—1000 “A”—1400 feet, feet, feet, 1000 feet. The Court inter said, alia, (pages 221, 225, : property is entitled still

. e. . . an owner of Pennsylvania constitutional certain unalienable to right rights liberty property. a These include and provided way any he desires, use home in to his own provision (1) any Federal of the he does violate not (2) or nuisance; create a Constitutions; State or or (8) any or easement; or restriction violate covenant, police regulations zoning (4) any or or violate laws well settled It is now which are constitutional. passed are under them and ordinances acts legis general or and as structural Valid constitutional necessary preservation for are lation whenever safety, and welfare, morals or health, unjustly discriminatory, arbitrary, unrea or or not application par confiscatory a or in their sonable, piece specific property: . . . ticular or “It habita- does not follow that a minimum scale of space may floor in a not have reasonable, ble home proper and relation the health and morals, direct possibly, safety occupants house of the of the community general, or of the it is known because well overcrowding persons of a or of members large tiny family rooms in a a small house or in room might undoubtedly have effect on their health a direct square But if a and morals. 1000-minimum habitable proper every in one dis- feet reasonable home adversely affect the morals does trict occupants square of such house, nearby floor in a cannot of habitable area house feet adversely safety morals or affect the of health, community. home or of that

ÍC nor “. . . aesthetic reasons neither conservation property or the of values stabilization economic val- township singly in a or sufficient are, ues combined, promote safety health or or the morals or general township welfare or its inhabitants enabling property meaning within the owners, Aet of 1931, or under the Constitution amended, Pennsylvania. supra, Appeal, 287 Of. White’s Pa., Appeal, supra; Lord Pincus v. Power, also Pa., Pa. 101 A. 2d . . . . 175, birthright

“This ordinance flies in the face of our Liberty Way and our American and is inter- Life, by dicted the Constitution.” clearly

Another recent case which rules the instant Archbishop supra. Appeal, case is O’Hara’s 389 Pa., opinion In that case this Court in a unanimous re- (Board Adjustment and) versed the decision of the application denying lower to build a parochial school on an 18 “AA” acre tract in an comprehensive residential district. The Court in a opinion by (page Justice said Benjamin R. Jones, 57): Appeal,

“In Lord 81 A. 2d 121, 130, quoting leading Appeal, from the case of White’s present opin- majority A. [which the Zoning (which ion in this and in Best v. Board simultaneously herewith) handed by down overrule necessary implication, although quoted it has been approval by cited with this Court more than 25 times] ‘ property it was said: “. . . all is held in subordination right regulation govern- to the of its reasonable clearly necessary preserve ment the health, (or general welfare) people or morals ... of the .... quite power There is one matter that is certain, regulate thus does arbitrary, not extend to an unnec- essary intermeddling private or unreasonable with the ownership property, though even such acts be labeled preservation safety, wel- regulations may fare .... While such physically property, they regulate take the do so its use as to de- 88 without therein

prive right the owner a substantial own acquire prop . . ‘The to and compensation,7 . right chooses, it and use it as owner and to deal with erty, is a harms natural nobody, right; so use long It its to constitutions. existed origin It does owe It the citizen’s natural part liberty, before them. is a his as invio expression freedom, guaranteed —an — Dal Spann bill v. rights’: late American every ’” 111 235 S.W. 513 . . . .” 350, Tex. las, u p. supra,

“The ... language Medinger Appeal, or zealous applicable: is ‘The natural 225, particularly and improve boards to desire many protect, township plan their develop city community, practical beautiful, or a community that both values as well as property conserve the is commendable. But “tone” of that community owners have certain property must remember protected preserved which are ordained, rights neither zeal nor worthwhile and which our Constitution ” or abolish.’ impinge upon can objectives Supervisors Township Schmaltz v. Buckingham this Board 389 Adjustment, Pa., supra, and Zoning ordinance to be unconstitu declared a zoning 50 for a foot set-back8 of prop provided tional district because it had no agricultural in an erty relation and substantial reasonable and it likewise “amounted to unlawful and morals, 7 Causby, 256; v. United States v. Gardner U. 328 S. See also: 88, 103, 491; Allegheny County, 102, 114, Nectow 114 382 Pa. A. 2d 189; Cambridge, 183, 188, v. Prentiss American Uni 277 U. S. Appeal, 267, versity, 282, 283; White’s 214 F. 2d 134 A. 409. Appeal, approved Kerr’s set-back was 294 Pa. A foot Appeal,

