ERROR TO THE SUPREME COURT OF APPEALS OF THE STATE OF VIRGINIA.
MR. JUSTICE McKENNA delivered the opinion of the court.
In error to review a judgment of the Hustings Court of the city of Richmond affirming a judgment of the Police Court of the city imposing a fine of $25.00 on plaintiff in error for alleged violation of an ordinance of the city fixing a building line. The judgment was affirmed by the Supreme Court of the State. 110 Virginia, 749.
Plaintiff in error attacks the validity of the ordinance and the statute under which it was enacted on the ground that they infringe the Constitution of the United States in that they deprive plaintiff in error of his property without due process of law and deny him the equal protection of the laws.
The statute authorized the councils of cities and towns, among other things, "to make regulations concerning the
building of houses in the city or town, and in their discretion, . . . in particular districts, or along particular streets, to prescribe and establish building lines, or to require property owners in certain localities or districts to leave a certain percentage of lots free from buildings, and to regulate the height of buildings." Acts of 1908, p. 623, 4.
By virtue of this act the city council passed the following ordinance: "That whenever the owners of two-thirds of the property abutting on any street shall, in writing, request the committee on streets to establish a building line on the side of the square on which their property fronts, the said committee shall establish such line so that the same shall not be less than five feet nor more than thirty feet from the street line. . . . And no permit for the erection of any building upon such front of the square upon which such building line is so established shall be issued except for the construction of houses within the limits of such line." A fine of not less than twenty-five nor more than five hundred dollars is prescribed for a violation of the ordinance.
The facts are as follows: Plaintiff in error is the owner of a lot thirty-three feet wide on the south side of Grace street between Twenty-eighth and Twenty-ninth streets. He applied for and received a permit on the nineteenth of December, 1908, to build a detached brick building to be used for a dwelling, according to certain plans and specifications which had been approved by the building inspector, dimensions of the building to be 26X59X28 feet high.
On the ninth of January, 1909, the street committee being in session, two-thirds of the property owners on the side of the square where plaintiff in error's lot is situated, petitioned for the establishment of a building line, and in accordance with the petition a resolution was passed establishing a building line on the line of a majority
of the houses then erected and the building inspector ordered to be notified. This was done, and the plaintiff in error given notice that the line established was "about fourteen (14) feet from the true line of the street and on a line with the majority of the houses." He was notified further that all portions of his house "including Octagon Bay, must be set back to conform to" that line. Plaintiff in error appealed to the Board of Public Safety, which sustained the building inspector.
At the time the ordinance was passed the material for the construction of the house had been assembled, but no actual construction work had been done. The building conformed to the line, with the exception of the octagon bay window ...