U.S. Supreme Court Kohl v. United States, 91 U.S.
367 (1875) Kohl v. United States 91 U.S.
367 ERROR TO THE CIRCUIT COURT OF THE
UNITED STATES FOR THE SOUTHERN DISTRICT OF
OHIO Syllabus 1. The right of eminent domain exists in the government of the
United States, and may be exercised by it within the states, so far
as is necessary to the enjoyment of the powers conferred upon it by
the Constitution.

															2. Where Congress by one act authorized the Secretary of the
Treasury to purchase in the City of Cincinnati a suitable site for
a building for the accommodation of the United States courts and
for other public purposes, and by

															a subsequent act made an appropriation "for the purchase at
private sale, or by condemnation of such site," power was conferred
upon him to acquire, in his discretion, the requisite ground by the
exercise of the national right of eminent domain, and the proper
circuit court of the United States had, under the general grant of
jurisdiction made by the Act of 1789, jurisdiction of the
proceedings brought by the United States to secure the condemnation
of the ground.

															3. Where proceedings for the condemnation of land are brought in
the courts of Ohio, the statute of that state treats all the owners
of a parcel of ground as one party, and gives to them collectively
a trial separate from the trial of the issues between the
government and the owners of other parcels; but each owner of an
estate or interest in each parcel is not entitled to a separate
trial. Page 91 U. S. 368 This was a proceeding instituted by the United States to
appropriate a parcel of land in the City of Cincinnati as a site
for a post office and other public uses.

															The plaintiffs in error owned a perpetual leasehold estate in a
portion of the property sought to be appropriated. They moved to
dismiss the proceeding on the ground of want of jurisdiction, which
motion was overruled. They then demanded a separate trial of the
value of their estate in the property, which demand the court also
overruled. To these rulings of the court the plaintiffs in error
here excepted. Judgment was rendered in favor of the United
States.

															There are three acts of Congress which have reference to the
acquisition of a site for a post office in Cincinnati. The first,
approved March 2, 1872, 17 Stat. 39, is as follows:

															"Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled that the Secretary
of the Treasury be, and he is hereby, authorized and directed to
purchase a central and suitable site in the City of Cincinnati,
Ohio, for the erection of a building for the accommodation of the
United States courts, custom house, United States depository, post
office, internal revenue and pension offices, at a cost not
exceeding three hundred thousand dollars, provided that no money
which may hereafter be appropriated for this purpose shall be used
or expended in the purchase of said site until a valid title
thereto shall be vested in the United States and until the State of
Ohio shall cede its jurisdiction over the same, and shall duly
release and relinquish to the United States the right to tax or in
any way assess said site and the property of the United States that
may be thereon during the time that the United States shall be or
remain the owner thereof."

															In the Appropriation Act of June 10, 1872, 17 Stat. 352, a
further provision was made as follows:

															"To commence the erection of a building at Cincinnati, Ohio, for
the accommodation of the United States courts, custom house, United
States depository, post office, internal revenue and pension
offices, and for the purchase, at private sale or by condemnation,
of ground for a site therefor -- the entire cost of completion of
which Page 91 U. S. 369 building is hereby limited to two million two hundred and fifty
thousand dollars (inclusive of the cost of the site of the same) --
seven hundred thousand dollars, and the Act of March 12, 1872,
authorizing the purchase of a site therefor, is hereby so amended
as to limit the cost of the site to a sum not exceeding five
hundred thousand dollars."

															And in the subsequent Appropriation Act of March 3, 1873, 17
Stat. 523, a further provision was inserted as follows:

															"For purchase of site for the building for custom house and post
office at Cincinnati, Ohio, seven hundred and fifty thousand
dollars." Page 91 U. S. 371 MR. JUSTICE STRONG delivered the opinion of the Court.

															It has not been seriously contended during the argument that the
United States government is without power to appropriate lands or
other property within the states for its own uses, and to enable it
to perform its proper functions. Such an authority is essential to
its independent existence and perpetuity. These cannot be preserved
if the obstinacy of a private person, or if any other authority,
can prevent the acquisition of the means or instruments by which
alone governmental functions can be performed. The powers vested by
the Constitution in the general government demand for their
exercise the acquisition of lands in all the states. These are
needed for forts, armories, and arsenals, for navy yards and
lighthouses, for custom houses, post offices, and courthouses, and
for other public uses. If the right to acquire property for such
uses may be made a barren right by the unwillingness of
propertyholders to sell, or by the action of a state prohibiting a
sale to the federal government, the constitutional grants of power
may be rendered nugatory, and the government is dependent for its
practical existence upon the will of a state, or even upon that of
a private citizen. This cannot be. No one doubts the existence in
the state governments of the right of eminent domain -- a right
distinct from and paramount to the right of ultimate ownership. It
grows out of the necessities of their being, not out of the tenure
by which lands are held. It may be exercised though the lands are
not held by grant from the government, either mediately or
immediately, and independent of the consideration whether they
would escheat to the government in case of a failure of heirs. The
right is the offspring of political necessity, and it is
inseparable Page 91 U. S. 372 from sovereignty, unless denied to it by its fundamental law.
Vattel, c. 20, 34; Bynk., lib. 2, c. 15; Kent's Com. 338-340;
Cooley on Const.Lim. 584 et seq. But it is no more
necessary for the exercise of the powers of a state government than
it is for the exercise of the conceded powers of the federal
government. That government is as sovereign within its sphere as
the states are within theirs. True, its sphere is limited. Certain
subjects only are committed to it; but its power over those
subjects is as full and complete as is the power of the states over
the subjects to which their sovereignty extends. The power is not
changed by its transfer to another holder.