246, 144 A. and in Valicenti’s 308. A. property this rights tbe confiscation of arbitrary in this of community.” owner type introduced owner property case tbe tbe instant provided wbicb mentioned ordinance tbe above for districts residential scale minimum lot area sliding for for required that far below we were wbicb, repeat, Commissioners Township Tbe appellants’ property. own- require property to authorized ordinance were at tbe sidewalks roads and ers to construct or widen persons tbe safety insuring owners’ expense, thereby that proved owners using property that area. Tbe on-site for adequate tbe its were drainage, soil and land, and safety tbe proved thus that sewage disposal. They of tbe properties health of tbe and tenants owners side- tbe roads and question and tbe who used people safeguarded. walks would be contended tbe Commissioners

Nevertheless, 8500 minimum even 5000 minimum though square feet, 21,000 and square feet, minimum square feet, 14,000 requirements square minimum satisfied feet, welfare morals and general and health, safety resi- particular of these residential still this districts, required them) was adjoined dential district (wbicb square 43,560 to a minimum area of one have lot acre — This required, they contended, feet. one acre was increase (a) substantially because less area would any (b) police, and necessitate additional taxes, eventually new to or the construc- a. fire and an addition engine, popu- new (c) density tion and create a school, be in tbe event injurious lation wbicb would to safety of an Of contentions attack. course these are atomic of merit. would devoid These contentions absolutely (cid:127)more even residential district applicable every a minimum required lot area township in. wbicb or or required of what is in this y8 particular ^4 %. requirements, and if.-these .were essential district, comply one acre in order to with health or or application the ordinance in its welfare, Township other residential districts in this was obvi- ously unconstitutional. an such unconsti- Moreover, concept application police power tutional and apply every would district, likewise suburban area, township county reality stifle and in would effectually expansion country’s rapidly block the our growing population township any or into suburban county, poor herd would and medium income people specified effectually into areas and and inten- tionally parts county limit or all of a to the rich exclusionary well-to-do. Such intentional in- contrary guarantees terdiction is to our constitutional Way and to the American of Life. It is clear that zoning aforesaid theories and au- contentions of the supported by testimony even if thorities, —which (1) only were or are for the benefit of the rich not — general well-to-do and are not for the and welfare, (2) have no substantial to and rea- relation are not sonably clearly necessary for the health, morals of the residential district involved. opinion majority

The case this and even more clearly (handed Zoning in Best v. Board down here- with) upon analysis base their decision in the last proposition power police of unlimited and its deriva- general tive, welfare. believe is this the most perni- I cious doctrine ever enunciated in The Pennsylvania./ ~~ majority opinion says: upheld

“We have ourselves number times constitutionality zoning ordinances which no bore safety, reasonable relation to the morals community validity but whose constitutional rested upon promotion alone their welfare. In Advertising Zoning Landau Co., Inc. v. Board Ad justment, 387 Pa. 552, 128 A. 2d we 559, sustained

91 cer prohibited ordinance which a zoning constitutional from being signs advertising of outdoor tain types zones of in commercial buildings on even erected the erec prohibited An ordinance involved. which city held to districts was in residential of billboards tion 139 Pa. 291 Petition, be constitutional Liggett’s to business devoted buildings A. 619. The exclusion of a constitu deemed from districts was uses residential Appeal, Ward’s police power: exercise of the tional A ordinance Pa. 137 A. 630. was upheld housing construction of row prohibited the This A. 2d 299.” Dunlap Appeal, supported and is not of the law an inaccurate statement so had been even if it cited; cases furthermore, by recent zon all the contrary it would supported, hereinabove mentioned of this Court decisions ing Youngstown Sawyer. & Tube Co. v. Sheet also S. 579.9 U. ordinance Petition, Liggett's in a residen billboards large the erection

prohibited the Second The Act authorized enabling tial district. trades restrict the location City regulate Class and to designate ordinances by and industries be excluded from industries which shall trades and erected defendants sign district. particular S00 and from 30 to feet It was long high. feet electrical appliances, transformers, with equipped the purpose and time clocks for boxes, fuse flashes, in an effective the electric current manner of utilizing name It carried night. day “Chandler” car feet advertise the high letters white The Court held Company. properly Motor Chandler residential could restrict from city districts, and that this bill- enormous industries, trades infra. See meaning board was a trade within the of the ordinance. It is well settled decisions of this Court and of the Supreme Court of the United States that trades and apartment may businesses, houses and industrial uses prohibited in a residential district as the because, specifically say, safety cases the health and the resi- thereby dents woiild-be affected. opinion majority Appeal, next on relies Ward’s similarly “buildings

