TAKINGS AND THE ENVIRONMENT SEMINAR
ASSIGNMENT 8
Pennsylvania Coal and the Origins of Regulatory Takings
“Land has also, in its legal signification, an indefinite extent, upwards as
well as downwards. Cujus est folum, ejus est usque ad coelum, is the
maxim of the law, upwards; therefore no man may erect any building, or
the like, to overhang another's land: and, downwards, whatever is in a
direct line between the surface of any land, and the center of the earth,
belongs to the owner of the surface; as is every day's experience in the
mining countries. So that the word ‘land’ includes not only the face of
the earth, but every thing under it, or over it.”
Sir William Blackstone, Commentaries on
the Laws of England, Book II, Ch. 2.
“For what is land but the profits thereof?”
Sir Edward Coke, 1 Institutes of the Laws of
England § 1(4)(g).
Reading:
James W. Ely, The Guardian of Every Other Right, pp. 106-24
Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922)
Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926)
Miller v. Schoene, 276 U.S. 272 (1928)
Nectow v. City of Cambridge, 277 U.S. 183 (1928)
Notes and Questions:
1.
Pennsylvania Coal Co. v. Mahon is one of the most important, and enigmatic, decisions
in the Supreme Court’s takings clause jurisprudence. Although the Court declined to follow
Pennsylvania Coal in Keystone Bituminous Coal Association v. DeBenedictis, 480 U.S. 470
(1987), an almost factually identical case, it has never overruled the earlier decision. Indeed, as
we shall see when we get to Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992),
Justice Holmes’ opinion continues to have a profound influence on the contemporary Supreme
Court’s view of regulatory takings.
2.
What factual conclusions were determinative in Pennsylvania Coal?
1
3.
a.
The case involved “a single private house” and the damage was not “common or
public”?
b.
The Pennsylvania Coal Company owned the “support estate”?
c.
The Kohler Act could not be “justified as a protection of personal safety” of coal
miners and residents of the overlying land?
d.
The “extent of the taking [was] great”—viz. abolition of “what is recognized in
Pennsylvania as an estate in land”?
e.
The plaintiffs had surrendered their rights by contract with Pennsylvania Coal?
f.
All of the above?
Are the factual conclusions set forth in the preceding question correct?
4.
In Pennsylvania Coal, Justice Holmes famously declared: “The general rule at least is,
that while property may be regulated to a certain extent, if the regulation goes too far it will be
recognized as a taking.” What does this mean? Is this the holding of the case?
5.
How effectively does the Court respond to Justice Brandeis’ argument that the Kohler
Act was enacted to prevent a public nuisance and to protect the public health and safety? Why
was Pennsylvania Coal not decided on the basis of the nuisance decisions that we read in the last
assignment?
6.
Is Pennsylvania Coal consistent with Mugler? In both cases, the regulation of the private
property reduced its value to zero. Yet, the Kansas Legislature’s enactment of the law to prevent
(or to eliminate) a threat to public health and safety was enough to defeat the takings claims in
Mugler, while the Pennsylvania Legislature’s similar purpose in enacting the Kohler Act was not
enough to sustain the constitutionality of the statute. Does Pennsylvania Coal overrule, or
significantly limit, the rule of law established in Mugler and its progeny?
7.
In a case that involved due process and takings claims challenging an earlier
Pennsylvania coal mining safety law, the Supreme Court (including Justice Holmes) concluded:
Legislation requiring owners of adjoining coal property to cause boundary pillars
of coal to be left of sufficient width to safeguard employees of either mine in case
the other should be abandoned and allowed to fill with water cannot be deemed an
unreasonable exercise of the [police] power. In effect, it requires a comparatively
small portion of the valuable contents of the vein to be left in place, so long as
may be required for the safety of the men employed in mining upon either
property.
2
Plymouth Coal Co. v. Pennsylvania, 232 U.S. 531, 540 (1914). How is this different from
Pennsylvania Coal? Does Justice Holmes persuasively distinguish Plymouth Coal in his
Pennsylvania Coal opinion? What is “an average reciprocity of advantage”?
8.
Justice Brandeis argued in his dissenting opinion that the restricted property “remains in
the possession of its owner. The State does not appropriate it or make any use of it.” Should this
be determinative?
9.
How well does Justice Holmes respond to Justice Brandeis’ argument that Pennsylvania
Coal should not be permitted to claim a 100 percent taking of its property, because the support
estate only has value in relation to, and when linked with, either the surface estate or the mineral
estate?
10.
Is Pennsylvania Coal really a public use case, in which the Supreme Court holds
unconstitutional the Kohler Act’s effect of transferring (without payment of just compensation)
the protections and economic advantages of the support estate from the Pennsylvania Coal
Company to the plaintiff landowners?
11.
Is Pennsylvania Coal in fact an impairment of contract decision—viz. that Pennsylvania
unconstitutionally interfered with the land sales contracts by which the coal companies reserved
the right of support from their conveyances of the surface parcels? If so, is Justice Holmes’
opinion in Pennsylvania Coal consistent with his opinion for the Court in Hudson Water in
which the Supreme Court rejected the company’s argument that the New Jersey anti-export law
violated Article I, Section 10 of the Constitution? Recall Holmes’ curt conclusion: “ One whose
rights, such as they are, are subject to state restriction, cannot remove them from the power of the
State by making a contract about them.”
12.
Or, is Pennsylvania Coal more properly characterized as a substantive due process
decision?
As you know, in the famous (or infamous) case of Lochner v. New York, 198 U.S. 45
(1905), the Supreme Court struck down a provision of the state’s labor laws that prohibited
bakeries from requiring their employees to work more than sixty hours per week. The Court
concluded that “[t]he statute necessarily interferes with the right of contract between the
employer and employees, concerning the number of hours in which the latter may labor in the
bakery of the employer. The general right to make a contract in relation to his business is part of
the liberty of the individual protected by the Fourteenth Amendment of the Federal
Constitution.” Id. at 53. The Court stated that there are “certain powers, existing in the
sovereignty of each State in the Union, somewhat vaguely termed police powers, the exact
description and limitation of which have not been attempted by the courts,” and acknowledged
that “property and liberty are held on such reasonable conditions as may be imposed by the
governing power of the State in the exercise of those powers, and with such conditions the
Fourteenth Amendment was not designed to interfere.” Id. (citing Mugler v. Kansas, 123 U.S.
623 (1887)). It distinguished Mugler, as well as a series of cases in which it had upheld worker
protection laws, however, on the ground that the bakery statute,
3
although passed in the assumed exercise of the police power, and as relating to the public
health, or the health of the employees named, is not within that power, and is invalid.
The act is not, within any fair meaning of the term, a health law, but is an illegal
interference with the rights of individuals, both employers and employees, to make
contracts regarding labor upon such terms as they may think best, or which they may
agree upon with the other parties to such contracts. Statutes of the nature of that under
review, limiting the hours in which grown and intelligent men may labor to earn their
living, are mere meddlesome interferences with the rights of the individual, and they are
not saved from condemnation by the claim that they are passed in the exercise of the
police power and upon the subject of the health of the individual whose rights are
interfered with, unless there be some fair ground, reasonable in and of itself, to say that
there is material danger to the public health or to the health of the employees, if the hours
of labor are not curtailed. [Id. at 61.]
In response, Justice Holmes wrote this famous dissent:
This case is decided upon an economic theory which a large part of the country
does not entertain. If it were a question whether I agreed with that theory I should desire
to study it further and long before making up my mind. But I do not conceive that to be
my duty, because I strongly believe that my agreement or disagreement has nothing to do
with the right of a majority to embody their opinions in law. It is settled by various
decisions of this court that state constitutions and state laws may regulate life in many
ways which we as legislators might think as injudicious or if you like as tyrannical as
this, and which equally with this interfere with the liberty to contract. Sunday laws and
usury laws are ancient examples. A more modern one is the prohibition of lotteries. The
liberty of the citizen to do as he likes so long as he does not interfere with the liberty of
others to do the same, which has been a shibboleth for some well-known writers, is
interfered with by school laws, by the Post Office, by every state or municipal institution
which takes his money for purposes thought desirable, whether he likes it or not. The
Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics. The other
day we sustained the Massachusetts vaccination law. Jacobson v. Massachusetts, 197
U.S. 11. United States and state statutes and decisions cutting down the liberty to
contract by way of combination are familiar to this court. Northern Securities Co. v.
United States, 193 U.S. 197. Two years ago we upheld the prohibition of sales of stock
on margins or for future delivery in the constitution of California. Otis v. Parker, 187
U.S. 606. The decision sustaining an eight hour law for miners is still recent. Holden v.
Hardy, 169 U.S. 366. Some of these laws embody convictions or prejudices which
judges are likely to share. Some may not. But a constitution is not intended to embody a
particular economic theory, whether of paternalism and the organic relation of the citizen
to the State or of laissez faire. It is made for people of fundamentally differing views,
and the accident of our finding certain opinions natural and familiar or novel and even
shocking ought not to conclude our judgment upon the question whether statutes
embodying them conflict with the Constitution of the United States.
