use which only shall be permitted. ." Stat. 1917, p. 1419, §§ 1, 2. It may also be noted, at the outset, that the ordinance in question is prohibitory in its nature, and that the prescribed prohibition is absolute. The ordinance does not attempt to designate and regulate the materials to be used in the buildings, nor does it purport to regulate the height, area, and architectural design of such buildings as may be erected within the designated district. It prohibits the construction of any building, irrespective of height, area, bulk, structural design, or architectural features, "designed or intended to be used for the housing of more than two families." It is, in short, purely prohibitory zoning, directed solely to use and occupation. The sole question presented is whether or not the ordinance in controversy is a rightful exercise of the police power conferred upon municipalities. Constitutional The police power of a state is an indispensable prerogative of sovereignty, and one law-extent of that is not to be police power. lightly limited. Indeed, even though at times its operation may seem harsh, the imperative necessity for its existence precludes any limitation upon its exercise save that it be not unreasonably and arbitrarily invoked and applied. Hadacheck v. Sebastian, 239 U. S. 394, 60 L. ed. 348, 36 Sup. Ct. Rep. 143, Ann. Cas. 1917B, 927; District of Columbia v. Brooke, 214 U. S. 138, 149, 53 L. ed. 941, 945, 29 Sup. Ct. Rep. 560. It is not, however, illimitable, and the marking and measuring of the extent of its exercise and application is determined by a consideration of the question of whether or not any invocation of that power, in any given 97 U. S. 25, 24 L. ed. 989), or general welfare of the people of a community (Chicago, B. & Q. R. Co. v. Illinois, 200 U. S. 561, 592, 50 L. ed. 596, 609, 26 Sup. Ct. Rep. 341, 4 Ann. Cas. 1175). In short, the police power, as such, is not confined within the narrow circumscription of precedents, resting upon past conditions which do not cover and control present-day conditions obviously calling for revised regulations to promote the health, safety, morals, or general welfare of the public; that is to say, as a commonwealth develops politically, economically, and socially, the police power likewise develops, with of police power. in reason, to meet development the changed and changing conditions. What was at one time regarded as an improper exercise of the police power may now, because of changed living conditions, be recognized as a legitimate exercise of that power. This is so because "what was a reasonable exercise [of this power] in the days of our fathers may to-day seem so utterly unreasonable as to make it difficult for us to comprehend the existence of conditions that would justify same; what would by our fathers have been rejected as unthinkable is to-day accepted as the most proper and reasonable exercise thereof." Streich v. Board of Education, 34 S. D. 169, L.R.A.1915A, 632, 147 N. W. 779, Ann. Cas. 1917A, 760. In its inception the police power was closely concerned with the preservation of the public peace, safety. morals, and health without specific regard for "the general welfare." The increasing complexity of our civilization and institutions later gave rise to cases wherein the promotion of the public welfare was held by the courts to be a legitimate object for the exercise of the police power. As our civic life has developed so has the definition of "public welfare," until it has been held to embrace regulations "to promote the economic welfare, public convenience, and general prosper (Cal., 234 Pac. 381.) B. & Q. R. Co. v. Illinois, supra. Thus it is apparent that the police power is not a circumscribed prerogative, but is elastic and, in keeping with the growth of knowledge and the belief in the popular mind of the need for its application, capable of expansion to meet existing conditions of modern life, and thereby keep pace with the social, economic, moral, and intellectual evolution of the human race. In brief, "there is nothing known to the law that keeps more in step with human progress than does the exercise of this power" (Streich v. Board of Education, supra), and that power "may be put forth in aid of what is sanctioned by usage, or held by the prevailing morality or strong and preponderant opinion to be greatly and immediately necessary to the public welfare" (Noble State Bank v. Haskell, 219 U. S. 104, 55 L. ed. 112, 32 L.R.A. (N.S.) 1062, 31 Sup. Ct. Rep. 186, Ann. Cas. 1912A, 487). Words and Buildings