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use which only shall be permitted. 97 U. S. 25, 24 L. ed. 989), or gen
Stat. 1917, p. 1419, SS 1, 2. eral welfare of the people of a comIt may also be noted, at the out munity (Chicago, B. & Q. R. Co. v. set, that the ordinance in question is Illinois, 200 U. S. 561, 592, 50 L. prohibitory in its nature, and that ed. 596, 609, 26 Sup. Ct. Rep. 341, the prescribed prohibition is abso- 4 Ann. Cas. 1175). In short, the lute. The ordinance does not at- police power, as such, is not confined tempt to designate and regulate the within the narrow circumscription materials to be used in the build- of precedents, resting upon past conings, nor does it purport to regulate ditions which do not cover and conthe height, area, and architectural trol present-day conditions obviousdesign of such buildings as may be ly calling for revised regulations to erected within the designated dis- promote the health, safety, morals, trict. It prohibits the construction or general welfare of the public; of any building, irrespective of that is to say, as a commonwealth height, area, bulk, structural de- develops politically, economically, sign, or architectural features, “de- and socially, the police power likesigned or intended to be used for the wise develops, withhousing of more than two families."
in reason, to meet -development
of police power. It is, in short, purely prohibitory the changed and zoning, directed solely to use and oc- changing conditions. What was at cupation. The sole question pre- one time regarded as an improper sented is whether or not the ordi- exercise of the police power may nance in controversy is a rightful now, because of changed living conexercise of the police power con- ditions, be recognized as a legitimate ferred upon municipalities.
exercise of that power. This is so The police power of a state is an because "what was a reasonable exindispensable prerogative of sov- ercise [of this power] in the days
ereignty, and Constitutional
one of our fathers may to-day seem so law-extent of that is not to be utterly unreasonable as to make it police power.
lightly limited. In- difficult for us to comprehend the exdeed, even though at times its istence of conditions that would operation may seem harsh, the im- justify same; what would by our perative necessity for its existence fathers have been rejected as unprecludes any limitation upon its thinkable is to-day accepted as the exercise save that it be not unrea- most proper and reasonable exercise sonably and arbitrarily invoked and thereof." Streich v. Board of Eduapplied. Hadacheck v. Sebastian, cation, 34 S. D. 169, L.R.A.1915A,
, 239 U. S. 394, 60 L. ed. 348, 36 Sup. 632, 147 N. W. 779, Ann. Cas. Ct. Rep. 143, Ann. Cas. 1917B, 927; 1917A, 760. District of Columbia v. Brooke, 214 In its inception the police power U. S. 138, 149, 53 L, ed. 941, 945, was closely concerned with the pres29 Sup. Ct. Rep. 560.
It is not, ervation of the public peace, safety. however, illimitable, and the mark- morals, and health without specific ing and measuring of the extent of regard for “the general welfare."
“ its exercise and application is de- The increasing complexity of our termined by a consideration of the civilization and institutions later question of whether or not any in- gave rise to cases wherein the provocation of that power, in any given motion of the public welfare was
case, and as applied held by the courts to be a legitimate - limitations of
to existing condi- object for the exercise of the police police power.
tions, is reasonably power. As our civic life has denecessary to promote the public veloped so has the definition of health, safety, morals (Hannibal & “public welfare," until it has been St. J. R. Co. v. Husen, 95 U. S. 465, held to embrace regulations "to pro470, 471, 24 L. ed. 527, 529, 530; mote the economic welfare, public Boston Beer Co. v. Massachusetts, convenience, and general prosper
(-- Cal. —, 234 Pac. 581.) ity of the community.” Chicago, books abound with cases upholding B. & Q. R. Co. v. Illinois, supra. Thus the constitutional right to zone, it is apparent that the police power and sanctioning the principle upon is not a circumscribed prerogative, which that right is founded. In its but is elastic and, in keeping with original and primary sense, “zonthe growth of knowledge and the ing" is simply the belief in the popular mind of the division of a city phrases-, need for its application, capable of into districts and
"zoning." expansion to meet existing condi- the prescription and application of tions of modern life, and thereby different regulations in each district. keep pace with the social, economic, Roughly stated, these regulations, moral, and intellectual evolution of which may be called “zoning regulathe human race. In brief, “there is tions," are divided into two classes : nothing known to the law that keeps (1)
(1) Those which more in step with human progress regulate the height Classification
Buildings than does the exercise of this pow- or bulk of buildings of zoning reger" (Streich v. Board of Education, within certain dessupra), and that power “may be put ignated districts—in other words, forth in aid of what is sanctioned by those regulations which have to do usage, or held by the prevailing with structural and architectural morality or strong and preponder- designs of the buildings; and (2) ant opinion to be greatly and im- those which prescribe the use to mediately necessary to the public which buildings within certain deswelfare” (Noble State Bank v. Has- ignated districts may be put. Both kell, 219 U. S. 104, 55 L. ed. 112, 32 modes of regulation have received L.R.A. (N.S.) 1062, 31 Sup. Ct. Rep. the sanction of the Supreme Court 186, Ann. Cas. 1912A, 487).
