Welch v. Swasey

after making the foregoing statement, delivered the opinion of the court.

The ground of objection of plaintiff in error to this legisla-' tion is that the statutes unduly and unreasonably infringe upon his constitutional rights, (a) .As to taking of property without compensation; (6) As to denial of equal protection of the laws.

- Plaintiff in error refers to the existence óf a general law in Massachusetts applicable to every city therein, limiting the height of all buildings to. one hundred and twenty-five feet above the grade of the street (acts of 1891, ch. 355), and states that he does hot attack the validity of that act in any respect, but concedes that' it is constitutional and valid.- See also on same subject acts of 1892, ch. 419,- § 25, making such- limitar tion as to the City of Boston. His objection is directed to the particular statutes, because they provide for a much lower limit in certain parts of the City of Boston, to be designated by a commission, and because á general restriction ..of height as' low as eighty or one hundred feet over any substantial portion of the city is, as he, contends,'an .unreasonable infringement upon his rights of property; also that.the;application of.those limits to districts B, which comprise the greater part of the City of'Boston, leaving thg general one hundred and twenty-five feet limit in force in those portions, of the city,'which *104 the commission should designate (being the commercial districts), is an unreasonable and arbitrary denial of equal rights, to the- plaintiff in-error and others in like situation.

Stating his objections more in detail, the plaintiff in error contends that-the purposes of the acts are not such as justify the exercise .Of what is -termed the police power, because, in .fact,, their real-purpose was of an' aesthetic nature, designed purely to preserve architectural symmetry and regular skylines, and that such power cannot be exercised for such a purpose.- It is' further objected that the. infringement upon property rights by these- acts is unreasonable and dispróportioned to any public-necessity, and also that the distinction between one hundred! and twenty-five feet for the height of buildings in the commercial districts described in the ácts, and eighty to one hundred feet in certain other or so-called residential districts, is wholly unjustifiable and .arbitrary,- having no weljfounded reason for such distinction, and is without the least reference to the public safety, -as. from fire, and inefficient-as means to any appropriate end,to be attained by such laws.

In relation to these óbjéctions the counsel' for the plaintiff in error, in presenting -his case at bar, made a very- clear and able argument. ,

' Undér the concession'of counsel, that the law limiting the height of' buildings to one hundred and twenty-five feet is valid, we have-to deal only, with the.question of the validity of the provisions stated in these statutes and in the conditions provided for by .the commissions, limiting the. 'height in districts B betwéen eighty and one hundred feet.

We do not understand that the plaintiff in’error makes the objection of illegality arising from an alleged-delegation Of legislative power to the commissions provided for by the statutes. At all events, it does not raise a Federal question: The state court-holds'that. kind' of legislation to be valid under the state constitution and this :court-will follow its determination upon that question-

Wé come, then, to an examination of the question whether *105 these statutes with reference tq limitations on height between eighty and one hundred feet and in no case greater than one hundred feet aré valid. Theré is here a discrimination or clas^ sification between sections of the city, one of which, the business or .commercial part, has a limitation of one hundred and twenty-five feet, .and the other, used for residential purposes, has apermitted héight of buildings from eighty to one hundred feet.

' The statutes have beén passed under the exercise of so-. .called- police power, and- they must haye some fair tendency to accomplish, or aid in the accomplishment of some purpose, for -which,the legislature may. use the power. If the statutes are not of that kind, thén their passage cannot be justified under .that power. These principles have been so frequently decided as not1 to require the ..citation of many authorities. If the means employed, pursuant to the statute, have no real, substantial relation to a public object which government can accomplish; if the statutes are -arbitrary and Unreasonable and' beyond the necessities of the case; the courts'will declare their -invalidity. The following are a few of the many -cases upon this subject: Mugler v. Kansas, 123 U. S. 623, 661; Minnesota v. Barber, 136 U.S. 313, 32 0; Jacobson v. Massachusetts, 1 97 U. S. 11, 28; Lochner v. New York, 198 U. S. 45, 57; Chicago Railway Compan y v. Drainage Commissioners, 200 U. S. 561, 593.