ulations. ity of the community." Chicago, books abound with cases upholding the constitutional right to zone, and sanctioning the principle upon which that right is founded. In its original and primary sense, “zoning" is simply the division of a city phrasesinto districts and **zoning." the prescription and application of different regulations in each district. Roughly stated, these regulations, which may be called "zoning regulations," are divided into two classes: (1) Those which regulate the height classification or bulk of buildings of zoning regwithin certain designated districts-in other words, those regulations which have to do with structural and architectural designs of the buildings; and (2) those which prescribe the use to which buildings within certain designated districts may be put. Both modes of regulation have received the sanction of the Supreme Court of the United States. In Welch v. Swasey, 214 U. S. 91, 53 L. ed. 923, 29 Sup. Ct. Rep. 567, the constitutionality of the right to district a city and set up different regulations with respect to the height of buildings in each district was upheld. In Barbier v. Connolly, 113 U. S. 27, 28 L. ed. 923, 5 Sup. Ct. Rep. 357; Soon Hing v. Crowley, 113 U. S. 703, 28 L. ed. 1145, 5 Sup. Ct. Rep. 730; Reinman v. Little Rock, 237 U. S. 171, 59 L. ed. 900, 35 Sup. Ct. Rep. 511, and Hadacheck v. Sebastian, supra, it was held that by the exercise of the police power certain occupations could be restricted to certain defined portions of a city. The There can be no question but that there is a prevailing and preponderating sentiment in favor of necessary and reasonable zoning. The growth of this sentiment has been rapid and widespread. The first comprehensive zoning ordinance was that of New York city, enacted in 1916. According to a recent bulletin of the United States Department of Commerce, 35 states and the District of Columbia have adopted this form of regulation; 221 municipalities have been zoned, and over 22,000,000 inhabitants, aggregating 40 per cent of the urban population of this country, are living in zoned territory. The rapidity of the growth of the sentiment in favor of comprehensive zoning, coupled with the extensive and successful application of the idea, are evidence of its present and potential value for the promotion and perpetuation, along broader and better lines, of the moral and material welfare of a people. So thoroughly has the value of zoning been demonstrated that no longer is the constitutionality of the principle open to question. The In California it is well settled that there is no objection to zoning ordinances as such. There are many decisions in this jurisdiction upholding the right to zone for use. Thus it has been held that laundries, livery stables, lumberyards, brickyards, and undertaking establishments may be restricted to certain districts. Ex parte Moynier, 65 Cal. 33, 2 Pac. 728; Re Hang Kie, 69 Cal. 149, 10 Pac. 327; Grumbach v. Lelande, 154 Cal. 679, 98 Pac. 1059; Ex parte Quong Wo, 161 Cal. 220, 118 Pac 714; Re Montgomery, 163 Cal. 457, 125 Pac. 1070, Ann. Cas. 1914A, 130; Ex parte Hadacheck, 165 Cal. 416, L.R.A.1916B, 1248, 132 Pac. 584 (affirmed in Hadacheck v. Sebastian, 239 U. S. 394, 60 L. ed. 348, 36 Sup. Ct. Rep. 143, Ann. Cas. 1917B, 927); Sam Kee v. Wilde, 41 Cal. App. 528, 183 Pac. 164; Boyd v. Sierra Madre, 41 Cal. App. 520, 183 Pac. 230; Brown v. Los Angeles, 183 Cal. 783, 192 Pac. 716. It is conceded, as indeed it must be, by the opponents of the ordinance in controversy here, that it is within the police power, by zoning, to banish nuisances and "near nuisances" from certain districts. It is disputed, however, that the police power may be extended by any zoning ordinance, comprehensive or otherwise, to the regulation and isolation of vocations, business enterprises, and residential uses which are not intrinsically obnoxious. A perusal of the decisions in California, which have upheld the prohibition and segregation of certain businesses by means of zoning, indicates that the court has not limited the power to zone to nuisances per se, and has held that certain business establishments, harmless in themselves, may become "near nuisances" because of the character of the neighborhood in which they are operating. In Ex parte Quong Wo, 161 Cal. 220, 118 Pac. 714, the court justified the exclusion of a certain type of laundry from a residential district upon the theory that a laundry is "of such a nature that it may be confined, in the lawful exercise of the police power, within defined