General propositions do not decide concrete cases. The decision will depend on
a judgment or intuition more subtle than any articulate major premise. But I think that
the proposition just stated, if it is accepted, will carry us far toward the end. Every
opinion tends to become a law. I think that the word liberty in the Fourteenth
Amendment is perverted when it is held to prevent the natural outcome of a dominant
opinion, unless it can be said that a rational and fair man necessarily would admit that the
4
statute proposed would infringe fundamental principles as they have been understood by
the traditions of our people and our law. It does not need research to show that no such
sweeping condemnation can be passed upon the statute before us. A reasonable man
might think it a proper measure on the score of health. Men whom I certainly could not
pronounce unreasonable would uphold it as a first installment of a general regulation of
the hours of work. Whether in the latter aspect it would be open to the charge of
inequality I think it unnecessary to discuss. [Id. at 75-76.]
13.
Are Justice Holmes’ opinions in Lochner and Pennsylvania Coal reconcilable? If not,
how do you explain his positions in the two cases? If so, why is Lochner one of the most
disreputable decisions in the history of the Supreme Court, while Pennsylvania Coal continues to
shape the Court’s takings jurisprudence?
14.
Earlier in 1922, the Supreme Court addressed the question whether a rent control law
enacted by Congress for the District of Columbia at the end of World War I violated the public
use and due process provisions of the Fifth Amendment. In Block v. Hirsh, 256 U.S. 135 (1922),
Hirsh sought to recover possession of an apartment located in a building that he had recently
purchased. The lessee, Block, defended on the basis of the rent control act, which authorized
tenants to occupy the premises after expiration of the lease so long as the tenant continues to pay
rent and to satisfy the other conditions in the lease. The act—and the tenants’ rights created by
it—expired two years after the date of its enactment. By a five-to-four vote, the Supreme Court
concluded that the act was constitutional. Writing for the majority, Justice Holmes first rejected
Hirsh’s claim that the rent control statute violated the public use clause because it benefited
private tenants:
[A] declaration by a legislature concerning public conditions that by necessity
and duty it must know, is entitled at least to great respect. In this instance Congress
stated a publicly notorious and almost world-wide fact. That the emergency declared by
the statute did exist must be assumed, and the question is whether Congress was
incompetent to meet it in the way in which it has been met by most of the civilized
countries of the world.
The general proposition to be maintained is that circumstances have clothed the
letting of buildings in the District of Columbia with a public interest so great as to justify
regulation by law. Plainly circumstances may so change in time or so differ in space as
to clothe with such an interest what at other times or in other places would be a matter of
purely private concern. It is enough to refer to the decisions as to insurance, in German
Alliance Insurance Co. v. Lewis, 233 U.S. 389; irrigation, in Clark v. Nash, 198 U.S.
361; and mining, in Strickley v. Highland Boy Gold Mining Co., 200 U.S. 527. They
sufficiently illustrate what hardly would be denied. They illustrate also that the use by
the public generally of each specific thing affected cannot be made the test of public
interest, Mt. Vernon-Woodberry Cotton Duck Co. v. Alabama Interstate Power Co., 240
U.S. 30, 32, and that the public interest may extend to the use of land. They dispel the
notion that what in its immediate aspect may be only a private transaction may not be
raised by its class or character to a public affair. See also Noble State Bank v. Haskell,
219 U.S. 104, 110, 111.
Justice Holmes next addressed the argument that real property was entitled to greater
protection than the types of personal property involved in the earlier cases:
5
The fact that tangible property is also visible tends to give a rigidity to our
conception of our rights in it that we do not attach to others less concretely clothed. But
the notion that the former are exempt from the legislative modification required from
time to time in civilized life is contradicted not only by the doctrine of eminent domain,
under which what is taken is paid for, but by that of the police power in its proper sense,
under which property rights may be cut down, and to that extent taken, without pay.
Under the police power the right to erect buildings in a certain quarter of a city may be
limited to from eighty to one hundred feet. Welch v. Swasey, 214 U.S. 91. Safe pillars
may be required in coal mines. Plymouth Coal Co. v. Pennsylvania, 232 U. S. 531.
Billboards in cities may be regulated. St. Louis Poster Advertising Co. v. St. Louis, 249
U.S. 269. Watersheds in the country may be kept clear. Perley v. North Carolina, 249
U.S. 510. These cases are enough to establish that a public exigency will justify the
legislature in restricting property rights in land to a certain extent without compensation.
But if to answer one need the legislature may limit height to answer another it may limit
rent. We do not perceive any reason for denying the justification held good in the
foregoing cases to a law limiting the property rights now in question if the public
exigency requires that. The reasons are of a different nature but they certainly are not
less pressing. Congress has stated the unquestionable embarrassment of Government and
danger to the public health in the existing condition of things. The space in Washington
is necessarily monopolized in comparatively few hands, and letting portions of it is as
much a business as any other. Housing is a necessary of life. All the elements of a
public interest justifying some degree of public control are present.
He then introduced the concept that would be made famous by Pennsylvania Coal: “The
only matter that seems to us open to debate,” he declared, “is whether the statute goes too far.
For just as there comes a point as which the police power ceases and leaves only that of eminent
domain, it may be conceded that regulations of the present sort pressed to a certain height might
amount to a taking without due process of law.”
In the opinion of the Court, the rent control act did not “go too far.” The restrictions on
the property rights of lessors were temporary, and the statute provided landlords with a means to
earn a reasonable rent. Justice Holmes acknowledged that the act may deny them the “power of
profiting by the sudden influx of people to Washington caused by the needs of Government and
the war, and thus of a right usually incident to fortunately situated property,” but this does not
render the statute unconstitutional. “[W]hile it is unjust to pursue such profits from a national
misfortune with sweeping denunciations, the policy of restricting them has been embodied in
taxation and is accepted. It goes little if at all farther than the restriction put upon the rights of
the owner of money by the more debatable usury laws.” Moreover, “[t]he preference given to
the tenant in possession is an almost necessary incident of the policy and is traditional in English
law. If the tenant remained subject to the landlord's power to evict, the attempt to limit the
landlord's demands would fail.” The Court concluded:
Assuming that the end in view otherwise justified the means adopted by Congress, we
have no concern of course with the question whether those means were the wisest,
whether they may not cost more than they come to, or will effect the result desired. It is
enough that we are not warranted in saying that legislation that has been resorted to for
the same purpose all over the world, is futile or has no reasonable relation to the relief
sought.
6
15.
Is Block v. Hirsh consistent with Pennsylvania Coal? What are the key factual
differences between the cases that support the Court’s conclusion that the Kohler Act “went too
far,” while the District of Columbia rent control law did not? Was the two-year time limit on the
latter the critical factor? Was it the Court’s conclusion that lessors governed by the law could
earn a reasonable rent? Was there any indication in Pennsylvania Coal that the coal companies
would not be able to earn a reasonable return on their investment if they could not mine portions
of the support estate?
16.
Is Village of Euclid consistent with Pennsylvania Coal? If so, what are the significant
factual differences between the cases? Do the different legal conclusions follow solely from the
fact that in Euclid zoning law resulted only in large—but not total—reduction in the value of the
regulated property? Why should the takings clause provide a right of compensation for a 100
percent diminution in the value of private property caused by government regulation, but not
losses as large as 75 percent (as in Euclid) or 92.5 percent (as in Hadacheck)?
17.
Is Miller v. Schoene consistent with Pennsylvania Coal? In Miller, the Court accepted
the Virginia Supreme Court of Appeals’ determination that “the state was under the necessity of
making a choice between the preservation of one class of property and that of the other wherever
both existed in dangerous proximity. . . . When forced to such a choice the state does not exceed
its constitutional powers by deciding upon the destruction of one class of property in order to
save another which, in the judgment of the legislature, is of greater value to the public.” Was not
the same true in Pennsylvania Coal? If so, is there any other basis on which to distinguish the
two cases?
18.
The Court states in Miller: “We need not weigh with nicety the question whether the
infected cedars constitute a nuisance according to the common law; or whether they may be so
declared by the statute.” Was the location of the cedars in proximity to the apple orchards a
public nuisance? What does the opinion in Miller tell us about the “nuisance exception” line of
cases that we read in the last assignment?
19.
Is the decision in Miller based on utilitarian principles—i.e., that the economy of Virginia
would be better served and protected by the government-mandated destruction of cedar tress than
it would by sustaining losses to its apple industry? If so, is a utilitarian approach to the takings
clause fair to those property owners who are required to bear all of the costs of providing the
greatest good to the greatest number? Do cases such as Miller and those covered in the last
assignment undermine the purposes of the takings clause?
20.
Nectow v. Village of Cambridge is something of a coda to the Court’s holding in Euclid.