of the United States. In Welch y. There can be no question but that Swasey, 214 U. S. 91, 53 L. ed. 923, there is a prevailing and preponder- 29 Sup. Ct. Rep. 567, the constituating sentiment in favor of neces- tionality of the right to district a sary and reasonable zoning. The city and set up different regulations growth of this sentiment has been with respect to the height of buildrapid and widespread. The first
The first ings in each district was upheld. In comprehensive zoning ordinance Barbier v. Connolly, 113 U. S. 27, was that of New York city, en- 28 L. ed. 923, 5 Sup. Ct. Rep. 357; acted in 1916. According to a re- Soon Hing v. Crowley, 113 U. S. cent bulletin of the United States 703, 28 L. ed. 1145, 5 Sup. Ct. Rep. Department of Commerce, 35 states 730; Reinman v. Little Rock, 237 U. and the District of Columbia have S. 171, 59 L. ed. 900, 35 Sup. Ct. adopted this form of regulation; 221 Rep. 511, and Hadacheck v. Sebasmunicipalities have been zoned, and tian, supra, it was held that by the over 22,000,000 inhabitants, aggre- exercise of the police power certain gating 40 per cent of the urban pop- occupations could be restricted to ulation of this country, are living in certain defined portions of a city. zoned territory. The rapidity of the In California it is well settled that growth of the sentiment in favor of there is no objection to zoning ordicomprehensive zoning, coupled with nances as such. There are many dethe extensive and successful appli- cisions in this jurisdiction upholding cation of the idea, are evidence of its the right to zone for use. Thus it present and potential value for the has been held that laundries, livery promotion and perpetuation, along stables, lumberyards, brickyards, broader and better lines, of the mor- and undertaking establishments al and material welfare of a people. may be restricted to certain dis
So thoroughly has the value of tricts. Ex parte Moynier, 65 Cal. zoning been demonstrated that no 33, 2 Pac. 728; Re Hang Kie, 69 Cal. longer is the constitutionality of the 149, 10 Pac. 327; Grumbach v. Leprinciple open to question. The lande, 154 Cal. 679, 98 Pac. 1059; Ex parte Quong Wo, 161 Cal. 220, serve the ends for which the police 118 Pac 714; Re Montgomery, 163 power exists, namely, the promotion Cal. 457, 125 Pac. 1070, Ann. Cas. of the public health, safety, morals, 1914A, 130; Ex parte Hadacheck, and general welfare. It will thus
, 165 Cal. 416, L.R.A.1916B, 1248, be seen that the po
-constitutional 132 Pac. 584 (affirmed in Hadacheck lice power, as evi- law-scope of v. Sebastian, 239 U. S. 394, 60 L. denced in zoning police power
for zoning. ed. 348, 36 Sup. Ct. Rep. 143, Ann. ordinances, has
а Cas. 1917B, 927); Sam Kee v. much wider scope than the mere Wilde, 41 Cal. App. 528, 183 Pac. suppression of the offensive uses of 164; Boyd v. Sierra Madre, 41 Cal. property (Des Moines v. Manhattan App. 520, 183 Pac. 230; Brown v. Oil Co. 193 Iowa, 1096, 23 A.L.R. Los Angeles, 183 Cal. 783, 192 Pac. 1322, 184 N. W. 823, 188 N. W. 716.
