193 Mass. 364 (1907), Welch v. Swasey

Citation193 Mass. 364, 79 N.E. 745
Opinion JudgeKNOWLTON, C.J.
Party NameWELCH v. SWASEY et al.
Attorney[79 N.E. 745] C. H. Tyler, O. D. Young, and B. E. Eames, for petitioner. Thos. M. Babson, for defendants.
Case DateJanuary 01, 1907
CourtSupreme Judicial Court of Massachusetts

Page 364

193 Mass. 364 (1907)

79 N.E. 745

WELCH

v.

SWASEY et al.

Supreme Judicial Court of Massachusetts, Suffolk.

January 1, 1907

COUNSEL

[79 N.E. 745] C. H. Tyler, O. D. Young, and

Page 372

B. E. Eames, for petitioner.

Thos. M. Babson, for defendants.

OPINION

KNOWLTON, C.J.

The principal question presented by this case is whether St. 1904, p. 283, c. 333, and St. 1905, p. 309, c. 383, and the orders of the commissioners appointed under them, relative to the height of buildings in Boston, are constitutional. A jurisdictional question, if the petitioner is entitled to relief, is whether a remedy can be given him by a writ of mandamus.

The principal question may be subdivided as follows: First, can the Legislature, in the exercise of the police power, limit the height of buildings in cities so that none can be erected above a prescribed number of feet; second, can it classify parts of a city so that in some parts one height is prescribed and in others a different height; third, if so, can it delegate to a commission the determination of the boundaries of these different parts, so as to conform to the general provisions of the statute; fourth, can it delegate to a commission the making of rules and regulations such as to permit different heights in different places, according to the different conditions in different parts of one of the general classes of territory, made in the original statute; fifth, if it can, are the rules and regulations made by the commissioners within the statute, and within the constitutional authority of the Legislature and its agents?

In the exercise of the police power the Legislature may regulate and limit personal rights and rights of property in the

Page 373

interest of the public health, public morals and public safety. Com. v. Pear, 183 Mass. 242, 66 N.E. 719;[79 N.E. 746] Com. V. Strauss, 191 Mass. 545, 78 N.E. 136; California Reduction Co. v. Sanitary Works, 199 U.S. 306-318, 26 S.Ct. 100, 50 L.Ed. 204. With considerable strictness of definition, the general welfare may be made a ground, with others, for interference with rights of property, in the exercise of the police power. Com. v. Strauss, ubi supra.

The erection of very high buildings in cities, especially upon narrow streets, may be carried so far as materially to exclude sunshine, light and air, and thus to affect the public health. It may also increase the danger to persons and property from fire, and be a subject for legislation on that ground. These are proper subjects for consideration in determining whether, in a given case, rights of property in the use of land should be interfered with for the public good. In Attorney General v. Williams, 174 Mass. 476, 55 N.E. 77, this court said: 'Regulations in regard to the height and mode of construction of buildings in cities are often made by legislative enactments, in the exercise of the police power, for the safety, comfort and convenience of the people, and for the benefit of property owners generally. The right to make such regulations is too well established to be questioned. Watertown v. Mayo, 109 Mass. 315, 12 Am. Rep. 694; Salem v. Maynes, 123 Mass. 372; Sawyer v. Davis, 136 Mass. 239, 49 Am. Rep. 27.' In People v. D'Oench, 111 N.Y. 359, 18 N.E. 862, a statute limiting the height of dwelling houses to be erected in the city of New York was treated as unquestionably constitutional. See 1 Abbott, Mun. Corp. 237; 2 Tiedeman on State and Federal Control, 754. There is nothing in Parker v. Com., 178 Mass. 199, 59 N.E. 634, against the validity of the statutes now before us. That case was decided upon the construction given by the court to the legislative act under which it arose. The court held that the Legislature had not assumed to determine that any limitation of the height of buildings on the designated streets was required, in the interest of the public health and public safety, or of the public welfare, and it left open the question whether the Legislature might have made the restriction, without providing compensation, if it had declared in the statute that no damages should be paid. It is for the Legislature to determine whether the public health or public safety require such a limitation of the rights of land owners in

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a given case. Upon a determination in the affirmative, they may legislate accordingly.

The next question is whether the General Court may establish different heights for different neighborhoods, according to their conditions and the uses to which the property in them is put. The statute should be adapted to the accomplishment of the purposes in which it finds its constitutional justification. It should be reasonable, not only in reference to the interests of the public, but also in reference to the rights of land owners. If these rights and interests are in conflict in any degree, the opposing considerations should be balanced against each other, and each should be made to yield reasonably to those upon the other side. The value of land and the demand for space, in those parts of Boston where the greater part of the buildings are used for purposes of business or commerce, is such as to call for buildings of greater height than are needed in those parts of the city where the greater part of the buildings are used for residential purposes. It was, therefore, reasonable to provide in the statute that building might be erected to a greater height in the former parts of the city than in the latter, even if some of the streets in the former are narrower than those in the latter.

The general subject is one that calls for a careful consideration of conditions existing in different places. In many cities there would be no danger of the erection of high buildings in such locations and of such a...

