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of fire. Cochran v. Preston (1908) purpose of diminishing the fire 108 Md. 220, 23 L.R.A.(N.S.) 1163, 129 hazard to the capitol buildings, conAm. St. Rep. 432, 70 Atl. 113, 15 Ann. stituted an unreasonable exercise of Cas. 1048.

the police power, and that the rights And the prohibition of the erection attempted to be acquired under such of a building of greater height than statute could only be acquired by the 80 feet in the residential portion of a exercise of the power of eminent city, unless the width of the street domain. shall be at least one half its height, It appears in Atkinson v. Piper is not so unreasonable as to make the (1923) 181 Wis. 519, 195 N. W. 544, regulation invalid. Welch v. Swasey that the statute referred to in the re(1907) 193 Mass. 365, 23 L.R.A.(N.S.) ported case (PIPER V. EKERN) was 1160, 118 Am. St. Rep. 523, 79 N. E. subsequently repealed by a statute 745, affirmed in (1909) 214 U. S. 91, making a general limitation of the 53 L. ed. 923, 29 Sup. Ct. Rep. 567. height of buildings in cities of the

Esthetic considerations alone can- first class to 125 feet, and in other not justly form the basis for the cities to 100 feet; and this statute was exercise of the police power of the

held to be a valid exercise of the state to limit the height of buildings police power. The court said that the in a city, but they may be taken into legislature had power to limit the account as ancillary to some other height of buildings in populous main purpose within the appropriate centers of the state “in promotion of sphere of the police power. Ayer v.

the public health and safety, and, Commissioners on Height of Bldgs. perhaps, the convenience and general (1922) 242 Mass. 30, 136 N. E. 338. welfare of the people.” It was con

The court, in Atty. Gen. v. Williams tended in this case that the repealing (Knowlton v. Williams) (1899) 174 statute was invalid because the legisMass. 476, 47 L.R.A. 314, 55 N. E. 77, lature enacted it to accomplish what held constitutional a statute limiting it failed to accomplish by the statute the height of buildings surrounding repealed, which was held unconstitua public square, devoted to religious, tional in the reported case (PIPER v. charitable, and educational purposes,

EKERN), but the court said that, while to promote the beauty and attractive- there was ample reason to suspect ness of the park, and to prevent un

that a desire on the part of the legisreasonable encroachments upon the

lature to limit the height of buildings light and air, where such statute pro

around the Capitol square prompted vided for the payment of compensa

the enactment of the repealing stattion to persons injured in their prop

ute, the motives which prompted the erty by the limitations which it legislature to exercise its power in created.

this respect were not subject to ju The same court, upon sustaining

dicial review, approval, or condemnathis statute when the case came be

tion. fore it for final decree, held, in (1901) Equal protection; discrimination. 178 Mass. 330, 59 N. E. 812, that the The discrimination or classification statute was not unconstitutional as made between the commercial and impairing the obligation of contracts. residential sections of a large city by And upon the affirmance of this case statutes limiting the maximum height by the United States Supreme Court, of buildings in the commercial disin (1903) 188 U. S. 491, 47 L. ed. 599, trict to 125 feet, and in the residential 23 Sup. Ct. Rep. 440, it was held that districts from 80 to 100 feet, will not, the statute was not in conflict with in the face of a decision of the highest the Federal Constitution.

state court upholding such legislation But it was held in the reported case as passed in the exercise of the police (PIPER V. EKERN, ante, 32) that a power, be held by the United States statute limiting the height of build- Supreme Court so unreasonable as to ings on blocks surrounding the state deprive the owner of property in the capitol buildings to 90 feet, for the residential section of its profitable

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use without justification, and hence feet, and in the residential district to to take his property without due from 80 to 100 feet. Welch v. Swasey process of law unless compensation

(U. S.) supra. be given him for such invasion of The owners of buildings on the his rights, even though esthetic con- higher ground are not deprived of siderations may have entered into the the equal protection of the laws by reasons for the passage of such enact- a statute limiting the height of buildments. Welch v. Swasey (1909) 214 ings to a certain distance above a U. S. 91, 53 L. ed. 923, 29 Sup. Ct. point located on the high ground of Rep. 567.

a city, although the buildings on the And the order of a commission, lower ground might exceed theirs in made pursuant to statutory authority, actual height from the ground. Cochfixing the boundaries between the