•' In passing upon questions of this character as to the válidity and reasonableness of-a discrimination or, classification in re,lation to limitations as’to height of buildings in-a large city, the matter of locality assumes an important aspect. The particular. circumstances prevailing at the place or in the. State where the law is to become operative; whether the statute is really adapted, regard being had to all the different and material facts, to-bring about the.results desired from its passage; .whether it is well Calculated to promote, the general and’public welfare, are all matters which the state court is familiar with, but adike' familiarity cannot be ascribed to this court, assum *106 ing judicial notice', may be taken of what is or ought to be generally known: For such reason this court, in cases of this kind, feels .the greatest reluctance in interfering with the well-considered judgments of the courts of a State whose people are to-be affected by the operation of the "law. The highest court of the State, in.which statutes of ¡the kind under consideration áre passed -is more familiar with the particular, causes which, led to their passage - (although they may bé of a public nature) .and with-the general situation'surrounding the subject-matter of the legislation than this court can'póssibly be.- We do not, of course, intend to-say that under-such circumstances the judgment of the state court upon the question will be regarded as conclusive, but simply that it is entitled to'the very greatest respect, and will only be interfered-with, in cases of this kind, where the decision is, in our judgment, plainly-wrong. In this case-the Supreme Judicial Court of the State holds the legislation valid, and -that there is'a fair reason for the discriminar tion between the-height of buildings in the residential as compared with the commercial districts. That court has also held that regulations in regard to the height of buildings, and in regard to their mode-of construction-in cities, made by legislative enactment's for the safety, comfort or convenience of the people and for the benefit of property owners generally, are valid. Attorney-General v. Williams, 174 Massachusetts, 476. We, concur in that view, assuming, of course, that the height and conditions, provided for can -be plainly seen to be not unreasonable or inappropriate.-

. In relation to thé discrimination or classification made between the commerciál and the residential'portion of the city, the state' court holds in this case that there is reasonable ground therefor, in the very great valué of'the land and the demand for' space in those parts of Boston where a greater number of buildings áre used for the purposes of business or commercially’than'where;the buildings are'situated'-in the residential portion of 'the city, and-where no such' reasons exist for high buildings. While so deciding the court cited, with *107 approval, Commonwealth v. Boston Advertising Company, 188 Massachusetts, 348, which holds that the police power cannot be .exercised for a merely'testhetic purpose. The court distinguishes between the two cases and sustains the present statutes. As to the condition adopted by the commission for permitting the erection, in either of the districts B, that is, the residential portion', of buildings of oyer eighty feet,, but never more than one hundred, that the width, on each and every public street on which the building-stands shall be at least one-half its height, the court refuses to hold that Such ..condition was entirely for aesthetic reasons. The Chief Justice said: “We conceive that the safety of adjoining buildings, in view of the risk of the falling of wálls after a fire, may have entered-into the purpose of the commissioners. We are of opinion that the statutes and orders of the commissioners are constitutional.”'

We . are not prepared to hold that this limitation of eighty to one hundred feet, while in fact a discrimination or classification, is so unreasonable that it deprives the owner of the property, of its profitable use without justification, and that-he is therefore entitled under the Constitution to compensation for such invasion of his rights. The discrimination thus: made is, as we think, reasonable, and is justified by the police power.

. It might well be supposed that taller buildings in the commercial- section of the city might be less dangerous in case of fire than in the residential portion. This court is not 1 familiar with the actual facts, but it may be that in this limited commercial area fhe high buildings are generally of fireproof construction ; that the fire engines are more numerous and much closer togéther than in the residential portion, and that an unlimited supply of salt water cambe more readily introduced from the harbor into the pipes, and that few women or. children are .found there in the daytime and very few people sleep there at night. And there may in -the residential part be more wooden buildings, the fire apparatus may be more ■ widely ’ scattered and .so situated that it would 'be more difficult to obtain the necessary amount of; water, as the residence quar *108 ters are more, remote from the water front, and that many women and children spend the day in .that!section, and the.' opinion is not sprained that an undiscovered fire at night might cause great loss of life in a very high apartmfent house in that district. These áre matters which it must be presumed were known by the legislature, and whether or not such were the facts was a question, among others, for the legislature to determine. They are asserted as facts in -the brief of the' counsel for the City of Boston. If they are, it would seem that, ample justification is therein found for the passage of the statutes; and that the plaintiff in error is not entitled tp compensation for the reasonable interference -with his, property rights by the statutes. That in addition to these sufficient facts, considerations of an ¿esthetic nature also entered into the reasons for,their passage, would not invalidate them. Under these circumstances there .is no unreasonable interference with the rights of property of the' plaintiff in error, nor do the statutes deprive him of the equal protection of the laws. The reasons contained in the opinion of the state court are in our view sufficient to justify their ’enactment. The judgment is therefore .

Affirmed.