|
272 U.S. 365
No. 31.
Reargued Oct. 12, 1926.
Decided Nov. 22, 1926.
367 Mr. James Metzenbaum,
of Cleveland, Ohio, for appellants.
371 Messrs. Newton
D. Baker and Robert M. Morgan, both of Cleveland, Ohio, for
appellee.
379 Mr. Justice SUTHERLAND
delivered the opinion of the Court.
The
village of Euclid is an Ohio municipal corporation. It adjoins and practically is a
suburb of the city of Cleveland.
Its estimated population is between 5,000 and 10,000,
and its area from 12 to 14 square miles, the greater part
of which is farm lands or unimproved acreage. It lies, roughly, in the form of
a parallelogram measuring approximately 3 1/2 miles each way.
East and west it is traversed by three principal highways:
Euclid avenue, through the southerly border, St. Clair avenue,
through the central portion, and Lake Shore boulevard, through
the northerly border, in close proximity to the shore of Lake
Erie. The Nickel
Plate Railroad lies from 1,500 to 1,800 feet north of Euclid
avenue, and the Lake Shore Railroad 1,600 feet farther to
the north. The three highways and the two railroads are substantially
parallel.
Appellee
is the owner of a tract of land containing 68 acres, situated
in the westerly end of the village, abutting on Euclid avenue
to the south and the Nickel Plate Railroad to the north. Adjoining
this tract, both on the east and on the west, there have been
laid out restricted residential plats upon which residences
have been erected.
On
November 13, 1922, an ordinance was adopted by the village
council, establishing a comprehensive zoning plan for regulating
and restricting the location of trades,
380 industries, apartment houses,
two‑family houses, single family houses, etc., the lot
area to be built upon, the size and height of buildings, etc.
The
entire area of the village is divided by the ordinance into
six classes of use districts, denominated U-1 to U-6, inclusive;
three classes of height districts, denominated H-1 to H-3,
inclusive; and four classes of area districts, denominated
A-1 to A-4, inclusive.
The use districts are classified in respect of the
buildings which may be erected within their respective limits,
as follows: U-1 is restricted to single family dwellings,
public parks, water towers and reservoirs, suburban and interurban
electric railway passenger stations and rights of way, and
farming, non-commercial greenhouse nurseries, and truck gardening;
U-2 is extended to include two-family dwellings; U-3 is further
extended to include apartment houses, hotels, churches, schools,
public libraries, museums, private clubs, community center
buildings, hospitals, sanitariums, public playgrounds, and
recreation buildings, and a city hall and courthouse; U-4
is further extended to include banks, offices,
studios, telephone exchanges, fire and police stations,
restaurants, theaters and moving picture shows, retail stores
and shops, sales offices, sample rooms, wholesale stores for
hardware, drugs, and groceries, stations for gasoline and
oil (not exceeding 1,000 gallons storage) and for ice delivery,
skating rinks and dance halls, electric substations, job and
newspaper printing, public garages for motor vehicles, stables
and wagon sheds (not exceeding five horses, wagons or motor
trucks), and distributing stations for central store and commercial
enterprises; U-5 is further extended to include billboards
and advertising signs (if permitted), warehouses, ice and
ice cream manufacturing and cold storage plants, bottling
works milk bottling and central distribution stations, laundries,
carpet cleaning, dry cleaning, and dyeing establishments,
381
blacksmith, horseshoeing, wagon and
motor vehicle repair shops, freight stations, street car barns,
stables and wagon sheds (for more than five horses, wagons
or motor trucks), and wholesale produce markets and salesroom;
U-6 is further extended to include plants for sewage disposal
and for producing gas, garbage and refuse incineration, scrap
iron, junk, scrap paper, and rag storage, aviation fields,
cemeteries, crematories, penal and correctional institutions,
insane and feeble-minded institutions, storage of oil and
gasoline (not to exceed 25,000 gallons), and manufacturing
and industrial operations of any kind other than, and any
public utility not included in, a class U-1, U-2, U-3, U-4,
or U-5 use. There
is a seventh class of uses which is prohibited altogether.
Class
U-1 is the only district in which buildings are restricted
to those enumerated.
