chapter 333 of the statutes of 1904, was empowered merely to divide the

city of Boston into districts of two classes in such manner that the parts of the city in which the greater part of the buildings were used for business or commercial purposes should be included in District A and the rest of the city in District B. The statute itself prescribed the limit of 125 feet for buildings in District A and further provided that in District B no buildings should be over 80 feet. Under a later act, chapter 383 of the statutes of 1905, the commission was empowered to designate that part of District B where buildings exceeding 80 feet and not exceeding 100 feet could be erected; and there was a further provision in this act which limited the height of buildings in certain designated districts to 70 feet. The commission’s first report fixed the boundaries of District A, and the second report regulated the height of buildings in District B in accordance with the width of the street and the width of the building. On all streets over 64 feet wide the buildings could be erected to one and one-half times the width of the street up to 100 feet, provided that their height did not exceed twice their narrowest width.

Boston’s several zones are more highly differentiated than even those of Köln, but the Köln regulations are much more severe than the most drastic of the Boston provisions. Thus Boston has a narrowly limited business zone and several other zones differing, not in accordance with the distance from the business center, but in accordance with the width of the street and width of the buildings. The commission’s report and the decisions of both the state and federal courts sustaining it are unique in the United States. The court held that in the exercise of the police power the legislature could determine an absolute height limitation for all buildings in the city, and could delegate to a commission the right to fix the boundaries of building districts and to establish varying height limitations in one of these districts.[131]

This decision has been generally accepted as of great importance in working out some of the details of city planning. There is not involved in it the question of the amount of space which can be occupied by buildings in the different building districts, and for this reason the decision is not a complete precedent for the introduction of the zoning system of Germany in the United States, but it is likely that the Massachusetts court would uphold an ordinance framed to include all the details of the Köln system.

If the legislature can establish two building districts it certainly can establish three or even four. If its authority to delegate to a commission power to regulate the height of buildings in each district is sustained by the courts on the ground that it is a reasonable way of securing an adequate amount of light and air, it should follow that the power to regulate the amount of space that each building may occupy in a horizontal direction can also be delegated. Building codes prescribe the distance between buildings or the open space which must attach to each building, and this regulation is sanctioned by the decisions. It is as logical to provide a larger proportion of open space in districts where the demand for land is less as it is to provide less height for buildings in such districts. An ordinance which prescribes for different building districts varying amounts of land which may be occupied, as well as varying heights of buildings, is much more calculated to lessen the fire risk and to safeguard the health of the community than one which is operative only in the area of greatest land values and most congested occupancy. The burden is on the private owner to show that the legislative act is unreasonable. That the courts will be slow to declare unreasonable the legislative finding has been established in numerous decisions, and applying this test of reasonableness to an ordinance which would include the principle of the zone system of Köln it is difficult to see how it could be successfully questioned.

It is quite another question whether it would be expedient to introduce such an ordinance. Local conditions might be such that property owners would be right in refusing to entrust so important a question to a municipal administration or to a commission appointed by that administration. In purchasing lots they may cheerfully submit to the restrictions imposed by a land company, no matter how much their rights are curtailed. They may agree to set back their buildings 20 feet from the line of their property; they may agree to build nothing on the land except a dwelling house of certain value and to have the rest of it set out in gardens, and even to submit the position and design of their houses, hedges, fences, and gates for approval to a small committee representing the vendors of the tract. Such restrictions, when drawn to meet the conditions of the real estate market, attract buyers rather than repel them, because these restrictions upon the liberty of individual lot owners protect each against the danger of certain injurious actions by any neighbors. Yet a suggestion of control from municipal authorities might raise a strong protest. It is an interesting speculation whether some form of district building regulations subject to a referendum within each district will not meet American conditions successfully.

LIMITATIONS ON THE DEGREE TO WHICH THE OFFENSIVE USE OF LAND MAY BE CARRIED

The right of the municipality in any given case to suppress uses of land depends on the language of its charter, but under a universal charter provision a municipality may protect the general welfare of its people, and many uses of land are enjoined under this general power.