															But, if the right of eminent domain exists in the federal
government, it is a right which may be exercised within the states,
so far as is necessary to the enjoyment of the powers conferred
upon it by the Constitution. In Ableman
v. Booth , 21 How. 523, Chief Justice Taney
described in plain language the complex nature of our government
and the existence of two distinct and separate sovereignties within
the same territorial space, each of them restricted in its powers,
and each, within its sphere of action prescribed by the
Constitution of the United States, independent of the other.
Neither is under the necessity of applying to the other for
permission to exercise its lawful powers. Within its own sphere, it
may employ all the agencies for exerting them which are appropriate
or necessary, and which are not forbidden by the law of its being.
When the power to establish post offices and to create courts
within the states was conferred upon the federal government,
included in it was authority to obtain sites for such offices and
for courthouses, and to obtain them by such means as were known and
appropriate. The right of eminent domain was one of those means
well known when the Constitution was adopted, and employed to
obtain lands for public uses. Its existence, therefore, in the
grantee of that power ought not to be questioned. The Constitution
itself contains an implied recognition of it beyond what may justly
be implied from the express grants. The fifth amendment contains a
provision that private property shall not be taken for public use
without just compensation. What is that but an implied assertion
that, on Page 91 U. S. 373 making just compensation, it may be taken? In Cooley on
Constitutional Limitations 526 it is said:

															"So far as the general government may deem it important to
appropriate lands or other property for its own purposes and to
enable it to perform its functions -- as must sometimes be
necessary in the case of forts, lighthouses, and military posts or
roads and other conveniences and necessities of government -- the
general government may exercise the authority as well within the
states as within the territory under its exclusive jurisdiction,
and its right to do so may be supported by the same reasons which
support the right in any case -- that is to say the absolute
necessity that the means in the government for performing its
functions and perpetuating its existence should not be liable to be
controlled or defeated by the want of consent of private parties or
of any other authority."

															We refer also to Trombley v. Humphrey, 23 Mich. 471; 35 U. S. 10 Pet. 723; Dickey v. Turnpike Co., 7 Dana 113; McCullough v.
Maryland , 4 Wheat. 429.

															It is true, this power of the federal government has not
heretofore been exercised adversely, but the nonuser of a power
does not disprove its existence. In some instances the states, by
virtue of their own right of eminent domain, have condemned lands
for the use of the general government, and such condemnations have
been sustained by their courts, without, however, denying the right
of the United States to act independently of the states. Such was
the ruling in Gilmer v. Lime Point, 18 Cal. 229, where
lands were condemned by a proceeding in a state court and under a
state law for a United States fortification. A similar decision was
made in Burt v. Merchants' Ins. Co., 106 Mass. 356, where
land was taken under a state law as a site for a post office and
subtreasury building. Neither of these cases denies the right of
the federal government to have lands in the states condemned for
its uses under its own power and by its own action. The question
was whether the state could take lands for any other public use
than that of the state. In Trombley v. Humphrey , 23 Mich.
471, a different doctrine was asserted, founded, we think, upon
better reason. The proper view of the right of eminent domain seems
to be that it is a right belonging to a Page 91 U. S. 374 sovereignty to take private property for its own public uses,
and not for those of another. Beyond that, there exists no
necessity, which alone is the foundation of the right. If the
United States have the power, it must be complete in itself. It can
neither be enlarged nor diminished by a state. Nor can any state
prescribe the manner in which it must be exercised. The consent of
a state can never be a condition precedent to its enjoyment. Such
consent is needed only, if at all, for the transfer of jurisdiction
and of the right of exclusive legislation after the land shall have
been acquired.

