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of fire.

Cochran v. Preston (1908) 108 Md. 220, 23 L.R.A. (N.S.) 1163, 129 Am. St. Rep. 432, 70 Atl. 113, 15 Ann. Cas. 1048.

And the prohibition of the erection of a building of greater height than 80 feet in the residential portion of a city, unless the width of the street shall be at least one half its height, is not so unreasonable as to make the regulation invalid. Welch v. Swasey (1907) 193 Mass. 365, 23 L.R.A. (N.S.) 1160, 118 Am. St. Rep. 523, 79 N. E. 745, affirmed in (1909) 214 U. S. 91, 53 L. ed. 923, 29 Sup. Ct. Rep. 567.

Esthetic considerations alone cannot justly form the basis for the exercise of the police power of the state to limit the height of buildings in a city, but they may be taken into account as ancillary to some other main purpose within the appropriate sphere of the police power. Ayer v. Commissioners on Height of Bldgs. (1922) 242 Mass. 30, 136 N. E. 338.

The court, in Atty. Gen. v. Williams (Knowlton v. Williams) (1899) 174 Mass. 476, 47 L.R.A. 314, 55 N. E. 77, held constitutional a statute limiting the height of buildings surrounding a public square, devoted to religious, charitable, and educational purposes, to promote the beauty and attractiveness of the park, and to prevent unreasonable encroachments upon the light and air, where such statute provided for the payment of compensation to persons injured in their property by the limitations which it created.

The same court, upon sustaining this statute when the case came before it for final decree, held, in (1901) 178 Mass. 330, 59 N. E. 812, that the statute was not unconstitutional as impairing the obligation of contracts. And upon the affirmance of this case by the United States Supreme Court, in (1903) 188 U. S. 491, 47 L. ed. 599, 23 Sup. Ct. Rep. 440, it was held that the statute was not in conflict with the Federal Constitution.

But it was held in the reported case (PIPER V. EKERN, ante, 32) that a statute limiting the height of buildings on blocks surrounding the state capitol buildings to 90 feet, for the

purpose of diminishing the fire hazard to the capitol buildings, constituted an unreasonable exercise of the police power, and that the rights attempted to be acquired under such statute could only be acquired by the exercise of the power of eminent domain.

It appears in Atkinson v. Piper (1923) 181 Wis. 519, 195 N. W. 544, that the statute referred to in the reported case (PIPER V. EKERN) was subsequently repealed by a statute making a general limitation of the height of buildings in cities of the first class to 125 feet, and in other cities to 100 feet; and this statute was held to be a valid exercise of the police power. The court said that the legislature had power to limit the height of buildings in populous centers of the state "in promotion of the public health and safety, and, perhaps, the convenience and general welfare of the people." It was contended in this case that the repealing statute was invalid because the legislature enacted it to accomplish what it failed to accomplish by the statute repealed, which was held unconstitutional in the reported case (PIPER V. EKERN), but the court said that, while there was ample reason to suspect that a desire on the part of the legislature to limit the height of buildings around the Capitol square prompted the enactment of the repealing statute, the motives which prompted the legislature to exercise its power in this respect were not subject to ju dicial review, approval, or condemnation.

Equal protection; discrimination.

The discrimination or classification made between the commercial and residential sections of a large city by statutes limiting the maximum height of buildings in the commercial district to 125 feet, and in the residential districts from 80 to 100 feet, will not, in the face of a decision of the highest state court upholding such legislation as passed in the exercise of the police power, be held by the United States Supreme Court so unreasonable as to deprive the owner of property in the residential section of its profitable

use without justification, and hence to take his property without due process of law unless compensation be given him for such invasion of his rights, even though esthetic considerations may have entered into the reasons for the passage of such enactments. Welch v. Swasey (1909) 214 U. S. 91, 53 L. ed. 923, 29 Sup. Ct. Rep. 567.

And the order of a commission, made pursuant to statutory authority, fixing the boundaries between the business district and the residential district, which determines by its location in the one or the other district the height to which a building may be erected, is not unconstitutional upon the ground of unlawful discrimination, or the denial of due process of law, or the equal protection of the laws secured by the Federal Constitution, because by such order some buildings, and not others, are removed from the residential to the business district, which permits them to be of a greater height. Ayer v. Commissioners on Height of Bldgs. (1922) 242 Mass. 30, 136 N. E. 338.

And a statute limiting the height of buildings in cities of the first class to 125 feet, and in other cities to 100 feet, is not open to the objection that it embodies an unreasonable classification, where the only city of the first class in the state already has numerous buildings far exceeding the height to which the buildings in the other cities are limited. Atkinson v. Piper (Wis.) supra.

The court overruled another objection to the same statute that the exemption of grain and coal elevators, sugar refineries, and cement works from the operation of the law constituted an arbitrary classification, holding that the statute did not deprive property owners of the equal protection of the law. Ibid.

The equal protection of the laws is not denied an owner of property in the residential section of a large city by the discrimination or classification made between the commercial and residential sections of such city by statutes limiting the height of buildings in the commercial district to 125

feet, and in the residential district to from 80 to 100 feet. Welch v. Swasey (U. S.) supra.