limits in a city." This is tantamount to saying that, whenever the recognized purposes for which the police power may be called into play are subserved either by exclusion or segregation of any business, it may be thus regulated. This is but an much wider scope than the mere suppression of the offensive uses of property (Des Moines v. Manhattan Oil Co. 193 Iowa, 1096, 23 A.L.R. 1322, 184 N. W. 823, 188 N. W. 921), and that it acts, not only negatively, but constructively and affirmatively, for the promotion of the public welfare (Bacon v. Walker, 204 U. S. 311, 51 L. ed. 499, 27 Sup. Ct. Rep. 289). Much is said about the constitutional guaranties attaching to the ownership of property in the individual. In this behalf it will be noted that "It is thoroughly established in this country that the rights preserved to the individual by these constitutional provisions are held in subordination to the rights of society. Although one owns property, he may not do with it as he pleases, any more than he may act in accordance with his personal desires. As the interest of society justifies restraints upon individual conduct, so also does it justify restraints upon the use to which property may be devoted. It was not intended by these constitutional provisions to so far protect the individual in the use of his property as to enable him to use it to the detriment of society. By thus protecting individual rights, society did not part with the power to protect itself or to promote its general well-being. Where the interest of the individual conflicts with the interest of society. such, individual interest is subordinated to the general welfare. If, in the prosecution of governmental functions, it becomes necessary to take private property, compensation must be made. But incidental damage to property resulting from governmental activities, or laws passed in the promotion of the public welfare, are not considered a taking of the property for which com (— Cal. —, 234 Pac. 381.) pensation must be made." State ex rel. Carter v. Harper, 182 Wis. 148, 33 A.L.R. 269, 196 N. W. 451; Chicago, B. & Q. R. Co. v. Illinois, 200 U. S. 561, 50 L. ed. 596, 26 Sup. Ct. Rep. 341, 4 Ann. Cas. 1175. It may be taken as now well settled that courts are required, in considering the validity of zoning ordinances, to determine, in addition to -considerations the need thereof, in determining whether or not they validity of zon- are arbitrary and ing ordinances. discriminatory in their conception and application, and whether they have any reasonable tendency to promote the public morals, health, safety, or general welfare and prosperity of a community. It may be safely said, we think, that it is the consensus of opinion that the regulation of the development of a city, under a -constitutional law-validity of zoning ordinance. comprehensive and carefully considered zoning plan, does tend to promote the general welfare of a community; and there is no doubt, it seems to us, that the adoption and enforcement of such a plan, when fairly conceived and equably applied, is well within the scope of the police power. The increase of our urban population makes regulation necessary. As the congestion of our cities increases, likewise do the problems of traffic control and police, fire, and health protection. Comprehensive and systematic zoning aids in the successful solution of these problems, and obviously tends thereby to affirmatively promote the public welfare. Decisions upon the constitutionality of comprehensive zoning are not numerous; but the weight of authority upon the subject is, however, strongly in favor of the constitutionality of comprehensive zoning. Lincoln Trust Co. v. Williams Bldg. Corp. 229 N. Y. 313. 128 N. E. 209; Ware v. Wichita, 113 Kan. 153, 214 Pac. 99; State ex rel. Carter v. Harper, supra; Opinion of Justices, 234 Mass. 597, 127 N. E. 525; State ex rel. Civello v. New Orleans, 154 La. 271, 33 A.L.R. 260, 97 So. 440; Spector v. Building Inspector, Mass. 145 N. E. 265; Brett v. Building Comr. Mass., 145 N. E. 269; State ex rel. Morris v. Osborn, 22 Ohio N. P. N. S. 549. It cannot be gainsaid, however, that many municipalities, evidently upon the theory that zoning is a panacea for civic ills, have, under the guise of zoning, sought to enact and enforce unreasonable and discriminatory ordinances. Some of these attempted regulations have been palpably for the exclusive and preferential benefit of particular localities. The duty, therefore, devolves upon the courts to determine in each instance whether or not the ordinance, either