1. USES OF LAND WHICH IMPAIR THE FREE USE OF A PUBLIC HIGHWAY

Encroachments on the highway of signs, awnings, posts, porches, stoops, stands, and so forth, are generally included among those offensive uses of land which are prohibited in the exercise of the police power. If their use obstructs the street or diminishes the space available for walking, or impedes traffic, they may be abated or indicted as nuisances, and it is not necessary that the comfort of the public should be interfered with materially.[132]

But the right of suppression is as well put on other grounds. The municipality either owns the land in the highway or possesses an easement in the land for highway purposes, and can prohibit by virtue of this ownership any use inconsistent with those purposes. The case of the Fifth Avenue Coach Co. _vs._ City of New York, 111 N. Y. Supp. 759, is in point.[133] The action was brought by the plaintiff coach company to enjoin New York City from interfering with advertising signs displayed on the outside of their auto stages which travel on Fifth Avenue. The court denied the injunction on the ground that the plaintiff did not show a clear right to warrant the interference of the court, since the ordinance of the city under which the advertising of the plaintiff company was prohibited was a reasonable regulation of the use of the street and did not operate to impair the plaintiff’s franchise. In discussing the nature of the plaintiff’s advertising business, however, the court said:

“It is along the entrance to parks and along the parks themselves preserved to attract lovers of nature and the beautiful that these unnatural and inartistic moving picture signs are displayed. But out of place, disagreeable and offensive though they are both to the civic pride and esthetic taste, and although the tendency of equitable jurisprudence is to extend its jurisdiction to include this situation, the fact remains that no authority now exists which will justify the legal conclusion that the plaintiff’s signs now constitute a nuisance.”

The decision shows a tendency to give increasing regard to esthetic considerations, since it holds the ordinance a reasonable street regulation. In the same way, without resorting to the police power, the municipality may regulate the use of streets for poles and wires, and may compel the placing of wires underground as a condition of the franchise.

2. USES OF LAND WHICH CONSTITUTE A NUISANCE

A use of land which is inherently unlawful and unprofitable and dangerous to the safety and health or offensive to the morals of a community may be treated as a nuisance, _per se_. Rotten or decayed food or meat, infected bedding or clothing, mad dogs, animals affected with contagious diseases, and imminently dangerous structures, are conspicuous instances of nuisances _per se_. Such conditions may be summarily abated without previous notice. A use of land which does not in itself constitute a nuisance, but may become so by reason of its locality or the conditions surrounding its maintenance, may be prohibited altogether or confined to certain parts of a municipality.

Certain occupations are so generally recognized as belonging to the objectionable class, either because of the odors or noises which are inseparable from them, although conducted in the most careful manner, that they are specifically named in municipal charters as nuisances which the municipality may abate. Thus, slaughter houses, glue factories, soap factories, canning factories, smelting works, rendering establishments, stables, and fertilizer factories are generally included in this class.[134] Some of these ordinances have been tested by the courts and found to be a reasonable exercise of the police power:

Rendering establishments: Grand Rapids _vs._ Weiden, 97 Mich. 82 Meigs _vs._ Lister, 23 N. J. Eq. 199 Slaughterhouses: Harmison _et al._ _vs._ City of Lewiston, 46 Ill. App. 164 Ex parte Heilbron, 65 Cal. 609 Beiling _vs._ City of Evanston, 144 Ind. 644 Smelting works: Appeal of Pa. Lead Co., 96 Pa. 116 Stables: Shiras _vs._ Olinger, 50 Ia. 571 Fertilizer factories: Evans _vs._ Fertilizer Co., 160 Pa. 209 The emission of dense smoke: People _vs._ Lewis, 86 Mich. 273 Atlantic City _vs._ France, 74 N. J. Law 389 Harmon _vs._ Chicago, 110 Ill. 400