The owners of buildings on the higher ground are not deprived of the equal protection of the laws by a statute limiting the height of buildings to a certain distance above a point located on the high ground of a city, although the buildings on the lower ground might exceed theirs in actual height from the ground. Cochran v. Preston (1908) 108 Md. 220, 23 L.R.A. (N.S.) 1163, 129 Am. St. Rep. 432, 70 Atl. 113, 15 Ann. Cas. 1048.

And the exception of churches in a statute limiting the height of buildings in a city does not deprive the owners of private property of the equal protection of the laws. Ibid. Delegation of power.

As to delegation of power in this regard to municipalities, see infra.

The legislature may delegate to a commission the power to determine the boundaries of the sections of a city in which buildings of different heights, as determined by the legis lature, shall be erected. Welch v. Swasey (1907) 193 Mass. 364, 23 L.R.A. (N.S.) 1160, 118 Am. St. Rep. 523, 79 N. E. 745, affirmed in (1909) 214 U. S. 91, 53 L. ed. 923, 29 Sup. Ct. Rep. 567.

That the legislature has the power to delegate to the board of estimate and apportionment of New York city, by the so-called zoning-law provision of its charter, the power to regulate the height of buildings, was held in Palmer v. Mann (1923) 120 Misc. 396, 198 N. Y. Supp. 548, reversed upon another point in (1923) 206 App. Div. 484, 201 N. Y. Supp. 525.

Where matters of local self-government may be intrusted to the inhabitants of towns, the legislature may delegate to a commission to be appointed by it, the determination of the heights of buildings to be erected in different places within a city, where the statute provides for a general limitation of the height to which buildings can be erected. Welch v. Swasey (Mass.) supra.

In People ex rel. Kemp v. D'Oench (1888) 111 N. Y. 361, 18 N. E. 862,

which involved only the construction of a statute limiting the height of all dwelling houses and tenement and apartment houses to 80 feet, in streets exceeding 60 feet in width, the court stated that it had no doubt as to the power of the legislature to pass such statute under the police power.

But in Parker v. Com. (1901) 178 Mass. 199, 59 N. E. 634, upholding the petition for the assessment of their damages of owners of property affected by a statute limiting to 70 feet the height of buildings on a small tract adjoining the statehouse, and providing that in so far as such statute might deprive any person of rights existing under the Constitution, he might have a remedy therefor, where it was stated that it was unnecessary to pass upon the constitutionality of the statute, the court apparently was of the opinion that such statute would not be valid under the police power, but would be a proper exercise of the power of eminent domain.

Effect was given to statutes limiting the height of buildings in certain localities, and providing for the recovery of certain damages by those whose property was injured thereby, in Williams v. Boston (1906) 190 Mass. 541, 77 N. E. 509, and in American Unitarian Asso. v. Com. (1907) 193 Mass. 470, 79 N. E. 878, but the question of the constitutionality of the statutes was not before the court for determination, although the court in the latter case intimated that such legislation would be valid as an exercise of the police power.

And in Kilgour v. Gratto (1916) 224 Mass. 78, 112 N. E. 489, a statute giving cities and towns the right, among other things, to regulate the height of buildings, was before the court, but the question of its unconstitutionality was not raised, the point in issue being the validity of a by-law giving the selectmen of a town an uncontrolled discretion in allowing permits for the construction of factories.

III. Ordinances.

A resolution limiting the height of buildings, adopted by the board of estimate and apportionment of the city of New York, pursuant to the so34 A.L.R.-4.

called zoning-law provision of its charter, was held to be a proper exercise of the police power in Lincoln Trust Co. v. Williams Bldg. Corp. (1920) 229 N. Y. 313, 128 N. E. 209, and in Palmer v. Mann (1923) 120 Misc. 396, 198 N. Y. Supp. 548, reversed upon another point in (1923) 206 App. Div. 484, 201 N. Y. Supp. 525.

And an amendment of a buildingzone resolution regulating the height of buildings according to the width of the street upon which they face, adopted by the board of estimate and apportionment pursuant to provision of the municipal charter, was upheld as against the objection that it was unreasonable and discriminatory, in Palmer v. Mann (N. Y.) supra.

But an ordinance prohibiting the erection of buildings of less than two stories high on the main street, within 80 feet of the building line, is not a valid exercise of the police power. Romar Realty Co. V. Haddonfield (1921) 96 N. J. L. 117, 114 Atl. 248.

And such an ordinance cannot be upheld upon the ground that its purpose and effect are to beautify the appearance of the street. Ibid.

And an ordinance prohibiting the erection in a business district of buildings less than three stories in height is not a reasonable and proper exercise of the police power. Dorison v. Saul (1922) - N. J. L. —, 118 Atl. 691.

A statute to enable cities to regulate and limit the height and bulk of buildings, and providing that such regulation shall be designed to secure safety from fire and other dangers, and to promote the public health and welfare, confers on municipalities only the power to limit the height of buildings, and not to compel the erection of buildings of a prescribed height. Ibid.