in whole or in part, is invalid. In the determination of this problem two questions present themselves: (1) Is the scheme of zoning as a whole sound; that is to say, is the method of classification and districting reasonably necessary to the public health, safety, morals, or general welfare? and (2) Has the scheme of classification and districting been applied fairly and impartially in each instance? In the instant case it is conceded that the district in question is strictly residential, and that, if strictly residential districts may be established, plaintiffs have no cause of complaint. what con sidered in de termining va lidity of zoning ordinance. ate here the well-recognized principle that courts are loath to substitute their judg Courts-control over legislative ment as to the nediscretion. cessity for a particular enactment, for the legisla tive judgment as to the need of such enactment with reference to the exercise of the police power. A large discretion is vested in the legislative branch of the government with reference to the exercise of the police power. Mehlos v. Milwaukee, 156 Wis. 591, 51 L.R.A. (N.S.) 1009, 146 N. W. 882, Ann. Cas. 1915C, 1102; State ex rel. Carter v. Harper, supra. Every intendment is to be indulged by the courts in favor of the Constitutional law-measures deemed within police power. validity of its exercise and, unless the measure is clearly oppressive, it will be deemed to be within the purview of that power. It is only when it is palpable that the measure in controversy has no real or substantial relation to the public health, safety, morals, or general welfare, that it will be nullified by the courts. The courts may differ with the legislature as to the wisdom and propriety of a particular enactment as means of accomplishing a particular end, but as long as there are considerations of public health, safety, morals, or general welfare which the legislative body may have had in mind, which could have justified the regulation, it must be assumed by the court that the legislative body had those considerations in mind, and that those considerations did justify the regulation. State ex rel. Civello v. New Orleans, 154 La. 271, 33 A.L.R. 260, 97 So. 440. In Ex parte Hadacheck, 165 Cal. 416, L.R.A.1916B, 1248, 132 Pac. 584, the court held in effect that, when the necessity or propriety of an enactment was a question upon which reasonable minds might differ, the propriety and necessity of such enactment was a matter of legislative determination. That there are reasonable minds which are of the belief that a regulation creating and establishing strictly residential districts is necessary and proper is evidenced by the passage of such ordinances in such widely varying parts of the Union as Massachusetts, Louisiana, New York, Kansas, Iowa, and Wisconsin. In each of these states the problem of the validity of the establishment of a strictly residential district was before the highest court of those respective jurisdictions, and in each case such ordinance was held to be within the scope of the police power. An enabling act of the state of Massachusetts authorized cities and towns by ordinance to provide "that certain kinds of dwelling houses and tenement houses shall be restricted to specified parts of the city or town, or shall be excluded from specified parts of the city or town, or that dwelling houses or tenement houses situated in specified parts of the city or town shall conform to certain regulations in respect to their construction or use which do not apply to such buildings in other parts of the city or town." It further provided that the city or town might be divided "into districts or zones, and the construction and use of buildings in each district or zone may be regulated. Gen. Laws, chap. 40, § 25. The supreme judicial court of Massachusetts held that these provisions of the act were not contrary either to the state or the Federal Constitution. Opinion of Justices, 234 Mass. 597, 127 N. E. 525. See also Building Inspector v. Stoklosa, Mass. 145 N. E. 262. - The fact that Massachusetts may be the only state which has authorized the passage of zoning laws by constitutional provisions does not detract from the value of the Massachusetts cases as authority. In the cases last cited the act was held not to be within the inhibitions of the Federal Constitution. Inasmuch as the provisions of the Federal Constitution relating to police power are similar to those of our own state Constitution, the reasoning of those cases and those decisions are appli |