															It may therefore fairly be concluded that the proceeding in the
case we have in hand was a proceeding by the United States
government in its own right, and by virtue of its own eminent
domain. The Act of Congress of March 2, 1872, 17 Stat. 39, gave
authority to the Secretary of the Treasury to purchase a central
and suitable site in the City of Cincinnati, Ohio, for the erection
of a building for the accommodation of the United States courts,
custom house, United States depository, post office, internal
revenue and pension offices, at a cost not exceeding $300,000, and
a proviso to the act declared that no money should be expended in
the purchase until the State of Ohio should cede its jurisdiction
over the site and relinquish to the United States the right to tax
the property. The authority here given was to purchase. If that
were all, it might be doubted whether the right of eminent domain
was intended to be invoked. It is true, the words "to purchase"
might be construed as including the power to acquire by
condemnation, for technically purchase includes all modes of
acquisition other than that of descent. But generally, in statutes
as in common use, the word is employed in a sense not technical
only as meaning acquisition by contract between the parties without
governmental interference. That Congress intended more than this is
evident, however, in view of the subsequent and amendatory act
passed June 10, 1872, which made an appropriation "for the purchase
at private sale or by condemnation of the ground for a site" for
the building. These provisions, connected as they are, manifest a
clear intention to confer upon the Secretary of the Treasury power
to acquire the grounds needed by the exercise of the national right
of eminent domain, Page 91 U. S. 375 or by private purchase, at his discretion. Why speak of
condemnation at all if Congress had not in view an exercise of the
right of eminent domain and did not intend to confer upon the
secretary the right to invoke it?

															But it is contended on behalf of the plaintiffs in error that
the circuit court had no jurisdiction of the proceeding. There is
nothing in the acts of 1872, it is true, that directs the process
by which the contemplated condemnation should be effected, or which
expressly authorizes a proceeding in the circuit court to secure
it. Doubtless Congress might have provided a mode of taking the
land and determining the compensation to be made which would have
been exclusive of all other modes. They might have prescribed in
what tribunal or by what agents the taking and the ascertainment of
the just compensation should be accomplished. The mode might have
been by a commission, or it might have been referred expressly to
the circuit court, but this, we think, was not necessary. The
investment of the Secretary of the Treasury with power to obtain
the land by condemnation, without prescribing the mode of
exercising the power, gave him also the power to obtain it by any
means that were competent to adjudge a condemnation. The Judiciary
Act of 1789 conferred upon the circuit courts of the United States
jurisdiction of all suits at common law or in equity when the
United States or any officer thereof suing under the authority of
any act of Congress are plaintiffs. If, then, a proceeding to take
land for public uses by condemnation may be a suit at common law,
jurisdiction of it is vested in the circuit court. That it is a
"suit" admits of no question. In Weston
v. Charleston , 2 Pet. 464, Chief Justice Marshall,
speaking for this Court, said,

															"The term [suit] is certainly a very comprehensive one, and is
understood to apply to any proceeding in a court of justice by
which an individual pursues that remedy which the law affords. The
modes of proceeding may be various, but, if a right is litigated in
a court of justice, the proceeding by which the decision of the
court is sought is a suit."

															A writ of prohibition has therefore been held to be a suit; so
has a writ of right, of which the circuit court has jurisdiction, Green v.
Liter , 8 Cranch 229; so has habeas corpus. Holmes v.
Jamison , 14 Pet. 564. When, Page 91 U. S. 376 in the eleventh section of the Judiciary Act of 1789,
jurisdiction of suits of a civil nature at common law or in equity
was given to the circuit courts, it was intended to embrace not
merely suits which the common law recognized as among its old and
settled proceedings, but suits in which legal rights were to be
ascertained and determined as distinguished from rights in equity,
as well as suits in admiralty. The right of eminent domain always
was a right at common law. It was not a right in equity, nor was it
even the creature of a statute. The time of its exercise may have
been prescribed by statute, but the right itself was superior to
any statute. That it was not enforced through the agency of a jury
is immaterial, for many civil as well as criminal proceedings at
common law were without a jury. It is difficult, then, to see why a
proceeding to take land in virtue of the government's eminent
domain, and determining the compensation to be made for it, is not
within the meaning of the statute a suit at common law when
initiated in a court. It is an attempt to enforce a legal right. It
is quite immaterial that Congress has not enacted that the
compensation shall be ascertained in a judicial proceeding. That
ascertainment is in its nature at least quasi -judicial.
Certainly no other mode than a judicial trial has been
provided.