In the other classes the uses are cumulative - that
is to say, uses in class U-2 include those enumerated in the
preceding class U-1; class U-3 includes uses enumerated in
the preceding classes, U-2, and U-1; and so on. In addition
to the enumerated uses, the ordinance provides for accessory
uses; that is, for uses customarily incident to the principal
use, such as private garages.
Many regulations are provided in respect of such accessory
uses.
The
height districts are classified as follows: In class H-1,
buildings are limited to a height of 2 1/2 stories, or 35
feet; in class H-2, to 4 stories, or 50 feet; in class H-3,
to 80 feet. To
all of these, certain exceptions are made, as in the case
of church spires, water tanks, etc.
The
classification of area districts is: In A-1 districts, dwellings
or apartment houses to accommodate more than one family must
have at least 5,000 square feet for interior lots and at least
4,000 square feet for corner lots; in A-2 districts, the area
must be at least 2,500 square feet for interior lots, and
2,000 square feet for corner lots; in A-3
382
districts, the limites are 1,250 and
1,000 square feet, respectively; in A-4 districts, the limits
are 900 and 700 square feet, respectively. The ordinance contains,
in great variety and detail, provisions in respect of width
of lots, front, side, and rear yards, and other matters, including
restrictions and regulations as to the use of billboards,
signboards, and advertising signs.
A
single family dwelling consists of a basement and not less
than three rooms and a bathroom.
A two-family dwelling consists of a basement and not
less than four living rooms and a bathroom for each family,
and is further described as a detached dwelling for the occupation
of two families, one having its principal living rooms on
the first floor and the other on the second floor.
Appellee's
tract of land comes under U-2, U-3 and U-6.
The first strip of 620 feet immediately north of Euclid
avenue falls in class U-2, the next 130 feet to the north,
in U-3, and the remainder in U-6.
The uses of the first 620 feet, therefore, do not include
apartment houses, hotels, churches, schools, or other public
and semipublic buildings, or other uses enumerated in respect
of U-3 to U-6, inclusive. The uses of the next 130 feet include
all of these, but exclude industries, theaters, banks, shops,
and the various other uses set forth in respect of U-4 to
U-6, inclusive. [FN1]
FN1
The court below seemed to think that the frontage of this
property on Euclid avenue to a depth of 150 feet came under
U-1 district and was available only for single family dwellings.
An examination of the ordinance and subsequent amendments,
and a comparison of their terms with the maps, shows very
clearly, however, that this view was incorrect. Appellee's
brief correctly interpreted the ordinance: 'The northerly
500 feet thereof immediately adjacent to the right of way
of the New York, Chicago & St. Louis Railroad Company
under the original ordinance was classed as U-6 territory
and the rest thereof as U‑2 territory.
By amendments to the ordinance a strip 630(620) feet
wide north of Euclid avenue is classed as U-2 territory, a
strip 130 feet wide next north as U-3 territory and the rest
of the parcel to the Nickel Plate right of way as U-6 territory.'
383
Annexed to the ordinance, and made a
part of it, is a zone map, showing the location and limits
of the various use, height, and area districts, from which
it appears that the three classes overlap one another; that
is to say, for example, both U-5 and U-6 use districts are
in A-4 area district, but the former is in H-2 and the latter
in H-3 height districts.
The plan is a complicated one, and can be better understood
by an inspection of the map, though it does not seem necessary
to reproduce it for present purposes.
The
lands lying between the two railroads for the entire length
of the village area and extending some distance on either
side to the north and south, having an average width of about
1,600 feet, are left open, with slight exceptions, for industrial
and all other uses.
This includes the larger part of appellee's tract.
Approximately one-sixth of the area of the entire village
is included in U-5 and U-6 use districts.
That part of the village lying
south of Euclid avenue is principally in U-1 districts.
The lands lying north of Euclid avenue and bordering
on the long strip just described are included in U-1, U-2,
U-3, and U-4 districts, principally in U-2.
The
enforcement of the ordinance is intrusted to the inspector
of buildings, under rules and regulations of the board of
zoning appeals. Meetings of the board are public,
and minutes of its proceedings are kept.