Nectow establishes that the due process clauses of the Fifth and Fourteenth Amendments require
some judicial review of zoning and other types of land use decisions. The Court declares in both
cases that the judiciary should not overturn the legislature’s (or municipal government’s)
decision in these areas unless the regulation of private property “has no foundation in reason and
is a mere arbitrary or irrational exercise of power having no substantial relation to the public
health, the public morals, the public safety or the public welfare in its proper sense.” This is, of
course, a highly deferential standard.
7
In Nectow, however, the Court concludes that the Cambridge zoning law violated this
standard because the plaintiff’s property was divided between two zoning categories and the
portion that was zoned residential could not practicably be used for that purpose. Does Nectow
essentially establish that zoning and similar laws must contain some form of variance procedure?
21.
As just noted, the court bases its decision in Nectow on the master’s conclusion that “no
practical use can be made of the land in question for residential purposes, because . . . there
would not be adequate return on the amount of any investment for the development of the
property.’ Is Nectow therefore governed by the rule of Pennsylvania Coal? In other words, was
the application of the Cambridge zoning law to Nectow’s property a taking as well as a violation
of his due process rights?
22.
How would you describe the state of takings law circa 1930? For further reading on this
and related questions regarding Pennsylvania Coal and the other cases, I recommend Joseph L.
Sax, Takings and the Police Power, 74 Yale L.J. 36 (1964), and Carol M. Rose, Mahon
Reconstructed: Why the Takings Issue is Still a Muddle, 57 S. Cal. L. Rev. 561 (1984). For an
insightful, revisionist history of the Pennsylvania Coal litigation and the decision’s influence on
later takings cases, see WILLIAM A. FISCHEL, REGULATORY TAKINGS 13-63 (1995).
8
PENNSYLVANIA COAL CO. v. MAHON
Supreme Court of the United States
260 U.S. 393 (1922)
MR. JUSTICE HOLMES delivered the opinion of the Court.
This is a bill in equity brought by the defendants in error to prevent the Pennsylvania
Coal Company from mining under their property in such way as to remove the supports and
cause a subsidence of the surface and of their house. The bill sets out a deed executed by the
Coal Company in 1878, under which the plaintiffs claim. The deed conveys the surface, but in
express terms reserves the right to remove all the coal under the same, and the grantee takes the
premises with the risk, and waives all claim for damages that may arise from mining out the coal.
But the plaintiffs say that whatever may have been the Coal Company's rights, they were taken
away by an Act of Pennsylvania, approved May 27, 1921, P.L. 1198, commonly known there as
the Kohler Act. The Court of Common Pleas found that if not restrained the defendant would
cause the damage to prevent which the bill was brought, but denied an injunction, holding that
the statute if applied to this case would be unconstitutional. On appeal the Supreme Court of the
State agreed that the defendant had contract and property rights protected by the Constitution of
the United States, but held that the statute was a legitimate exercise of the police power and
directed a decree for the plaintiffs. A writ of error was granted bringing the case to this Court.
The statute forbids the mining of anthracite coal in such way as to cause the subsidence
of, among other things, any structure used as a human habitation, with certain exceptions,
including among them land where the surface is owned by the owner of the underlying coal and
is distant more than one hundred and fifty feet from any improved property belonging to any
other person. As applied to this case the statute is admitted to destroy previously existing rights
of property and contract. The question is whether the police power can be stretched so far.
Government hardly could go on if to some extent values incident to property could not be
diminished without paying for every such change in the general law. As long recognized, some
values are enjoyed under an implied limitation and must yield to the police power. But
obviously the implied limitation must have its limits, or the contract and due process clauses are
gone. One fact for consideration in determining such limits is the extent of the diminution.
When it reaches a certain magnitude, in most if not in all cases there must be an exercise of
eminent domain and compensation to sustain the act. So the question depends upon the
particular facts. The greatest weight is given to the judgment of the legislature, but it always is
open to interested parties to contend that the legislature has gone beyond its constitutional power.
This is the case of a single private house. No doubt there is a public interest even in this,
as there is in every purchase and sale and in all that happens within the commonwealth. Some
existing rights may be modified even in such a case. Rideout v. Knox, 148 Mass. 368. But
usually in ordinary private affairs the public interest does not warrant much of this kind of
interference. A source of damage to such a house is not a public nuisance even if similar damage
is inflicted on others in different places. The damage is not common or public. Wesson v.
Washburn Iron Co., 13 Allen, 95, 103. The extent of the public interest is shown by the statute
to be limited, since the statute ordinarily does not apply to land when the surface is owned by the
9
owner of the coal. Furthermore, it is not justified as a protection of personal safety. That could
be provided for by notice. Indeed the very foundation of this bill is that the defendant gave
timely notice of its intent to mine under the house. On the other hand the extent of the taking is
great. It purports to abolish what is recognized in Pennsylvania as an estate in land—a very
valuable estate—and what is declared by the Court below to be a contract hitherto binding the
plaintiffs. If we were called upon to deal with the plaintiffs' position alone, we should think it
clear that the statute does not disclose a public interest sufficient to warrant so extensive a
destruction of the defendant's constitutionally protected rights.
But the case has been treated as one in which the general validity of the act should be
discussed. The Attorney General of the State, the City of Scranton, and the representatives of
other extensive interests were allowed to take part in the argument below and have submitted
their contentions here. It seems, therefore, to be our duty to go farther in the statement of our
opinion, in order that it may be known at once, and that further suits should not be brought in
vain.
It is our opinion that the act cannot be sustained as an exercise of the police power, so far
as it affects the mining of coal under streets or cities in places where the right to mine such coal
has been reserved. As said in a Pennsylvania case, "For practical purposes, the right to coal
consists in the right to mine it." Commonwealth v. Clearview Coal Co., 256 Pa. St. 328, 331.
What makes the right to mine coal valuable is that it can be exercised with profit. To make it
commercially impracticable to mine certain coal has very nearly the same effect for
constitutional purposes as appropriating or destroying it. This we think that we are warranted in
assuming that the statute does.
It is true that in Plymouth Coal Co. v. Pennsylvania, 232 U.S. 531, it was held competent
for the legislature to require a pillar of coal to be left along the line of adjoining property, that,
with the pillar on the other side of the line, would be a barrier sufficient for the safety of the
employees of either mine in case the other should be abandoned and allowed to fill with water.
But that was a requirement for the safety of employees invited into the mine, and secured an
average reciprocity of advantage that has been recognized as a justification of various laws.
The rights of the public in a street purchased or laid out by eminent domain are those that
it has paid for. If in any case its representatives have been so short sighted as to acquire only
surface rights without the right of support, we see no more authority for supplying the latter
without compensation than there was for taking the right of way in the first place and refusing to
pay for it because the public wanted it very much. The protection of private property in the Fifth
Amendment presupposes that it is wanted for public use, but provides that it shall not be taken
for such use without compensation. A similar assumption is made in the decisions upon the
Fourteenth Amendment. Hairston v. Danville & Western Ry. Co., 208 U.S. 598, 605. When this
seemingly absolute protection is found to be qualified by the police power, the natural tendency
of human nature is to extend the qualification more and more until at last private property
disappears. But that cannot be accomplished in this way under the Constitution of the United
States.
10
The general rule at least is, that while property may be regulated to a certain extent, if
regulation goes too far it will be recognized as a taking. It may be doubted how far exceptional
cases, like the blowing up of a house to stop a conflagration, go—and if they go beyond the
general rule, whether they do not stand as much upon tradition as upon principle. Bowditch v.
Boston, 101 U.S. 16. In general it is not plain that a man's misfortunes or necessities will justify
his shifting the damages to his neighbor's shoulders. Spade v. Lynn & Boston R.R. Co., 172
Mass. 488, 489. We are in danger of forgetting that a strong public desire to improve the public
condition is not enough to warrant achieving the desire by a shorter cut than the constitutional
way of paying for the change. As we already have said, this is a question of degree—and
therefore cannot be disposed of by general propositions. But we regard this as going beyond any
of the cases decided by this Court. The late decisions upon laws dealing with the congestion of
Washington and New York, caused by the war, dealt with laws intended to meet a temporary
emergency and providing for compensation determined to be reasonable by an impartial board.
They went to the verge of the law but fell far short of the present act. Block v. Hirsh, 256 U.S.
135. Marcus Brown Holding Co. v. Feldman, 256 U.S. 170. Levy Leasing Co. v. Siegel, 258
U.S. 242.
We assume, of course, that the statute was passed upon the conviction that an exigency
existed that would warrant it, and we assume that an exigency exists that would warrant the
exercise of eminent domain. But the question at bottom is upon whom the loss of the changes
desired should fall. So far as private persons or communities have seen fit to take the risk of
acquiring only surface rights, we cannot see that the fact that their risk has become a danger
warrants the giving to them greater rights than they bought.
Decree reversed.
MR. JUSTICE BRANDEIS, dissenting.