Other courts have come to different conclusions with the same or very similar ordinances applied under different conditions, the courts holding that a declaration by municipal authorities that an occupation is a nuisance does not make it so in fact:

Slaughter houses: Wreford _vs._ People, 14 Mich. 41 Stables: Phillips _vs._ City of Denver, 19 Col. 179 The emission of dense smoke: St. Louis _vs._ Heitzeberg Packing Co., 141 Mo. 375 St. Paul _vs._ Gilfillan, 36 Minn. 298

3. DIFFERENTIATED DISTRICT REGULATIONS

Legislation in Massachusetts gives a further right by authorizing boards of health of cities or towns “to assign certain places for the exercise of any trade or employment which is a nuisance or hurtful to the inhabitants, injurious to their estates, dangerous to the public health, or is attended by noisome and injurious odors.” They may also prohibit “the exercise thereof with the limits of the city or town or in places not so assigned.”[135]

It does not seem to have been the practice of Massachusetts boards of health to exercise the right of assigning offensive occupations to certain parts of the city, and therefore the question of the right of the community to impair the value of private property by assigning objectionable occupations to certain districts has not been tested. The practical answer to this objection to segregating offensive occupations within defined limits is that they would be located only in those portions of the city where the value of the land or the character of occupation showed that legal actions by property owners included in the district would be unlikely, and, if brought, would be either dismissed or a nominal amount of damages be awarded.

Los Angeles has largely applied the principle of separating industrial districts from residential districts. By an ordinance adopted in 1909 seven industrial districts were established in the city, and by an ordinance of the next year all the rest of the city, with unimportant exceptions, was declared to be a residential district. The ordinance further provides that industrial occupations may be permitted in certain excepted portions of the residence district, and the right is reserved to except other portions as conditions warrant. It is made unlawful for any person, firm, or corporation “to erect, establish, maintain or carry on within the residential district described in section 1 of the ordinance any stone crusher, rolling mill, carpet beating establishment, fireworks factory, soap factory, or any other works or factory where power other than animal power is used to operate, or in the operation of the same, or any hay barn, wood yard, lumber yard, public laundry or wash house.”

The ordinance was tested in the case of Ex Parte Quong Wo.[136] The petitioner, Quong Wo, who had been convicted and imprisoned for carrying on a public laundry and wash house in a residence district, sought to be discharged from custody. The court dismissed the application for a writ of habeas corpus, finding that it was within the lawful exercise of the police power to confine the business of operating a public laundry or wash house within defined limits. The following language of the decision is particularly in point:

“There can be no question that the power to regulate the carrying on of certain lawful occupations in a city includes the power to confine the carrying on of the same to certain limits whenever such restriction may reasonably be found necessary to subserve the ends for which the police power exists.... It is primarily for the legislative body clothed with this power to determine when such regulations are essential, and its determination in this regard, in view of its better knowledge of all the circumstances and the presumption that it is acting with a due regard for the rights of all parties will not be disturbed in the courts, unless it can plainly be seen that the regulation has no relation to the ends above stated, but is a clear invasion of personal or property rights under the guise of police regulation.”

This decision was reviewed and upheld in the case of Montgomery’s application for a writ of habeas corpus, the only difference in the cases being that the petitioner in the latter case was imprisoned for carrying on or maintaining a lumber yard within the residence district.[137] The contention was made by Montgomery that a lumber yard was not one of those specific occupations which could be regulated under the exercise of the police power since it was not enumerated in the charter of the city. The court found specifically that if the ordinance could be upheld under the general police power of the city, it would not fall merely because the city had specific authority under its charter to suppress certain other kinds of business.

A similar ordinance has been proposed for the city of St. Paul:[138]

Section 2. It shall be unlawful to establish or maintain within said district any carpet beating establishment, stone crusher, rolling or planing mill, public laundry, fireworks, soap or cigar factory, machine shop, slaughter house or rendering works, brewery, distillery, tanning, furrier or canning plants, or any hospital or sanitarium, or asylum for defectives, or any establishment, works or factory which by reason of noise, offensive smell or vapor, or unsanitary effect, may be unhealthy or disturbing or injurious to persons or property within said district.