It is authorized to adopt rules and regulations to
carry into effect provisions of the ordinance. Decisions of
the inspector of buildings may be appealed to the board by
any person claiming to be adversely affected by any such decision.
The board is given power in specific cases of practical
difficulty or unnecessary hardship to interpret the ordinance
in harmony with its general purpose and intent, so that the
public health, safety and general welfare may be secure and
substantial justice done. Penalties are prescribed for violations,
and it is provided that the various
384 provisions are to be regarded
as independent and the holding of any provision to be unconstitutional,
void or ineffective shall not affect any of the others.
The
ordinance is assailed on the grounds that it is in derogation
of section 1 of the Fourteenth Amendment to the federal Constitution
in that it deprives appellee of liberty and property without
due process of law and denies it the equal protection of the
law, and that it offends against certain provisions of the
Constitution of the state of Ohio.
The prayer of the bill is for an injunction restraining
the enforcement of the ordinance and all attempts to impose
or maintain as to appellee's property any of the restrictions,
limitations or conditions.
The court below held the ordinance to be unconstitutional
and void, and enjoined its enforcement, 297 F. 307.
Before
proceeding to a consideration of the case, it is necessary
to determine the scope of the inquiry.
The bill alleges that the tract of land in question
is vacant and has been held for years for the purpose of selling
and developing it for industrial uses, for which it is especially
adapted, being immediately in the path or progressive industrial
development; that for such uses it has a market value of about
$10,000 per acre, but if the use be limited to residential
purposes the market value is not in excess of $2,500 per acre;
that the first 200 feet of the parcel back from Euclid avenue,
if unrestricted in respect of use, has a value of $150 per
front foot, but if limited to residential uses, and ordinary
mercantile business be excluded therefrom, its value is not
in excess of $50 per front foot.
It
is specifically averred that the ordinance attempts to restrict
and control the lawful uses of appellee's land, so as to confiscate
and destroy a great part of its value; that it is being enforced
in accordance with its terms; that propective buyers of land
for industrial, commercial, and residential uses in the metropolitan
district of Cleveland
385 are deterred from buying any
part of this land because of the existence of the ordinance
and the necessity thereby entailed of conducting burdensome
and expensive litigation in order to vindicate the right to
use the land for lawful and legitimate purposes; that the
ordinance constitutes a cloud upon the land, reduces and destroys
its value, and has the effect of diverting the normal industrial,
commercial, and residential development thereof to other and
less favorable locations.
The
record goes no farther than to show, as the lower court found,
that the normal and reasonably to be expected use and development
of that part of appellee's land adjoining Euclid avenue is
for general trade and commercial purposes, particularly retail
stores and like establishments, and that the normal and reasonably
to be expected use and development of the residue of the land
is for industrial and trade purposes.
Whatever injury is inflicted by the mere existence
and threatened enforcement of the ordinance is due to restrictions
in respect of these and similar uses, to which perhaps should
be added - if not included in the foregoing-restrictions in
respect of apartment houses.
Specifically there is nothing in the record to suggest
that any damage results from the presence in the ordinance
of those restrictions relating to churches, schools, libraries,
and other public and semipublic buildings.
It is neither alleged nor proved that there is or may
be a demand for any part of appellee's land for any of the
last-named uses, and we cannot assume the existence of facts
which would justify an injunction upon this record in respect
to this class of restrictions.
For present purposes the provisions of the ordinance
in respect of these uses may therefore be put aside as unnecessary
to be considered. It
is also unnecessary to consider the effect of the restrictions
in respect of U-1 districts, since none of appellee's land
falls within that class.
386
We
proceed, then, to a consideration of those provisions of the
ordinance to which the case as it is made relates, first disposing
of a preliminary matter.
A motion was made in the court
below to dismiss the bill on the ground that, because complainant
(appellee) had made no effort to obtain a building permit
or apply to the zoning board of appeals for relief, as it
might have done under the terms of the ordinance, the suit
was premature. The motion was properly overruled,
the effect of the allegations of the bill is that the ordinance
of its own force operates greatly to reduce the value of appellee's
lands and destroy their marketability for industrial, commercial
and residential uses, and the attack is directed, not against
any specific provision or provisions, but against the ordinance
as an entirety. Assuming
the premises, the existence and maintenance of the ordinance
in effect constitutes a present invasion of appellee's property
rights and a threat to continue it.
