Opinion
Rehearing Denied March 31, 1930
Hearing Granted by Supreme Court May 8, 1930.
Appeal from Superior Court, Los Angeles County; H.V. Alvarado, Judge.
Action by E.B. Jones and another against the City of Los Angeles and others. From judgment for defendants, plaintiffs appeal.
Reversed. COUNSEL
Woodruff, Musick, Pinney & Hartke, of Los Angeles, for appellants.
Jess E. Stephens, City Atty., and Frederick Von Schrader, Deputy City Atty., both of Los Angeles, for respondents.
OPINION
HOUSER, J.
By the terms of an ordinance duly adopted by the common council of the city of Los Angeles and approved by its mayor, it thereafter became unlawful outside a described district in said city for any person to "operate, maintain or conduct any hospital, asylum, sanitarium, home, retreat or other place for the care or treatment of insane persons, persons of unsound mind or persons affected by or suffering from mental or nervous diseases." Territorially considered, the effect of the ordinance was that within from one-third to one-half of the area of said city the operation or maintenance of a hospital or a sanitarium for the care and treatment of persons who were "suffering from mental or nervous diseases" of whatever kind or severity was permitted; while in the remaining portion of said city the conduct of such an establishment was forbidden. Regarding the character of the several areas thus affected, it appears that in general the permissive district included some of the most densely populated portions of the city and its central downtown retail business district, within which were and are located many hotels, apartment houses, and two public parks. More specifically as to the residential area included in such permissive district, the record herein discloses the fact that one part thereof contained a residential district of 6,390 acres in which were located 32,044 families consisting of 118,563 persons, or an average of about 19 persons to the acre; also, a second like area of 151 acres which contained 3,971 families with a total of 11,913 persons, or about 79 persons to the acre. Concerning the territory within which the operation or maintenance of such hospitals or sanitariums was forbidden, comparatively speaking it appears that much of it was sparsely inhabited. To illustrate: One so-called residential district which contained 3,200 acres, of which more than one-half thereof was given over wholly to farming operations, housed an aggregate of 1,351 families with a total of 5,141 persons, or an average of less than 2 persons to the acre. Another of such forbidden districts comprised 4,910 acres, on which were living 802 persons, or one person to every 6 acres.
At the time the ordinance in question became effective, four different sanitariums devoted respectively to the care and treatment of either "mild mental cases" of adults, or of feeble-minded children, were in operation within the forbidden area of the city of Los Angeles. The maximum penalty prescribed by the terms of such ordinance for its violation was either a fine of $500, or imprisonment for a period of six months in the city jail of said city, or both such fine and imprisonment. To obviate the happening of untoward results from the operation of their respective institutions, each of the owners thereof sought the injunctive aid of the lower court to the end that the enforcement of such ordinance be forbidden and restrained. From a judgment denying to them, or any of them, the relief prayed, each of the respective plaintiffs in said actions has appealed to this court. By stipulation of the respective parties and by order of the court, the several appeals from the respective judgments therein were consolidated and as far as is here practicable are to be treated and considered as one appeal.
The principal contention of appellants is that the ordinance to which reference has been had is unreasonable and discriminatory, and consequently unconstitutional and void, in that it prohibits the operation or maintenance of a specified institution or business in any part of certain outlying, sparsely inhabited districts of the city, and at the same time permits the operation or maintenance of the same kind of an institution or business within the closely built-up and densely populated sections of the city.
That in the proper exercise of police power the authority of a city to divide its area into districts within which respectively may be confined the operation of specified institutions or businesses is no longer open to inquiry or legal argument. Miller v. Board of Public Works, 195 Cal. 477, 234 P. 381, 38 A.L.R. 1479. In considering a questioned zoning ordinance of a city, frequently the only duty of the court is to determine whether such ordinance is necessary and has any reasonable tendency to subserve the legally recognized ends and purposes of police power, in that it bears a proper and substantial relation to either the public health, safety, morals, comfort, or general welfare. However, in the exercise of its powers the court may also be charged with additional duties, among which may be that of determining whether in the anticipated enforcement of the ordinance its provisions are unreasonable or are arbitrary and discriminatory.
