Hutton, Donald M.

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Volume 38 Issue 4 Article 8 June 1932 Constitutional Law--Zoning Board of Appeals--Dispensing Power Donald M. Hutton West Virginia University College of Law Follow this and additional works at: https://researchrepository.wvu.edu/wvlr  Part of the Constitutional Law Commons, and the Land Use Law Commons Recommended Citation Donald M. Hutton, Constitutional Law--Zoning Board of Appeals--Dispensing Power, 38 W. Va. L. Rev. (1932). Available at: https://researchrepository.wvu.edu/wvlr/vol38/iss4/8 This Student Note is brought to you for free and open access by the WVU College of Law at The Research Repository @ WVU. It has been accepted for inclusion in West Virginia Law Review by an authorized editor of The Research Repository @ WVU. For more information, please contact ian.harmon@mail.wvu.edu. WEST VIRGINIA LAW QUARTERLYpast record of many associations should commend them for ap-pointment to a list of eligibles. In fact one of the proposed amend-ments to the Bankruptcy Act would give the credit associationsjust such recognition.'-BERNARD SCLOVE.CONsTITuTIONAL LAW - ZONING BOARD OF APPEALS - Dis-PENSING POWER. - The power of a board of appeals to vary theapplication of a zoning ordinance was recently upheld by theOhio Supreme Court as not involving an unconstitutional dele-gation of legislative powers. The ordinance, as is usual, providedfor relaxation of the strict letter of any provision in case of prac-tical difficulty or unnecessary hardship.' Defendant was refuseda permit to remodel his building to be used as a sanitarium, al-though it was in existence before the ordinance was adopted. Theboard of appeals ordered the granting of the permit, finding thatthe building was of substantial, unique, and special construction,and that the intended use would not cause annoyance to occupantsof adjoining buildings. No conforming use of the land would havebeen remunerative. Plaintiff then obtained an injunction againstthe issuance of the permit and the remodeling of the buildingbut the court of appeals reversed the decree and dismissed thepetition. No bill of exceptions was taken in the appellate court,and no special findings made. Therefore, the Supreme Court inaffirming the court of appeals decision had only to pass on thenaked legal question of whether the ordinance was an unconsti-tutional delegation of legislative power. L. and M. InvestmentCo. v. cutzer2tutions or corporations organized to specialize in liquidation work, as in Canada.The possibility of credit organizations favoring local creditors could be ren-dered negligible by licensing associations of high repute and choosing theindividuals on the basis of integrity as well as ability. Donovan Report, supran. 3, at 13-14, 26-33, 125-6.2A proposed amendment to § 45 of the Bankruptcy Act w6uld authorizenon-profit trade associations to act as trustees in bankruptcy.Zoning Ordinance of the City of Cleveland, 1281-23(b):"Where there are practical difficulties or unnecessary hardships in theway of carrying out the strict letter of the provisions of this subdivision,the board of appeals shall have the power in a specific case to vary theapplication of any such provision in harmony with the general purposeand intent of the subdivision so that the public health, safety, morals andgeneral welfare may be secured and substantial justice done."-180 N. E. 379 (Ohio 1932).1Hutton: Constitutional Law--Zoning Board of Appeals--Dispensing PowerPublished by The Research Repository @ WVU, 1932STUDENT NOTESThe Supreme Court of Illinois, however, recently held astatute similar to the one in the principal case to be an unconsti-tutional delegation of legislative power because it provided norule or standard for the guidance of the board It is to be notedthat in the Illinois case the complaining owner of the land ac-quired it long after it was classified under the zoning ordinance,and the mere fact he could make more money out of it if per-mitted to disregard the ordinance was not a hardship sufficientto justify the exercise of the dispensing