And a charter provision, authorizing a city to regulate the height, construction, and inspection of new buildings erected within its corporate limits, confers power to limit or restrict the height of buildings for the safety of persons and property, but not to require it as a means of pro

motion or conservation of the value of adjacent or neighboring property, or attainment of esthetic ideals or purposes of the community or municipal authorities. State ex rel. Sale v. Stahlman (1917) 81 W. Va. 335, L.R.A.1918C, 78, 94 S. E. 497. In this case the city sought by a regulation, adopted under such charter authority, to enforce its policy of the prevention of the erection of buildings less than three stories high in the business section of the city, and it was unsuccessfully sought to uphold such regulation as a proper exercise of the police power, upon the ground that it promoted the public safety from the danger of fire. It was held that such a regulation could not be imposed upon property for the benefit of adjacent or neighboring property owners, or to effect symmetry of the city or a particular street or section, otherwise than under the power of eminent domain allowing compensation, if at all.

A statute authorizing them to regulate and control the construction of buildings, and to prohibit the erection of buildings of wood or other combustible materials, does not empower the board of commissioners of a city to adopt an ordinance prohibiting the erection in a business district of buildings less than three stories in height. Dorison v. Saul (N. J.) supra.

And an ordinance prohibiting the erection of buildings of less than two stories high on the main street, within 80 feet of the building line, is not authorized by a statutory provision giving municipalities the power to regulate the method and manner of the construction of buildings. Romar Realty Co. v. Haddonfield (N. J.)

supra.

In Weisberg v. Boatmen's Bank (1919) 280 Mo. 199, 217 S. W. 85, which involved an ordinance providing that any building thereafter erected, altered, or enlarged to height greater than 90 feet above grade should comply with certain building requirements, the court said that the briefs did not question the authority of the city, in the exercise of its delegated police power, to impose restrictions upon the alteration,

reconstruction, repair, and augmentation of buildings of nonfireproof construction, situated in congested districts.

And in Eubank v. Richmond (1910) 110 Va. 749, 67 S. E. 376, 19 Ann. Cas. 186, the supreme court of Virginia upheld as a valid exercise of the police power a statute giving municipalities the power to prescribe building lines and regulate the height of buildings, and an ordinance, adopted pursuant thereto, providing that whenever the owners of two thirds of the property abutting on the street should request the committee on streets to establish a building line, the committee should establish a line not less than 5 or more than 30 feet from the street line. This case, however, was reversed by the United States Supreme Court in (1912) 226 U. S. 137, 57 L. ed. 156, 42 L.R.A. (N.S.) 1123, 33 Sup. Ct. Rep. 76, Ann. Cas. 1914D, 192, in which the court stated that it was unnecessary for it to consider the power of a city to regulate the height of buildings.

An ordinance limiting the height of roof signs was upheld in People ex rel. Publicity Leasing Co. v. Ludwig (1916) 218 N. Y. 540, 113 N. E. 532, reargument denied in (1916) 219 N. Y. 553, 114 N. E. 1079, as against the objection that it was unreasonable and arbitrary, because it was possible to build a safe sign higher than the prescribed limit.

But in People ex rel. Wineburgh Adv. Co. v. Murphy (1919) 195 N. Y. 126, 21 L.R.A. (N.S.) 735, 88 N. E. 17, holding that the police power of a municipal corporation does not authorize it to limit the height of advertising signs erected upon the tops of buildings, where such limitation is not necessary to the safety of the public, and is not applicable to structures of other kinds, the court said that a city could not enact an ordinance limiting the height of all buildings therein which were painted a particular color, and leave unrestricted the height to which a building could be erected, so long as it was unpainted, or painted a color other than the particular one specified.

G. V. I.

226 Pac. 914.)

(- Cal.

EX PARTE GEVINO RAMERIZ.

California Supreme Court (In Banc)

May 29, 1924.

Constitutional law, § 307

(- Cal. 226 Pac. 914.)

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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.]

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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 petitioner.

Mr. William R. McKay, for respondent:

Section 2 of the Statutes of 1923 is not unconstitutional, and does not deny equal protection of the laws granted by § 1 of the 14th Amendment to the Constitution of the United States, nor does it contravene the provisions of § 11, art. 1, of the state Constitution, declaring that all laws of a general nature shall have uniform operation.

People v. Finley, 153 Cal. 59, 94 Pac. 248; People v. Oppenheimer, 156 Cal. 733, 106 Pac. 74; People v. Quijada, 154 Cal. 243, 97 Pac. 689; People v. Carson, 155 Cal. 164, 99 Pac. 970; Missouri v. Lewis (Bowman v. Lewis) 101 U. S. 22, 25 L. ed. 989; Moore v. Missouri, 159 U. S. 676, 40 L. ed. 302, 16 Sup. Ct. Rep. 179.

The state may legislate upon the proper use and distribution of fire

arms.

Com. v. Murphy, 166 Mass. 171, 32 L.R.A. 606, 44 N. E. 138; Presser v.

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