214 U.S.

Argument for Defendant in Error.

Mr. Thomas M. Babson for defendant in error:

The first question is whether an act limiting the height of buildings is constitutional at all. The statute was enacted, according to the decision of the Supreme Judicial Court of the State, in behalf of the public health and safety, and the Su'preme Court of the United States will not strike it down as an unconstitutional interference with private property unless it can plainly see that it has no real and substantial relation to those objects and is a mere arbitrary attack upon the owners of land. Slaughter-House Cases, 16 Wall. 36; Bartemeyer v. Iowa, 18 Wall. 129; Munn v. Illinois, 94 U. S. 113; Beer Co. v. Massachusetts, 97 U. S. 25; Barbier v. Connolly, 113 U. S. 27; Mugler v. Kansas, 123 U. S. 623; Powell v. Pennsylvania, 127 U. S. 678; Lawton v. Steele, 152 U. S. 133; Holden v. Hardy, 169 U. S. 366; Fischer v. St. Louis, 194 U. S. 361; Reduction Co. v. Reduction Works, 199 U. S. 306; Bacon v. Walker, 204 U. S. 311; Hudson County Water Co. v. McCarter, 209 U. S. 349.

The right of the State to regulate the construction of buildings has been recognized and exercised ever since the population of our cities became dense enough to make regulation desirable and necessary for the protection of the inhabitants from fire and disease. Ex parte Fiske, 72 California, 125; Baumgartner v. Hasty, 100 Indiana, 575; Mt. Vernon First National Bank v. Sarlls, 129 Indiana, 201; Wadleigh v. Gilman, 12 Maine, 403; Easton v. Covey, 74 Maryland, 262; Watertown v. Mayo, 109 Massachusetts, 315; Salem v. Maynes, 123 Massachusetts, 372; Brady v. Northwestern Insurance Co., 11 Michigan, 425; New York Fire Department v. Gilmour, 149 N. Y. 453; Rochester v. West, 164 N. Y. 510; Republica v. Duquet, 2 Yeates (Pa.), 493; Douglass v. Commonwealth, 2 Rawle (Pa.), 262; Klinger y. Bickel, 117 Pa. St. 326; City Council v. Elford, 1 McMullan (S. C.), 234; Knoxville v. Bird, 12 Lea (Tenn.), 121; Baxter v. Seattle, 3 Washington, 352; Charlestown v. Reed, 27 W. Va. 681.

Until the introduction within recent years of steel frame

Argument for Defendant in Error.

214 U.S.

construction, very tall buildings were not practicable, and it is only lately that there has been any need of legislation restricting the height of buildings, for the natural difficulties were formerly sufficient protection to the public.

In determining whether a state statute is aimed and adapted to promote the public welfare, this court will hesitate to overturn a decision of the highest court of the State. The validity of the statute may depend on certain facts, general, notorious and acknowledged within the State, and with which the state courts may be assumed to be exceptionally familiar. They understand the situation which led to the demand for the enactment of the statute, and they appreciate the disastrous results which in all probability would flow from a denial of its validity. Clark v. Nash, 198 U. S. 361; Strickley v. Highland Boy Mining Co., 200 U. S. 527; Bacon v. Walker, 204 U. S. 311.

What is a reasonable regulation in one city might be unreasonable in another. The Massachusetts legislature has deemed this restriction wise, and its highest court has called it reasonable; their decision should carry great weight.

Plaintiffs in error are not entitled to compensation because there was no taking of this property. This court has never accepted the fanciful doctrine that whatever decreases the value of land is the taking, pro tanto, of the owner's property and so unconstitutional unless he is paid for the damage, but has steadfastly adhered to the older and sounder rule that land is not taken unless it is physically entered upon or the owner substantially deprived of the beneficial use. Smith v. Washington, 20 How. 135; Transportation Company v. Chicago, 99 U. S. 635; Osborne v. Missouri Pacific R. R. Co., 147 U. S. 248; Gibson v. United States, 166 U. S. 275; Meyer v. Richmond, 172 U: S: 95; Sharp v. United States, 191 U. S. 341; Bedford v. United States, 192 U. S. 217.

Regulations and restrictions upon the use of real property have been imposed which limit its use and impair its value more severely than those in the case at bar without giving rise to any constitutional obligation to compensate the owner.

Slaughter-House Cases, 16 Wall. 36; Beer Co. v. Massachusetts, 97 U. S. 25; Fertilizing Co. v. Hyde Park, 97 U. S. 659; Barbier v. Connolly, 113 U. S. 27; Mugler v. Kansas, 123 U. S. 623; Fischer v. St. Louis, 194 U. S. 361.

There is no requirement in the Fourteenth Amendment or elsewhere in the Constitution that the laws of a State be uniform in their application throughout the State. Missouri v. Lewis, 101 U. S. 22; Hayes v. Missouri, 120 U. S. 68; Budd v. New York, 143 U. S. 517, 548; Gardner v. Michigan, 199 U. S.

325.

MR. JUSTICE PECKHAM, after making the foregoing statement, delivered the opinion of the court.

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

Plaintiff in error refers to the existence of 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 not 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 limitation 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 a 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 the general one hundred and twentyfive feet limit in force in those portions of the city, which

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 æsthetic 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 disproportioned 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 acts, and eighty to one hundred feet in certain other or so-called residential districts, is wholly unjustifiable and arbitrary, having no wellfounded 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 objections the counsel for the plaintiff in error, in presenting his case at bar, made a very clear and able argument.

Under 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 between 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.

We come, then, to an examination of the question whether

these statutes with reference to limitations on height between eighty and one hundred feet and in no case greater than one hundred feet are valid. There is here a discrimination or classification 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 a permitted height of buildings from eighty to one hundred feet.

The statutes have been passed under the exercise of socalled police power, and they must have 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, then their passage cannot be justified under that power. These principles have been so frequently decided as not 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, 320; Jacobson v. Massachusetts, 197 U. S. 11, 28; Lochner v. New York, 198 U. S. 45, 57; Chicago Railway Company v. Drainage Commissioners, 200 U. S. 561, 593.

In passing upon questions of this character as to the validity and reasonableness of a discrimination or classification in relation 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 a like familiarity cannot be ascribed to this court, assum