prehensive and systematic zoning aids in the successful solution of these problems and obviously tends thereby to affirmatively promote the public welfare.

"It can not be gainsaid, however, that many municipalities, evidently upon the theory that zoning is a panacea for civil ills, have, under the guise of zoning, sought to enact and enforce unreasonable and discriminatory ordinances. Some of these attempted regulations have been palpably for the exclusive and preferential benefit of particular localities. The duty, therefore, devolves upon the Courts to determine in each instance whether or not the ordinance, either in whole or in part, is invalid. In the determination of this problem two questions present themselves; (1) is the scheme of zoning as a whole sound, that is to say, is the method of classification and districting reasonably necessary to the public health, safety, morals or general welfare, and (2) has the scheme of classification and districting been applied fairly and impartially in each instance?

"Obviously, the purpose of comprehensive zoning is the attainment of unity in the construction and development of a city along lines of reasonable regulations which tend to promote the health, safety, morals and general welfare of the community, and it is equally obvious that to accomplish this purpose there must be definitely in the minds of the makers of comprehensive zoning, a plan, in outline at least, sufficiently extensive so that when embodied in an enacted ordinance a reviewer thereof may say with confidence that it will rebound to the welfare of the city as a whole and that any part of that plan is reasonably related thereto. Of course, a comprehensive zoning plan should contemplate and provide for the planning from time to time of the execution of further details, extensions and such modifications of existing features as unforeseen changes, occurring in the civic conditions, make necessary to the perfection and perpetuation of the plan."

The city of Los Angeles had not yet enacted its whole plan into law; but the city was able to show that the particular ordinance in question was referable to and a part of the whole plan, and the Court held that sufficient.

A recent case which arose in Buffalo, New York, is another illustration. The city did not take the trouble to prepare a true zoning ordinance, mapping or districting the territory of the city. It chose instead to enact a measure containing no map, but simply defining residential areas according to actual residential development and excluding various non-residential uses therefrom. The case arose from

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the exclusion of a moving picture theatre. The constitutionality of zoning is well established in the New York courts; but in this case the court held the ordinance invalid. A similar illustration is furnished by the decision of the Supreme Court of Louisiana on an ordinance of Shreveport. Louisiana has upheld zoning in decisive fashion. This Shreveport ordinance, however, instead of mapping the city into districts, set forth a definition of residential districts according to actual occupancy for residential purposes and sought to protect such districts against specified uses. This ordinance was held invalid, the Court expressly basing its decision upon the ground that the districts had no fixed boundaries.

The establishment of the constitutionality of zoning in any state. does not preclude the courts of that state from inquiring into the validity or the merits of a particular zoning ordinance or of a specific feature of the ordinance. This is well illustrated by another recent holding of the Supreme Court of California." At about the same time at which that court upheld a single-family structure district and other residential district features of the Los Angeles ordinance, it invalidated an ordinance of the town of Atherton because the plan restricted the business district to the territory then occupied by business; the court stating that this had the effect of granting a monoply to existing business areas and that the ordinance was unreasonable in that it allotted to business uses an area so small as to be unreasonably restrictive. The case brings out clearly that, basically and primarily, zoning is not to be planned or justified as a protection to existing uses of property, but rather as a community design for future development of the territory of the city for the promotion of community benefits. Indeed, in one of the Los Angeles cases, Zahn v. Board of Public Works, the California court said:

"The power of the city council to zone is not limited in our opinion to the protection of established districts. To so hold would be to defeat in a large measure the very purpose of zoning which is to control future development in the best interest of the city. Zoning in its best sense looks not only backward to protect districts already established, but forward to aid in the development of new districts according to a comprehensive plan having as its basis the welfare of the city as a whole."

In the Cincinnati case above referred to, the Supreme Court of Ohio pointed out that the business and industrial districts provided by the map were ample for future growth. The real issue in the Euclid Village case was whether the ordinance provided a reasonable boundary line between the industrial and residential districts, and, from the point of view of the zoning movement, it would have been more fortunate if the attorneys had restricted their contentions and the court had restricted its opinion to that issue.