289 Pa. 458, which excluded de voted to uses” from residential districts. This properly safety sustained because health and were (pages 463-464) affected. In that the Court said case, : “In [Village the case to which we Euclid v. refer, Realty Company, Ambler speaking 272 U. S. 365], provision particularly like the one here involved, Supreme federal Court said: ‘. . . The decisions enu group agree merated in the first cited above that the buildings exclusion of devoted to business, trade, etc., from residential districts, bears a rational relation to ” safety community.’ the health and Dunlap (next Appeal, on), prop- 370 Pa. 31 relied erly prohibited sustained a ordinance which housing. construction of row The owner asked for a subsequently pro- but variance, also contended that the housing hibition of row was an unreasonable classifi- consequently cation and unconstitutional. This sustained the ordinance and the classification because “Improvement light, many fire traffic and air, other Zoning pres- conditions which the Board found to be ample ent when row houses are form restricted, preference.” ap- for- basis a reasonable The test there plied was health and and reasonableness of classification. Advertising

The next case cited was Landau Co. v. Zoning Assuming, arguendo, 552. Board, wisely question this case was decided, involved was high and 15 feet billboard of a the erection whether purposes, advertising anwas for feet wide operation which accessory the business use to the property. held This Court on was conducted opinion its sign and based be erected, could not the use in- entirely upon not a it was the fact that almost prem- accessory the use to to main which cidental being then correct- Justice devoted. Chidsey ises were unique long na- ly settled that has been said: “It advertising fostered the nuisances ture of outdoor by structures located outdoor and similar billboards jus- advertising, persons of outdoor in the business separate tify of such structures classification regulation purposes governmental restric- including [citing decisions number of cases tion Supreme States].” Court of the United greatly is 348 U. S. which Berman Parker, upon by majority opinion, the man- involved relied unique agement by Congress of Colum- of the District distinguishable. clearly In that is bia and likewise Redevelopment Authority as condemned land case a injuriously Obviously area affects a slum area. a slum people living The therein. and morals of the the health question by Authority domain land in eminent took the just compensation proceedings paying for the same Authority required by Of course the the Constitution. power to make the condemn such land and had the obviously but the lan- land clean and beautiful, new entirely applicable guage is differ- to such a situation zoning case. ent from a example present case is a concrete local rapidly

cry for land and homes because of the which, expanding population, increasing is worldwide. fight be- form of a battle has taken the this case attempting constantly to ex- tween the State, rights pand power indi- and the Government, protect prop- enjoy, viduals to use and their own own, erty long any way they so as it does in- desire, neighbor’s property ageless, terfere their with —an everlasting struggle began Magna before Charta intensely vexing peoples governments and is now and all over the world. people Country long

The of this before and ever fought constantly since we became a Nation have against (a) Rights a curtailment of their unalienable proclaimed Liberty proudly which were in the Dec- Independence, (b) private property, laration of and guaranteed which were ordained and in the Constitu- tion of the United States.10

Nearly every property objects down-grad- owner ing neighborhood part, the residential of which ishe allowing anything change quiet, or which would its peaceful, forget exclusive tone. But we sometimes the Constitution is not “a fair weather friend”—a Rock guarantees of Gibraltar presently when it what we de- scrap paper” sire to do or believe and “a in, when prohibits presently it restrains or what we desire to do or in. believe may

An constitutionally owner land make his property large private as and as or secluded or exclu- purse sive as he desires his and may, can afford. He example, singly purchase neighbors, for or with his suf- neighboring protect preserve ficient land by and re- by strictions in deeds or privacy, covenants inter se, acreage, quiet, peaceful atmosphere a minimum and community the tone and character of the which existed he or when moved there. But Government, through any agencies, possesses or such, its local Constitution; XIV, Fifth Amendment to the §1 Article Constitution; I, §1, Article Pennsyl §9 and of the Constitution of vania. constitutionally or right. restrict

no sneli cannot It Legitimate except exer- burden or use under land, proper power; police land for a it can take cise of the proceed- by purchase by eminent domain use or just compensation ings only by paying there- and then required present Ordi- for as the Constitution. intentionally obviously to ex- intended nance is peo- poor income clude from this area the and medium necessary ple. re- It has no substantial or clear and lationship it is ob- to health morals, pub- viously not for the for the welfare of the few and obviously, it is under these reasons lic, evidence in this ^constitutional. case, police power unlimited

