future, must be supplemented by the action of administrative officers with power to adapt and vary the rule as the special cases come before them, one by one. If this were not permissible, then the legislative branch of the government could not deal with some of the needs of the country or of the community at all, for it can be done in no other way. As early as 1794, Congress passed an act which gave the President power to lay an embargo on shipping "whenever, in his opinion, the public safety shall so require," and under regulations to be continued or revoked "whenever he shall think proper." So, another act later conferred upon the President authority to reduce revenue and equalize duties on imports, and for other purposes to suspend by proclamation the free introduction of sugar, molasses, coffee, tea, and hides, when he is satisfied that any country producing such articles imposes duties or other exactions upon the agricultural or other products of the United States which he may deem to be reciprocally unequal or unreasonable; and it was held a valid delegation of power. Marshall Field & Co. v. Clark, 143 U. S. 649, 36 L. ed. 294, 12 Sup. Ct. Rep. 495. A statute which declared its purpose to exclude the lowest grades of tea from importation, and then left it to the Secretary of the Treasury to determine the standards to be applied, was held valid. Buttfield v. Stranahan, 192 U. S. 470, 48 L. ed. 525, 24 Sup. Ct. Rep. 349. Chief Justice White, in the opinion of the court in that case, said: "Congress legislated on the subject as far as was reasonably practicable, and from the necessities of the case was compelled to leave to executive officials the duty of bringing about the result pointed out by the statute. To deny the power of Congress to delegate such a duty would, in effect, amount but to declaring that the plenary power vested in Congress to regulate foreign commerce could not be efficaciously exerted."

And again, in Union Bridge Co.

v. United States, 204 U. S. 387, 51 L. ed. 534, 27 Sup. Ct. Rep. 374, the court said: "Indeed, it is not too much to say that a denial to Congress of the right, under the Constitution, to delegate the power to determine some fact or the state of things upon which the enforcement of its enactment depends, would be 'to stop the wheels of government' and bring about confusion, if not paralysis, in the conduct of the public business."

And, so, it was held constitutional for Congress to authorize the Secretary of War to fix and change harbor lines (Philadelphia Co. v. Stimson, 223 U. S. 605, 635, 638, 56 L. ed. 570, 583, 584, 32 Sup. Ct. Rep. 340); and to empower the Secretary of Agriculture to make substantive rules and regulations covering forest reservations, and to make criminal the violation of those rules (United States v. Grimaud, 220 U. S. 506, 55 L. ed. 563, 31 Sup. Ct. Rep. 480). All this may be found in conflict with expressions, and, indeed, decisions, in earlier cases; but there has been an enforced growth and change in constitutional conceptions as to proper delegation of power to governmental agencies. Senator Elihu Root, who speaks with the authority of a most profound understanding of our institutions. and of the law, said to the American Bar Association in 1916: "As any community passes from simple to complex conditions, the only way in which government can deal with the increased burdens thrown upon it is by the delegation of power to be exercised in detail by subordinate agents, subject to the control of general directions prescribed by superior authority. The necessities of our situation have already led to an extensive employment of that method. The Interstate Commerce Commission, the state public service commissions, the Federal Trade Commission, the powers of the Federal Reserve Board, the health departments of the states, and many other supervisory offices and agencies are familiar illustrations.

Be

fore these agencies the old doctrine prohibiting the delegation of legislative power has virtually retired from the field and given up the fight. There will be no withdrawal from these experiments. We shall go on; we shall expand them, whether we approve theoretically or not, because such agencies furnish protection to rights and obstacles to wrongdoing which under our new social and industrial conditions cannot be practically accomplished by the old and simple procedure of legislatures and courts as in the last generation."

And he then proceeded to emphasize the necessity of having the agencies themselves held under rule. There may be more fight left in the doctrine prohibiting the delegation of legislative power than is here conceded, but that there has been at least a change of line seems unquestionable. The discretion under the zoning ordinance is, after all, little or no greater than that vested in the public service commission for its work. We must assume a disposition on the part of the board to act justly, and, if it fails to do so, there is a remedy by appeal, with a jury trial if desired. State ex rel. Baltimore v. Rutherford, 145 Md. 363, 125 Atl. 725. Therefore the danger of oppression seems sufficiently guarded against. The possibility of differences in the standards of different juries does not make the appeal objectionable, or unsatisfactory to the individual property owners in whose interest the constitutionality of the ordinance is questioned. In State v. Hyman, supra, to which reference has been made several times because of its points of similarity, Judge McSherry, for the court, answered much the same objection on the