The opinion in the case of Ex parte Whitwell, 98 Cal. 73, 32 P. 870, 19 L.R.A. 727, 35 Am.St.Rep. 152, contains clear expressions to the effect that an institution of the nature of that conducted by the appellants herein is not of such a noxious or offensive character that either the health, safety, or comfort of the individuals comprising the surrounding community necessarily would be endangered or affected by reason of the presence and operation of such an institution therein. Nevertheless, it is manifest that by reason of either mismanagement or neglect of an institution of the nature of that conducted by the appellants it might so retrograde that its continued operation would present such a situation that either a legal nuisance would be evident, or that some one or more of the general elementary foundational conditions requisite to the exercise of the police power would be so palpably present as to authorize, if not imperatively demand, the passage of a zoning ordinance which would have the effect of suppressing the evil, or possibly prohibiting future operation of the establishment as formerly conducted. But aside from any direct question as to whether either a nuisance, or other asserted reason, should form a proper basis for the exercise of police power as far as the instant case is concerned, if the general right of the city to zone its area and in so doing to confine the operation of institutions of the character of those here involved to a specific district be conceded, there still remains for determination by this court the question of whether in exercising its right to zone its area the city has unjustly and unreasonably discriminated in favor of densely inhabited areas and against the several institutions located within sparsely inhabited sections of the city and which institutions are respectively owned and represented by the appellants whose several appeals are submitted to this court.
Notably in the case of Miller v. Board of Public Works, 195 Cal. 477, 234 P. 381, 38 A.L.R. 1479, and in other cases to which reference might be had, so much has been so forcefully written in the announcement of the application of legal principles relating to the authority of a municipality to divide its area into various districts, each to be devoted to some particular use or uses, that it is deemed at least inadvisable for this court to attempt any elaboration in connection therewith. At the outset, in dealing with the general question of police power, especially as affects the authority of a municipality to zone its territory, as was remarked by Mr. Justice Henshaw in the case of Curtis v. City of Los Angeles, 172 Cal. 230, 234, 156 P. 462, "one is embarrassed rather with the multiplicity than the paucity of authorities, and it would be a waste of time to undertake a review of them." A brief reference to a few of the authorities in this state which are deemed to have the greater bearing upon the facts of the case and the legal principles applicable thereto will suffice. Although, as far as this court is aware, the specific point here at issue heretofore has not been determined either by this or by any other court, the principle of law upon which must rest a decision herein has been discussed in each of several cases to which attention will be presently directed.
In the case entitled In re Throop, 169 Cal. 93, 145 P. 1029, 1031, by ordinance of the city of South Pasadena, its entire area, comprising approximately 2,200 acres, was divided into three parts or zones. The first of such districts contained about 25 acres and embraced the retail business section of the city; the second, which was "densely surrounded by residences and other buildings on all sides for a distance of many blocks in every direction, and *** very largely built up," contained approximately 11½ acres, which by the terms of the ordinance was devoted to industrial uses; and the third, or so-called "residential district," had an area of 2,163 acres. As to the last-mentioned district, it appeared that it was "sparsely settled, one area containing 500 acres, being unimproved, undeveloped and practically uninhabited." By the express terms of the ordinance, many different kinds of business establishments, including stone crushers, were specifically excluded from operation in the third or "residential" district, but inferentially were permitted to operate in district number two, which, as stated by one of the witnesses on the trial of the action, was "immediately surrounded by a poorer class of residences." The test of the legality of the ordinance arose from the operation of a stone crusher in a "wash" which was located in a part of the "unimproved, undeveloped and practically uninhabited" portion of the so-called "residential district." After devoting some attention to the importance and necessity of stone crushers and their effect as affecting the public health, comfort, safety, and welfare of a populous community, the court reached the conclusion that: "In the case now under consideration, it is plainly manifest that the attempted regulation of the business conducted by the petitioner has no relation to the ends for which the police power exists, namely to protect the public health, comfort, safety, or welfare. An ordinance which prevents the operation of a stone crusher in a sparsely settled territory of 2,163 acres, 500 of which are undeveloped and practically uninhabited, and allows its operation in a small area of 11.65 acres in the center of a city surrounded by ‘poorer classes of residences,’ does not subserve the ends for which the police power exists."
Another case in which the facts are somewhat similar to those in the instant case is that of Curtis v. City of Los Angeles, 172 Cal. 230, 156 P. 462. The situation there presented and the ruling thereon are concisely stated in the syllabus of the case as follows: "An ordinance of a municipality which absolutely prohibits the maintenance of stables within a small district of the city which was comparatively sparsely settled, while permitting their maintenance in other districts more thickly populated and densely settled and exclusively devoted to residence purposes, is oppressive, discriminatory, and void."