															It is argued that the assessment of property for the purpose of
taking it is in its nature like the assessment of its value for the
purpose of taxation. It is said they are both valuations of the
property to be made as the legislature may prescribe, to enable the
government in the one case to take the whole of it, and in the
other to take a part of it for public uses, and it is argued that
no one but Congress could prescribe in either case that the
valuation should be made in a judicial tribunal or in a judicial
proceeding, although it is admitted that the legislature might
authorize the valuation to be thus made in either case. If the
supposed analogy be admitted, it proves nothing. Assessments for
taxation are specially provided for, and a mode is prescribed. No
other is therefore admissible. But there is no special provision
for ascertaining the just compensation to be made for land taken.
That is left to the ordinary processes of the law, and hence, as
the government is a suitor for the property under Page 91 U. S. 377 a claim of legal right to take it, there appears to be no reason
for holding that the proper circuit court has not jurisdiction of
the suit, under the general grant of jurisdiction made by the Act
of 1789.

															The second assignment of error is that the circuit court refused
the demand of the defendants below, now plaintiffs in error, for a
separate trial of the value of their estate in the property. They
were lessees of one of the parcels sought to be taken, and they
demanded a separate trial of the value of their interest; but the
court overruled their demand and required that the jury should
appraise the value of the lot or parcel and that the lessees should
in the same trial try the value of their leasehold estate therein.
In directing the course of the trial, the court required the lessor
and the lessees each separately to state the nature of their
estates to the jury, the lessor to offer his testimony separately
and the lessees theirs, and then the government to answer the
testimony of the lessor and the lessees, and the court instructed
the jury to find and return separately the value of the estates of
the lessor and the lessees. It is of this that the lessees
complain. They contend that whether the proceeding is to be treated
as founded on the national right of eminent domain or on that of
the state, its consent having been given by the enactment of the
state legislature of Feb. 15, 1873, 70 Ohio Laws, 36, sec. 1, it
was required to conform to the practice and proceedings in the
courts of the state in like cases. This requirement, it is said,
was made by the Act of Congress of June 1, 1872, 17 Stat. 522. But,
admitting that the court was bound to conform to the practice and
proceedings in the state courts in like cases, we do not perceive
that any error was committed. Under the laws of Ohio, it was
regular to institute joint proceeding against all the owners of
lots proposed to be taken, Giesy v. C. W. & T.R. Co., 4 Ohio St. 308; but the eighth section of the state statute gave to
"the owner or owners of each separate parcel" the right to a
separate trial. In such a case, therefore, a separate trial is the
mode of proceeding in the state courts. The statute treats all the
owners of a parcel as one party, and gives to them collectively a
trial separate from the trial of the issues between the government
and the owners of other parcels. It Page 91 U. S. 378 hath this extent; no more. The court is not required to allow a
separate trial to each owner of an estate or interest in each
parcel, and no consideration of justice to those owners would be
subserved by it. The circuit court therefore gave to the plaintiffs
in error all, if not more than all, they had a right to ask. The judgment of the circuit court is affirmed. MR. JUSTICE FIELD, dissenting.

															Assuming that the majority are correct in the doctrine announced
in the opinion of the Court -- that the right of eminent domain
within the states, using those terms not as synonymous with the
ultimate dominion or title to property, but as indicating merely
the right to take private property for public uses, belongs to the
federal government, to enable it to execute the powers conferred by
the Constitution -- and that any other doctrine would subordinate,
in important particulars, the national authority to the caprice of
individuals or the will of state legislatures, it appears to me
that provision for the exercise of the right must first be made by
legislation. The federal courts have no inherent jurisdiction of a
proceeding instituted for the condemnation of property, and I do
not find any statute of Congress conferring upon them such
authority. The Judiciary Act of 1789 only invests the circuit
courts of the United States with jurisdiction, concurrent with that
of the state courts, of suits of a civil nature at common law or in
equity, and these terms have reference to those classes of cases
which are conducted by regular pleadings between parties, according
to the established doctrines prevailing at the time in the
jurisprudence of England. The proceeding to ascertain the value of
property which the government may deem necessary to the execution
of its powers, and thus the compensation to be made for its
appropriation, is not a suit at common law or in equity, but an
inquisition for the ascertainment of a particular fact as
preliminary to the taking, and all that is required is that the
proceeding shall be conducted in some fair and just mode, to be
provided by law, either with or without the intervention of a jury,
opportunity being afforded to parties interested to present
evidence as to the value of the property, and to be heard thereon.
The proceeding by the states, in the Page 91 U. S. 379 exercise of their right of eminent domain, is often had before
commissioners of assessment or special boards appointed for that
purpose. It can hardly be doubted that Congress might provide for
inquisition as to the value of property to be taken by similar
instrumentalities, and yet if the proceeding be a suit at common
law, the intervention of a jury would be required by the seventh
amendment to the Constitution.

															I think that the decision of the majority of the court in
including the proceeding in this case under the general designation
of a suit at common law, with which the circuit courts of the
United States are invested by the eleventh section of the Judiciary
Act, goes beyond previous adjudications, and is in conflict with
them.