Under these circumstances, the equitable jurisdiction
is clear. See
Terrace v. Thompson, 263 U. S. 197, 215, 44 S. Ct. 15, 68
L. Ed. 255; Pierce v. Society of Sisters, 268 U. S. 510, 535,
45 S. Ct. 571, 69 L. Ed. 1070, 30 A. L. R. 468.
It
is not necessary to set forth the provisions of the Ohio Constitution
which are thought to be infringed.
The question is the same under both Constitutions,
namely, as stated by appellee: Is the ordinance invalid, in
that it violates the constitutional protection 'to the right
of property in the appellee by attempted regulations under
the guise of the police power, which are unreasonable and
confiscatory'?
Building zone laws are of modern
origin. They began in this country about
25 years ago. Until
recent years, urban life was comparatively simple; but, with
the great increase and concentration of population, problems
have developed, and constantly are developing, which require,
and will continue to require, additional restrictions in respect
of the use and occupation of private lands in
387 urban communities. Regulations,
the wisdom, necessity, and validity of which, as applied to
existing conditions, are so apparent that they are now uniformly
sustained, a century ago, or even half a century ago, probably
would have been rejected as arbitrary and oppressive. Such regulations are sustained,
under the complex conditions of our day, for reasons analogous
to those which justify traffic regulations, which, before
the advent of automobiles and rapid transit street railways,
would have been condemned as fatally arbitrary and unreasonable.
And in this there is no inconsistency, for, while the
meaning of constitutional guaranties never varies, the scope
of their application must expand or contract to meet the new
and different conditions which are constantly coming within
the field of their operation.
In a changing world it is impossible that it should
be otherwise. But
although a degree of elasticity is thus imparted, not to the
meaning, but to the application of constitutional principles,
statutes and ordinances, which, after giving due weight to
the new conditions, are found clearly not to conform to the
Constitution, of course, must fall.
The
ordinance now under review, and all similar laws and regulations,
must find their justification in some aspect of the police
power, asserted for the public welfare.
The line which in this field separates the legitimate
from the illegitimate assumption of power is not capable of
precise delimitation.
It varies with circumstances and conditions.
A regulatory zoning ordinance, which would be clearly
valid as applied to the great cities, might be clearly invalid
as applied to rural communities.
In solving doubts, the maxim 'sic utere tuo ut alienum
non laedas,' which lies at the foundation of so much of the
common low of nuisances, ordinarily will furnish a fairly
helpful clew. And
the law of nuisances, likewise, may be consulted, not for
the purpose of controlling, but for the helpful aid of its
analogies in the process of ascertaining 388 the scope of,
the power. Thus
the question whether the power exists to forbid the erection
of a building of a particular kind or for a particular use,
like the question whether a particular thing is a nuisance,
is to be determined, not by an abstract consideration of the
building or of the thing considered apart, but by considering
it in connection with the circumstances and the locality.
Sturgis v. Bridgeman, L. R. 11 Ch. 852, 865.
A nuisance may be merely a right thing in the wrong
place, like a pig in the parlor instead of the barnyard.
If the validity of the legislative classification for
zoning purposes be fairly debatable, the legislative judgment
must be allowed to control.
Radice v. New York, 264 U. S. 292, 294, 44 S. Ct. 325,
68 L. Ed. 690.
There
is no serious difference of opinion in respect of the validity
of laws and regulations fixing the height of buildings within
reasonable limits, the character of materials and methods
of construction, and the adjoining area which must be left
open, in order to minimize the danger of fire or collapse,
the evils of overcrowding and the like, and excluding from
residential sections offensive trades, industries and structures
likely to create nuisances.
See Welch v. Swasey, 214 U. S. 91, 29 S. Ct. 567, 53
L. Ed. 923; Hadacheck v. Los Angeles, 239 U. S. 394, 36 S.
Ct. 143, 60 L. Ed. 348, Ann. Cas. 1917B, 927; Reinman v. Little
Rock, 237 U. S. 171, 35 S. Ct. 511, 59 L. Ed. 900; Cusack
Co. v. City of Chicago, 242 U. S. 526, 529, 530, 37 S. Ct.