Section 3. Any person violating this ordinance shall be deemed guilty of misdemeanor and punished by a fine of not less than twenty-five, or more than one hundred dollars, or by imprisonment of not more than ninety days, or both fine and imprisonment. Each day of the violation of the prohibition herein contained shall be construed as a separate offense.[139]

4. OFFENSIVE USES OF LAND NOT SUBJECT TO MUNICIPAL REGULATION

There remains a class of occupation which imperils neither the safety nor health of the community and yet is very damaging to the value of land as a place of residence. A business that produces little or no smoke or noise and no odors that are unhealthful may, because of the appearance of the buildings which it occupies or the class of persons which it attracts, be an undesirable neighbor. This is the sort of occupation that the developers of a high class residential district exclude by restrictions in the deed, but the police power has never been extended to preventing or removing structures or occupations which merely disfigure the city’s physical aspect or which bring together people who may be socially uncongenial. It is not held to be within the scope of the police power to guard the amenities of life.

The Missouri legislature of 1891 gave authority to municipalities to exclude by ordinance “the institution and maintenance of any business avocation on the property fronting on boulevards ... and to establish a building line to which all buildings and structures shall conform.” Ordinances based on this legislation were tested in several cases in the supreme court and in each case declared unconstitutional on the ground that the legislation deprived owners of property without due process of law and made no provision for compensation. The theory was advanced by attorneys for the city that the ordinance was passed in pursuance of the police power, but this suggestion was held thoroughly untenable by the court.[140]

An ordinance of the city of Baltimore prohibited the erection of new buildings without a permit, and directed that the permit should not be granted unless in the judgment of the appellate tax court “the size, general character, and appearance of the building will conform to the general character of the buildings previously erected in the locality and will not tend to depreciate the value of the surrounding improved and unimproved property.” In a well considered decision this ordinance was held _ultra vires_.[141]

An ordinance of Bay St. Louis, Mississippi, prohibited the building of houses, shanties, huts, or tents between the road and sea without a special permit, except such as are known as summer houses for shade only, and “all houses built without a permit shall be nuisances.” The road mentioned in the ordinance was much used by pleasure vehicles, and on the land side were many expensive houses. The ordinance was obviously designed to preserve the view of the gulf from the road and prevent the obstruction of the cool winds from the water. The court found the ordinance unconstitutional, and in discussing the theory that it could be defended in the exercise of the police power, said, “There is scarcely a suggestion that the object of the ordinance is other than to enhance the beauty of the street.”[142]

Offenses to the sense of smell and to the sense of hearing are enjoined on the ground of health, but the medical fraternity has not convinced the legal fraternity that offenses to the sense of sight are damaging to the health. It should be a very interesting task to frame a medico-legal brief which would convince a reputable tribunal of the necessity to give a broader meaning to the phrase “public welfare,” and we should have a decision which would be as influential as the case of Welch _vs._ Swasey in Massachusetts. One of the greatest authorities on police power says: “It is conceded that the police power is adequate to restrain offensive noises and odors. A similar protection to the eye, it is conceived, would not establish a new principle but carry a recognized principle to further application.”[143] The same authority recognized the difficulty of administering such an extension of the power as applied to the elimination of objectionable signs: “Such regulation would have to define what signs are prohibited and some test would have to be discovered by which to discriminate that which is merely unesthetic from that which is so offensive as to fall under the police power, since the prohibition of all advertising signs would be out of the question.”

