Argument for Plaintiff in Error.

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Tyler and Mr. Owen D. Young were on the brief, for plaintiff in error:

The first point in the argument of the plaintiff in error is that the purpose of these acts is not within the sphere of purposes for which the police power may lawfully be exercised.

The court will look to the real purpose of the statute. Watertown v. Mayo, 109 Massachusetts, 315, 319; Austin v. Murray, 16 Pick. 121, 126; State v. Redmon, 134 Wisconsin, 89, 107; Mugler v. Kansas, 123 U. S. 623, 661; Brimmer v. Rebman, 138 U. S. 78, 82; Yick Wo v. Hopkins, 118 U. S. 356; Soon Hing v. Crowley, 113 U. S. 703, 710; People v. Compagnie Generale Transatlantique, 107 U. S. 59, 63; Henderson v. Mayor of New York, 92 U. S. 259; Cal. Reduction Co. v. Sanitary Wks., 199 U. S. 306; Health Dept. v. Rector, 145 N. Y. 32, 40; Matter of Jacobs, 98 N. Y. 98, 110; Farist Steel Co. v. Bridgeport, 60 Connecticut, 278, 292; Priewe v. Wisconsin &c. Imp. Co., 103 Wisconsin, 537, 549.

In determining what is the real purpose of the statute, the court will consider the history of the times and the circumstances leading up to its enactment. Holy Trinity Church v. United States, 143 U. S. 457.

The purpose may also be inferred from the terms of the act itself. Lochner v. New York, 198 U. S. 45; Talbot v. Hudson, 16 Gray, 417, 420; Simpson v. Story, 145 Massachusetts, 497, 498; Pollock v. Farmers L. & T. Co., 157 U. S. 429, 558 et seq.; Farist Steel Co. v. Bridgeport, 60 Connecticut, 278.

The real purpose of these acts was æsthetic.

This appears from the circumstances under which they were passed. Contemporaneous statutes and contemporaneous litigation, tend to the conclusion that they were aimed not at dangers to the public health, safety, morals or well-being, but that they were designed purely for purposes which may be called æsthetic, to preserve architectural symmetry and regular sky-lines.

The first act was passed in the legislative session of 19031904, very shortly after the decisions by the Supreme Judicial

214 U.S.

Argument for Plaintiff in Error.

Court of Massachusetts and by this court sustaining the statutes which limited the height of buildings in the vicinity of Copley Square and upon Beacon Hill as lawful exercises of the power of eminent domain. Attorney-General v. Williams, 174 Massachusetts, 476 (October, 1899); Parker v. Commonwealth, 178 Massachusetts, 199 (March, 1901); Attorney-General v. Williams, 178 Massachusetts, 330 (March, 1901); Williams v. Parker, 188 U. S. 491 (February, 1903).

The police power cannot properly be exercised for an æsthetic purpose.

Although property may be taken by right of eminent domain for æsthetic purposes,-Higginson v. Nahant, 11 Allen, 530; Attorney-General v. Williams; 174 Massachusetts, 476,—that purpose is not sufficient to warrant the exercise of the police power in such manner as to interfere with the use of property. Commonwealth v. Boston Ad. Co., 188 Massachusetts, 348; St. Louis v. Hill, 116 Missouri, 527; St. Louis v. Dorr, 145 Missouri, 466; People v. Green, 85 App. Div. (N. Y.) 400; Bostock v. Sams, 95 Maryland, 400; Posting Sign Co. v. Atlantic City, 71 N. J. L. 72; Passaic v. Patterson Bill Post. Co., 72 N. J. L. 285; Chicago v. Gunning System, 214 Illinois, 628; Article on "Public Æsthetics," by Wilbur Larremore, in Harvard Law Review, November, 1906, p. 42.

The infringement upon rights of property involved in these acts is unreasonable.

The principle of reasonableness is a principle of proportionateness. The courts appear to have adopted the principle that the legislative acts under the police power, when affecting private rights, must have "some fair and reasonable relation of means to end which courts can see and admit the force of," and that the infringement of rights must bear a reasonable relation to the public necessity, i. e., the measure must be proportionate to the end in view. Ex parte Whitwell, 98 California, 73; State v. Speyer, 67 Vermont, 502; Commonwealth v. Tewksbury, 11 Met. 55, 57; Cooley on Constitutional Limitations (7th ed.), 878; Miller v. Horton, 152 MassachuVOL. CCXIV-7

Argument for Plaintiff in Error.

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setts, 540, 547; State v. Ashbrook, 154 Missouri, 375; People v. Gillson, 109 N. Y. 389, 403; Health Department v. Rector, 145 N. Y. 32; Matter of Jacobs, 98 N. Y. 98, 110; Mugler v. Kansas, 123 U. S. 623; Chicago &c. Ry. v. Drainage Commissioners, 200 U. S. 561, 593; Railway Co. v. Husen, 95 U. S. 465; Sawyer v. Davis, 136 Massachusetts, 239; Rideout v. Knox, 148 Massachusetts, 368.