190, 61 L. Ed. 472, L. R. A. 1918A, 136, App. Cas. 1917C,
594.
Here, however, the exclusion
is in general terms of all industrial establishments, and
it may thereby happen that not only offensive or dangerous
industries will be excluded, but those which are neither offensive
nor dangerous will share the same fate.
But this is no more than happens in respect of many
practice-forbidding laws which this court has upheld, although
drawn in general terms so as to include individual cases that
may turn out to be innocuous in themselves.
Hebe Co. v. Shaw, 248 U. S. 297, 303, 39 S. Ct. 125,
63 L. Ed. 255; Pierce Oil Corp. v. City of Hope, 248 U. S.
498, 500, 39 S. Ct. 172, 63 L. Ed. 381.
The inclusion of a reasonable margin, to insure effective
enforcement, will not put upon a law, otherwise
389 valid, the stamp of invalidity.
Such laws may also find their justification in the
fact that, in some fields, the bad fades into the good by
such insensible degrees that the two are not capable of being readily distinguished
and separated in terms of legislation.
In the light of these considerations, we are not prepared
to say that the end in view was not sufficient to justify
the general rule of the ordinance, although some industries
of an innocent character might fall within the proscribed
class. It cannot
be said that the ordinance in this respect 'passes the bounds
of reason and assumes the character of a merely arbitrary
fiat.' Purity
Extract Co. v. Lynch, 226 U. S. 192, 204, 33 S. Ct. 44, 47
(57 L. Ed. 184). Moreover, the restrictive provisions of the
ordinance in this particular may be sustained upon the principles
applicable to the broader exclusion from residential districts
of all business and trade structures, presently to be discussed.
It is said that the village of
Euclid is a mere suburb of the city of Cleveland; that the
industrial development of that city has now reached and in
some degree extended into the village, and in the obvious
course of things will soon absorb the entire area for industrial
enterprises; that the effect of the ordinance is to divert
this natural development elsewhere, with the consequent loss
of increased values to the owners of the lands within the
village borders. But
the village, though physically a suburb of Cleveland, is politically
a separate municipality, with powers of its own and authority
to govern itself as it sees fit, within the limits of the
organic law of its creation and the state and federal Constitutions.
Its governing authorities, presumably representing
a majority of its inhabitants and voicing their will, have
determined, not that industrial development shall cease at
its boundaries, but that the course of such development shall
proceed within definitely fixed lines.
If it be a proper exercise of the police power to relegate
industrial establishments to localities
390
separated from residential sections,
it is not easy to find a sufficient reason for denying the
power because the effect of its exercise is to divert an industrial
flow from the course which it would follow, to the injury
of the residential public, if left alone, to another course
where such injury will be obviated.
It is not meant by this, however, to exclude the possibility
of cases where the general public interest would so far outweigh
the interest of the municipality that the municipality would
not be allowed to stand in the way.
We find no difficulty in sustaining
restrictions of the kind thus far reviewed.
The serious question in the case arises over the provisions
of the ordinance excluding from residential districts apartment
houses, business houses, retail stores and shops, and other
like establishments.
This question involves the validity of what is really
the crux of the more recent zoning legislation, namely, the
creation and maintenance of residential districts, from which
business and trade of every sort, including hotels and apartment
houses, are excluded.
Upon that question this court has not thus far spoken.
The decisions of the state courts are numerous and conflicting;
but those which broadly sustain the power greatly outnumber
those which deny it altogether or narrowly limit it, and it
is very apparent that there is a constantly increasing tendency
in the direction of the broader view.
We shall not attempt to review these decisions at length,
but content ourselves with citing a few as illustrative of
all.
As
sustaining a broader view, see Opinion of the Justices, 234
Mass. 597, 607, 127 N. E. 525; Inspector of Buildings of Lowell
v. Stoklosa, 250 Mass. 52, 145 N. E. 262; Spector v. Building
Inspector of Milton, 250 Mass. 63, 145 N. E. 265; Brett v.