Preston (1908) 108 Md. 220, business district and the residential 23 L.R.A.(N.S.) 1163, 129 Am. St. Rep. district, which determines by its loca- 432, 70 Atl. 113, 15 Ann. Cas. 1048. tion in the one or the other district And the exception of churches in the height to which a building may a statute limiting the height of buildbe erected, is not unconstitutional ings in a city does not deprive the upon the ground of unlawful discrim- owners of private property of the ination, or the denial of due process equal protection of the laws. Ibid. of law, or the equal protection of the Delegation of power. laws secured by the Federal Con

As to delegation of power in this stitution, because by such order some

regard to municipalities, see infra. buildings, and not others, are

The legislature may delegate to a moved from the residential to the

commission the power to determine business district, which permits them the boundaries of the sections of a to be of a greater height. Ayer v. city in which buildings of different Commissioners on Height of Bldgs. heights, as determined by the legis-' (1922) 242 Mass. 30, 136 N. E. 338.

lature, shall be erected. Welch v. And a statute limiting the height Swasey (1907) 193 Mass. 364, 23 of buildings in cities of the first class

L.R.A.(N.S.) 1160, 118 Am. St. Rep. to 125 feet, and in other cities to 100 523, 79 N. E. 745, affirmed in (1909) feet, is not open to the objection that 214 U. S. 91, 53 L. ed. 923, 29 Sup. Ct. it embodies an unreasonable classifi

Rep. 567. cation, where the only city of the first That the legislature has the power class in the state already has nu- to delegate to the board of estimate merous buildings far exceeding the and apportionment of New York city, height to which the buildings in the by the so-called zoning-law provision other cities are limited. Atkinson v. of its charter, the power to regulate Piper (Wis.) supra.

the height of buildings, was held in The court overruled another objec- Palmer v. Mann (1923) 120 Misc. 396, tion to the same statute that the 198 N. Y. Supp. 548, reversed upon exemption of grain and coal elevators, another point in (1923) 206 App. Div. sugar refineries, and cement works 484, 201 N. Y. Supp. 525. from the operation of the law con- Where matters of local self-governstituted an arbitrary classification, ment may be intrusted to the inhabholding that the statute did not de- itants of towns, the legislature may prive property owners of the equal delegate to a commission to be approtection of the law. Ibid.

pointed by it, the determination of The equal protection of the laws is the heights of buildings to be erected not denied an owner of property in in different places within a city, the residential section of a large city where the statute provides for a genby the discrimination or classification eral limitation of the height to which made between the commercial and buildings can be erected.

Welch v. residential sections of such city by Swasey' (Mass.) supra. statutes limiting the height of build- In People ex rel. Kemp v. D'Oench ings in the commercial district to 125 (1888) 111 N. Y. 361, 18 N. E. 862,

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which involved only the construction called zoning-law provision of its of a statute limiting the height of all charter, was held to be a proper exerdwelling houses and tenement and cise of the police power in Lincoln apartment houses to 80 feet, in streets Trust Co. v. Williams Bldg. Corp. exceeding 60 feet in width, the court (1920) 229 N. Y. 313, 128 N. E. 209, stated that it had no doubt as to the and in Palmer v. Mann (1923) 120 power of the legislature to pass such Misc. 396, 198 N. Y. Supp. 548, restatute under the police power. versed upon another point in (1923)

But in Parker v. Com. (1901) 178 206 App. Div. 484, 201 N. Y. Supp. Mass. 199, 59 N. E. 634, upholding the 525. petition for the assessment of their And an amendment of a buildingdamages of owners of property affect- zone resolution regulating the height ed by a statute limiting to 70 feet the of buildings according to the width height of buildings on a small tract of the street upon which they face, adjoining the statehouse, and provid- adopted by the board of estimate and ing that in so far as such statute apportionment pursuant to promight deprive any person of rights vision of the municipal charter, was existing under the Constitution, he upheld as against the objection that might have a remedy therefor, where it was unreasonable and discriminait was stated that it was unnecessary tory, in Palmer V. Mann (N. Y.) to pass upon the constitutionality of

supra. the statute, the court apparently was But an ordinance prohibiting the of the opinion that such statute would erection of buildings of less than two not be valid under the police power, stories high on the main street, within but would be a proper exercise of the 80 feet of the building line, is not a power of eminent domain.