Unlimited or its derivative, “general must be never has been and never welfare”, every adopted Country. in this We all know that police power, other- civilized Government must have police power anarchy. exists wise there would be The People general for the wel- for the welfare of the —not presump- special private fare of or interests —and is tively always general for The exercised their welfare. separates gov- Great Divide that us from totalitarian power Country police ernments is that in our neither general right is unlimited. of each nor welfare The individual human freedom—freedom of reli- to basic gion, press, speech, freedom of the freedom of freedom private right thought, rights property, the the person rights the of a accused of and contract, crime, process although constantly insidiously due at- and — heart-warming sugar-coated slogans tacked or with ignored, under our titles, cannot, Constitution, destroyed. ma- obliterated or The effect of the erased, jority opinion repeat, in this case even more we and, Zoning clearly abrogate in Best v. is to Board, rights the free- obliterate fundamental of individual private property, ignore dom and of and to or erase guaranteed by right the every is Constitution which all-powerful right implied except of all-exclusive, “general welfare”. (except Legislature

Nearly every a rela- Act of the political pur- passed tively for are few Acts which including zoning poses) every nearly Ordinance, passed under the sincere belief that are ordinances, people, “general for of the but are welfare” presumption by aided of constitution- even when ality, that does not make them constitutional —each pass reasonably clearly test: “Is it neces- must people?” sary safety or morals for the health or of the present ma enunciated new doctrine omnipotent opinion jority of con that the sole or test stitutionality for it is of a ordinance whether “general obliterates welfare” of the district, safety ignores principle and morals” and “health, ejusdem requires generis, considered it to be and to have a direct connection with, health, (cid:127)with, safety or it must be for the wel morals, i.e., people special pri distinguished of the from fare and it must bear a substantial relation vate interests, necessary preservation to and be of the1 community. morals This health,' new repudiates principles the basic doctrine enunciated in, by necessary implication, myriad overrules a and, including cases of this Court our recent cases of Arch bishop Appeal, supra; O’Hara’s 389 Schmalz Pa., Township Supervisors Buckingham Zoning & Board supra; Adjustment, Medinger Appeal, 389 377 Pa., Pa., supra; leading Appeal, as as the case of well White’s quoted supra, 287 which has been from or Pa., cited approval by this over 25 with cases. This omnipotent theory general same welfare was unsuc Archbishop cessfully Appeal, advocated O’Hara’s

97 supra, Appeal, Medinger supra, 377 Pa., and Pa., rejected. always been has heretofore but Appeal unanimous Medinger in a the Court, In (pages 225- opinion, rejecting said this new doctrine, ‘gen- [promoting 226) the : “These broad words define must welfare’] eral are difficult statutory context their in connection with construed and to the individual and subordinate as well with guaranteed by rights property the Constitu- which are general wel- doctrine of tion.” fact this new require repudiates overrule us to fare and would prior myriad further vivid- of this Court is decisions Archbishop Appeal, ly by O’Hara’s demonstrated supra. Pa., ' Archbishop Appeal, supra, the O’Hara’s Pa., Archbishop proposed on an acre to build a school Department bought, lot which he when the rules of the promulgated safe- health, Public Instruction for the required ty, morals and welfare of school children, Adjustment Board acre lot. the Furthermore, proposed and school the lower Court found that promote gen- safety and would not would affect the nearby eral and that a which was owned welfare, site, require- by Archbishop, meet the same could all injur- promote, instead of ments of the law and would ing safety, jeopardizing, wel- morals and community. the enture school children fare of application pro- denied the for the The lower Court posed following specific for the reasons: school

