Chevy Chase Sanatorium v. District of Columbia

46 App. D.C. 558 | D.C. Cir. | 1917

Mr. Justice Robb

delivered the opinion of the Court:

The notice served upon the Sanatorium by the Commissioners, requiring it to show cause why its license should not be revoked, does not charge misrepresentation or bad faith, on its part in obtaining a license, nor does it charge 'a violation of any of the many regulations governing the conduct of such an institution. It was charged with being “a nuisance to the neighborhood and in violation of section 13 of the regulations governing the establishment and maintenance of private hospitals and asylums, and that its maintenance is a menace to the life and health of the residents of the Chevy Chase section.” The Commissioners, after considering the evidence, reached the conclusion that the Sanatorium “is a nuisance to the neighborhood.” It must be assumed, therefore, that they were not satisfied of any other violation of said section 13 of the regulations, or that the maintenance of the Sanatorium is a menace to the lives and health of the people of Chevy Chase. In other words, the sole basis for the revocation of the license of the Sanatorium was the finding that; as conducted, it was “a nuisance to the neighborhood.” Counsel- for the District suggest “that a fair and reasonable conclusion must be that the word 'nuisance/ as used in the regulation and in the order of revocation, is used in its colloquial, rather than its technical, sense; * * * that the Board' of Commissioners is composed of lay members, who would give to the word 'nuisance’ its colloquial and generally understood meaning, rather than its technical, legal definition.”

The District, therefore, in efféet contends that, after having duly obtained a license and expended thousands of dollars in good,faith in reliance.thereon, and after having complied with every requirement of the Act of 1908, to .which we have referred, and the regulations promulgated thereunder, the Sanatorium may have its license' taken away because- a. board “composed of lay members” conclude that in the colloquial sense the licensee has made itself a nuisance to the neighborhood.

Counsel for the District particularly rely upon New York ex rel. Lieberman v. Van De Carr, 199 U. S. 552, 50 L. ed. 305, 26 Sup. Ct. Rep. 144; District of Columbia v. Wilson, 44 App. D. C. 265; and Richards v. Davison, 45 App. D. C. 395. The Lieberman case involved a section of the Sanitary Code of the city of New York, making unlawful the sale or delivery of milk in that city “without a permit in writing from the board of health, and subject to the conditions thereof.” Lieberman’s permit had been revoked by the board of health, but upon what ground does not appear. The court directed attention to the opinion of the appellate division of the supreme court of the State, in which it was said: “Such regulations however, should be uniform, and the board should not act arbitrarily; and if this section of the Sanitary Code vested in them arbitrary power to license one dealer, and refuse a license to another similarly situated, undoubtedly it would be invalid.” After quoting from the opinion of the Court of Appeals, affirming the decision of the appellate division, the court said: “We do not think that this language leaves any question as to disposition of the highest court of New York to prevent the oppression of the citizen, or the deprivation of his rights, by an arbitrary and oppressive exercise of the power conferred. That this court will not interfere because the States have seen fit to give administrative discretion to local boards to grant or withhold licenses or permits to carry on trades or occupations, or perform acts which are properly the subject of regulation in the exercise of the reserved power of the States to protect the health and safety of its people, there can be no doubt.” The court later observed: “That ihe conferring of discretionary power upon administrative boards to grant or withhold permission to carry on a trade or business which is the proper subject of regulation within the police power of the State is not violative of rights secured by the 14th Amendment.” After directing attention to the fact that the record failed to show why the permit which had been granted was revoked, or the conditions upon which a permit to carry' on the business was granted or withheld, the court said: “There is nothing in the record,to show that the action against him [Lieberman] was arbitrary or oppressive and without a fair and reasonable exercise of that discretion' which the law reposed in the board of health.” The difference between that case and the present is, we think, very clear. There the court was asked to presume arbitrary action on the part of a quasi judicial body-in passing upon questions of fact, and in exercising a discretion within the power of the State to confer. Here, on the contrary, the Commissioners have left no room for doubt as to the ground of their decision, namely, that the Sanatorium “is a nuisance to the neighborhood;” and if, as contended by the plaintiff in error, they were without jurisdiction to determine that question, there was no room for the exercise of discretion, and their action must be characterized as arbitrary, oppressive, and void.