Some forms of advertising which are now allowed in practically every city in the United States could be enjoined on the ground of endangering public health. The custom, for instance, of covering the whole side or front of a building with advertisements pictured or lettered in electric lights might be enjoined as an injury to health, since at least the glare interferes with the sleep of occupants of buildings facing such a sign. But, generally speaking, the decisions on this phase of the general subject of the police power as illustrated by the bill-board cases which we are about to discuss are conclusive that whatever may be the effect on the judiciary from the increase in esthetic sentiment, the great consensus of opinion is at present against the exercise of the police power to restrain that form of use of land which is merely offensive to the sense of sight.

BILL-BOARDS. The bill-board evil is the classic illustration of offensiveness to even the most poorly nourished artistic sense. Several ordinances of one kind or another have been attempted to legislate it out of existence. Park commissions have attempted to protect the neighborhood of parks and parkways by an ordinance of exclusion. But every drastic measure has been successfully thwarted by repeated court decisions.[144]

A very recent Missouri case[145] has been generally understood to announce a different rule and to uphold the prohibition of bill-boards as an exercise of the police power. The case arose under an ordinance of the city of St. Louis of which the following are the essential provisions:

1. No bill-board hereafter erected shall exceed fourteen feet in height above the ground.

2. All bill-boards shall have an open space at the bottom of at least four feet.

3. No bill-board shall exceed five hundred feet in area.

4. No bill-board shall approach the street line nearer than fifteen feet or the side line of the lot on which it stands nearer than six feet.

Besides these structural requirements there seems to be a discrimination in the matter of license fees against structures used as bill-boards; for although no fees are charged for fences which may be used for bill posting, a fee is imposed for the erection of bill-boards; and although a fee of only $1.00 is charged for the alteration or erection of buildings costing less than $1,000, a fee of $100 is charged for a bill-board 50 feet long, the total cost of which may not exceed $100. The same disproportionate charges are made for the erection or alteration of signs on the top of buildings.

The ordinance was attacked on every possible ground: First, as a taking of property without due process of law; second, as denying the equal protection of the laws by prescribing restrictions against structures on which advertising is displayed, but not against similar ones structurally as objectionable,—in other words, discriminating against the _kind of use_ to which a structure is put; third, as taking property without compensation and without public necessity. The case was first heard before a justice of the supreme court, and his finding that the ordinance was a reasonable exercise of the police power was upheld by the full bench with two judges dissenting. To the contention raised by counsel for the bill-board company that the statute discriminates, the court replied that there can be no discrimination, since bill-boards are of necessity in a class by themselves because of their temporary character and consequent cheap and insecure structure. In distinguishing them from other structures on the top of buildings, like tanks, chimneys, towers, poles, and so forth, the court says: “Should they (bill-boards) be required to be constructed with the same permanency (as tanks, towers, and so forth), that fact alone would destroy their commercial value and put them out of business, for the cost of construction would greatly exceed the amount of income that would be derived therefrom,” It is the finding that bill-boards are “nuisances in character” distinguished from all other apparently similar structures by their cheapness and insecurity that distinguishes the Missouri decision from those which have held similar ordinances invalid as an unwarranted exercise of the police power.

The Missouri case finds something more dangerous in bill-boards than the paper on them containing the advertisement. The decision amounts to this: All bill-boards are likely to fall; to construct them safely would involve a cost which would prohibit their erection; all bill-boards are likely to harbor nuisances; all bill-boards increase the fire hazard. One form of regulation would be to require construction specifications, but it is just as reasonable to move them back from the lot line and so limit their height that the danger from them is removed. It is also reasonable to require an open space at the bottom and at the sides of the lot so as to check nuisances that tend to grow up behind the barrier and to decrease the risk of fire.

This St. Louis case has been taken to the supreme court of the United States on a writ of error, but it goes up with the advantage to the city that the highest state court has found it a valid exercise of the police power. The supreme court is slow to overthrow such a finding and the chance is good for establishing a precedent irrespective of the reasoning of the court. The decision can not be cited as sustaining the exercise of the police power for esthetic purposes, but the charge is well founded that esthetic considerations are poorly concealed behind the pretext of guarding the safety, morals, and health of the people.

