Cochran v. Preston

70 A. 113, 108 Md. 220, 1908 Md. LEXIS 87

• Court: Court of Appeals of Maryland
• Decided: June 24, 1908
• Status: Published

Opinion

Worthington, J.,

delivered the opinion of the Court.

The only question involved in this appeal is whether or not the Act of 1904, ch. 42, is a valid exercise of legislative power.

By this Act it is provided, “that from and after the date of ■the passage of this Act, no building, except churches, shall be erected or altered in the-city of Baltimore on the territory bounded by the south side of Madison street, the west side of St. Paul street, the north side of Center street and the east side of Cathedral street, to exceed in height a point seventy feet above the surface of the street at the base line of Washington Monument.”

The Act was approved March 15th, T904.

The ordinances of -Baltimore require all persons who desire to build, alter or repair any structure within the limits of the city, or who desire to put an additional story upon any building therein, to obtain a permit from the Inspector of Buildings, and also from the Appeal Tax Court of that city.

The appellant is the owner of a large apartment house located on the northwest corner of Mt. Vernon Place and Washington Place, within the territory to which the prohibition of the statute applies, and desiring to put an additional story thereon to be used as quarters for employees, he applied to the appellees for a permit to make the desired alteration.

In his application for such a permit the applicant stated that the house is at present seventy feet high, and that the proposed addition would be but eight feet in height, and set back on the roof at a uniform distance of twenty feet from Mt. Vernon Place, and a like uniform distance from Washington Place, and that it would not be possible to see any part of the addition from either of these places. ■ That the total cost of the' building and ground in the first place, was about $450,000, and that as the building now stands, it is impossible to derive from the same a sufficient revenue to yield a fair profit on the investment therein, but that the proposed addition would enable the owner to derive a fair return for the whole outlay.

The appellees refused the permit on the ground that the additional story proposed would raise the building to a height greater than seventy feet above the base line of Washington Monument, contrary to the provisions of the Act of Assembly above mentioned.

A mandamus was then applied for and denied by the Court for the same reason assigned by the appellees in the first instance.

It is elementary that the word “land,” in its legal signification, has an indefinite extent upwards as well as downwards and, therefore, if it were possible for man to live in a state of nature, unconnected with other individuals, the proprietor of land would own not only the face of the earth within the boundaries of his proprietorship, but also everything under it and over it. An imaginary person living in such a state of nature, would be at liberty to use his land as he pleased; to build on it to any height, and to dig into it to any depth, without restraint. But as man was formed for society and is incapable of living alone, organized society is essential to his well being and happiness, and every person who enters society must give up a part of his so called natural rights and liberties for the benefit of the commuity. 1 Black. Com., p. 125.

“The very existence of government presupposes the right-of the sovereign power to prescribe regulations demanded by-the general welfare for the common protection of all. The - principle inheres in the very nature of the social compact. The-protection of private property is one of the chief purposes of" government, but no one holds his property by such an absolute tenure as to be freed from the power of the Legislature; to impose restraints and burdens required by the public good;’, or proper and necessary to secure the equal rights of all.”" Parker and Worthington Public Health and Safety, sec. 14.

The power to prescribe regulations demanded by the gen-. eral welfare for the common protection of all, is known as the-police power of the State, and is inherent in every sovereignty... Prentice on Police Power, p. 6; Comm. v. Alger, 7 Cush. 53; Munn v. Illinois, 94 U. S. 113.

Among the police powers of the State the right to regulate-the height of buildings in a city is one that cannot be questioned. Lewis on Eminent Domain, sec. 156; Tie deman on-State and Federal Control of Persons and Property, page 754;.;, Welsh v. Swasey, 193 Mass. 364.

Yet such regulations must be reasonable in their character- and adapted to accomplish the purpose for which they are-designed. People v. D'Oench, 111 N. Y. 359; Watertown v. Mayo, 109 Mass. 319; Atty. Gen. v. Williams, 174 Mass. 477.

As the purpose of the statute under consideration does not appear on its face, such purpose is open to inquiry, and the-appellant contends that its purpose was and is to preserve the beauty and architectural symmetry of the environment of' Washington Monument, and that in the exercise of the police power property rights cannot be impaired for purely aesthetical. purposes.

To sustain the legal proposition, he quotes from Freund,,, Constitutional Rights and Public Policy (1904) sec. 181, as follows: “If the purposes were purely aesthetic, the impairment;of property rights, even upon the payment of compensation, would not pass unchallenged,” and also from Tiedeman, State and Federal Control of Persons and Property, 11, p. 755, as follows: “Regulations which are designed only to enforce upon 'the people the legislative conception of artistic beauty and symmetry, will not be sustained, however much such regulations may be needed for the artistic education of the people.”

Such is undoubtedly the weight of authority, though it 'may be that in the development of a higher civilization, the •culture and refinement of the people has reached the point 'where the educational value of the Fine Arts, as expressed and •embodied in architectural symmetry and harmony, is so well ¡recognized as to give sanction, under some circumstances, to the exercise of this power even for such purposes.

In Welsh v. Swasey, supra, it is said that, “if the primary ¡and substantial purpose of the legislation is such as justifies ’the act, considerations of taste and beauty may enter in as •auxiliary.” And our predecessors have said in speaking of •an ordinance of Baltimore City passed in pursuance of the Act *of 1833, ch. 180, and regulating the distance that any portico, steps or other ornamental structure on Mt. Vernon Place might ‘extend from the building line into the street, that the object "was, “in furtherance of the purpose to render these places or ¡squares attractive, to give more freedom to the exercise of 'private taste for adornment in their vicinity. In a city noted 'for its monuments, municipal legislation peculiar to their 'neighborhood would seem indispensable.” Garrett v. Janes, 65 Md. 260.