The Kohler Act prohibits, under certain conditions, the mining of anthracite coal within
the limits of a city in such a manner or to such an extent "as to cause the . . . subsidence of any
dwelling or other structure used as a human habitation, or any factory, store, or other industrial
or mercantile establishment in which human labor is employed." Coal in place is land; and the
right of the owner to use his land is not absolute. He may not so use it as to create a public
nuisance; and uses, once harmless, may, owing to changed conditions, seriously threaten the
public welfare. Whenever they do, the legislature has power to prohibit such uses without
paying compensation; and the power to prohibit extends alike to the manner, the character and
the purpose of the use. Are we justified in declaring that the Legislature of Pennsylvania has, in
restricting the right to mine anthracite, exercised this power so arbitrarily as to violate the
Fourteenth Amendment?
Every restriction upon the use of property imposed in the exercise of the police power
deprives the owner of some right theretofore enjoyed, and is, in that sense, an abridgment by the
State of rights in property without making compensation. But restriction imposed to protect the
public health, safety or morals from dangers threatened is not a taking. The restriction here in
question is merely the prohibition of a noxious use. The property so restricted remains in the
possession of its owner. The State does not appropriate it or make any use of it. The State
11
merely prevents the owner from making a use which interferes with paramount rights of the
public. Whenever the use prohibited ceases to be noxious—as it may because of further change
in local or social conditions—the restriction will have to be removed and the owner will again be
free to enjoy his property as heretofore.
The restriction upon the use of this property can not, of course, be lawfully imposed,
unless its purpose is to protect the public. But the purpose of a restriction does not cease to be
public, because incidentally some private persons may thereby receive gratuitously valuable
special benefits. Thus, owners of low buildings may obtain, through statutory restrictions upon
the height of neighboring structures, benefits equivalent to an easement of light and air. Welch v.
Swasey, 214 U.S. 91. Compare Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61; Walls v.
Midland Carbon Co., 254 U.S. 300. Furthermore, a restriction, though imposed for a public
purpose, will not be lawful, unless the restriction is an appropriate means to the public end. But
to keep coal in place is surely an appropriate means of preventing subsidence of the surface; and
ordinarily it is the only available means. Restriction upon use does not become inappropriate as
a means, merely because it deprives the owner of the only use to which the property can then be
profitably put. The liquor and the oleomargarine cases settled that. Mugler v. Kansas, 123 U.S.
623, 668, 669; Powell v. Pennsylvania, 127 U.S. 678, 682. See also Hadacheck v. Los Angeles,
239 U.S. 394; Pierce Oil Corporation v. City of Hope, 248 U.S. 498. Nor is a restriction
imposed through exercise of the police power inappropriate as a means, merely because the same
end might be effected through exercise of the power of eminent domain, or otherwise at public
expense. Every restriction upon the height of buildings might be secured through acquiring by
eminent domain the right of each owner to build above the limiting height; but it is settled that
the State need not resort to that power. Compare Laurel Hill Cemetery v. San Francisco, 216
U.S. 358; Missouri Pacific Ry. Co. v. Omaha, 235 U.S. 121. If by mining anthracite coal the
owner would necessarily unloose poisonous gasses, I suppose no one would doubt the power of
the State to prevent the mining, without buying his coal fields. And why may not the State,
likewise, without paying compensation, prohibit one from digging so deep or excavating so near
the surface, as to expose the community to like dangers? In the latter case, as in the former,
carrying on the business would be a public nuisance.
It is said that one fact for consideration in determining whether the limits of the police
power have been exceeded is the extent of the resulting diminution in value; and that here the
restriction destroys existing rights of property and contract. But values are relative. If we are to
consider the value of the coal kept in place by the restriction, we should compare it with the
value of all other parts of the land. That is, with the value not of the coal alone, but with the
value of the whole property. The rights of an owner as against the public are not increased by
dividing the interests in his property into surface and subsoil. The sum of the rights in the parts
can not be greater than the rights in the whole. The estate of an owner in land is grandiloquently
described as extending ab orco usque ad coelum. But I suppose no one would contend that by
selling his interest above one hundred feet from the surface he could prevent the State from
limiting, by the police power, the height of structures in a city. And why should a sale of
underground rights bar the State's power? For aught that appears the value of the coal kept in
place by the restriction may be negligible as compared with the value of the whole property, or
even as compared with that part of it which is represented by the coal remaining in place and
which may be extracted despite the statute. Ordinarily a police regulation, general in operation,
12
will not be held void as to a particular property, although proof is offered that owing to
conditions peculiar to it the restriction could not reasonably be applied. See Powell v.
Pennsylvania, 127 U.S. 678, 681, 684; Murphy v. California, 225 U.S. 623, 629. But even if the
particular facts are to govern, the statute should, in my opinion, be upheld in this case. For the
defendant has failed to adduce any evidence from which it appears that to restrict its mining
operations was an unreasonable exercise of the police power. Compare Reinman v. Little Rock,
237 U.S. 171, 177, 180; Pierce Oil Corporation v. City of Hope, 248 U.S. 498, 500. Where the
surface and the coal belong to the same person, self-interest would ordinarily prevent mining to
such an extent as to cause a subsidence. It was, doubtless, for this reason that the legislature,
estimating the degrees of danger, deemed statutory restriction unnecessary for the public safety
under such conditions.
It is said that this is a case of a single dwelling house; that the restriction upon mining
abolishes a valuable estate hitherto secured by a contract with the plaintiffs; and that the
restriction upon mining cannot be justified as a protection of personal safety, since that could be
provided for by notice. The propriety of deferring a good deal to tribunals on the spot has been
repeatedly recognized. Welch v. Swasey, 214 U.S. 91, 106; Laurel Hill Cemetery v. San
Francisco, 216 U.S. 358, 365; Patsone v. Pennsylvania, 232 U.S. 138, 144. May we say that
notice would afford adequate protection of the public safety where the legislature and the highest
court of the State, which greater knowledge of local conditions, have declared, in effect, that it
would not? If public safety is imperiled, surely neither grant, nor contract, can prevail against
the exercise of the police power. Fertilizing Co. v. Hyde Park, 97 U.S. 659; Atlantic Coast Line
R.R. Co. v. Goldsboro, 232 U.S. 548; Union Dry Goods Co. v. Georgia Public Service
Corporation, 248 U.S. 372; St. Louis Poster Advertising Co. v. St. Louis, 249 U.S. 269. The rule
that the State's power to take appropriate measures to guard the safety of all who may be within
its jurisdiction may not be bargained away was applied to compel carriers to establish grade
crossings at their own expense, despite contracts to the contrary; Chicago, Burlington & Quincy
R.R. Co. v. Nebraska, 170 U.S. 57; and, likewise, to supersede, by an employers' liability act, the
provision of a charter exempting a railroad from liability for death of employees, since the civil
liability was deemed a matter of public concern, and not a mere private right. Texas & New
Orleans R.R. Co. v. Miller, 221 U.S. 408. Compare Boyd v. Alabama, 94 U.S. 645; Stone v.
Mississippi, 101 U.S. 814; Butchers' Union Co. v. Crescent City Co., 111 U.S. 746; Douglas v.
Kentucky, 168 U.S. 488; Pennsylvania Hospital v. Philadelphia, 245 U.S. 20, 23. Nor can
existing contracts between private individuals preclude exercise of the police power. "One
whose rights, such as they are, are subject to state restriction, cannot remove them from the
power of the State by making a contract about them." Hudson County Water Co. v. McCarter,
209 U.S. 349, 357; Knoxville Water Co. v. Knoxville, 189 U.S. 434, 438; Rast v. Van Deman &
Lewis Co., 240 U.S. 342. The fact that this suit is brought by a private person is, of course,
immaterial to protect the community through invoking the aid, as litigant, of interested private
citizens is not a novelty in our law. That it may be done in Pennsylvania was decided by its
Supreme Court in this case. And it is for a State to say how its public policy shall be enforced.
This case involves only mining which causes subsidence of a dwelling house. But the
Kohler Act contains provisions in addition to that quoted above; and as to these, also, an opinion
is expressed. These provisions deal with mining under cities to such an extent as to cause
subsidence of—
13
(a) Any public building or any structure customarily used by the public as a place
of resort, assemblage, or amusement, including, but not being limited to,
churches, schools, hospitals, theatres, hotels, and railroad stations.
(b) Any street, road, bridge, or other public passageway, dedicated to public use
or habitually used by the public.
(c) Any track, roadbed, right of way, pipe, conduit, wire, or other facility, used in
the service of the public by any municipal corporation or public service company
as defined by the Public Service Company Law.