Building Commissioner of Brookline, 250 Mass. 73, 145 N. E.
269; State v. City of New Orleans, 154 La. 271, 282, 97 So.
440, 33 A. L. R. 260; Lincoln Trust Co. v. Williams Bldg.
Corp., 229 N. Y. 313, 128 N. E. 209; City of Aurora v. Burns,
319 Ill. 84, 93, 149 N. E. 784; Deynzer v. City of Evanston,
319 Ill. 226, 149 N E. 790;
[391]
State ex rel. v. Houghton, 164 Minn.
146, 204 N. W. 569; State ex rel. Carter v. Harper, 182 Wis.
148, 157-161, 196 N. W. 451, 33 A. L. R. 269; Ware v. City
of Wichita, 113 Kan. 153, 214 P. 99; Miller v. Board of Public
Works, 195 Cal. 477, 486-495, 234 P. 381, 38 A. L. R. 1479;
City of Providence v. Stephens (R. I.) 133 A. 614.
For
the contrary view, see Goldman v. Crowther, 147 Md. 282, 128
A. 50, 38 A. L. R. 1455; Ignaciunas v. Risley, 98 N. J. Law.
712, 121 A. 783; Spann v. City of Dallas, 111 Tex. 350, 238
S. W. 513, 19 A. L. R. 1387.
As
evidence of the decided trend toward the broader view, it
is significant that in sime instances the state courts in
later decisions have reversed their former decisions holding
the other way. For
example, compare State ex rel. v. Houghton, supra, sustaining
the power, with State ex rel. Lachtman v. Houghton, 134 Minn.
226, 158 N. W. 1917, L. R. A. 1917F, 1050, State ex rel. Roerig
v. City of Minneapolis, 136 Minn. 479, 162 N. W. 477, and
Vorlander v. Hokenson, 145 Minn. 484, 175 N. W. 995, denying
it, all of which are disapproved in the Houghton Case (page
151 (204 N. W. 569)) last decided.
The
decisions enumerated in the first group cited above agree
that the exclusion of buildings devoted to business, trade,
etc., from residential districts, bears a rational relation
to the health and safety of the community.
Some of the grounds for this conclusion are promotion
of the health and security from injury of children and others
by separating dwelling houses from territory devoted to trade
and industry; suppression and prevention of disorder; facilitating
the extinguishment of fires, and the enforcement of street
traffic regulations and other general welfare ordinances;
aiding the health and
safety of the community, by excluding from residential
areas the confusion and danger of fire, contagion, and disorder,
which in greater or less degree attach to the location of
stores, shops, and factories.
Another ground is that the construction and repair
of streets may be rendered easier and less expensive, by confining
the greater part of the heavy traffic to the streets where
business is carried on.
392
The
Supreme Court of Illinois, in City of Aurora v. Burns, supra,
pages 93‑95 (149 N. E. 788), in sustaining a comprehensive
building zone ordinance dividing the city into eight districts,
including exclusive residential districts for one and two
family dwellings, churches, educational institutions, and
schools, said:
'The
constantly increasing density of our urban populations, the
multiplying forms of industry and the growing complexity of
our civilization make it necessary for the state, either directly
or through some public agency by its sanction, to limit individual
activities to a greater extent than formerly. With the growth
and development of the state the police power necessarily
develops, within reasonable bounds, to meet the changing conditions.
* * *
'*
* * The harmless may sometimes be brought within the regulation
or prohibition in order to abate or destroy the harmful.
The segregation of industries, commercial pursuits,
and dwellings to particular districts in a city, when exercised
reasonably, may bear a rational relation to the health, morals,
safety, and general welfare of the community.
The establishment of such districts or zones may, among
other things, prevent congestion of population, secure quiet
residence districts, expedite local transportation, and facilitate
the suppression of disorder, the extinguishment of fires,
and the enforcement of traffic and sanitary regulations.
The danger of fire and the of contagion are often lessened
by the exclusion of stores and factories from areas devoted
to residences, and, in consequence, the safety and health
of the community may be promoted.