															Nor am I able to agree with the majority in their opinion, or at
least intimation, that the authority to purchase carries with it
authority to acquire by condemnation. The one supposes an agreement
upon valuation, and a voluntary conveyance of the property; the
other implies a compulsory taking, and a contestation as to the
value. Beekman v. Saratoga & Schenectady Railroad Co., 3 Paige 75; Railroad Company v. Davis, 2 Dev. & Batt.
465; Willyard v. Hamilton, 7 Ham. (Ohio) 453; Livingston v. Mayor of New York, 7 Wend. 85; Koppikus
v. State Capitol Commissioners, 16 Cal. 249.

															For these reasons, I am compelled to dissent from the opinion of
the Court.

Summary: The U.S. Supreme Court case of Kohl v. United States (1875) dealt with the federal government's right of eminent domain and its ability to exercise this power within states. The Court upheld the federal government's authority to condemn land for public use, such as for a post office and other public purposes, through the Secretary of the Treasury. The case also addressed procedural matters, including jurisdiction and the right to a separate trial for each owner of an estate or interest in the land. The Court ruled that while each owner of a parcel of land is treated as one party, they are not entitled to separate trials. Justice Clifford dissented, arguing that the federal courts lacked inherent jurisdiction over condemnation proceedings and that the authority to purchase land did not include the power to acquire it through eminent domain.


U.S. Supreme Court Village of Euclid v. Ambler Realty
Co., 272
U.S. 365 (1926) Village of Euclid v. Ambler Realty
Co. No. 31 Argued January 27,
1926 Reargued October 12,
1926 Decided November 22,
1926 272
U.S. 365 APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE NORTHERN DISTRICT OF
OHIO Syllabus 1. A suit to enjoin the enforcement of a zoning ordinance with
respect to the plaintiff's land need not be preceded by any
application on his part for a building permit, or for relief under
the ordinance from the board which administers it, where the
gravamen of the bill is that the ordinance, of its own force,
operates unconstitutionally to reduce the value of the land and
destroy its marketability, and the attack is not against specific
provisions, but against the ordinance in its entirety. P. 272 U. S.
386 .

															2. 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. P. 272 U. S.
386 . Page 272 U. S. 366 3. 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 by considering the building or the thing not abstractly,
but in connection with the circumstances and the locality. P. 272 U. S.
387 .

															4. If the validity of the legislative classification for zoning
purposes be fairly debatable, the legislative judgment must be
allowed to control. P. 272 U. S.
388 .

															5. No serious difference of opinion exists 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. P. 272 U. S.
388 .

															6. The same power may be extended to a general exclusion from
residential districts of all industrial establishments, though some
may not be dangerous or offensive; for the inclusion of a
reasonable margin to insure effective enforcement will not put upon
a law, otherwise valid, the stamp of invalidity. P. 272 U. S.
388 .

															7. The power to relegate industrial establishments to localities
separate from residential sections is not to be denied upon the
ground that its exercise will divert a flow of industrial
development from the course which it would follow and will thereby
injure the complaining land owner. P. 272 U. S.
389 .

															8. The police power supports also, generally speaking, an
ordinance forbidding the erection in designated residential
districts, of business houses, retail stores and shops, and other
like establishments, also of apartment houses in detached-house
sections -- since such ordinances, apart from special applications,
cannot be declared clearly arbitrary and unreasonable, and without
substantial relation to the public health, safety, morals, or
general welfare. P. 272 U. S.
390 .

															9. Where an injunction is sought against such an ordinance upon
the broad ground that its mere existence and threatened
enforcement, by materially and adversely affecting values and
curtailing the opportunities of the market, constitute a present
and irreparable injury, the court, finding the ordinance in its
general scope and dominant features valid, 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 Page 272 U. S. 367 to contribute to the injury complained of, which, if attacked
separately, might not withstand the test of constitutionality. P. 272 U. S.
395 .

															297 Fed. 307, reversed.

															APPEAL from a decree of the District Court enjoining the Village
and its Building Inspector from enforcing a zoning ordinance. The
suit was brought by an owner of unimproved land within the
corporate limits of the village, who sought the relief upon the
ground that, because of the building restrictions imposed, the
ordinance operated to reduce the normal value of his property and
to deprive him of liberty and property without due process of
law. Page 272 U. S. 379 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
farmlands or unimproved acreage. It lies, roughly, in the form of a
parallelogram measuring approximately three and one-half 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, Page 272 U. S. 380 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 establishments, Page 272 U. S. 381 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 Page 272 U. S. 382 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 J-4 to U-6, inclusive. * Page 272 U. S. 383 Annexed to the ordinance, and made a part of it, is a zone map
showing the location and limits of the various use, height and area
districts, from which it appears that the three classes overlap one
another; that is to say, for example, both U-5 and U-6 use
districts are in A-4 area districts, but the former is in H-2 and
the latter in H-3 height districts. The plan is a complicated one,
and can be better understood by an inspection of the map, though it
does not seem necessary to reproduce it for present purposes.