As a method of largely suppressing the bill-board evil it is believed that the drastic St. Louis ordinance will be effective, since the burden put upon the maintenance of such structures will be likely to take away much of the profit that they bring. But it is very doubtful whether the St. Louis method will be generally followed as a method of suppressing the evil. Certainly in those jurisdictions where a careful consideration has been given to ordinances of like character, it is not to be expected that there will be different findings than heretofore. In cities where the question is new, it is not likely that the courts will follow the Missouri court in saying that bill-boards can not be safely erected because of their temporary character. Until the public’s good taste, its sense of orderliness, harmony, and beauty, are ranked more nearly on the same plane as its health, safety, and morals, or until the doctors have established a positive injury to health through the sense of vision, we may expect no protection against unsightly structures through the exercise of the police power.

OTHER METHODS OF CONTROL

Although the degree of control over intensive and offensive uses of land which is desirable in the development of a city plan can not be attained under the exercise of the police power, the municipality may accomplish some of the same purposes by purchasing or taking under eminent domain an easement in the land which it is desired to control. If the decision in the Copley Square case, as usually interpreted, discussed in Chapter I, is good law and is generally followed, it would support the recent legislation in Missouri, in Indiana and Colorado, which excludes objectionable occupations from land fronting on parks and boulevards by purchasing or condemning the right of the owners to use their land for such purposes.[146] The constitutionality of the acts of Massachusetts authorizing the establishment of building lines beyond which no building can be constructed has never been questioned; but in all such legislation provision is made for compensating land owners for damages. An ordinance has been introduced in Denver to provide for taking such easements in land adjacent to parks and parkways by condemnation and for assessing the cost of the taking upon the district benefited. This idea is suggestive of large possibilities but has not as yet been tested.

CONCLUSION

In conclusion, the police power is constantly being held to justify interference with the use of private property. The only limit to such interference is a judicial determination that a specific ordinance is not a reasonable means of protecting the safety, health, and morals of the community. It is for the legislative body to determine in the first instance the reasonableness of the means. It is a sound judicial principle, carried exceptionally far in the Missouri case cited on page 162, that courts will be slow to overthrow the determination of the legislature.

FOOTNOTES:

[128] See Appendix, p. 242.

[129] See pp. 146 ff. for further discussion of this law.

[130] House Bill No. 81, 12th Session. (The bill was not reached in committee.)

[131] For text of the acts, see Appendix, pp. 221, 223.

For text of the decisions, see Appendix, pp. 219, 226 ff.

[132] State _vs._ Berdetta, 73 Ind. 185.

[133] Affirmed in 194 N. Y. 19.

[134] Charter of City of Dallas, Sect. 5, Par. 12. Charter of Detroit, Chap. 7, Sect. 44. Charter of Portland, Ore., Art. 4, Sect. 73, Par. 27.

[135] Massachusetts Revised Laws, Chapter 75, Section 91.

[136] 161 Cal. 220.

[137] 163 Cal. 457.

[138] Also see Acts of Minnesota, 1913, Chaps. 98 and 420; Acts of New York, 1913, Chap. 774; Acts of Wisconsin, 1913. Chap. 743.

[139] For further references see Veiller, Lawrence: A Model Housing Law, pp. 62 ff. See also “Protecting Residential Districts,” a paper read by Lawrence Veiller at the Sixth National Conference on City Planning, Toronto, 1914.

[140] For cases see St. Louis _vs._ Hill, 116 Mo. 527. St. Louis _vs._ Dorr, 145 Mo. 466.

[141] Bostock _vs._ Sams, 95 Md. 400.

[142] Questini _vs._ Bay St. Louis, 64 Miss. 483.

[143] Freund, Ernst: The Police Power, p. 166. Chicago, Callaghan and Co., 1904.

[144] Appendix, p. 246.

[145] St. Louis Gunning Advertising Co. _vs._ St. Louis.

[146] For text see Appendix, p. 219.