valid exercise of the police power. Effect was given to statutes limit- Romar Realty Co. Haddonfield ing the height of buildings in certain (1921) 96 N. J. L. 117, 114 Atl. 248. localities, and providing for the re- And such an ordinance cannot be covery of certain damages by those upheld upon the ground that its purwhose property was injured thereby, pose and effect are to beautify the in Williams v. Boston (1906) 190 appearance of the street. Ibid. Mass. 541, 77 N. E. 509, and in Amer- And an ordinance prohibiting the ican Unitarian Asso. v. Com. (1907) erection in a business district of 193 Mass. 470, 79 N. E. 878, but the buildings less in three sto ies in question of the constitutionality of height is not a reasonable and proper the statutes was not before the court exercise of the police power. Dorison for determination, although the court v. Saul (1922) - N. J. L. -, 118 Atl. in the latter case intimated that such 691. legislation would be valid as an exer- A statute to enable cities to regucise of the police power.

late and limit the height and bulk of And in Kilgour v. Gratto (1916)

buildings, and providing that such 224 Mass. 78, 112 N. E. 489, a statute regulation shall be designed to secure giving cities and towns the right,

safety from fire and other dangers, among other things, to regulate the

and to promote the public health and height of buildings, was before the

welfare, confers on municipalities court, but the question of its uncon

only the power to limit the height of stitutionality was not raised, the

buildings, and not to compel the erecpoint in issue being the validity of a tion of buildings of a prescribed by-law giving the selectmen of a town

height. Ibid. an uncontrolled discretion in allow

And a charter provision, authorizing permits for the construction of

ing a city to regulate the height, confactories.

struction, and inspection of III. Ordinances.

buildings erected within its corporate A resolution limiting the height of limits, confers power to limit or rebuildings, adopted by the board of strict the height of buildings for the estimate and apportionment of the safety of persons and property, but city of New York, pursuant to the so- not to require it as a means of pro

34 A.L.R.-4.

new

motion or conservation of the value reconstruction, repair, and augmenof adjacent or neighboring property, tation of buildings of nonfireproof or attainment of esthetic ideals or construction, situated in congested purposes of the community or mu- districts. nicipal authorities. State ex rel. Sale And in Eubank v. Richmond (1910) v. Stahlman (1917) 81 W. Va. 335, 110 Va. 749, 67 S. E. 376, 19 Ann. Cas. L.R.A.1918C, 78, 94 S. E. 497. In this 186, the supreme court of Virginia case the city sought by a regulation, upheld as a valid exercise of the adopted under such charter authority, police power a statute giving municto enforce its policy of the prevention ipalities the power to prescribe buildof the erection of buildings less than ing lines and regulate the height of three stories high in the business sec- buildings, and an ordinance, adopted tion of the city, and it was unsuccess- pursuant thereto, providing that fully sought to uphold such regula- whenever the owners of two thirds of tion as a proper exercise of the police the property abutting on the street power, upon the ground that it pro- should request the committee on moted the public safety from the streets to establish a building line, danger of fire. It was held that such the committee should establish a line a regulation could not be imposed not less than 5 or more than 30 feet upon property for the benefit of adja- from the street line. This case, howcent or neighboring property owners, ever, was reversed by the United or to effect symmetry of the city or a States Supreme Court in (1912) 226 particular street or section, otherwise U. S. 137, 57 L. ed. 156, 42 L.R.A. than under the power of eminent do- (N.S.) 1123, 33 Sup. Ct. Rep. 76, Ann. main allowing compensation, if at all. Cas. 1914D, 192, in which the court A statute authorizing them to regu

stated that it was unnecessary for it late and control the construction of to consider the power of a city to buildings, and to prohibit the erec- regulate the height of buildings. tion of buildings of wood or other An ordinance limiting the height combustible materials, does not em- of roof signs was upheld in People power the board of commissioners of ex rel. Publicity Leasing Co. v. Luda city to adopt an ordinance prohibit wig (1916) 218 N. Y. 540, 113 N. E. ing the erection in a business district 532, reargument denied in (1916) 219 of buildings less than three stories in N. Y. 553, 114 N. E. 1079, as against height. Dorison v. Saul (N. J.) su- the objection that it was unreasonable pra.