															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 Page 272 U. S. 384 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 Page 272 U. S. 385 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 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. Page 272 U. S. 386 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 , 263 U. S. 215 ; Pierce v. Society of Sisters, 268 U.
S. 510 , 268 U. S.
535 .

															It is not necessary to set forth the provisions of the Ohio
Constitution which are thought to be infringed. The question is the
same under both Constitutions, namely, as stated by appellee: is
the ordinance invalid in that it violates the constitutional
protection "to the right of property in the appellee by attempted
regulations under the guise of the police power, which are
unreasonable and confiscatory?"

															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 Page 272 U. S. 387 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 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 Page 272 U. S. 388 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 , 264 U. S.
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 , 242 U. S.
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 , 248 U. S. 303 ; Pierce Oil Corp. v. City of Hope, 248 U.
S. 498 , 248 U. S. 500 .
The inclusion of a reasonable margin to insure effective
enforcement will not put upon a law, otherwise Page 272 U. S. 389 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 justify the general rule
of the ordinance, although some industries of an innocent character
might fall within the proscribed class. It cannot 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 , 226 U. S. 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 Page 272 U. S. 390 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. We shall not attempt to review
these decisions at length, but content ourselves with citing a few
as illustrative of all.

															As sustaining the broader view, see Opinion of the
Justices, 234 Mass. 597, 607; Inspector of Buildings of
Lowell v. Stoklosa, 250 Mass. 52; Spector v. Building
Inspector of Milton, 250 Mass. 63; Brett v. Building
Commissioner of Brookline, 250 Mass. 73; State v. City of
New Orleans, 154 La. 271, 282; Lincoln Trust Co. v.
Williams Bldg. Corp., 229 N.Y. 313; City of Aurora v.
Burns, 319 Ill. 84, 93; Deynzer v. City of Evanston, 319 Ill. 226; Page 272 U. S. 391 State ex rel. Beery v. Houghton, 164 Minn. 146; State ex rel. Carter v. Harper, 182 Wis. 148, 157-161; Ware v. City of Wichita, 113 Kan. 153; Miller v. Board
of Public Works, 195 Cal. 477, 486-495; City of Providence
v. Stephens, 133 Atl. 614.

															For the contrary view, see Goldman v. Crowther, 147 Md.
282; Ignaciunas v. Risley, 98 N.J.L. 712; Spann v.
City of Dallas, 111 Tex. 350.

															As evidence of the decided trend toward the broader view, it is
significant that, in some instances, the state courts in later
decisions have reversed their former decisions holding the other
way. For example, compare State ex rel. Beery v. Houghton,
supra, sustaining the power, with State ex rel. Lachtman
v. Houghton, 134 Minn. 226; State ex rel. Roerig v. City
of Minneapolis, 136 Minn. 479, and Vorlander v.
Hokenson, 145 Minn. 484, denying it, all of which are
disapproved in the Houghton case (p. 151) last
decided.

															The decisions enumerated in the first group cited above agree
that the exclusion of buildings devoted to business, trade, etc.,
from residential districts bears a rational relation to the health
and safety of the community. Some of the grounds for this
conclusion are promotion of the health and security from injury of
children and others by separating dwelling houses from territory
devoted to trade and industry; suppression and prevention of
disorder; facilitating the extinguishment of fires and the
enforcement of street traffic regulations and other general welfare
ordinances; aiding the health and safety of the community by
excluding from residential areas the confusion and danger of fire,
contagion and disorder which, in greater or less degree, attach to
the location of stores, shops and factories. Another ground is that
the construction and repair of streets may be rendered easier and
less expensive by confining the greater part of the heavy traffic
to the streets where business is carried on. Page 272 U. S. 392 The Supreme Court of Illinois, in City of Aurora v. Burns,
supra, pp. 93-95, in sustaining a comprehensive building zone
ordinance dividing the city into eight districts, including
exclusive residential districts for one and two-family dwellings,
churches, educational institutions and schools, said:

															"The constantly increasing density of our urban populations, the
multiplying forms of industry, and the growing complexity of our
civilization make it necessary for the State, either directly or
through some public agency by its sanction, to limit individual
activities to a greater extent than formerly. With the growth and
development of the State, the police power necessarily develops,
within reasonable bounds, to meet the changing conditions. . .
."