921), and that it acts, not only negaIt is conceded, as indeed it must tively, but constructively and afbe, by the opponents of the ordi- firmatively, for the promotion of nance in controversy here, that it is the public welfare (Bacon v. Walkwithin the police power, by zoning, er, 204 U. S. 311, 51 L. ed. 499, 27 to banish nuisances and "near nui- Sup. Ct. Rep. 289). sances” from certain districts. It is Much is said about the constitudisputed, however, that the police tional guaranties attaching to the power may be extended by any zon- ownership of property in the ining ordinance, comprehensive or dividual. In this behalf it will be otherwise, to the regulation and iso- noted that "It is thoroughly establation of vocations, business enter- lished in this country that the prises, and residential uses which rights preserved to the individual by are not intrinsically obnoxious. A these constitutional provisions are perusal of the decisions in Califor- held in subordination to the rights nia, which have upheld the prohibi- of society. Although one owns tion and segregation of certain busi- property, he may not do with it as nesses by means of zoning, indicates he pleases, any more than he may that the court has not limited the act in accordance with his personal power to zone to nuisances per se, desires. As the interest of society and has held that certain business justifies restraints upon individual establishments, harmless in them- conduct, so also does it justify reselves, may become "near nui- straints upon the use to which propsances" because of the character of erty may be devoted. It was not in
” the neighborhood in which they are tended by these constitutional prooperating. In Ex parte Quong Wo, visions to so far protect the indi161 Cal. 220, 118 Pac. 714, the court vidual in the use of his property as justified the exclusion of a certain to enable him to use it to the detritype of laundry from a residential ment of society. By thus protecting district upon the theory that a laun- individual rights, society did not dry is “of such a nature that it may part with the power to protect itself be confined, in the lawful exercise or to promote its general well-being. of the police power, within defined Where the interest of the individual limits in a city.” This is tanta- conflicts with the interest of society, mount to saying that, whenever the such individual interest is subordirecognized purposes for which the nated to the general welfare. If. police power may be called into play in the prosecution of governmental are subserved either by exclusion or functions, it becomes necessary to segregation of any business, it may take private property, compensabe thus regulated. This is but an- tion must be made. But incidental
other way of saying damage to property resulting from that any zoning reg- governmental activities, or laws ulation is a valid ex- passed in the promotion of the pub
ercise of the police lic welfare, are not considered a takpower which is necessary to sub- ing of the property for which com
-constitutional law-validity of zoning ordinance.
sidered in de
(- Cal. —, 234 Pac. $81.) pensation must be made." State ex 33 A.L.R. 260, 97 So. 440; Spector rel. Carter v. Harper, 182 Wis. 148, v. Building Inspector, Mass. 33 A.L.R. 269, 196 N. W. 451; Chi- 145 N. E. 265; Brett v. Building cago, B. & Q. R. Co. v. Illinois, 200 Comr. Mass. 145 N. E. 269; U. S. 561, 50 L. ed. 596, 26 Sup. Ct. State ex_rel. Morris v. Osborn, 22 Rep. 341, 4 Ann. Cas. 1175.
Ohio N. P. N. S. 549. It may be taken as now weil set- It cannot be gainsaid, however, tled that courts are required, in con- that many municipalities, evidently sidering the validity of zoning ordi- upon the theory that zoning is a nances, to determine, in addition to panacea for civic ills, have, under
the need thereof, the guise of zoning, sought to enact -considerations in determining
whether or not they and enforce unreasonable and disvalidity of zon- are arbitrary and criminatory ordinances. Some of ing ordinances.
discriminatory in these attempted regulations have their conception and application, been palpably for the exclusive and and whether they have any reason- preferential benefit of particular loable tendency to promote the public calities. The duty, therefore, demorals, health, safety, or general volves upon the courts to determine welfare and prosperity of a com- in each instance whether or not the munity. It may be safely said, we ordinance, either in whole or in think, that it is the consensus of part, is invalid. In the determinaopinion that the regulation of the tion of this problem two questions development of a city, under a present themselves :
comprehensive and (1) Is the scheme -what con-constitutional law-validity carefully considered of zoning as a whole termining vaof zoning ordi
lidity of zoning zoning plan, does sound; that is to
tend to promote the say, is the method general welfare of a community; of classification and districting reaand there is no doubt, it seems to sonably necessary to the public us, that the adoption and enforce- health, safety, morals, or general ment of such a plan, when fairly welfare? and (2) Has the scheme conceived and equably applied, is of classification and districting been well within the scope of the police applied fairly and impartially in power. The increase of our urban each instance? In the instant case population makes regulation neces- it is conceded that the district in sary. As the congestion of our cit- question is strictly residential, and ies increases, likewise do the prob- that, if strictly residential districts lems of traffic control and police, may be established, plaintiffs have fire, and health protection. Com- no cause of complaint. prehensive and systematic zoning This brings us naturally to the aids in the successful solution of question of whether or not there these problems, and obviously tends may be legally established, as a part thereby to affirmatively promote the of a comprehensive zoning plan, public welfare. Decisions upon the strictly private residential districts constitutionality of comprehensive from which are excluded and absozoning are not numerous; but the lutely prohibited general business weight of authority upon the sub- enterprises, apartments, tenements, ject is, however, strongly in favor and like structures.