and arbitrary, because it was posAnd an ordinance prohibiting the sible to build a safe sign higher than erection of buildings of less than two the prescribed limit. stories high the main street, But in People ex rel. Wineburgh within 80 feet of the building line, is Adv. Co. v. Murphy (1919) 195 N. Y. not authorized by a statutory pro- 126, 21 L.R.A.(N.S.) 735, 88 N. E. 17, vision giving municipalities the power holding that the police power of a to regulate the method and manner municipal corporation does not auof the construction of buildings. Ro- thorize it to limit the height of advermar Realty Co. v. Haddonfield (N. J.) tising signs erected upon the tops of supra.

buildings, where such limitation is In Weisberg v. Boatmen's Bank not necessary to the safety of the pub(1919) 280 Mo. 199, 217 S. W. 85, lic, and is not applicable to strucwhich involved an ordinance provid- tures of other kinds, the court said ing that any building thereafter that a city could not enact an ordierected, altered, or enlarged to a nance limiting the height of all buildheight greater than 90 feet above ings: therein which were painted a grade should comply with certain particular color, and leave unrestrictbuilding requirements, the court said ed the height to which a building that the briefs did not question the could be erected, so long as it was authority of the city, in the exercise unpainted, or painted a color other of its delegated police power, to im- than the particular one specified. pose restrictions upon the alteration,

G. V. I.

on

(- Cal. 226 Pac. 91.4.)

EX PARTE GEVINO RAMERIZ.

California Supreme Court (In Banc)

May 29, 1924.

(- Cal. - 226 Pac. 914.) Constitutional law, $ 307 — denying aliens right to possess firearms.

1. A resident alien is not unconstitutionally denied the equal protection of the laws by a statute making it a criminal offense for him to own or possess a firearm with a barrel less than 12 inches in length.

[See note on this question beginning on page 63.] Constitutional law, 8 681 - police unconstitutionally deny aliens the power defined.

equal protection of the laws. 2. Police power is the power inher- Constitutional law, § 41 right to ent in government to enact laws with

bear arms

- effect on state governin constitutional limits to protect the ment. order, safety, health, morals, and gen

5. The provision of the Federal Coneral welfare of society.

stitution protecting the right to bear [See 6 R. C. L. 183 et seq.; 2 R. C.

arms does not apply to action by the L. Supp. 48; 4 R. C. L. Supp. 389.] state governments. Constitutional law, 8 693 — forbidding

[See 6 R. C. L. 249; 2 R. C. L. Supp.

77.] ownership of firearms — police pow

Carrying weapons, 81- constitution

al law 3. The police power extends to for

extent of right to bear

arms. bidding resident aliens to own or possess firearms of a character which

6. The constitutional right to bear may be readily concealed on the per

arms is limited to bearing of arms in

defense of a common cause, and not to son.

their use in private brawls or affrays. Constitutional law, § 307 difference [See 6 R. C. L. 250.] in penalty.

Constitutional law, $ 512 - protection 4. Imposing a greater penalty on of private property - effect. ownership or possession by a resident 7. Constitutional protection of prialien of a firearm capable of being vate property does not prevent the concealed on the person than is im- legislature from forbidding resident posed generally for carrying such aliens to own or possess firearms capaweapons without a license, does not ble of concealment upon the person.

er.

APPLICATION by petitioner for a writ of habeas corpus to secure his release from custody to which he had been committed for violation of a statute prohibiting unnaturalized foreign-born persons from owning or possessing weapons capable of being concealed upon the person. Writ discharged.

The facts are stated in the opinion of the court. Messrs. Bradley & Bradley for peti- People v. Finley, 153 Cal. 59, 94 Pac. tioner.

248; People v. Oppenheimer, 156 Cal. Mr. William R. McKay, for respond- 733, 106 Pac. 74; People v. Quijada, ent:

154 Cal. 243, 97 Pac. 689; People v. Section 2 of the Statutes of 1923 is Carson, 155 Cal. 164, 99 Pac. 970; not unconstitutional, and does not Missouri v. Lewis (Bowman v. Lewis) deny equal protection of the laws 101 U. S. 22, 25 L. ed. 989; Moore v. granted by şi of the 14th Amendment Missouri, 159 U. S. 676, 40 L. ed. 302, to the Constitution of the United 16 Sup. Ct. Rep. 179. States, nor does it contravene the pro- The state may legislate upon the visions of $ 11, art. 1, of the state Con- proper use and distribution of firestitution, declaring that all laws of a general nature shall have uniform Com. •v. Murphy, 166 Mass. 171, 32 operation.

L.R.A. 606, 44 N. E. 138; Presser v.

arms.

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