* * *
'* * * The exclusion
of places of business from residential districts is not a
declaration that such places are nuisances or that they are
to be suppressed as such, but it is a part of the general
plan by which the city's territory is allotted to different
uses, in order to prevent, or at least to reduce, the congestion,
disorder, and dangers 393 which often
inhere in unregulated municipal development.'
The
Supreme Court of Louisiana, in State v. City of New Orleans,
supra, pages 282, 283 (97 So. 444), said:
'In the first place,
the exclusion of business establishments from residence districts
might enable the municipal government to give better police
protection. Patrolmen's
beats are larger, and therefore fewer, in residence neighborhoods
than in business neighborhoods.
A place of business in a residence neighborhood furnishes
an excuse for any criminal to go into the neighborhood, where,
otherwise, a stranger would be under the ban of suspicion.
Besides, open shops invite loiterers and idlers to congregate;
and the places of such congregations need police protection.
In the second place, the zoning of a city into residence
districts and commercial districts is a matter of economy
is street paving. Heavy
trucks, hauling freight to and from places of business in
residence districts, require the city to maintain the same
costly pavement in such districts that is required for business
districts; whereas, in the residence districts, where business
establishments are excluded, a cheaper pavement serves the
purpose. * * *
'Aside from considerations
of economic administration, in the matter of police and fire
protection, street paving, etc., any business establishment
is likely to be a genuine nuisance in a neighborhood of residences.
Places of business are noisy; they are apt to be disturbing
at night; some of them are malodorous; some are unsightly;
some are apt to breed rats, mice, roaches, flies, ants, etc.
* * *
'If the municipal
council deemed any of the reasons which have been suggested,
or any other substantial reason, a sufficient reason for adopting
the ordinance in question, it is not the province of the courts
to take issue with the council.
We have nothing to do with the question of the wisdom
or good policy of municipal ordinances.
If they are not satisfying to a majority of the citizens,
their recourse is to the ballot‑not the courts.'
394
The matter of zoning has received much attention at the hands
of commissions and experts, and the results of their investigations
have been set forth in comprehensive reports.
These reports which bear every evidence of painstaking
consideration, concur in the view that the segregation of
residential, business and industrial buildings will make it
easier to provide fire apparatus suitable for the character
and intensity of the development in each section; that it
will increase the safety and security of home life, greatly
tend to prevent street accidents, especially to children,
by reducing the traffic and resulting confusion in residential
sections, decrease noise and other conditions which produce
or intensify nervous disorders, preserve a more favorable
environment in which to rear children, etc.
With particular reference to apartment houses, it is
pointed out that the development of detached house sections
is greatly retarded by the coming of apartment houses, which
has sometimes resulted in destroying the entire section for
private house purposes; that in such sections very often the
apartment house is a mere parasite, constructed in order to
take advantage of the open spaces and attractive surroundings
created by the residential character of the district. Moreover,
the coming of one apartment house is followed by others, interfering
by their height and bulk with the free circulation of air
and monopolizing the rays of the sun which otherwise would
fall upon the smaller homes, and bringing, as their necessary
accompaniments, the disturbing noises incident to increased
traffic and business, and the occupation, by means of moving
and parked automobiles, of larger portions of the streets,
thus detracting from their safety and depriving children of
the privilege of quiet and open spaces for play, enjoyed by
those in more favored localities - until, finally, the residential
character of the neighborhood and its desirability as a place
of detached residences are utterly destroyed. Under these circumstances,
395
apartment houses, which in a different
environment would be not only entirely unobjectionable but
highly desirable, come very near to being nuisances.
If these reasons, thus
summarized, do not demonstrate the wisdom or sound policy
in all respects of those restrictions which we have indicated
as pertinent to the inquiry, at least, the reasons are sufficiently
cogent to preclude us from saying, as it must be said before
the ordinance can be declared unconstitutional, that such
provisions are clearly arbitrary and unreasonable, having
no substantial relation to the public health, safety, morals,
or general welfare.
Cusack Co. v. City of Chicago, supra, pages 530-531
(37 S. Ct. 190); Jacobson v. Massachusetts, 197 U. S. 11,
30-31, 25 S. Ct. 358, 49 L. Ed. 643, 3 Ann. Cas. 765.