breadth of the administrative discretion thus: "Tested by the principles hereinbefore announced, we find nothing in the Act of 1902 which indicates that its design, its purpose, or its details have not a real and substantial relation to the police power. It may be conceded that some of these provisions, if harshly administered, may be or become oppressive, but it by no means follows that the law itself is therefore not a legitimate exercise of the police power. It is not to be assumed that the public functionary will act in an oppressive or unlawful manner. Discretion must be reposed somewhere. If an official should transcend the legitimate limits of the authority with which the statute clothes him, the injured party is not without redress. Laws are to be upheld rather than stricken down. Every intendment must be made by the courts in favor of the constitutionality of a statute."

It is for these reasons our conclusion on the constitutional objections raised has differed from that of the majority.

Urner, J., concurs.

Petition for rehearing denied March 20, 1925.

NOTE.

The constitutionality of zoning statutes or ordinances by which restricted residence districts are established from which business buildings or multiple residences are excluded is the subject of the annotation following STATE V. THOMAS, post, 1496, which supplements earlier annotations on the same subject in 19 A.L.R. 1395 and 33 A.L.R. 287.

Constitutional law, § 681 development of police power.

4. As a commonwealth develops politically, economically, and socially, the police power likewise develops within reason to meet the changed and changing conditions.

[See 6 R. C. L. 189; 2 R. C. L. Supp. 50; 4 R. C. L. Supp. 390; 5 R. C. L. Supp. 325.]

Words and phrases - "zoning."

5. "Zoning" is simply the division of a city into districts and the prescription and applicaton of different regulations to each district.

7. Any zoning regulation is a valid exercise of the police power which is necessary to subserve the ends for which the police power exists, namely, the promotion of the public health, safety, morals, and general welfare of the people.

[See 6 R. C. L. 213; 2 R. C. L. Supp. 64; 5 R. C. L. Supp. 328.]

Buildings, § 8 constitutional law

scope of police power for zoning.

8. The police power as evidenced by zoning ordinances has a much wider scope than the mere suppression of the offensive uses of property, and it acts not only negatively, but constructively and affirmatively for the promotion of the public welfare.

Buildings, § 8- considerations in determining validity of zoning ordi

11. In determining whether or not a zoning ordinance is valid the court must consider whether the zoning scheme is sound as a whole, and the scheme of classification and districting is applied fairly and impartially in each instance.

Buildings, § 8-establishment of residential districts.

12. In a zoning scheme strictly private, residential districts may be established from which are excluded general business enterprises, apartments, tenements, and like structures. Courts, § 116 control over legislative discretion. 13. Courts are loath to substitute their judgment as to the necessity of a particular enactment, for the legislative judgment as to the need of such enactment with reference to the exercise of the police power.

[See 6 R. C. L. 240; 2 R. C. L. Supp. 75; 4 R. C. L. 398; 5 R. C. L. Supp. 331.]

Constitutional law, § 684

measures

deemed within police power.

14. Unless a legislative measure is clearly oppressive, it will be deemed to be within the purview of the police power.

[See 6 R. C. L. 97 et seq.; 2 R. C. L. Supp. 24; 4 R. C. L. Supp. 385; 5 R. C. L. Supp. 319.]

Buildings, § 8 enforcement of partial zoning ordinance.

18. That a comprehensive zoning system for a city has not been matured sufficiently to be enacted into an ordinance at the time of the passage of an emergency ordinance affecting only a small section of the municipality does not prevent the enforcement of the latter, since it will be assumed that the common council will proceed in good faith to the enactment of the general ordinance.

The facts are stated in the opinion Messrs. William W. Bearman and W. L. Engelhardt for appellants.

Messrs. Jess E. Stephens and Lucius P. Green for respondents.

Lennon, J., delivered the opinion of the court:

This proceeding in mandamus was instituted in the superior court of the county of Los Angeles to compel the respondents the board of public works of the city of Los Angeles to issue to plaintiffs a permit to erect a four-family flat dwell

of the court.

ing on a tract of land located on West Adams street in said city. At the time the plaintiffs first made application to the board for a building permit, an existing zoning ordinance of said city did not prohibit the erection of four-family flat dwellings in residence district No. 20, wherein plaintiffs' lot was located. A permit for the erection of such building was therefore issued. Shortly thereafter the permit was canceled and revoked by said board, for the rea