The Atherton, California, case illustrates another interesting aspect of the legal problems in zoning cases. If the plan be an organic plan for the reasonable allotment of the territory of the community amongst the various uses, residential, business and industrial, from the point of view of the best future development of the territory for the promotion of the public health, safety, prosperity, convenience and welfare, and if one of the zones be found by the court to be so unreasonable as to be declared unlawful, will the invalidity of that zone carry down the whole plan, even though the ordinance contain the customary saving clause to the effect that the invalidity of any provision shall not affect the validity of other provisions? In this case, the court held that the mapping or districting was so organic a unity that the invalidity of the business zone, as laid out on the map, necessarily destroyed and carried down the whole plan. There is much logic in that decision. It emphasizes the importance of the carefulness and thoroughness with which the mapping or defining of the zones should be done.

On the question of set-backs as part of the zone plan, there have as yet been no decisions one way or the other; that is, there have been no decisions, favorable or unfavorable, on the question of the constitutionality of set-backs as a part of a comprehensive zoning ordinance; and this remains for the time being an open question. In the advisory opinion rendered by the Supreme Court of Maine, the court intimated that the control of population density by means of front and other yard or bulk regulations in a zoning measure would not be a constitutional exercise of the police power. That opinion was not in a litigated

case nor concerned with any actual zoning ordinance, and has not, therefore, the authority which a decision in a litigated case would have. In a recent case in the Supreme Court of New York, the zone boundary line cut through a lot, with the result that the twenty-five foot setback requirement, applied to that portion of the lot which fell into the residential zone, made the use thereof for residential purposes a practical impossibility. This was held invalid, the court rightly stating that the ordinance was "not a well-considered plan." The court expressed doubts concerning the validity of set-back requirements, but the case was so special in its nature as not to require a determination of the broader question.12 The question of the constitutional validity of the control of building intensity by means of set-backs in a zoning ordinance remains, therefore, an open one, with ample indication that the ultimate decisions will be favorable. The official syllabus of the above-cited case of Pritz v. Messer (Supreme Court of Ohio) reads:

"An ordinance enacted by a municipality under Article XVIII, Section 3 of Ohio Constitution and under Sections 4366-1 to 4366-12, General Code, dividing the whole territory of the municipality into districts according to at comprehensive plan, which, in the interest of the public health, public safety and public morals, regulates the uses and the location of buildings and other structures and of premises to be used for trade, industry, residence or other specific uses, the height, bulk or location of buildings and other structures thereafter to be erected or altered, including the percentage of lot occupancy, set back building lines, and the area of yards, courts and other spaces, and for such purpose divides the city into zones or districts of such number, shape, and area as are suited to carry out such purposes, and provides a method of administration therefor and prescribes penalties for the violation of such provisions, is a valid and constitutional enactment."

The Euclid Village case raises another interesting issue, namely, whether the validity of a zoning ordinance or any provision thereof may be tested in court previous to the time of the application for a building permit and refusal of the permit. The decision of the United States District Court in that case enjoined the enforcement of the ordinance, though the property owner who brought the suit had no immediate intention of building on the property and did not know to

what use the land would later be put and in fact was holding the unimproved property solely for sale purposes. A recent ruling of the Supreme Court of Kansas is to the contrary effect, the court holding that until the property owner desires to build and apply the land to a specific use and is refused a building permit, any attack on the ordinance brings into issue the validity of the ordinance as a whole and that, under such circumstances, the ordinance must be treated as valid upon the general principle of the validity of zoning.13 Analogously, in a case in New Jersey, a state in general unfavorable to zoning, the court threw out the case because the plaintiff was not ready to build his proposed apartment, not yet having acquired all of the land necessary for the purpose."

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The Pritz v. Messer case determined another interesting and important issue, namely whether the owner of property adjacent to or in the neighborhood of the lot upon which the proposed violation. of the zoning ordinance is to occur, has the right to enforce the ordinance by bringing an action for injunction or whether the enforcement of the ordinance falls within the exclusive province of the public officials. The Supreme Court of Ohio held that the proposed apartment building, if in violation of the ordinance, would cause such special injury to the adjoining property owner as to give the latter the right to apply for and obtain an injunction. The zoning statute of Ohio does not expressly provide for any such injunction; and this is, therefore, express authority that, even in the absence of such express statutory provision, the neighboring property owner will suffer such special injury from violations of the ordinance as to give him the right to institute action.

This paper refers specifically to those cases only in which the opinion of the court illuminates the issues and points which have been discussed. There have been many other cases on other than constitutional issues, as for instance, the interpretation of the language of a statute or ordinance. Some of these deal with the scope of the dis