The facts in the case entitled In re Smith, 143 Cal. 368, 77 P. 180, 182, were not unlike those herein, in that in the Smith Case, by ordinance, the county of Los Angeles singled out a specified "sparsely settled rural district" and prohibited the maintenance of gas works therein— the effect of which, inferentially, was to permit the maintenance of gas works in every other part of the county. In passing upon the reasonableness of the ordinance (and perhaps as properly indicative of a ruling here), in part the court said: "*** In city ordinances, as distinguished from county ordinances, the interest and requirements for protection of a thickly settled and growing community will often be widely different from those of sparsely settled and thinly inhabited rural districts. An ordinance limiting, regulating, or even prohibiting, in a certain district within the corporate limits of a city, may be perfectly reasonable, where like limitations, restrictions, and prohibitions as to some district within the county, arbitrarily carved out, would be oppressive and unreasonable in the extreme. ***" It was held that the ordinance in question was unreasonable, oppressive, an invasion of constitutional rights, and therefore void.
The prevailing principle of law announced in the case of Brown v. City of Los Angeles, 183 Cal. 783, 192 P. 716, is that where by ordinance, in the proper exercise of the police power, the conduct of an undertaking establishment is reasonably limited to a specified area, the fact that in other portions of the city "exactly similar" to that inside the permissive area the maintenance of an identical business is forbidden does not militate against the reasonableness of the ordinance. And so in the Hadacheck Case, 165 Cal. 416, 132 P. 584, L.R.A.1916B, 1248, it was held that in the proper exercise of the police power a municipality had the right to prohibit the operation or conduct of brick yards or places for the manufacture or burning of brick within a specified area of the city, even though the maintenance of such yards was not prohibited in other districts of the city where their existence was equally injurious to their neighbors.
In the Brown Case, 183 Cal. 783, 192 P. 716, the plaintiff was attempting to conduct his undertaking establishment on a lot located 170 feet outside the limits of a zone in which the maintenance of such a business was permissible and which zone comprised "some 60 blocks, including practically all of the business and some of the semi-business property in the central portion of the city." It will thus be noted that in its foundational facts the Brown Case was the exact opposite of the situation presented in the instant case. That the ruling made by the court was not intended to apply to facts such as are here presented is made manifest by the following language occurring in the opinion: "*** It is also pointed out that there are vast tracts of uninhabited land contained in the annexed districts of Los Angeles city, and that the ordinance in effect prohibits the establishment of undertaking parlors in these localities. If appellant was located in this uninhabited and outlying territory he would be in a position to raise that question, but, having selected a location in the heart of the city, he is not concerned with the validity of the ordinance as affecting such outlying territory. ***" And that even as against the provisions of the ordinance, had the plaintiff "located his undertaking establishment in some remote and comparatively uninhabited part of Los Angeles city, upon property which was only valuable for use as an undertaking establishment, we would have a case paralleling In re Throop, supra. In this case, however, the situation is entirely different, and comes clearly within the principle enunciated in Ex parte Hadacheck, supra. ***" Such language is indicative of at least two things: First, that in circumstances "paralleling In re Throop," the law as there announced should be followed; and, secondly, that where the situation is "entirely different" and parallels the Hadacheck Case, the law as therein stated should be controlling. In such circumstances, the duty of this court is, if possible, to determine which of such cases in its facts presents the nearest parallel to the facts in the instant case, and in its judgment to be rendered thereon to be governed accordingly. Adverting to the Throop Case, it will be remembered that in effect the stone crusher was proposed to be permitted in a "very largely built up" section of the city, and was to be prohibited in a "sparsely settled" community; just as here, sanitariums are proposed to be permitted in a "densely populated" portion of the city and to be prohibited in portions of the city which are "sparsely inhabited." In the Hadacheck Case, the difficulty was not that the brick yard was permitted in a "densely populated" community and prohibited in an "uninhabited" area; but in effect was that it was not permitted in a described district which was altogether similar to other districts in which the operation and maintenance of brick yards were permitted. In addition to the Throop Case, it is difficult, if possible, to distinguish this case from the legal principles and their application to the respective facts as stated in each of the cases of Curtis v. City of Los Angeles, 172 Cal. 230, 156 P. 462, and In re Smith, 143 Cal. 368, 77 P. 180.
Basing its judgment upon such authorities, this court is of the opinion that the ordinance here in question is unreasonable and discriminatory, and consequently unconstitutional and void.
The judgment is reversed.
We concur: CONREY, P.J.; YORK, J.