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116 practice notes
  • 200 Mass. 482 (1909), Mutual Loan Co. v. Martell
    • United States
    • Massachusetts Supreme Judicial Court of Massachusetts
    • January 6, 1909
    ...Commonwealth v. Interstate Consolidated Street Railway Company, 187 Mass. 436, 73 N.E. 530, 11 L. R. A. (N. S.) 973; Welch v. Swazey, 193 Mass. 365, 79 N.E. 745, 118 Am. St. Rep. 523; Squire v. Tellier, 185 Mass. 18, 69 N.E. 312, 102 Am. St. Rep. 322; Commonwealth v. Perry, 155 Mass. 117, 2......
  • 137 A. 398 (Me. 1927), State v. Small
    • United States
    • Maine Supreme Judicial Court of Maine
    • May 18, 1927
    ...of the court to declare a municipal by-law, enacted under general authority, invalid, if unreasonable, is unquestioned (Welch v. Swasey, 193 Mass. 365, 376, 79 N.E. 745; St. Louis v. Theater Co., 202 Mo. 690, 699, 100 S.W. 627; 6 R.C.L. 244). "It is, however, a power to be cautiously e......
  • 37 S.E.2d 128 (N.C. 1946), 92, Lee v. Board of Adjustment of City of Rocky Mount
    • United States
    • North Carolina Supreme Court of North Carolina
    • February 27, 1946
    ...216 A.D. 351, 215 N.Y.S. 190; People v. Walsh, 124 Misc. 889, 208 N.Y.S. 571; People v. Walsh, Sup., 195 N.Y.S. 264; Welch v. Swasey. 193 Mass. 364, 79 N.E. 745, 23 L.R.A.,N.S., 1160, 118 Am.St.Rep. 523; Metzenbaum, Law of Zoning, 259; Bassett, Zoning, 120, 121. [226 N.C. 112] In the absenc......
  • 19 Misc.2d 389, People v. Gerus
    • United States
    • May 14, 1942
    ...considerations may be taken into consideration where other elements of public health, safety or welfare are present. (Welch v. Swasey, 193 Mass. 364, 79 N.E. 745, 23 L. R. A., N. S., 1160, 118 Am. St. Rep. 523; Id., 214 U.S. 91, p. 108, 29 S.Ct. 567, 53 L.Ed. 923). "Furthermore, i......
  • Request a trial to view additional results
115 cases
  • 200 Mass. 482 (1909), Mutual Loan Co. v. Martell
    • United States
    • Massachusetts Supreme Judicial Court of Massachusetts
    • January 6, 1909
    ...Commonwealth v. Interstate Consolidated Street Railway Company, 187 Mass. 436, 73 N.E. 530, 11 L. R. A. (N. S.) 973; Welch v. Swazey, 193 Mass. 365, 79 N.E. 745, 118 Am. St. Rep. 523; Squire v. Tellier, 185 Mass. 18, 69 N.E. 312, 102 Am. St. Rep. 322; Commonwealth v. Perry, 155 Mass. 117, 2......
  • 137 A. 398 (Me. 1927), State v. Small
    • United States
    • Maine Supreme Judicial Court of Maine
    • May 18, 1927
    ...of the court to declare a municipal by-law, enacted under general authority, invalid, if unreasonable, is unquestioned (Welch v. Swasey, 193 Mass. 365, 376, 79 N.E. 745; St. Louis v. Theater Co., 202 Mo. 690, 699, 100 S.W. 627; 6 R.C.L. 244). "It is, however, a power to be cautiously e......
  • 37 S.E.2d 128 (N.C. 1946), 92, Lee v. Board of Adjustment of City of Rocky Mount
    • United States
    • North Carolina Supreme Court of North Carolina
    • February 27, 1946
    ...216 A.D. 351, 215 N.Y.S. 190; People v. Walsh, 124 Misc. 889, 208 N.Y.S. 571; People v. Walsh, Sup., 195 N.Y.S. 264; Welch v. Swasey. 193 Mass. 364, 79 N.E. 745, 23 L.R.A.,N.S., 1160, 118 Am.St.Rep. 523; Metzenbaum, Law of Zoning, 259; Bassett, Zoning, 120, 121. [226 N.C. 112] In the absenc......
  • 19 Misc.2d 389, People v. Gerus
    • United States
    • May 14, 1942
    ...considerations may be taken into consideration where other elements of public health, safety or welfare are present. (Welch v. Swasey, 193 Mass. 364, 79 N.E. 745, 23 L. R. A., N. S., 1160, 118 Am. St. Rep. 523; Id., 214 U.S. 91, p. 108, 29 S.Ct. 567, 53 L.Ed. 923). "Furthermore, i......
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1 books & journal articles
  • 'A remedy on paper': the role of law in the failure of city planning in New Haven, 1907-1913.
    • United States
    • Yale Law Journal Vol. 107 Nbr. 4, January 1998
    • January 1, 1998
    ...down a statute because it improperly delegated to neighbors the power to establish a building line). (76. See, e.g., Welch v. Swasey, 79 N.E. 745 (Mass. 1907) (upholding under the city's police power a Boston ordinance providing for lower building height limits in certain neighborhoods), af......