“(1) proposed that the use of the site would ‘ad- versely, creating by affect the traf- congestion, dangers (2) pro- fic that the hazards’; posed ‘destroy use would the residential character of (3) neighborhood’; widening thé of streets, placement lighting sidewalks street neces- proposed expensive sitated use would be for the (4) nearby taxpayers; that the value of residences depreciated; (5) tract be that the size of the would inadequate Depart- under recommendation (6) site Public that another Instruction, ment purpose.” by appellant is better suited for the owned opinion, this in a unanimous Nevertheless, Court, the, lower Court and inter held, reversed the alia, by Board of Ad- aforesaid facts which were found relationship justment by had the lower no Court, safety, general whatsoever to the morals or wel- present majority community. Of fare of the course the opinion flies in the teeth of this and a score of other decisions this Court. principles re- of law which have been opinion in this are not confined cases,

iterated long every in but are and well established field of the law. Company Washington City,

In Otto Milk v. para- 69 A. 2d the case is well summarized in 399, 243, graph syllabus 4 of the which states: city provided

“4. milk Where a ordinance that cer-. tain milk shall be delivered to the consumer ‘in bot- only’, it was Held that the tles ordinance could not require properly delivery glass be construed in a transparent bottle or in a container and that milk properly opaque could delivered container called made of fibre board.” ‘Pure-Pak’, Maxey, speaking Justice

Chief for a unanimous (pages 251-253) said : Court, Flynn “This al. et 356 Pa.11 Horst, 20, quoting opinion 2d 51 A. from an earlier stat- May 29, 1901, Section 2 of the Act P. L. amended 5, 1913, imposes the Act June P. L. to the extent it upon oleomargarine a license fee of $500. wholesale dealers unconstitutional, dealers, Upon held to bo $100. retail ‘ ed: “. . to determine . while it is the legislature are in the and regulations first instance what laws deter- needed to the courts may out these carry ends, mine re- whether the have some reasonable regulations ’ ‘The ends.” that: lation those We also there stated business “police any reasonableness of a regulation” on on which the depends reg- the circumstances chiefly ulation should be al- operates. police No regulation lowed to with the individual enjoyment “interfere the necessities Reduction rights beyond case”: S. 318.’ We Company U. Sanitary Works, 306, from quoted the case Leonard 100 Ohio St. v. State, 157 N.E. Wanamaker, speak- where Justice for the ‘The ing Supreme Court of Ohio said: measure police must with power square the measure pub- lic necessity. The need is the of the public pole-star enactment, interpretation application law. . . .’ We also quoted Ap- from White’s following 287 Pa. 134 A. peal, 409: ‘While the tribunal determine the proper exercise is in the first instance the ultimate decision legislature, rests with courts. If after there is doubt as to investigating whether the statute is enacted for a recognized police object, its its exercise if, conceding purpose, goes too it then far, judicial becomes to declare the duty exercise of given police power cases). invalid (citing “The legislature under the may not, guise protect- ing with interests, arbitrarily pri- interfere . vate or impose unusual and business, re- unnecessary strictions upon occupations. other words, lawful its, determination as to what is a exercise of proper its police power is not final or but conclusive, is sub- ject supervision of the courts’” (citing cases).” In Miller v. Beaver 82 A. Falls, 2d 34, declared this Court ordinance which super- park a upon imposed confirmed of a plan should city with- Council acquired by unless the land was void in a The Court unconstitutional. three years, “ : All that . 198) unanimous said opinion (page fruits and the arises from its use beneficial in property of them a person deprives of that whatever use, in the is desirable or valuable him of all that deprives in order to is not necessary, title and It possession. con- the restraints of the render statute obnoxious to authorize it or in effect, terms stitution, must, the thing of the talcing property an actual physical free use and enjoyment, so as it affects its long itself, at the will of the owner.’ power disposition or the in opinion Mr. said in his “As Justice Holmes 260 415, U. S. Mahon, Coal Co. v. Pennsylvania 393, Act of declared the Kohler 43 S. Ct. which he (in : unconstitutional) P. L. 1198 ‘The pro 1921, May 27, in Fifth Amendment tection of the private property it is for but presupposes public pro wanted use, shall not taken for such use without vides that it A similar is made the compensation. assumption Hairston decisions the Fourteenth Amendment. upon & 605. When Danville Western 208 U. S. Ry. 598, v. Co., quali this absolute is found to be seemingly protection the the natural hu police fied by power, tendency of the man nature is to extend more and qualification more until at last But private property disappears. accomplished that cannot be this under way United States.’ Constitution “ ‘While such not take regulations may physically do so its use as to regulate deprive property, the owner of a substantial therein right without com- “We are in pensation. danger forgetting desire to public improve the condition is strong warrant the desire not shorter enough achieving aby cut than the constitutional way paying for Coal Co. v. S.U. Mahon, change”; Pennsylvania 287 Pa. 134 A. White’s 259, 266, 393, 416’; Appeal, Rolling Green Club 409.” See to the same effect: Golf Case, A. 374 Pa. 2d 523. Commonwealth Zasloff, A. 2d is well summarized in the the decision of this Court portion