A prohibition of mining which causes subsidence of such structures and facilities is
obviously enacted for a public purpose; and it seems, likewise, clear that mere notice of intention
to mine would not in this connection secure the public safety. Yet it is said that these provisions
of the act cannot be sustained as an exercise of the police power where the right to mine such
coal has been reserved. The conclusion seems to rest upon the assumption that in order to justify
such exercise of the police power there must be "an average reciprocity of advantage" as between
the owner of the property restricted and the rest of the community; and that here such reciprocity
is absent. Reciprocity of advantage is an important consideration, and may even be an essential,
where the State's power is exercised for the purpose of conferring benefits upon the property of a
neighborhood, as in drainage projects, Wurts v. Hoagland, 114 U.S. 606; Fallbrook Irrigation
District v. Bradley, 164 U.S. 112; or upon adjoining owners, as by party wall provisions,
Jackman v. Rosenbaum Co., ante, 22. But where the police power is exercised, not to confer
benefits upon property owners, but to protect the public from detriment and danger, there is, in
my opinion, no room for considering reciprocity of advantage. There was no reciprocal
advantage to the owner prohibited from using his oil tanks in 248 U.S. 498; his brickyard, in 239
U.S. 394; his livery stable, in 237 U.S. 171; his billiard hall, in 225 U.S. 623; his oleomargarine
factory, in 127 U.S. 678; his brewery, in 123 U.S. 623; unless it be the advantage of living and
doing business in a civilized community. That reciprocal advantage is given by the act to the
coal operators.
14
VILLAGE OF EUCLID v. AMBLER REALTY CO.
Supreme Court of the United States
272 U.S. 365 (1926)
MR. JUSTICE SUTHERLAND delivered the opinion of the Court.
The Village of Euclid is an Ohio municipal corporation. It adjoins and practically is a
suburb of the City of Cleveland. Its estimated population is between 5,000 and 10,000, and its
area from twelve to fourteen square miles, the greater part of which is farm lands or unimproved
acreage. It lies, roughly, in the form of a parallelogram measuring approximately three and onehalf miles each way. East and west it is traversed by three principal highways: Euclid Avenue,
through the southerly border, St. Clair Avenue, through the central portion, and Lake Shore
Boulevard, through the northerly border in close proximity to the shore of Lake Erie. The Nickel
Plate railroad lies from 1,500 to 1,800 feet north of Euclid Avenue, and the Lake Shore railroad
1,600 feet farther to the north. The three highways and the two railroads are substantially
parallel.
Appellee is the owner of a tract of land containing 68 acres, situated in the westerly end
of the village, abutting on Euclid Avenue to the south and the Nickel Plate railroad to the north.
Adjoining this tract, both on the east and on the west, there have been laid out restricted
residential plats upon which residences have been erected.
On November 13, 1922, an ordinance was adopted by the Village Council, establishing a
comprehensive zoning plan for regulating and restricting the location of trades, industries,
apartment houses, two-family houses, single family houses, etc., the lot area to be built upon, the
size and height of buildings, etc.
The entire area of the village is divided by the ordinance into six classes of use districts,
denominated U-1 to U-6, inclusive; three classes of height districts, denominated H-1 to H-3,
inclusive; and four classes of area districts, denominated A-1 to A-4, inclusive. The use districts
are classified in respect of the buildings which may be erected within their respective limits, as
follows: U-1 is restricted to single family dwellings, public parks, water towers and reservoirs,
suburban and interurban electric railway passenger stations and rights of way, and farming, noncommercial greenhouse nurseries and truck gardening; U-2 is extended to include two-family
dwellings; U-3 is further extended to include apartment houses, hotels, churches, schools, public
libraries, museums, private clubs, community center buildings, hospitals, sanitariums, public
playgrounds and recreation buildings, and a city hall and courthouse; U-4 is further extended to
include banks, offices, studios, telephone exchanges, fire and police stations, restaurants, theatres
and moving picture shows, retail stores and shops, sales offices, sample rooms, wholesale stores
for hardware, drugs and groceries, stations for gasoline and oil (not exceeding 1,000 gallons
storage) and for ice delivery, skating rinks and dance halls, electric substations, job and
newspaper printing, public garages for motor vehicles, stables and wagon sheds (not exceeding
five horses, wagons or motor trucks) and distributing stations for central store and commercial
enterprises; U-5 is further extended to include billboards and advertising signs (if permitted),
warehouses, ice and ice cream manufacturing and cold storage plants, bottling works, milk
bottling and central distribution stations, laundries, carpet cleaning, dry cleaning and dyeing
15
establishments, blacksmith, horseshoeing, wagon and motor vehicle repair shops, freight
stations, street car barns, stables and wagon sheds (for more than five horses, wagons or motor
trucks), and wholesale produce markets and salesrooms; U-6 is further extended to include plants
for sewage disposal and for producing gas, garbage and refuse incineration, scrap iron, junk,
scrap paper and rag storage, aviation fields, cemeteries, crematories, penal and correctional
institutions, insane and feeble minded institutions, storage of oil and gasoline (not to exceed
25,000 gallons), and manufacturing and industrial operations of any kind other than, and any
public utility not included in, a class U-1, U-2, U-3, U-4 or U-5 use. There is a seventh class of
uses which is prohibited altogether.
Class U-1 is the only district in which buildings are restricted to those enumerated. In the
other classes the uses are cumulative; that is to say, uses in class U-2 include those enumerated in
the preceding class, U-1; class U-3 includes uses enumerated in the preceding classes, U-2 and
U-1; and so on. In addition to the enumerated uses, the ordinance provides for accessory uses,
that is, for uses customarily incident to the principal use, such as private garages. Many
regulations are provided in respect of such accessory uses.
The height districts are classified as follows: In class H-1, buildings are limited to a
height of two and one-half stories or thirty-five feet; in class H-2, to four stories or fifty feet; in
class H-3, to eighty feet. To all of these, certain exceptions are made, as in the case of church
spires, water tanks, etc.
The classification of area districts is: In A-1 districts, dwellings or apartment houses to
accommodate more than one family must have at least 5,000 square feet for interior lots and at
least 4,000 square feet for corner lots; in A-2 districts, the area must be at least 2,500 square feet
for interior lots, and 2,000 square feet for corner lots; in A-3 districts, the limits are 1,250 and
1,000 square feet, respectively; in A-4 districts, the limits are 900 and 700 square feet,
respectively. The ordinance contains, in great variety and detail, provisions in respect of width
of lots, front, side and rear yards, and other matters, including restrictions and regulations as to
the use of bill boards, sign boards and advertising signs.
A single family dwelling consists of a basement and not less than three rooms and a
bathroom. A two-family dwelling consists of a basement and not less than four living rooms and
a bathroom for each family; and is further described as a detached dwelling for the occupation of
two families, one having its principal living rooms on the first floor and the other on the second
floor.
Appellee's tract of land comes under U-2, U-3 and U-6. The first strip of 620 feet
immediately north of Euclid Avenue falls in class U-2, the next 130 feet to the north, in U-3, and
the remainder in U-6. The uses of the first 620 feet, therefore, do not include apartment houses,
hotels, churches, schools, or other public and semi-public buildings, or other uses enumerated in
respect of U-3 to U-6, inclusive. The uses of the next 130 feet include all of these, but exclude
industries, theatres, banks, shops, and the various other uses set forth in respect of U-4 to U-6,
inclusive.
***
16
The lands lying between the two railroads for the entire length of the village area and
extending some distance on either side to the north and south, having an average width of about
1,600 feet, are left open, with slight exceptions, for industrial and all other uses. This includes
the larger part of appellee's tract. Approximately one-sixth of the area of the entire village is
included in U-5 and U-6 use districts. That part of the village lying south of Euclid Avenue is
principally in U-1 districts. The lands lying north of Euclid Avenue and bordering on the long
strip just described are included in U-1, U-2, U-3 and U-4 districts, principally in U-2.
The enforcement of the ordinance is entrusted to the inspector of buildings, under rules
and regulations of the board of zoning appeals. Meetings of the board are public, and minutes of
its proceedings are kept. It is authorized to adopt rules and regulations to carry into effect
provisions of the ordinance. Decisions of the inspector of buildings may be appealed to the
board by any person claiming to be adversely affected by any such decision. The board is given
power in specific cases of practical difficulty or unnecessary hardship to interpret the ordinance
in harmony with its general purpose and intent, so that the public health, safety and general
welfare may be secure and substantial justice done. Penalties are prescribed for violations, and it
is provided that the various provisions are to be regarded as independent and the holding of any
provision to be unconstitutional, void or ineffective shall not affect any of the others.
The ordinance is assailed on the grounds that it is in derogation of § 1 of the Fourteenth
Amendment to the Federal Constitution in that it deprives appellee of liberty and property
without due process of law and denies it the equal protection of the law, and that it offends
against certain provisions of the Constitution of the State of Ohio. The prayer of the bill is for an
injunction restraining the enforcement of the ordinance and all attempts to impose or maintain as
to appellee's property any of the restrictions, limitations or conditions. The court below held the
ordinance to be unconstitutional and void, and enjoined its enforcement. 297 Fed. 307.