power even in jurisdic-tions holding such power constitutional. The court could wellhave struck down the arbitrary exercise of the power instead ofholding the power itself constitutionally invalid.There is a practical need for some flexibility in the applica-tion of zoning restrictions. Variation by amendment of theordinance has been found less desirable than the granting to aboard of appeals or adjustment a dispensing power, and such agrant has generally been held constitutional' in spite of the con-tention that it confers legislative power without a sufficient guidefor its exercise!It is interesting to note that the quotation"The true distinction is between a delegation of powerto make the law, which involves a discretion as to what thelaw shall be, and conferring an authority or discretion as toits execution, to be exercised under and in pursuance of the*Welton v. Hamilton, 344 Ill. 82, 176 N. E. 333 (1931)."In re Dawson, 136 Okla. 113, 277 Pac. 226 (1928); Anderson v. Jester,206 Iowa 452, 221 N. W. 354 (1928); Sundun v. Rogers, 83 N. H. 253, 141Atl. 142 (1928); Harden v. Raleigh, 192 N. C. 395, 135 S. E. 151 (1926);Spencer-Sturla Co. v. Memphis, 155 Tenn. 70, 290 S. W. 608 (1927). See alsoBaker, Zoning Legislation (1926) 11 CORN. L. Q. 164; Note (1928) 54 A. L.R. 1030. Cf. Weicker Trans. & Storage Co. v. Denver, 75 Col. 475, 226 Pac.857 (1924) and Continental Oil Co. v. Twin Falls, 286 Pac. 353 (Idaho 1930).'The term "dispensing power" has been applied to such legislation todesignate a power to suspend in favor of particular individuals or cases theoperation of a general law-to sanction a deviation from a standard. Theterm was used in English constitutional law with reference to the alleged royalprerogative, the exercise of which by the Crown was declared illegal in theseventeenth century, and which is not claimed in America as an executivepower. FREUND-ADMINISTRATIVB PowERS OvER PERSONS AND PROPERTY(1928) §§ 67, 68.The dispensing power is a clear delegation of legislative discretion to anadministrative body, but, as expressed by John W. Davis:"Constitutional limitations have yielded to the police power under thepressure of real or supposed emergencies, and more and more legislatureshave been content virtually to abdicate by announcing a policy in statu-tory form, and leaving to boards, bureaus and subordinate officers thetask of filling out by multitudinous regulations those details which reallymake the law." PRESENT DAY PROBLEMS (1923) 9 A. B. A. J. 553, 554.2West Virginia Law Review, Vol. 38, Iss. 4 [1932], Art. 8https://researchrepository.wvu.edu/wvlr/vol38/iss4/8WEST VIRGINIA LAW QUARTERLYlaw. The first cannot be done, to the latter no objection canbe made.",'was approved by both the Ohio and Illinois courts as supportingtheir decisions. The distinction, if a valid one, is certainly soelusive that its judicial application will not be uniform.The Illinois Court objects most strenuously to the indefinite-ness of the terms "practical difficulties" and "unnecessary hard-ships", and it is impossible to define in advance to what specificcircumstances they would apply. The cases, however, suggest con-siderations which bear upon the matter: That edges of E district,in which private residences were erected, were necessarily bound-ed by C and D districts, and were in contact with street surfacerailroads, main thoroughfares, or apartment houses on oppositeside of the street, was deemed not a practical difficulty or un-necessary hardship in the way of carrying out the strict letterof the zoning resolution, so as to authorize variance therefrom.7Restriction of one corner of an intersection to residential use whenthe other three corners are devoted to business uses is not suffi-cient;' and this is true even if there are no buildings adjacent tothe property in question, and the territory generally in its vicinityis undeveloped and sparsely settled! Nor is failure to enforceagainst other violators' and disadvantage in property value orincome, or both, to a single owner of property, resulting fromapplication of zoning restrictions ordinarily