In District of Columbia v. Wilson, the excise board of the District'had granted a license to sell intoxicating liquors to a social club, after determining that its clubhouse was not located in a residence section of the District or on the side of a square where 50 per cent of the foot frontage is devoted to business purposes, within the meaning of sec. 9 of the Act of Congress of March 4, 1913. In other words, the board had determined a pure question of fact which had been intrusted to it for determination, and had issued a license based upon that finding. This court held that a license thus issued could not be collaterally attacked in a proceeding brought in the police court by the District Commissioners, against the club, by information based upon the theory that the license so issued was void because the board erred in its findings of fact. This court, through Mr. Justice Van Orsdel, speaking of the powers and jurisdiction of the board, said: “Manifestly, the board would exceed its jurisdiction if it granted a license to sell liquor within prohibited territory expressly described. Such a license would be totally void. But that is not this case.”

Nor is the decision in the Richards Case any nearer in point. In that ease the Commissioners had refused to renew a license to the proprietor of a dance hall, acting under a regulation made in pursuance of an act of Congress which expressly empowered them not merely to refuse to renew, but to terminate a license when it appeared to them that, after due notice, the licensee had failed to comply with such regulations -as might be prescribed by the Commissioners for the public decency. It did not appear that, in determining this question of fact, the Commissioners had acted capriciously or arbitrarily.

The question here at issue has received the careful attention of courts of last resort. In Yates v. Milwaukee, 10 Wall. 497, 19 L. ed. 984, the court said: “Eut the mere declaration by the city council of ^Milwaukee that a certain structure was an encroachment or obstruction did not make it so, nor could such declaration make it a nuisance unless it in fad had that character. [Italics ours.] It is a doctrine not to be tolerated in this country, that a municipal corporation, without any general laws either of the city or of the State, within which a given structure can bo shown to be a nuisance, can, by its mere declaration that it is one, subject it to removal by any person supposed to be aggrieved, or even by the city itself. That would place every house, every business, and all the property of the city, at the uncontrolled will of the temporary local authorities.” In other words, the court there ruled that the question of nuisance or obstruction must be determined by general law's, and that it is not competent, for municipal authorities to declare any particular business or structure a nuisance, and enforce their decision at will.

In Hutton v. Camden, 39 N. J. L. 122, 23 Am. Rep. 203, the board of health had made a finding that a nuisance existed on Hutton’s property, had proceeded to abate it, and then had attempted to collect the amount expended. The court said: “Assuming the pow'er in this board derived from the legislature, to adjudge the fact of the existence of a nuisance, and also asjsumirg such jurisdiction to have been regularly exercised, and upon notice to the parties interested, still, I think, it is obvious that in a case such as that before this court, the finding of the sanitary board cannot operate, in any respect, as a judgment at law would, upon the rights involved. It will require but little reflection to satisfy any mind accustomed to judge by legal standards, of the truth of this remark. To fully estimate the character and extent of the power claimed, will conduct to its instant rejection. The authority to decide when a nuisance exists is an authority to find facts, to estimate their force, and apply rales of law to the ease thus made. This is a judicial function,, and it is a function applicable to a numerous class of important interests * * * The finding of a sanitary committee, or of a municipal council, or of any other body of a similar kind, can have no effect whatever, for any purpose, upon the ultimate disposition of a matter of this kind * * * I repeat that the question of nuisance can conclusively be decided, for all legal uses, by the established courts of law or equity alone, and that the resolutions of officers, or of hoards organized by force of municipal charters, cannot, to any degree, control such decision.”