Before proceeding to a consideration of the case, it is necessary to determine the scope of
the inquiry. The bill alleges that the tract of land in question is vacant and has been held for
years for the purpose of selling and developing it for industrial uses, for which it is especially
adapted, being immediately in the path of progressive industrial development; that for such uses
it has a market value of about $10,000 per acre, but if the use be limited to residential purposes
the market value is not in excess of $2,500 per acre; that the first 200 feet of the parcel back from
Euclid Avenue, if unrestricted in respect of use, has a value of $150 per front foot, but if limited
to residential uses, and ordinary mercantile business be excluded therefrom, its value is not in
excess of $50 per front foot.
It is specifically averred that the ordinance attempts to restrict and control the lawful uses
of appellee's land so as to confiscate and destroy a great part of its value; that it is being enforced
in accordance with its terms; that prospective buyers of land for industrial, commercial and
residential uses in the metropolitan district of Cleveland are deterred from buying any part of this
land because of the existence of the ordinance and the necessity thereby entailed of conducting
burdensome and expensive litigation in order to vindicate the right to use the land for lawful and
legitimate purposes; that the ordinance constitutes a cloud upon the land, reduces and destroys its
17
value, and has the effect of diverting the normal industrial, commercial and residential
development thereof to other and less favorable locations.
The record goes no farther than to show, as the lower court found, that the normal, and
reasonably to be expected, use and development of that part of appellee's land adjoining Euclid
Avenue is for general trade and commercial purposes, particularly retail stores and like
establishments, and that the normal, and reasonably to be expected, use and development of the
residue of the land is for industrial and trade purposes. Whatever injury is inflicted by the mere
existence and threatened enforcement of the ordinance is due to restrictions in respect of these
and similar uses; to which perhaps should be added—if not included in the foregoing—
restrictions in respect of apartment houses. Specifically, there is nothing in the record to suggest
that any damage results from the presence in the ordinance of those restrictions relating to
churches, schools, libraries and other public and semi-public buildings. It is neither alleged nor
proved that there is, or may be, a demand for any part of appellee's land for any of the last named
uses; and we cannot assume the existence of facts which would justify an injunction upon this
record in respect of this class of restrictions. For present purposes the provisions of the
ordinance in respect of these uses may, therefore, be put aside as unnecessary to be considered.
It is also unnecessary to consider the effect of the restrictions in respect of U-1 districts, since
none of appellee's land falls within that class.
We proceed, then, to a consideration of those provisions of the ordinance to which the
case as it is made relates, first disposing of a preliminary matter.
A motion was made in the court below to dismiss the bill on the ground that, because
complainant [appellee] had made no effort to obtain a building permit or apply to the zoning
board of appeals for relief as it might have done under the terms of the ordinance, the suit was
premature. The motion was properly overruled. The effect of the allegations of the bill is that
the ordinance of its own force operates greatly to reduce the value of appellee's lands and destroy
their marketability for industrial, commercial and residential uses; and the attack is directed, not
against any specific provision or provisions, but against the ordinance as an entirety. Assuming
the premises, the existence and maintenance of the ordinance, in effect, constitutes a present
invasion of appellee's property rights and a threat to continue it. Under these circumstances, the
equitable jurisdiction is clear. See Terrace v. Thompson, 263 U.S. 197, 215; Pierce v. Society of
Sisters, 268 U.S. 510, 535.
***
Building zone laws are of modern origin. They began in this country about twenty-five
years ago. Until recent years, urban life was comparatively simple; but with the great increase
and concentration of population, problems have developed, and constantly are developing, which
require, and will continue to require, additional restrictions in respect of the use and occupation
of private lands in urban communities. Regulations, the wisdom, necessity and validity of
which, as applied to existing conditions, are so apparent that they are now uniformly sustained, a
century ago, or even half a century ago, probably would have been rejected as arbitrary and
oppressive. Such regulations are sustained, under the complex conditions of our day, for reasons
analogous to those which justify traffic regulations, which, before the advent of automobiles and
18
rapid transit street railways, would have been condemned as fatally arbitrary and unreasonable.
And in this there is no inconsistency, for while the meaning of constitutional guaranties never
varies, the scope of their application must expand or contract to meet the new and different
conditions which are constantly coming within the field of their operation. In a changing world,
it is impossible that it should be otherwise. But although a degree of elasticity is thus imparted,
not to the meaning, but to the application of constitutional principles, statutes and ordinances,
which, after giving due weight to the new conditions, are found clearly not to conform to the
Constitution, of course, must fall.
The ordinance now under review, and all similar laws and regulations, must find their
justification in some aspect of the police power, asserted for the public welfare. The line which
in this field separates the legitimate from the illegitimate assumption of power is not capable of
precise delimitation. It varies with circumstances and conditions. A regulatory zoning
ordinance, which would be clearly valid as applied to the great cities, might be clearly invalid as
applied to rural communities. In solving doubts, the maxim sic utere tuo ut alienum non laedas,
which lies at the foundation of so much of the common law of nuisances, ordinarily will furnish
a fairly helpful clew. And the law of nuisances, likewise, may be consulted, not for the purpose
of controlling, but for the helpful aid of its analogies in the process of ascertaining the scope of,
the power. Thus the question whether the power exists to forbid the erection of a building of a
particular kind or for a particular use, like the question whether a particular thing is a nuisance, is
to be determined, not by an abstract consideration of the building or of the thing considered
apart, but by considering it in connection with the circumstances and the locality. Sturgis v.
Bridgeman, L. R. 11 Ch. 852, 865. A nuisance may be merely a right thing in the wrong place,
like a pig in the parlor instead of the barnyard. If the validity of the legislative classification for
zoning purposes be fairly debatable, the legislative judgment must be allowed to control. Radice
v. New York, 264 U.S. 292, 294.
There is no serious difference of opinion in respect of the validity of laws and regulations
fixing the height of buildings within reasonable limits, the character of materials and methods of
construction, and the adjoining area which must be left open, in order to minimize the danger of
fire or collapse, the evils of over-crowding, and the like, and excluding from residential sections
offensive trades, industries and structures likely to create nuisances. See Welch v. Swasey, 214
U.S. 91; Hadacheck v. Los Angeles, 239 U.S. 394; Reinman v. Little Rock, 237 U.S. 171; Cusack
Co. v. City of Chicago, 242 U.S. 526, 529-530.
Here, however, the exclusion is in general terms of all industrial establishments, and it
may thereby happen that not only offensive or dangerous industries will be excluded, but those
which are neither offensive nor dangerous will share the same fate. But this is no more than
happens in respect of many practice-forbidding laws which this Court has upheld although drawn
in general terms so as to include individual cases that may turn out to be innocuous in
themselves. Hebe Co. v. Shaw, 248 U.S. 297, 303; Pierce Oil Corp. v. City of Hope, 248 U.S.
498, 500. The inclusion of a reasonable margin to insure effective enforcement, will not put
upon a law, otherwise valid, the stamp of invalidity. Such laws may also find their justification
in the fact that, in some fields, the bad fades into the good by such insensible degrees that the
two are not capable of being readily distinguished and separated in terms of legislation. In the
light of these considerations, we are not prepared to say that the end in view was not sufficient to
19
justify the general rule of the ordinance, although some industries of an innocent character might
fall within the proscribed class. It can not be said that the ordinance in this respect "passes the
bounds of reason and assumes the character of a merely arbitrary fiat." Purity Extract Co. v.
Lynch, 226 U.S. 192, 204. Moreover, the restrictive provisions of the ordinance in this particular
may be sustained upon the principles applicable to the broader exclusion from residential
districts of all business and trade structures, presently to be discussed.
It is said that the Village of Euclid is a mere suburb of the City of Cleveland; that the
industrial development of that city has now reached and in some degree extended into the village
and, in the obvious course of things, will soon absorb the entire area for industrial enterprises;
that the effect of the ordinance is to divert this natural development elsewhere with the
consequent loss of increased values to the owners of the lands within the village borders. But the
village, though physically a suburb of Cleveland, is politically a separate municipality, with
powers of its own and authority to govern itself as it sees fit within the limits of the organic law
of its creation and the State and Federal Constitutions. Its governing authorities, presumably
representing a majority of its inhabitants and voicing their will, have determined, not that
industrial development shall cease at its boundaries, but that the course of such development
shall proceed within definitely fixed lines. If it be a proper exercise of the police power to
relegate industrial establishments to localities separated from residential sections, it is not easy to
find a sufficient reason for denying the power because the effect of its exercise is to divert an
industrial flow from the course which it would follow to the injury of the residential public if left
alone, to another course where such injury will be obviated. It is not meant by this, however, to
exclude the possibility of cases where the general public interest would so far outweigh the
interest of the municipality that the municipality would not be allowed to stand in the way.
We find no difficulty in sustaining restrictions of the kind thus far reviewed. The serious
question in the case arises over the provisions of the ordinance excluding from residential
districts, apartment houses, business houses, retail stores and shops, and other like
establishments. This question involves the validity of what is really the crux of the more recent
zoning legislation, namely, the creation and maintenance of residential districts, from which
business and trade of every sort, including hotels and apartment houses, are excluded. Upon that
question, this Court has not thus far spoken. The decisions of the state courts are numerous and
conflicting; but those which broadly sustain the power greatly outnumber those which deny
altogether or narrowly limit it; and it is very apparent that there is a constantly increasing
tendency in the direction of the broader view. * * *
***
The matter of zoning has received much attention at the hands of commissions and
experts, and the results of their investigations have been set forth in comprehensive reports.