Any regulation which deprives any person of a profitable use of his property constitutes a taking of property, and entitles him under the Constitution to compensation, unless the invasion of rights is so slight as to permit the regulation to be justified under the police power. Pumpelly v. Green Bay Co., 13 Wall. 166, 179; United States v. Lynah, 188 U. S. 445; Sweet v. Rechel, 159 U. S. 380, 399; Eaton v. Boston &c. R. R., 51 N. H. 504; Bent v. Emery, 173 Massachusetts, 495; Grand Rapids v. Jarvis, 30 Michigan, 308, 320, 321; Matter of Jacobs, 98 N. Y. 98, 105, 106; Edwards v. Bruorton, 184 Massachusetts, 529, 532, 533; Holmes, J., in Miller v. Horton, 152 Massachusetts, 540, 547.

The legislature of Massachusetts in the previous statutes limiting the height of buildings about Copley Square in Boston to the height of ninety feet, and on Beacon Hill, in the vicinity of the State House, in Boston, to a height of seventy feet, recognized that such a regulation involved a taking of property, Stats. 1898, ch. 452; Stats. 1899, ch. 457, and the Supreme Court of Massachusetts, in the decisions sustaining those statutes as exercises of the power of eminent domain, likewise recognized this fact. Attorney-General v. Williams, 174 Massachusetts, 476; Parker v. Commonwealth, 178 Massachusetts, 199; Attorney-General v. Williams, 178 Massachusetts, 330.

Even if the statutes were enacted for some object properly within the scope of the police power, they involve an invasion of private rights which is entirely disproportionate to any of the objects which the legislature might properly have had in view.

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Argument for Plaintiff in Error.

The only objects, aside from the aesthetic, which it is at all conceivable might have been in view of the legislature, are the public health or safety, and no public necessity existed for either of those objects sufficient to justify the measures.

The experience of other cities with buildings much higher than anyone has yet desired to build in Boston, and much higher than the limits fixed by these statutes, goes very strongly to show that the danger of injury to health and the danger from fire where tall buildings are properly constructed are very slight.

Even if the object or purpose of these acts was within the legitimate sphere of purposes. permissible to the police power, yet the classification adopted has no proper relation to either of the possible ostensible objects, but is arbitrary and unreasonable. The constitutional provision for equal protection of the laws means that all persons are to be treated alike. It contemplates the right of the legislature to make reasonable classifications, and the protection given by the law is considered equal if all persons within the classes thus established are treated alike under like circumstances and conditions. Missouri v. Lewis, 101 U. S. 22; Magoun v. Illinois Savings Bank, 170 U. S. 283, 293; Barbier v. Connolly, 113 U. S. 27, 31; Hayes v. Missouri, 120 U. S. 68, 71.

The classification adopted must be a reasonable one, with reference to the purpose for which the statute is enacted; it cannot be arbitrary. Gulf &c. Ry. v. Ellis, 165 U. S. 150, 159, 165; Connolly v. Union Sewer Pipe Co., 184 U. S. 540, 560; Atchison &c. R. R. v. Mathews, 174 U. S. 96, 104; Heath & Milligan v. Worst, 207 U. S. 338.

So far as it may be desirable to do so, the court will take judicial notice of facts of common knowledge, of the location of the lines drawn by the commission, of the situation of various streets, and of the character of the various districts and localities of the city. Brimmer v. Rebman, 138 U. S. 78; Minnesota v. Barber, 136 U. S. 313, 321; Jacobson v. Massachusetts, 197 U. S. 11, 23; Muller v. Oregon, 208 U. S. 412, 421;

Argument for Plaintiff in Error.

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Siegbert v. Stiles, 39 Wisconsin, 533; The Montello, 11 Wall. 411; Gardner v. Eberhart, 82 Illinois, 316; Prince v. Crocker, 166 Massachusetts, 347.

The situtation and character of the various districts and localities of the City of Boston being matters of common knowledge, of which the Supreme Judicial Court of Massachusetts would and did take notice, this court is authorized to do likewise as, upon writ of error, it takes judicial notice of all matters which were matters of law in the state court. By analogy, therefore, this court should notice judicially all matters not required to be proved as facts in the state court, including matters of judicial notice. Matters of judicial notice are matters of law.

The classification attempted in these statutes is arbitrary and is not considered with a purpose to safeguard either the public health or the public safety.

They are special laws, applying only to Boston, and while a reasonable classification of cities may be made, it must be based upon some real difference with reference to the purposes of the act. Tenement House Department v. Moeschen, 179 N. Y. 325; Watertown v. Mayo, 109 Massachusetts, 315; State v. Hammer, 42 N. J. Law, 435, 440; Bessette v. People, 193 Illinois 334.

The classification attempted within the City of Boston is not based upon reasonable grounds. Yick Wo v. Hopkins, 118 U. S. 356, 368; Newton v. Belger, 143 Massachusetts, 598.

The statute gives exceptional rights to property holders in district B whose property is situated within fifty feet of the division line established, provided they also own land on the other side of the division line.

It is provided that the height of buildings in district B above eighty feet shall depend upon the width of the building upon the street.

The statutes create exceptions in favor of certain occupations. Connolly v. Union Sewer Pipe Co., 184 U. S. 540.