following syllabus: «1. The Fair Act of P. L. 2672, Sales July !, 1937, sale merchandise at less prohibits any than cost retailers is violation wholesalers, both of 14th Amendment of the Federal Constitu- tion and of Article section of the Declaration I, of the State Rights Constitution.

“2. of an fix the right owner of property at price which he will sell it is an inherent attribute and as such property itself, within the protection of the 14th Amendment.” later Chief

Justice, Justice, speaking Steen, unanimous said : Court, (page 460) police power

“But in inas all is these, eases, gov its unrestricted; like that other exercise, powers, subject ernmental limita constitutional judicial tions and otherwise we would review, have govern absolute instead a constitutional scheme frequently ment. It by has been stated and federal state purports courts alilce that a lato be an police power exercise arbitrary, must not un patently beyond reasonable or the necessities employs and the means which it case, must have a real object substantial sought relation to the to be at tained: v. Mugler 123 U. S. Kansas, 661; 623, Chicago, Burlington Quincy Co. v. Railway Drainage Com 200 U. S. missioners, 561, 593; Nebbia v. New York, 291 U. S. 502, 539; 525, 537, Mahon v. Pennsylvania Coal 274 Pa. Co., 489, 497; White’s 287 Pa. Appeal, 265; 259, v. Breinig Allegheny 332 Pa. County, 474, legislature may ‘The guise pro- 483. under the not, with arbitrarily tecting public interests, interfere and, unnecessary unusual impose private business, Steele, v. occupation’: Lawton upon restrictions lawful 608; S. 606, S. Otis v. U. 137; Parker, U. 133, 513.” 264 U. S. v. Bryan, 504, Burns Co. Baking House Inc. v. Reading, In F-K Market Company, 502- A. said (pages 310 Pa. the Court 398, 493, : 503) Exam Optometrical State Board of

“In Harris v. 135 A. this court said: 287 Pa. 536, 237, iners, 531, under the does' not police power pos ‘The legislature rules no substan sess to enact which have power . . . the end to be attained. Legislatures tial relation to under the police do not have the power, guise regu and lib invade arbitrarily personal right lation, extent the individual. Its determination of the erty of is not final or conclusive: White’s power App., of its If 287 Pa. 259 A. it pass act, ostensibly [134 409]. unnec police in the exercise of the but which' power, interferes with the the citi personal liberty essarily examine the act and determine the courts may zen, objects to the which the exercise whether it relates ” designed secure.’ police power to, does, Inc. In Hertz v. Stations, Siggins, Drivurself 58 A. 2d this Court declared unconstitu- a certificate of requiring tional a statute con- from the Public Commission one Utility venience in the business of motor engage ve- desiring renting now Chief Justice, speaking hicles. Justice, Jones, said : (pages 46-50) a unanimous Court, “In 13 A. Commonwealth Zasloff, quoted Mr. Justice at p. approv- 2d 67, Stekn, Supreme from and cited United States ingly ‘ the effect that: “The cases to not un- legislature may the protecting public der arbi- guise interests, of with private or impose unu- trarily business, interfere

103 occupa- upon unnecessary restrictions sual lawful Baking Bryan, 264 U. S. Jay tions” ’: Burns Co. v. see Meyer U. S. 390, 262 v. State of 504, 513; Nebraska, Lawton 608; 187 U. S. 399-400; Otis 606, v. Parker, also Nolan Jones, S. v. 137; U. Steele, Pa. 106 A. 235. . . . 124, 128, (Salus highest government

“. . . As attribute police power populi suprema lex), all at est must, scrupulous regard he with consti- exercised times, tutionally private rights” guaranteed Ray