sufficient to warrantrelaxation in his favor.' A pre-existing nonconforming use willnot be allowed to increase. A nonconforming use of part of onelot may be allowed where it encourages the appropriate use ofother lots, will be for public benefit, and lessen traffic congestion.'Where garages are prohibited in a residential district and it isshown that an owner's land is suitable for no other use the requi-sites for relaxation exist.!" That is also the case where the valueof all the land in a residence district would be increased by zon-ing all the district for business, and an owner wants to erect a"SUTHERLAND-STATUTORY CONSTRUCTION, § 68.7Pounds v. Walsh, 129 Misc. Rep. 676, 223 N. Y. Supp 459, 463 (1927).8 Smith v. Collinson, 6 Pac. (2d) 277 (Cal. 1931)." State ex rel. Nigro v. Kansas City, 27 S. W. (2d) 1030 (Mo. 1930).10Appeal of Valicenti, 298 Pa. 276, 148 Atl. 308 (1929).nlTorcross v. Board of Appeals, 255 Mass. 177. 150 N. E. 887 (1926);Zahn v. Board of Public Works, 195 Cal. 497, 234 Pac. 388 (1925).-'Tliayer v. Board of Appeals, 157 Atl. 273 (Conn. 1931).Roberge v. Zoning Board of Review, 157 Atl. 304 (R. I. 1931)."McCabe v. Zoning Board, 50 R. I. 449, 148 Atl. 601 (1929).3Hutton: Constitutional Law--Zoning Board of Appeals--Dispensing PowerPublished by The Research Repository @ WVU, 1932STUDENT NOTESfilling station where no conforming use of the land would be re-munerative.' Construction begun before the amending of a zon-ing law is not ordinarily affected thereby" but a subsequentordinance may extinguish a building permit even though expendi-tures have been made in reliance on it. 'The revisers of the West Virginia Code largely adopted theStandard State Zoning Act, and as a consequence the state has astatute similar to the one in question.1 Its constitutionality hasnot been adjudicated. The discretion of boards of appeals or ad-justment appears to be judicially controllable, and in view of thedesirability of the delegation of such a discretion, as an adjunctto modern regulative machinery, it seems that it should not beheld invalid.-DoNAmD M. HuroN.EVIDENCE - ADMISSIBILITY OF iVIDENm C E THAT DEFENDANTHAS OR HAS NOT LiABILITY INSURANCE. - In an action for per-sonal injury, it is the general rule that informing the jury of theexistence of insurance, when evidence of such is inadmissible onany issue in the case, constitutes grounds for a new trial.' It isa matter, within limits, in the discretion of the trial court,' andsome courts hold the fault is cured by proper instructions to thejury.' All hold, however, that without such instructions the ad-mission of such evidence requires a new trial.The reason assigned is that, in cases of personal injury, it in-creases the already strong tendency of juries to be influenced, es-pecially where a corporation is defendant, by sympathy andprejudice. Juries confronted by the injuries to the plaintiff aretoo apt to lose sight of the real issues and true merits of the caseSundlun v. Zoning Board, 50 R. I. 107, 145 Atl. 451 (1929).Caponi v. Walsh, 228 App. Div. 86, 238 N. Y. Supp. 438 (1930).1'City of Tucson v. Arizona Mortuary, 34 Ariz. 495, 272 Pac. 928 (1928);Matter of Fox Lane Corp., 216 App. Div. 813, 215 N. Y. Supp. 334 (1926);People v. Kleinert, 237 N. Y. 580, 143 N. E. 750 (1924), writ of error dis-missed 268 U. S. 646, 45 S. Ct. 618 (1925); Gresnaugh v. Allen Theatre andRealty Co., 33 R. I. 120, 80 Atl. 260 (1911).18W. VA. REV. CODE (1931) c. 8, art. 5, § 8(c).IHollis v. United States Glass Co., 220 Pa. 49, 69 AtI. 55 (1908); Wilkinsv. Schwartz, 101 W. Va. 337, 132 S. E. 887 (1926).2 Bradley v. D. E. Cleary Co., 86 N. J. L. 338, 90 At. 1015 (1914).*Gortz v. Ravenel, 127 S. C. 505, 121 S. E. 369 (1924) ; Puller v. Mazetti,231 Mich. 213, 203 N. W. 868 (1925).4West Virginia Law Review, Vol. 38, Iss. 4 [1932], Art. 8https://researchrepository.wvu.edu/wvlr/vol38/iss4/8

Constitutional Law--Zoning Board of Appeals--Dispensing Power

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Constitutional Law--Zoning Board of Appeals--Dispensing Power

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