-establishment cf the constitutionality of compre- We are of the opin- of residential hensive zoning. Lincoln Trust Co. ion that it may be v. Williams Bldg. Corp. 229 N. Y. done; that the establishment of such 313, 128 N. E. 209; Ware v. districts as a part of a systematic Wichita, '113 Kan. 153, 214 Pac. 99; and carefully considered and existState ex rel. Carter v. Harper, su- ing zoning plan is a legitimate exerpra; Opinion of Justices, 234 Mass. cise of the police power delegated to 597, 127 N. E. 525; State ex rel. the municipality. Civello v. New Orleans, 154 La. 271, It is scarcely necessary to reiterate here the well-recognized prin- strictly residential districts is necesciple that courts are loath to sub- sary and proper is evidenced by the Courts-control
stitute their judg- passage of such ordinances in such over legislative ment as to the ne- widely varying parts of the Union discretion.
cessity for a par- as Massachusetts, Louisiana, New ticular enactment, for the legisla- York, Kansas, Iowa, and Wiscontive judgment as to the need of such sin. In each of these states the enactment with reference to the ex- problem of the validity of the estabercise of the police power. A large lishment of a strictly residential disdiscretion is vested in the legislative trict was before the highest court of branch of the government with ref- those respective jurisdictions, and erence to the exercise of the police in each case such ordinance was power. Mehlos v. Milwaukee, 156 .
held to be within the scope of the Wis. 591, 51 L.R.A.(N.S.) 1009, 146 police power. N. W. 882, Ann. Cas. 1915C, 1102; An enabling act of the state of State ex rel. Carter v. Harper, su- Massachusetts authorized cities and pra. Every intendment is to be in- towns by ordinance to provide “that dulged by the courts in favor of the certain kinds of dwelling houses
validity of its exer- and tenement houses shall be reConstitutional law-measures
cise and, unless the stricted to specified parts of the city deemed within
measure is clearly or town, or shall be excluded from pollce power.
oppressive, it will specified parts of the city or town, be deemed to be within the purview or that dwelling houses or tenement of that power. It is only when it is houses situated in specified parts of palpable that the measure in contro- the city or town shall conform to versy has no real or substantial re- certain regulations in respect to lation to the public health, safety, their construction or use which do morals, or general welfare, that it not apply to such buildings in other will be nullified by the courts. The parts of the city or town." courts may differ with the legisla- It further provided that the city ture as to the wisdom and propriety or town might be divided "into disof a particular enactment as tricts or zones, and the construction means of accomplishing a particular and use of buildings in each district end, but as long as there are con- or zone may be regulated. siderations of public health, safety, Gen. Laws, chap. 40, § 25. morals, or general welfare which The supreme judicial court of the legislative body may have had Massachusetts held that these proin mind, which could have justified visions of the act were not contrary the regulation, it must be assumed either to the state or the Federal by the court that the legislative Constitution. Opinion of Justices, body had those considerations in 234 Mass. 597, 127 N. E. 525. See mind, and that those considerations also Building Inspector v. Stoklosa, did justify the regulation. State ex Mass. 145 N. E. 262. rel. Civello v. New Orleans, 154 La. The fact that Massachusetts may 271, 33 A.L.R. 260, 97 So. 440. In be the only state which has authorEx parte Hadacheck, 165 Cal. 416, ized the passage of zoning laws by L.R.A.1916B, 1248, 132 Pac. 584, constitutional provisions does not the court held in effect that, when detract from the value of the Massathe necessity or propriety of an en- chusetts cases as authority. In the actment was a question upon which cases last cited the act was held not reasonable minds might differ, the to be within the inhibitions of the propriety and necessity of such en- Federal Constitution. Inasmuch as actment was a matter of legislative the provisions of the Federal Condetermination.
stitution relating to police power are That there are reasonable minds similar to those of our own state which are of the belief that a regu- Constitution, the reasoning of those lation creating and establishing cases and those decisions are appli