															". . . The harmless may sometimes be brought within the
regulation or prohibition in order to abate or destroy the harmful.
The segregation of industries commercial pursuits and dwellings to
particular districts in a city, when exercised reasonably, may bear
a rational relation to the health, morals, safety and general
welfare of the community. The establishment of such districts or
zones may, among other things, prevent congestion of population,
secure quiet residence districts, expedite local transportation,
and facilitate the suppression of disorder, the extinguishment of
fires, and the enforcement of traffic and sanitary regulations. The
danger of fire and the risk of contagion are often lessened by the
exclusion of stores and factories from areas devoted to residences,
and, in consequence, the safety and health of the community may he
promoted. . . . ."

															". . . The exclusion of places of business from residential
districts is not a declaration that such places are nuisances or
that they are to be suppressed as such, but it is a part of the
general plan by which the city's territory is allotted to different
uses in order to prevent, or at least to reduce, the congestion,
disorder and dangers Page 272 U. S. 393 which often inhere in unregulated municipal development."

															The Supreme Court of Louisiana, in State v. City of New
Orleans, supra, pp. 282-283, said:

															"In the first place, the exclusion of business establishments
from residence districts might enable the municipal government to
give better police protection. Patrolmen's beats are larger, and
therefore fewer, in residence neighborhoods than in business
neighborhoods. A place of business in a residence neighborhood
furnishes an excuse for any criminal to go into the neighborhood
where, otherwise, a stranger would be under the ban of suspicion.
Besides, open shops invite loiterers and idlers to congregate, and
the places of such congregations need police protection. In the
second place, the zoning of a city into residence districts and
commercial districts is a matter of economy in street paving. Heavy
trucks, hauling freight to and from places of business in residence
districts, require the city to maintain the same costly pavement in
such districts that is required for business districts; whereas, in
the residence districts, where business establishments are
excluded, a cheaper pavement serves the purpose. . . ."

															"Aside from considerations of economic administration, in the
matter of police and fire protection, street paving, etc., any
business establishment is likely to be a genuine nuisance in a
neighborhood of residences. Places of business are noisy; they are
apt to be disturbing at night; some of them are malodorous; some
are unsightly; some are apt to breed rats, mice, roaches, flies,
ants, etc. . . ."

															"If the municipal council deemed any of the reasons which have
been suggested, or any other substantial reason, a sufficient
reason for adopting the ordinance in question, it is not the
province of the courts to take issue with the council. We have
nothing to do with the question of the wisdom or good policy of
municipal ordinances. If they are not satisfying to a majority of
the citizens, their recourse is to the ballot -- not the courts.
" Page 272 U. S. 394 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 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, Page 272 U. S. 395 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. 242 U. S.
530 -531; Jacobson v. Massachusetts, 197 U. S. 11 , 197 U. S.
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 Page 272 U. S. 396 made, it cannot be said that the landowner has suffered or is
threatened with an injury which entitles him to challenge their
constitutionality. Turpin v. Lemon, 187 U. S.
51 , 187 U. S. 60 . In Railroad Commission Cases, 116 U.
S. 307 , 116 U. S.
335 -337, this Court dealt with an analogous situation.
There, an act of the Mississippi legislature, regulating freight
and passenger rates on intrastate railroads and creating a
supervisory commission was attacked as unconstitutional. The suit
was brought to enjoin the commission from enforcing against the
plaintiff railroad company any of its provisions. In an opinion
delivered by Chief Justice Waite, this Court held that the chief
purpose of the statute was to fix a maximum of charges and to
regulate in some matters of a police nature the use of railroads in
the state. After sustaining the constitutionality of the statute
"in its general scope," this Court said:

															"Whether in some of its details the statute may be defective or
invalid we do not deem it necessary to inquire, for this suit is
brought to prevent the commissioners from giving it any effect
whatever as against this company."

															Quoting with approval from the opinion of the Supreme Court of
Mississippi, it was further said: " Many questions may arise under
it not necessary to be disposed of now, and we leave them for
consideration when presented." And finally:

															"When the commission has acted and proceedings are had to
enforce what it has done, questions may arise as to the validity of
some of the various provisions which will be worthy of
consideration, but we are unable to say that, as a whole, the
statute is invalid."

															The relief sought here is of the same character, namely, an
injunction against the enforcement of any of the restrictions,
limitations, or conditions of the ordinance. And the gravamen of
the complaint is that a portion of the land of the appellee cannot
be sold for certain enumerated Page 272 U. S. 397 uses because of the general and broad restraints of the
ordinance. 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 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.