In Grossman v. Oakland, 30 Or. 478, 36 L.R.A. 593, 60 Am. St. Rep. 832, 41 Pac. 5, it was held that under a charter giving to the city the power to prevent and restrain nuisances, and. “to declare what shall constitute a nuisance,” an ordinance prohibiting a railroad company from fencing its track in the platted portion of the city and declaring such fence a nuisance is void, since the city cannot assert a particular use of property to be a nuisance unless such use comes within the common-law or statutory idea of a nuisance, or is so in fact. That a plea of guilty had been entered was held to be immaterial, inasmuch as the ordinance was void under which the prosecution was brought. See also Reg. v. Nunn, 10 Ont. Pr. Rep. 395; Davis v. Davis, 40 W. Va. 464, 21 S. E. 906; Laugel v. Bushnell, 197 Ill. 20, 58 L.R.A. 266, 63 N. E. 1086; Chicago v. Chicago & O. P. Elev. R. Co. 250 Ill. 486, 95 N. E. 456; State v. Whitlock, 149 N. C. 542, 128 Am. St. Rep. 670, 63 S. E. 123, 16 Ann. Cas. 765; Quintini v. Bay St. Louis, 64 Miss. 483, 60 Am. Rep. 62, 1 So. 625 ; State v. Mott, 61 Md. 297, 48 Am. Rep. 105, and Hagerstown v. Baltimore & O. R. Co. 107 Md. 178, 126 Am. St. Pep. 382, 68 Atl. 490, in the latter of which it was said: “It is. well settled that a municipality has no power to declare a thing a nuisance which is not such at common law, or has not been declared to be such by statutes.”

Coming back to the case before us, it appears that the Commissioners of the District have assumed jurisdiction and power to decide that the private hospital conducted. by the plaintiff in error “is a nuisance to the neighborhood/’ and that in a colloquial sense. And yet such an institution is not per se a nuisance and, as such, to be placed under the ban of the law. French v. Association for Works of Mercy, 39 App. D. C. 406. On the conirury, it is very necessary under our civilization and, if properly conducted, entitled to encouragement and support. Barnard v. Sherley, 135 Ind. 547, 24 L.R.A. 568, 41 Am. St. Rep. 454, 34 N. E. 600, 35 N. E. 117. There is neither a statute nor a regulation specifying what acts or omissions on the part of such an institution will constitute it a nuisance. We must assume, as above stated, that it has complied with the law and the regulations governing the conduct of such an institution. The statute not only clothes the Commissioners with authority to promulgate regulations, but declares that failure to comply with any of the provisions of the Act of 1908, or of the regulations promulgated thereunder, shall constitute an offense punishable by fine or imprisonment or both. Plaintiff in error, having complied with both the provisions of the law and the regulations promulgated thereunder, of course was not subject to prosecution. And yet the Commissioners, without any rule or standard to guide them, have presumed to decide that plaintiff in error has conducted a nuisance. This we think they were without jurisdiction to do. To rule otherwise would make it possible for one conclusion by the present'Commissioners concerning this institution and a different conclusion by another Board of Commissioners, upon the same set of facts, concerning a similar institution. Indeed, it would make possible inconsistent decisions by the same Board concerning institutions similarly situated, for while the Board might brand as a nuisance an institution located in Chevy Chase, it might conclude that such an institution would be highly desirable in different surroundings, although one institution would be as much entitled to protection under the law as the other. But, after all, as remarked by the court in the Hutton Case, 39 N. J. L. 122, 23 Am. Rep. 203, the real infirmity in such proceedings lies in the attempt by the municipal authorities conclusively to determine a question which may be determined by the established courts of law or equity alone.

We rule, therefore, that said section 13 of the regulations, in so far as it attempts to clothe the Commissioners with power to determine what is a nuisance, is void, and that the action of the Commissioners in this case was Amid and of no effect.

The action of the Board being void, and plaintiff in error, so far as the record discloses, having fully complied with the law, was not subject to prosecution based upon the illegal action of the Board. Royall v. Virginia, 116 U. S. 572, 583, 29 L. ed. 735, 738, 6 Sup. Ct. Rep. 510; United States v. West, 34 App. D. C. 12.

It is suggested that plaintiff in error, by accepting the license issued when the above regulations were in force, is estopped to question their validity. The answer to that question is found in W. W. Cargill Co. v. Minnesota, 180 U. S. 452, 45 L. ed. 619, 21 Sup. Ct. Rep. 423. By accepting a license, plaintiff in error did not make valid that AA'hich plainly was invalid.

The judgment is reversed, with costs, and the cause remanded, with directions to dismiss the complaint. Reversed.

Mr. Justice Hitz, of the Supreme Court of the District of Columbia, sat with the Court in the hearing and determination of this appeal, in the place of Mr. Chief Justice Shepard.