These reports, which bear every evidence of painstaking consideration, concur in the view that
the segregation of residential, business, and industrial buildings will make it easier to provide fire
apparatus suitable for the character and intensity of the development in each section; that it will
increase the safety and security of home life; greatly tend to prevent street accidents, especially
to children, by reducing the traffic and resulting confusion in residential sections; decrease noise
and other conditions which produce or intensify nervous disorders; preserve a more favorable
20
environment in which to rear children, etc. With particular reference to apartment houses, it is
pointed out that the development of detached house sections is greatly retarded by the coming of
apartment houses, which has sometimes resulted in destroying the entire section for private
house purposes; that in such sections very often the apartment house is a mere parasite,
constructed in order to take advantage of the open spaces and attractive surroundings created by
the residential character of the district. Moreover, the coming of one apartment house is
followed by others, interfering by their height and bulk with the free circulation of air and
monopolizing the rays of the sun which otherwise would fall upon the smaller homes, and
bringing, as their necessary accompaniments, the disturbing noises incident to increased traffic
and business, and the occupation, by means of moving and parked automobiles, of larger
portions of the streets, thus detracting from their safety and depriving children of the privilege of
quiet and open spaces for play, enjoyed by those in more favored localities—until, finally, the
residential character of the neighborhood and its desirability as a place of detached residences are
utterly destroyed. Under these circumstances, apartment houses, which in a different
environment would be not only entirely unobjectionable but highly desirable, come very near to
being nuisances.
If these reasons, thus summarized, do not demonstrate the wisdom or sound policy in all
respects of those restrictions which we have indicated as pertinent to the inquiry, at least, the
reasons are sufficiently cogent to preclude us from saying, as it must be said before the ordinance
can be declared unconstitutional, that such provisions are clearly arbitrary and unreasonable,
having no substantial relation to the public health, safety, morals, or general welfare. Cusack Co.
v. City of Chicago, supra, pp. 530-531; Jacobson v. Massachusetts, 197 U.S. 11, 30-31.
It is true that when, if ever, the provisions set forth in the ordinance in tedious and minute
detail, come to be concretely applied to particular premises, including those of the appellee, or to
particular conditions, or to be considered in connection with specific complaints, some of them,
or even many of them, may be found to be clearly arbitrary and unreasonable. But where the
equitable remedy of injunction is sought, as it is here, not upon the ground of a present
infringement or denial of a specific right, or of a particular injury in process of actual execution,
but upon the broad ground that the mere existence and threatened enforcement of the ordinance,
by materially and adversely affecting values and curtailing the opportunities of the market,
constitute a present and irreparable injury, the court will not scrutinize its provisions, sentence by
sentence, to ascertain by a process of piecemeal dissection whether there may be, here and there,
provisions of a minor character, or relating to matters of administration, or not shown to
contribute to the injury complained of, which, if attacked separately, might not withstand the test
of constitutionality. In respect of such provisions, of which specific complaint is not made, it
cannot be said that the land owner has suffered or is threatened with an injury which entitles him
to challenge their constitutionality. Turpin v. Lemon, 187 U.S. 51, 60. * * *
***
* * * What would be the effect of a restraint imposed by one or more of the innumerable
provisions of the ordinance, considered apart, upon the value or marketability of the lands is
neither disclosed by the bill nor by the evidence, and we are afforded no basis, apart from mere
speculation, upon which to rest a conclusion that it or they would have any appreciable effect
21
upon those matters. Under these circumstances, therefore, it is enough for us to determine, as we
do, that the ordinance in its general scope and dominant features, so far as its provisions are here
involved, is a valid exercise of authority, leaving other provisions to be dealt with as cases arise
directly involving them.
And this is in accordance with the traditional policy of this Court. In the realm of
constitutional law, especially, this Court has perceived the embarrassment which is likely to
result from an attempt to formulate rules or decide questions beyond the necessities of the
immediate issue. It has preferred to follow the method of a gradual approach to the general by a
systematically guarded application and extension of constitutional principles to particular cases
as they arise, rather than by out of hand attempts to establish general rules to which future cases
must be fitted. This process applies with peculiar force to the solution of questions arising under
the due process clause of the Constitution as applied to the exercise of the flexible powers of
police, with which we are here concerned.
Decree reversed.
MR. JUSTICE VAN DEVANTER, MR. JUSTICE McREYNOLDS and MR. JUSTICE
BUTLER, dissent.
22
MILLER v. SCHOENE
Supreme Court of the United States
276 U.S. 272 ((1928)
MR. JUSTICE STONE delivered the opinion of the Court.
Acting under the Cedar Rust Act of Virginia, Va. Acts 1914, c. 36, as amended by Va.
Acts 1920, c. 260, now embodied in Va. Code (1924) as §§ 885 to 893, defendant in error, the
state entomologist, ordered the plaintiffs in error to cut down a large number of ornamental red
cedar trees growing on their property, as a means of preventing the communication of a rust or
plant disease with which they were infected to the apple orchards in the vicinity. The plaintiffs
in error appealed from the order to the Circuit Court of Shenandoah county which, after a
hearing and a consideration of evidence, affirmed the order and allowed to plaintiffs in error
$100 to cover the expense of removal of the cedars. Neither the judgment of the court nor the
statute as interpreted allows compensation for the value of the standing cedars or the decrease in
the market value of the realty caused by their destruction whether considered as ornamental trees
or otherwise. But they save to plaintiffs in error the privilege of using the trees when felled. On
appeal the Supreme Court of Appeals of Virginia affirmed the judgment. Miller v. State
Entomologist, 146 Va. 175. Both in the Circuit Court and the Supreme Court of Appeals
plaintiffs in error challenged the constitutionality of the statute under the due process clause of
the Fourteenth Amendment and the case is properly here on writ of error. Jud. Code § 237(a).
The Virginia statute presents a comprehensive scheme for the condemnation and
destruction of red cedar trees infected by cedar rust. By § 1 it is declared to be unlawful for any
person to "own, plant or keep alive and standing" on his premises any red cedar tree which is or
may be the source or "host plant" of the communicable plant disease known as cedar rust, and
any such tree growing within a certain radius of any apple orchard is declared to be a public
nuisance, subject to destruction. Section 2 makes it the duty of the state entomologist, "upon the
request in writing of ten or more reputable free-holders of any county or magisterial district, to
make a preliminary investigation of the locality . . . to ascertain if any cedar tree or trees . . . are
the source of, harbor or constitute the host plant for the said disease . . . and constitute a menace
to the health of any apple orchard in said locality, and that said cedar tree or trees exist within a
radius of two miles of an apple orchard in said locality." If affirmative findings are so made, he
is required to direct the owner in writing to destroy the trees and, in his notice, to furnish a
statement of the "fact found to exist whereby it is deemed necessary or proper to destroy" the
trees and to call attention to the law under which it is proposed to destroy them. Section 5
authorizes the state entomologist to destroy the trees if the owner, after being notified, fails to do
so. Section 7 furnishes a mode of appealing from the order of the entomologist to the circuit
court of the county, which is authorized to "hear the objections" and "pass upon all questions
involved," the procedure followed in the present case.
As shown by the evidence and as recognized in other cases involving the validity of this
statute, Bowman v. Virginia State Entomologist, 128 Va. 351; Kelleher v. Schoene, 14 Fed. 2d
341, cedar rust is an infectious plant disease in the form of a fungoid organism which is
destructive of the fruit and foliage of the apple, but without effect on the value of the cedar. Its
life cycle has two phases which are passed alternately as a growth on red cedar and on apple
23
trees. It is communicated by spores from one to the other over a radius of at least two miles. It
appears not to be communicable between trees of the same species but only from one species to
the other, and other plants seem not to be appreciably affected by it. The only practicable
method of controlling the disease and protecting apple trees from its ravages is the destruction of
all red cedar trees, subject to the infection, located within two miles of apple orchards.
The red cedar, aside from its ornamental use, has occasional use and value as lumber. It
is indigenous to Virginia, is not cultivated or dealt in commercially on any substantial scale, and
its value throughout the state is shown to be small as compared with that of the apple orchards of
the state. Apple growing is one of the principal agricultural pursuits in Virginia. The apple is
used there and exported in large quantities. Many millions of dollars are invested in the
orchards, which furnish employment for a large portion of the population, and have induced the
development of attendant railroad and cold storage facilities.