															* The court below seemed to think that the frontage of this
property on Euclid Avenue to a depth of 150 feet came under U-1
district and was available only for single family dwellings. An
examination of the ordinance and subsequent amendments, and a
comparison of their terms with the maps, shows very clearly,
however, that this view was incorrect. Appellee's brief correctly
interpreted the ordinance:

															"The northerly 500 feet thereof immediately adjacent to the
right of way of the New York, Chicago & St. Louis Railroad
Company under the original ordinance was classed as U-6 territory
and the rest thereof as U-2 territory. By amendments to the
ordinance, a strip 630 [620] feet wide north of Euclid Avenue is
classed as U-2 territory, a strip 130 feet wide next north as U-3
territory, and the rest of the parcel to the Nickel Plate right of
way as U-6 territory."

Summary: The Supreme Court case of Village of Euclid v. Ambler Realty Co. (1926) dealt with the constitutionality of zoning ordinances and their impact on land value and use. The Court upheld the power of legislative bodies to create and enforce zoning regulations, provided that the classification for zoning purposes is "fairly debatable." The Court also asserted that the police power supports ordinances that exclude businesses and industries from residential areas to promote the health, safety, and general welfare of the community. In this case, the Court reversed the lower court's decision and allowed the zoning ordinance to stand, finding that it was a valid exercise of legislative power.


U.S. Supreme Court Miller v. Schoene, 276
U.S. 272 (1928) Miller v. Schoene No.199 Argued January 20,
1928 Decided February 20,
1928 276
U.S. 272 ERROR TO THE SUPREME COURT OF
APPEALS OF VIRGINIA Syllabus 1. An Act of Virginia provides, compulsorily, for the cutting
down of red cedar trees within two miles of any apple orchard when
found upon official investigation to be the source or "host plant"
of the communicable plant disease called cedar rust and to
"constitute a menace to the health of any apple orchard in said
locality." The owner is allowed a judicial review of the order of
the State Entomologist directing such cutting, and may use the
trees when cut, but no compensation is allowed him for their value
standing or for decrease in market value of the realty caused by
their destruction. The evidence shows that the life cycle of the
parasite has two phases, passed alternately on the cedar and the
apple; that it is without effect on the value of the cedar, but
destructive of the leaves and fruit of the apple; that it is
communicable by spores from the cedar to the apple over a radius of
at least two miles; that the only practicable method of controlling
it is destruction of all red cedar trees within that distance of
apple orchards, and that the economic value of cedars in Virginia
is small as compared with that of the apple orchards. Held, that the Act is consistent with the Due Process
Clause of the Fourteenth Amendment. P. 276 U. S.
277 .

															2. When forced to make the 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. P 276 U. S.
279 .

															3. Preferment of the public interest, even to the extent of
destroying property interests of the individual, is one of the
distinguishing characteristics of every exercise of the police
power which affects property. P. 276 U. S.
280 . Page 276 U. S. 273 4. The provision of the statute that the investigation of the
locality shall be made upon the request of ten or more reputable
freeholders of the county or magisterial district does not make it
objectionable as subjecting private property to arbitrary or
irresponsible action of private citizens, since the decision
whether the facts revealed bring the case within the statute is
made by the State Entomologist, and subject to judicial review. Eubank v. Richmond, 226 U. S. 137 ,
distinguished. P. 276 U. S.
280 .

															5. Since no penalty can be incurred or disadvantage suffered
under the statute in advance of the judicial ascertainment of its
applicability, and since it was held applicable in this case by the
state court, the objection to its vagueness is without weight. P. 276 U. S. 281 .

															146 Va. 175 affirmed.

															Error to a judgment of the Supreme Court of Appeals of Virginia,
which affirmed a judgment affirming on appeal an order of the State
Entomologist, Schoene, requiring the plaintiffs to cut down a large
number of ornamental red cedar trees growing on their property. The
judgment allowed them $100 to cover the expense of removing the
cedars. Page 276 U. S. 277 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, 135 S.E. 813. 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. Judicial Code, § 237a.

															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 Page 276 U. S. 278 request in writing of ten or more reputable freeholders 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 any 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 F.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 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 Page 276 U. S. 279 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 nonetheless 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 R. Co. v. May, 194 U.
S. 267 ; Chicago, Terre Haute & Southeastern R.
Co. v. Anderson, 242 U. S. 283 ; Perley v. North Carolina, 249 U.
S. 510 . And, where the public interest is involved, Page 276 U. S. 280 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 ; Northwestern Fertilizer 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, 239 U. S. 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 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. 226 U. S.
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 Page 276 U. S. 281 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.

Summary: The Supreme Court upheld a Virginia law that authorized the compulsory cutting down of red cedar trees found to be the source of a communicable plant disease, cedar rust, that was harmful to apple orchards. The law was challenged on the basis of the Due Process Clause of the Fourteenth Amendment, but the Court ruled that the state's decision to destroy one class of property (the cedar trees) to save another (apple orchards) of greater value to the public was a valid exercise of its police power. The Court also rejected arguments that the law subjected private property to arbitrary action by private citizens and was unconstitutionally vague.