We do not assent however, to the proposition that the stat’ut.e under consideration was passed for purely ornamental purposes.

We find a more substantial reason for its enactment in the ¡suggestion of the counsel for the appellees, that its purpose "Was to protect the handsome buildings and their contents, located in that vicinity, and also the works of art clustered 'there, from the ravages of fire.

It must be remembered that in the center of the prescribed ¡territory to which the statute applied, stands the lofty and ^beautiful monument to the illustrious Washington; on one 'corner of the Mt. Vernon Place and Washington Place is the handsome Mt. Vernon Methodist Episcopal Church, on another is the Peabody Institute, a stately marble building in which are kept for public use many rare and valuable books and works of art, to replace which would be well nigh impossible; in the same neighborhood are numerous handsome residences of private citizens, containing valuable works of art and of literature.

In Mt. Vernon and Washington Places are found statues to several eminent Marylanders; Severn Teackle Wallis, Roger B. Taney, and General John Eager Howard, and also a number of beautiful figures known as the Barye bronzes, so that the environment of the locality in question is in several respects, unique, and well worthy of preservation in its entirety.

During the session of the Legislature at which the statute under consideration was passed, a great fire visited Baltimore and destroyed a large part of the business section of the city. Extracts from an account of the fire will demonstrate some of the dangers to be apprehended from this devouring element.' The account says: “The fire spread to the north and east, rapidly devouring block after block of buildings. Landmark after landmarkwent down. Nothingbutburntclay — bricks andcement— could stand against a conflagration which developed 2,500 degrees of heat, and was carrying itself along by its own volume, against which no water supply, no human effort could be effective. The lofty skyscrapers on Charles, St. Paul, Calvert and Baltimore streets, burned like great torches up to the sky. Granite and marble cracked and spalled off The marble work of the new Custom House then in course of construction was badly damaged wherever exposed to the heat, as; was also the St. Paul street front of the new Court House.. Shortly after midnight the American newspaper office was enveloped in flames which quickly spread across to the Sun Iron; Building involving all in common ruin. Devastation was carried down Calvert street, down South street and Holliday street and Gay street, wipingout hotels, newspaper offices,bank buildings, warehouses and nearly everything in the way clear to the water front of the inner harbor Among the buildings de~ stroyed were many so called fire proof structures. After the fire these lofty buildings stood amidst the ruins of lesser buildings, like gaunt skeletons, burned out interiorly but still structurally fire proof, with from 40 to 60 per cent salvage credited to their construction.”

Great impetus is given to such a fire by very tall buildings. They serve as so many large .funnels furnishing draft for the flames, thereby intensifying the heat, and outreaching the efforts of the firemen.

Already some very tall buildings have been erected in this locality; the “Hotel Stafford,” being one hundred and thirty-two feet high, and the apartment house known as “The Severn,'” being one hundred and fifteen feet above the pavement at the base line of Washington Monument. It was to prevent the multiplication of such buildings in this neighborhood, and the increased danger from fire attendant thereon, that this statute was no doubt passed.

We consider such an object entirely legitimate, und the statute valid as far as its purpose is concerned.

The appellant, contends however, that as the prescribed territory is hilly and the base line of Washington Monument practically the highest point within its limits, that persons owning property on lower ground have an advantage over those whose property is located on the higher ground, because the former may build houses to a greater height than the latter, and that therefore the statute denies the equal protection of the laws contrary to the XIV Amendment to the Constitution of the United States.

While we recognize the force of this contention, we think, when it is remembered that the primary object of the law is protection from fire, it is met by' the consideration that very tall buildings on the highest part of the ground would be more difficult to deal with in case of fire than such buildings lower down.

By operating from the higher portions of ground, water might be thrown on tall buildings further down the hill, and reach the top, while the tops of buildings of the same height on the higher ground would be wholly out of the reach of the. fire apparatus.

“In virtue of its right and duty to provide for the public welfare, the legislative branch of government possesses a large discretion as to the manner in which it shall be exercised.” Parker and Worthington, Public Health and Safety, sec. 4.

If the object of the statute is0to promote the public welfare, and there is a substantial relation between the object aimed at and the means devised for attaining that object, every intendment will be in favor of the entire validity of such statute. Ibid\ Adler v. Whitbeck, 44 Ohio St. 539-562; Minnesota v. Barber, 136 U. S. 313.

The presumption in favor of the validity of the statute should prevail, unless the lack of constitutional authority is clearly demonstrated. U. S. v. Harris, 106 U. S. 629.

. It was for the Legislature to determine the manner in which the purpose aimed at was to be accomplished, and we are not prepared to say that the method adopted does not bear a substantial relation to the object aimed at, or that it denies the equal protection of the laws, as that term is understood and construed. Easton v. Covey, 74 Md. 262; Exparte Fisk, 72 Cal. 125; Hiñe v. New Haven, 40 Conn. 478; People v. D'Oench, 111 N. Y. 361.

In the last mentioned case the Court held that a statute regulating the height of all houses used as dwellings, did not include stores, factories, warehouses, buildings used for offices, or hotels and that it was á valid exercise of the police powers, although because private residences were seldom above the prescribed height, it in effect applied only to tenement and apartment houses.

The last mentioned case is also authority for upholding the present statute, although churches are, in terms, exempted from its operation.

There is not the same reason for regulating, the height of . churches as of some-other buildings. The former frequently have spires for ornamental purposes reaching a much greater height than seventy feet, but they do not present the same ■danger from fire to the surrounding buildings as many other .structures do, chiefly because they are not likely to become very numerous in any one locality.

After a careful consideration of the case in all its different •aspects, we think the order of the lower Court dismissing the •application for a writ of mandamus was right, and the same will therefore be affirmed.

Order affirmed with costs.