214 U.S. 91 (1909), 153, Welch v. Swasey

Docket NºNo. 153
Citation214 U.S. 91, 29 S.Ct. 567, 53 L.Ed. 923
Party NameWelch v. Swasey
Case DateMay 17, 1909
CourtUnited States Supreme Court

Page 91

214 U.S. 91 (1909)

29 S.Ct. 567, 53 L.Ed. 923




No. 153

United States Supreme Court

May 17, 1909

Argued April 15, 16, 1909




Whether a state statute is illegal because it delegates legislative power to a commission does not raise a federal question.

A statute limiting the height of buildings cannot be justified under the police power unless it has some fair tendency to accomplish, or aid in the accomplishment of, some purpose for which that power can be used; if the means employed, pursuant to the statute, have no real substantial relation to such purpose, or if the statute is arbitrary, unreasonable, and beyond the necessities of the case, it is invalid as taking property without due process of law.

In determining the validity of a state statute affecting height of buildings, local conditions must be considered, and, while the judgment of the highest court may not be conclusive, it is entitled to the greatest respect, and will not be interfered with unless clearly wrong.

Where the highest court of the state has held that there is reasonable ground for classification between the commercial and residential portions of a city as to the height of buildings, based on practical and not esthetic grounds, and that the police power is not to be exercised for merely esthetic purposes, this Court will not hold that such a statute, upheld by the state court, prescribing different heights in different sections of the city, is unconstitutional as discriminating against, and denying equal protection of the law to, the owners of property in the district where the lower height is prescribed.

Where there is justification for the enactment of a police statute limiting the height of buildings in a particular district, an owner of property in that district is not entitled to compensation for the reasonable interference with his property by the statute.

Chapters 333 of the acts of 1904 and 33 of the acts of 1905 of Massachusetts, limiting the heights of buildings in Boston and prescribing different heights in different sections of the city are, in view of the decision of the highest court of Massachusetts holding that the discrimination is based upon reasonable grounds, a proper exercise of the police power of the state, and are not unconstitutional under the equal protection and due process clauses of the Fourteenth Amendment.

193 Mass. 364 affirmed.

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The plaintiff in error duly applied to the Justices of the Supreme Judicial Court of the State of Massachusetts for a mandamus against the defendants, who constitute a board of appeal from the Building Commissioner of the City of Boston, to compel the defendants to issue a permit to him to build on his lot on the corner of Arlington and Marlborough Streets in that city. The application was referred by the justice presiding to the full court, and was by it denied (193 Mass. 364), and the plaintiff has brought the case here by writ of error.

The action of defendants in refusing the permit was based on the statutes of Massachusetts, c. 333 of the Acts of 1904, and c. 383 of the Acts of 1905. The two acts are set forth in the margin. * The reason for the refusal to grant the building

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permit was because the building site for the proposed building was situated in one of the districts B, as created under the provisions of the acts mentioned, in which districts the height of

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the buildings is limited to eighty, or, in some cases, to one hundred feet, while the height of buildings in Districts A is limited to one hundred twenty-five feet. The height of the building which plaintiff in error proposed to build and for which he asked the building permit was stated by him in his application therefor to be one hundred twenty-four feet, six inches.

The designation of what parts in Districts B and upon what conditions a building could be therein erected more than eighty while not more than one hundred feet high was to be made by a commission, as provided for in the act of 1905, and the commission duly carried out the provisions of the act in that respect. The sole reason for refusing the permit was on

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account of the proposed height of the building being greater than the law allowed.

The plaintiff in error contended that the defendants were not justified in their refusal to grant the permit, because the statutes upon which their refusal was based were unconstitutional and void; but he conceded that, if they were valid, the defendants were justified in their refusal.

The court, while deciding that mandamus was a proper remedy, held that the statutes and the reports of the commissions thereunder were constitutional.

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PECKHAM, J., lead opinion

MR. JUSTICE PECKHAM, after making the [29 S.Ct. 569] foregoing statement, delivered the opinion of the Court.

The ground of objection of plaintiff in error to this legislation is that the statutes unduly and unreasonably infringe upon his constitutional rights (a) as to taking of property without compensation; (b) as to denial of equal protection of the laws.

Plaintiff in error refers to the existence of a general law in Massachusetts, applicable to every city therein, limiting the height of all buildings to one hundred twenty-five feet above the grade of the street (acts of 1891, c. 355), and states that he does not attack the validity of that act in any respect, but concedes that it is constitutional and valid. See also on same subject, acts of 1892, c. 419, § 25, making such limitation as to the City of Boston. His objection is directed to the particular statutes because they provide for a much lower limit in certain parts of the City of Boston, to be designated by a commission, and because a general restriction of height as low as eighty or one hundred feet over any substantial portion of the city is, as he contends, an unreasonable infringement upon his rights of property; also that the application of those limits to Districts B, which comprise the greater part of the City of Boston, leaving the general one hundred twenty-five feet limit in force in those portions of the city which

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the commission should designate (being the commercial districts), is an unreasonable and arbitrary denial of equal rights to the plaintiff in error and others in like situation

Stating his objections more in detail, the plaintiff in error contends that the purposes of the acts are not such as justify the exercise of what is termed the police power, because, in fact, their real purpose was of an esthetic nature, designed purely to preserve architectural symmetry and regular sky lines, and that such power cannot be exercised [29 S.Ct. 570] for such a purpose. It is further objected that the infringement upon property rights by these acts is unreasonable and disproportioned to any public necessity, and also that the distinction between one hundred twenty-five feet for the height of buildings in the commercial districts described in the acts, and eighty to one hundred feet in certain other or so-called residential districts, is wholly unjustifiable and arbitrary, having no well founded reason for such distinction, and is without the least reference to the public safety, as from fire, and inefficient as means to any appropriate end to be attained by such laws.

In relation to these objections the counsel for the plaintiff in error, in presenting his case at bar, made a very clear and able argument.

Under the concession of counsel that the law limiting the height of buildings to one hundred twenty-five feet is valid, we have to deal only with the question of the validity of the provisions stated in these statutes and in the conditions provided for by the commissions limiting the height in Districts B between eighty and one hundred feet.

We do not understand that the plaintiff in error makes the objection of illegality arising from an...

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