St. Louis v. Evraiff.

""Unwholesome trades, slaughterhouses, operations offensive to the senses, the deposit of powder, the application of steam power to propel cars, the building with combustible materials, and the burial of the dead, may all,' says Chancellor KENT (2 Commentaries, 340) 'be interdicted by law, in the midst of dense masses of population, on the general and rational principle, that every person ought so to use his property as not to injure his neighbors; and that private interests must be made subservient to the general interests of the community.' This is called the police power; and it is declared by Chief Justice SHAW that it is much easier to perceive and realize the existence and sources of it than to mark its boundaries, or prescribe limits to its exercise.

"This power is, and must be from its very nature, incapable of any very exact definition or limitation. Upon it depends the security of social order, the life and health of the citizen, the comfort of an existence in a thickly populated community, the enjoyment of private and social life, and the beneficial use of property. 'It extends,' says another eminent judge, 'to the protection of lives, limbs, health, comfort, and quiet of all persons, and the protection of all property within the State; and per

sons and property are subjected to all kinds of restraints and burdens in order to secure the general comfort, health, and prosperity of the State. Of the perfect right of the Legislature to do this no question ever was, or, upon acknowledged general principles, ever can be made, so far as natural persons are concerned.'"'

In St. Louis v. Liessing, 190 Mo. 1. c. 480, GANTT, J., said:

"The ordinance assailed has for its subject-matter the inspection of milk and cream and the regulation of the sale thereof. It is obviously a police regulation to guard against the sale or dissemination of an unwholesome and injurious quality of milk and cream and to protect the public against imposition, fraud and deception as to an article of food almost universally used by the people. The city of St. Louis, as has been repeatedly declared by

St. Louis v. Evraiff.

this court, derives its charter in pursuance of constitutional provisions, and the police powers delegated therein are conferred by the State upon the municipality, and so long as they are not inconsistent with the Constitution and laws of the State they are valid upon all who come within their scope and authority. [St. Louis v. Fischer, 167 Mo. 654, 194 U. S. 361; Kansas City v. Oil Co., 140 Mo. 458.] By the express provisions of Section 26, Article 3, of the Charter of St. Louis, authority is given 'for the inspection of butter, cheese, milk, lard and other provisions,' and 'to secure the general health of the inhabitants by any measure necessary,' and 'to pass all such ordinances as may be expedient in maintaining the peace, good government, health and welfare of the city, its trade, commerce and manufactures.' None of the objects sought to be secured by the charter are of more importance than the health of its inhabitants, and ordinances having such in view have been often upheld as an exercise of the police power of the State delegated to the city."

In Re Opinion of the Justices, 127 N. E. 525, construing an amendment to the Constitution of Massachusetts, it was held (Syl. 3) that: "An ordinance of a city or by-law of a town segregating manufacturing and commercial buildings, on the one side, from homes and residences, on the other, is justified by the broad conception of the police power created by Const. Amend. 60, giving the General Court power to limit buildings, according to their use or construction, to specified districts of cities and towns." We quote on page 528:

"The part of the first sentence of Section 2 which challenges most serious attention is the provision that heed shall be given in combination with the other factors there named to that which 'will tend to improve or beautify the city or town' and 'will harmonize with its natural development.' It has been decided quite generally, if not universally, by courts in which the question has been raised, that aesthetic considerations alone or as the main end do not afford sufficient foundation for imposing limitations upon the use of property under the police power.

St. Louis v. Evraiff.

[See cases collected, James Byrne v. Maryland Realty Co., 129 Md. 202, 98 Atl. 547, L. R. A. 1917A, 1216.] Before the adoption of amendment 60, it was said by Chief Justice KNOWLTON in Welch v. Swasey, 193 Mass. 365, 375, 79 N. E. 745, 118 Am. St. 523, 23 L. R. A. (N. S.) 1160: The inhabitants of a city or town cannot be compelled to give up rights in property, or to pay taxes, for purely aesthetic objects; but if the primary and substantive purpose of the legislation is such as justifies the act, considerations of taste and beauty may enter in, as auxiliary.'