It
is true that when, if ever, the provisions set forth in the
ordinance in tedious and minute detail, come to be concretely
applied to particular premises, including those of the appellee,
or to particular conditions, or to be considered in connection
with specific complaints, some of them, or even many of them,
may be found to be clearly arbitrary and unreasonable.
But where the equitable remedy of injunction is sought,
as it is here, not upon the ground of a present infringement
or denial of a specific right, or of a particular injury in
process of actual execution, but upon the broad ground that
the mere existence and threatened enforcement of the ordinance,
by materially and adversely affecting values and curtailing
the opportunities of the market, constitute a present and
irreparable injury, the court will not scrutinize its provisions,
sentence by sentence, to ascertain by a process of piecemeal
dissection whether there may be, here and there, provisions
of a minor character, or relating to matters of administration,
or not shown to contribute to the injury complained of, which,
if attacked separately, might not withstand the test of constitutionality.
In respect of such provisions, of which specific complaint
is not 396
made, it cannot be said that the landowner
has suffered or is threatened with an injury which entitles
him to challenge their constitutionality.
Turpin v. Lemon, 187 U. S. 51, 60, 23 S. Ct. 20, 47
L. Ed. 70. In
Railroad Commission Cases, 116 U.S. 307, 335-337, 6 S. Ct.
334, 388, 1191, 29 L. Ed. 636, this court dealt with an analogous
situation. There
an act of the Mississippi Legislature, regulating freight
and passenger rates on intrastate railroads and creating a
supervisory commission, was attacked as unconstitutional.
The suit was brought to enjoin the commission from
enforcing against the plaintiff railroad company any of its
provisions. In
an opinion delivered by Chief Justice Waite, this court held
that the chief purpose of the statute was to fix a maximum
of charges and to regulate in some matters of a police nature
the use of railroads in the state. After sustaining the constitutionality
of the statute 'in its general scope' this court said:
'Whether in some
of its details the statute may be defective or invalid we
do not deem it necessary to inquire, for this suit is brought
to prevent the commissioners from giving it any effect whatever
as against this company.'
Quoting
with approval from the opinion of the Supreme Court of Mississppi,
it was further said:
'Many questions
may arise under it not necessary to be disposed of now, and
we leave them for consideration when presented.'
And
finally:
'When the commission
has acted and proceedings are had to enforce what it has done,
questions may arise as to the validity of some of the various
provisions which will be worthy of consideration, but we are
unable to say that, as a whole, the statute is invalid.'
The
relief sought here is of the same character, namely, an injunction
against the enforcement of any of the restrictions, limitations,
or conditions of the ordinance.
And the gravamen of the complaint is that a portion
of the land of the appellee cannot be sold for certain enumerated
*397 uses because of the general
and broad restraints of the ordinance.
What would be the effect of a restraint imposed by
one or more or the innumerable provisions of the ordinance,
considered apart, upon the value or marketability of the lands,
is neither disclosed by the bill nor by the evidence, and
we are afforded no basis, apart from mere speculation, upon
which to rest a conclusion that it or they would have any
appreciable effect upon those matters.
Under these circumstances, therefore, it is enough
for us to determine, as we do, that the ordinance in its general
scope and dominant features, so far as its provisions are
here involved, is a valid exercise of authority, leaving other
provisions to be dealt with as cases arise directly involving
them.
And this is in accordance with
the traditional policy of this court.
In the realm of constitutional law, especially, this
court has perceived the embarrassment which is likely to result
from an attempt to formulate rules or decide questions beyond
the necessities of the immediate issue.
It has preferred to follow the method of a gradual
approach to the general by a systematically guarded application
and extension of constitutional principles to particular cases
as they arise, rather than by out of hand attempts to establish
general rules to which future cases must
be fitted. This
process applies with peculiar force to the solution of questions
arising under the due process clause of the Constitution as
applied to the exercise of the flexible powers of police,
with which we are here concerned.
Decree
reversed.
Mr.
Justice VAN DEVANTER, Mr. Justice McREYNOLDS, and Mr. Justice
BUTLER dissent.
|