In ex Commonwealth rel. Woodside v. Sun Drug Pa. 116 A. 2d this held that Co., any in the absence evidence of customer confusion Malt-A-Plenty any between base and ice and of cream Malt-A-Plenty possession sales of base as ice its cream, or could manufacture not be restrained aas violation (which prohibits §2 of the Ice Cream Law sale any any ice cream which is adulterated and of imita- tion ice cream ice cream as defined in substitute, Act). speaking through A unanimous Jus- Court, 10-11) (pages tice said : Chidsey, applied type “The standard to be in this of case was well Mr. stated Chief Justice Steen in the re Corporation Beverage case cent of Cott v. Horst, (1955), Pa. 113 110 A. 2d 405. that case the Chief quoting from Justice, Gambone v. Commonwealth, p. 118 By 2dA. 547, 101 stated at a host Federal and authorities, State it has been alike, purports held that a law which to he an exercise power police unduly oppres must not he unreasonable, patently heyond sive, the necessities the case, and employs the means which it must have a real sub objects sought stantial relation to the to be attained. guise protecting Under the interests, legislature may arbitrarily private interfere with impose business or unnecessary unusual or restrictions any question occupations. upon The whether lawful pub- provision particular statutory the is so related to prescribes good in means it reasonable the and so lic police power, justify the is one the exercise as to of judgment, in first of the law-mak- the instance, for the government, ing but its final determina- branch ’.” for the courts” tion is

Thoughtful analysis further demonstrate—even will any by. myriad of cases—the confirmation without majority’s Wel doctrine that General basic error of the test which is unlimited and unfettered fare the absolute, constitutionality applied determining the is to be suspected example, ordinance. For an Act or when questioned captured is is and detained and murderer by police, this is under the it obvious that done police power general and for the and welfare of government society. There cannot be a stable our power police Country and and order, without law protects safety, and the order the health which community. free the Courts Nevertheless, when police suspected they apply such do not “the felons, process power” “general due or invoice welfare”; rights guaranteed and are fundamental every by American citizen the Constitution. See for example: Watts v. S. Turner v. U. Indiana, 49; Pennsylvania, S. 62. U. police power general welfare were unlimited,

If virtually every right every liberty, right property, every right press, process, to a free and to due as rights as all the fundamental well other which are or- guaranteed by in and dained the Constitution would superseded, abrogated extinguished by soon be “general welfare”. theory police power welfare rejected utterly and unlimited

absolute and com- pertinent pletely demolished the latest decision Supreme Youngstown Tube Co. Sheet President.Truman, Sawyer, In that case S. 579. U. and as Commander- States as President of the United Secretary to take Commerce the. ordered in-Chief, operation supervise temporary possession of and during National mills most of the Nation’s steel emergency. his action averred “that The Government catastrophe necessary strike] [a national to avert a stoppage, inevitably of steel from a which would result grave emergency production, meeting this and that acting aggregate of his the President was within powers Nation’s Executive as the Chief constitutional performance duty [including the of his under the Con faithfully exe stitution to ‘take care the laws be Armed cuted’] and of the the Commander-in-Chief power “as his States”; Forces of the United well as Congress,” general wel under several Acts of and “his power protect safety the Na health and fare tion”. The “that Government contended a strike dis production rupting period steel for even a brief would endanger well-being so and Nation of the power’ that the President had ‘inherent to do he what power ‘supported by by had the Constitution, done— precedent, and.by historical court decisions.’” Never rejected the Court these contentions and issued theless, injunction restraining the President and his aides. Township very may whose Commissioners, existence any be abolished at moment at the will or whim of the Legislature, police power far as are, and —so very many welfare are miles removed from concerned,— the President of the United If States. the President of the United States and Commander-in-Chief has no implied, any incidental or inherent, other Constitution- power, al whether under General or Police Welfare powers Power highest or under the duties and many powers granted office our or under the land, 1Ó6 National to temporarily

Mm Congress, extin- or or supersede or violate emergency, abrogate be obvious it should property, guish rights private under the guise po- Township Commissioners, permanently cannot power general welfare, lice or or supersede extinguish Con- abrogate violate wMch are liberty property stitutional rights American citizen. every guaranteed I For these reasons dissent. vigorously Benjamin Mr. Justice Musmanno Justice Mr. K. Jones in tMs join opinion. dissenting Adjustment. Appellant, Zoning Board Best,

Case Details

Case Name: Bilbar Construction Co. v. Easttown Township Board of Adjustment

Court Name: Supreme Court of Pennsylvania

Date Published: May 2, 1958

Citation: 393 Pa. 62

Docket Number: Appeals, 3 and 4

Court Abbreviation: Pa.