"We think that this is an accurate statement of property rights under the Constitution of the United States. While the Supreme Court of the United States has not decided, so far as we are aware, that the exercise of the police power cannot rest on aesthetic considerations alone as its sole basis. We draw the inference from what has been said on that subject that at present at all events that foundation, standing alone, hardly would be regarded as sufficient, but it may be considered in a subsidiary way. In Welch v. Swasey, 214 U. S. 91, at page 107, 29 Sup. Ct. at page 567, 53 L. Ed. 923, reference was made, apparently as ground for upholding the statute, to the fact that this court had held in deciding that case, and in Commonwealth v. Boston Advertising Co., 188 Mass. 348, 74 N. E. 601, 69 L. R. A. 817, 108 Am. St. 494, that 'the police power cannot be exercised for a merely aesthetic purpose.' In St. Louis Poster Advertising Co. v. St. Louis, 249 U. S. 269, 39 Sup. Ct. 274, 63 L. Ed. 599, a case upholding severely restrictive police regulations as to the construction and maintenance of billboards, it was said by Mr. Justice HOLMES: 'Possibly one or two details, especially the requirement of conformity to the building line, have aesthetic considerations in view more obviously than anything else. But as the main burdens imposed stand on other ground, we should not be prepared to deny the validity of relatively trifling requirements that did not look solely to the satisfaction of rudimentary wants that alone we generally recognize as necessary. [Hubbard v. Taunton, 140 Mass. 467, 468.]"

St. Louis v. Evraiff.

It will be noted in the above case that the amendment to the Constitution authorized the ordinance limiting. buildings according to their use or construction, to specified districts of cities and towns.

An ordinance of the city of Los Angeles divided the business section of the city into seven districts, and declared the remainder to be a residence district, and made it unlawful to carry on certain occupations, including laundries and wash-houses, within the residence district. In Ex parte Quong Wo, 118 Pac. 714, 1. c. 717, the court said:

"It must be admitted, of course, that the business of conducting a public laundry is a lawful and necessary occupation, and that such a laundry is not necessarily a nuisance per se. But this fact alone does not prevent the enactment of such regulations regarding it as may be reasonably found necessary for the safety, health, and comfort of society at large. There are many lawful and necessary occupations, not constituting nuisances per se, as to which such regulations by a city have been found necessary. It was said in Ex parte Lacey, 108 Cal. 326, 41 Pac. 411, 38 L. R. A. 640, 49 Am. St. 93, involving the question of the validity of an ordinance prohibiting the operation of any steam shoddy machine, or steam carpetbeating machine, within one hundred feet of any church, schoolhouse or dwelling house: 'Indeed, as to nuisances per se, the general laws of the State are ample to deal with them. But the business here involved may properly be classed with livery stables, laundries, soap and glue factories, etc., a class of business undertakings in the conduct of which police and sanitary regulations are made, to a greater or less degree by every city in the country.'

999

The contention in this case was that the exclusion of laundries and wash-houses from the residence district was a discrimination against the Chinese. It was held to be a reasonable regulation for the safety, health and comfort of society at large. The court further said, at the foot of page 718: "The necessity of such regulation in

St. Louis v. Evraiff.

the case of necessary and lawful occupations carried on in cities and towns was recognized by the Supreme Court of the United States in Crowley v. Christensen, 137 U. S. 90, 11 Sup. Ct. 15, 34 L. Ed. 620, where it is said: 'Some occupations by the noise made in their pursuit, some by the odors they engender, and some by the dangers accompanying them, require regulation as to the locality in which they shall be conducted.'"'

St. Louis Gunning Company v. St. Louis, 235 Mo. 99, is strongly relied on by plaintiff. It involved the legality of an ordinance regulating bill-boards. What Judge WOODSON said, 1. c. 173 et seq., is pertinent to the question now under consideration, and is as follows:

"In discussing this question, the Supreme Court of California, in the case of Varney v. Williams, 155 Cal. 318, said: 'If the bill-boards constituted a public nuisance, a court of equity would refuse any writ designed to perpetuate their maintenance, regardless of the validity of the ordinance under which defendants assume to proceed. [McQueen v. Phelan, 4 Cal. App. 695, 88 Pac. 1099.] But the finding that the boards did constitute a nuisance is attacked as contrary to the evidence. It is not contended by respondents that any nuisance in fact existed, unless it resulted from the mere circumstance that structures were maintained contrary to the terms of the ordinance. The single question for decision, therefore, is whether the enactment of this ordinance was within the legislative power of the town of East San Jose. Except for the limited exemption conferred by Section 3, the effect of the ordinance is to absolutely prohibit the erection or maintenance of bill-boards for advertising purposes. There is no attempt to restrict the operation of the enactment to bill-boards that may be insecure or otherwise dangerous, or to advertising that may be indecent. The town trustees have undertaken to make criminal the maintenance of any bill-board, however securely it may be built, and however unobjectionable may be the advertising matter displayed on it. Such prohibition, involving a very substantial interference with the rights of property, can