On the evidence we may accept the conclusion of the Supreme Court of Appeals that the
state was under the necessity of making a choice between the preservation of one class of
property and that of the other wherever both existed in dangerous proximity. It would have been
none the less a choice if, instead of enacting the present statute, the state, by doing nothing, had
permitted serious injury to the apple orchards within its borders to go on unchecked. When
forced to such a choice the state does not exceed its constitutional powers by deciding upon the
destruction of one class of property in order to save another which, in the judgment of the
legislature, is of greater value to the public. It will not do to say that the case is merely one of a
conflict of two private interests and that the misfortune of apple growers may not be shifted to
cedar owners by ordering the destruction of their property; for it is obvious that there may be,
and that here there is, a preponderant public concern in the preservation of the one interest over
the other. Compare Bacon v. Walker, 204 U.S. 311; Missouri, Kansas & Texas Ry. v. May, 194
U.S. 267; Chicago, Terre Haute & Southeastern Ry. v. Anderson, 242 U.S. 283; Perley v. North
Carolina, 249 U.S. 510. And where the public interest is involved preferment of that interest
over the property interest of the individual, to the extent even of its destruction, is one of the
distinguishing characteristics of every exercise of the police power which affects property.
Mugler v. Kansas, 123 U.S. 623; Hadacheck v. Los Angeles, 239 U.S. 394; Village of Euclid v.
Ambler Realty Co., 272 U.S. 365; Fertilizing Co. v. Hyde Park, 97 U.S. 659; Northwestern
Laundry v. Des Moines, 239 U.S. 486; Lawton v. Steele, 152 U.S. 133; Sligh v. Kirkwood, 237
U.S. 52; Reinman v. Little Rock, 237 U.S. 171.
We need not weigh with nicety the question whether the infected cedars constitute a
nuisance according to the common law; or whether they may be so declared by statute. See
Hadacheck v. Los Angeles, supra, 411. For where, as here, the choice is unavoidable, we cannot
say that its exercise, controlled by considerations of social policy which are not unreasonable,
involves any denial of due process. The injury to property here is no more serious, nor the public
interest less, than in Hadacheck v. Los Angeles, supra; Northwestern Laundry v. Des Moines,
supra; Reinman v. Little Rock, supra, or Sligh v. Kirkwood, supra.
The statute is not, as plaintiffs in error argue, subject to the vice which invalidated the
ordinance considered by this Court in Eubank v. Richmond, 226 U.S. 137. That ordinance
directed the committee on streets of the city of Richmond to establish a building line, not less
24
than five nor more than thirty feet from the street line whenever requested to do so by the owners
of two-thirds of the property abutting on the street in question. No property owner might build
beyond the line so established. Of this the Court said (p. 143), "It [the ordinance] leaves no
discretion in the committee on streets as to whether the street [building, semble] line shall or
shall not be established in a given case. The action of the committee is determined by two-thirds
of the property owners. In other words, part of the property owners fronting on the block
determine the extent of use that other owners shall make of their lots, and against the restriction
they are impotent."
The function of the property owners there is in no way comparable to that of the "ten or
more reputable freeholders" in the Cedar Rust Act. They do not determine the action of the state
entomologist. They merely request him to conduct an investigation. In him is vested the
discretion to decide, after investigation, whether or not conditions are such that the other
provisions of the statute shall be brought into action; and his determination is subject to judicial
review. The property of plaintiffs in error is not subjected to the possibly arbitrary and
irresponsible action of a group of private citizens.
The objection of plaintiffs in error to the vagueness of the statute is without weight. The
state court has held it to be applicable and that is enough when, by the statute, no penalty can be
incurred or disadvantage suffered in advance of the judicial ascertainment of its applicability.
Compare Connally v. General Construction Co., 269 U.S. 385.
Affirmed.
25
NECTOW v. CITY OF CAMBRIDGE
Supreme Court of the United States
277 U.S. 183 (1928)
MR. JUSTICE SUTHERLAND delivered the opinion of the Court.
A zoning ordinance of the City of Cambridge divides the city into three kinds of districts:
residential, business and unrestricted. Each of these districts is sub-classified in respect of the
kind of buildings which may be erected. The ordinance is an elaborate one, and of the same
general character as that considered by this Court in Euclid v. Ambler Co., 272 U.S. 365. In its
general scope it is conceded to be constitutional within that decision. The land of plaintiff in
error was put in district R-3, in which are permitted only dwellings, hotels, clubs, churches,
schools, philanthropic institutions, greenhouses and gardening, with customary incidental
accessories. The attack upon the ordinance is that, as specifically applied to plaintiff in error, it
deprived him of his property without due process of law in contravention of the Fourteenth
Amendment.
The suit was for a mandatory injunction directing the city and its inspector of buildings to
pass upon an application of the plaintiff in error for a permit to erect any lawful buildings upon a
tract of land without regard to the provisions of the ordinance including such tract within a
residential district. The case was referred to a master to make and report findings of fact. After
a view of the premises and the surrounding territory, and a hearing, the master made and reported
his findings. The case came on to be heard by a justice of the court, who, after confirming the
master's report, reported the case for the determination of the full court. Upon consideration, that
court sustained the ordinance as applied to plaintiff in error, and dismissed the bill.
A condensed statement of facts, taken from the master's report, is all that is necessary.
When the zoning ordinance was enacted, plaintiff in error was and still is the owner of a tract of
land containing 140,000 square feet, of which the locus here in question is a part. The locus
contains about 29,000 square feet, with a frontage on Brookline Street, lying west, of 304.75
feet, on Henry street, lying north, of 100 feet, on the other land of the plaintiff in error, lying
east, of 264 feet, and on land of the Ford Motor Company, lying southerly, of 75 feet. The
territory lying east and south is unrestricted. The lands beyond Henry street to the north and
beyond Brookline street to the west are within a restricted residential district. The effect of the
zoning is to separate from the west end of plaintiff in error's tract a strip 100 feet in width. The
Ford Motor Company has a large auto assembling factory south of the locus; and a soap factory
and the tracks of the Boston & Albany Railroad lie near. Opposite the locus, on Brookline street,
and included in the same district, there are some residences; and opposite the locus, on Henry
street, and in the same district, are other residences. The locus is now vacant, although it was
once occupied by a mansion house. Before the passage of the ordinance in question, plaintiff in
error had outstanding a contract for the sale of the greater part of his entire tract of land for the
sum of $63,000. Because of the zoning restrictions, the purchaser refused to comply with the
contract. Under the ordinance, business and industry of all sorts are excluded from the locus,
while the remainder of the tract is unrestricted. It further appears that provision has been made
for widening Brookline street, the effect of which, if carried out, will be to reduce the depth of
the locus to 65 feet. After a statement at length of further facts, the master finds "that no
26
practical use can be made of the land in question for residential purposes, because among other
reasons herein related, there would not be adequate return on the amount of any investment for
the development of the property." The last finding of the master is:
"I am satisfied that the districting of the plaintiff's land in a residence district
would not promote the health, safety, convenience and general welfare of the
inhabitants of that part of the defendant City, taking into account the natural
development thereof and the character of the district and the resulting benefit to
accrue to the whole City and I so find."
It is made pretty clear that because of the industrial and railroad purposes to which the
immediately adjoining lands to the south and east have been devoted and for which they are
zoned, the locus is of comparatively little value for the limited uses permitted by the ordinance.
We quite agree with the opinion expressed below that a court should not set aside the
determination of public officers in such a matter unless it is clear that their action "has no
foundation in reason and is a mere arbitrary or irrational exercise of power having no substantial
relation to the public health, the public morals, the public safety or the public welfare in its
proper sense." Euclid v. Ambler Co., supra, p. 395.
An inspection of a plat of the city upon which the zoning districts are outlined, taken in
connection with the master's findings, shows with reasonable certainty that the inclusion of the
locus in question is not indispensable to the general plan. The boundary line of the residential
district before reaching the locus runs for some distance along the streets, and to exclude the
locus from the residential district requires only that such line shall be continued 100 feet further
along Henry street and thence south along Brookline street. There does not appear to be any
reason why this should not be done. Nevertheless, if that were all, we should not be warranted in
substituting our judgment for that of the zoning authorities primarily charged with the duty and
responsibility of determining the question. Zahn v. Bd. of Public Works, 274 U.S. 325, 328, and
cases cited. But that is not all. The governmental power to interfere by zoning regulations with
the general rights of the land owner by restricting the character of his use, is not unlimited, and
other questions aside, such restriction cannot be imposed if it does not bear a substantial relation
to the public health, safety, morals, or general welfare. Euclid v. Ambler Co., supra, p. 395.
Here, the express finding of the master, already quoted, confirmed by the court below, is that the
health, safety, convenience and general welfare of the inhabitants of the part of the city affected
will not be promoted by the disposition made by the ordinance of the locus in question. This
finding of the master, after a hearing and an inspection of the entire area affected, supported, as
we think it is, by other findings of fact, is determinative of the case. That the invasion of the
property of plaintiff in error was serious and highly injurious is clearly established; and, since a
necessary basis for the support of that invasion is wanting, the action of the zoning authorities
comes within the ban of the Fourteenth Amendment and cannot be sustained.
Judgment reversed.
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