revocation by judicial proceedings where upon complaint it is found that the place so assigned has become a nuisance.25 The order of prohibition of the board of health is subject to appeal to the Superior Court for a jury.26 The consent of municipal or local authorities is necessary to the erection of slaughtering or rendering establishments, or noxious or offensive trades or occupations.27 Licenses run for only one year.28 Like other municipal powers, that over nuisances must be reasonably exercised, and courts have frequently annulled oppressive ordinances. In Missouri an ordinance of the City of St. Louis declaring the emission, for however brief a period and however unavoidable, of dense smoke, to be a nuisance, was held to be unreasonable and void,29 but similar smoke ordinances have been upheld in Illinois, Michigan, and Minnesota.30 In Moses v. United States31 the prohibition was declared by an act of Congress, and the defendant was not allowed to prove that he had used the best known smoke consuming appliances, the court holding that Congress may have. contemplated the use of smokeless fuel. In many parts of the country, the requirement, whether municipal or statutory, to use smokeless fuel, would be plainly unreasonable. § 178. Reasonableness of standards.-The offensiveness must as a rule consist in actual physical discomfort, or in a violation of the sense of decency; mere undesirableness by reason of social or other prejudices is not sufficient, not even if it leads to a depreciation of property.32 Thus a cemetery cannot without aggravating circumstances be declared a nuisance.33 25 Sec. 92. 26 Sec. 95. 27 Sec. 99. 28 Sec. 100. 29 St. Louis v. Packing & Provision Co., 141 Mo. 375, 39 L. R. A. 551. 30 Harmon v. Chicago, 110 Ill. 400; Field v. Chicago, 44 Ill. App. 410; St. Paul v. Gilfillan, 36 Minn. 298; People v. Lewis, 86 Mich. 273, two justices dissenting. 31 16 App. Cas. D. C. 428, 50 L. R. A. 532. 32 The same principle generally applies to a nuisance considered as an actionable wrong; in Indiana, however, it has been held that a saloon in a residence district, although licensed and although not conducted in a disorderly manner, may constitute an actionable nuisance. Haggart V. Stehlin, 137 Ind. 43, 35 N. E. 997, 22 L. R. A. 577. The location of a smallpox hospital of a city has been held rot to be an actionable wrong to adjoining owners. Frazer v. Chicago, 186 Ill. 480, 57 N. E. 1055. 33 Lake View v. Letz, 44 Ill. 81; Musgrove v. St. Louis Church, 10 La. Ann. 431; New Orleans v. St. Louis Church, 11 La. Ann. 244. It is certain, moreover, that in defining nuisances no standards may be established which discriminate against the poor. The City of Bay St. Louis in Mississippi, much frequented as a seaside resort, desired to protect the owners of residences fronting on a shell road which was separated from the sea by a narrow strip of land, against cheap structures on that strip. Under special statutory authority an ordinance was therefore enacted forbidding the erection of shanties, etc., which would obstruct the view of the sea, and intercept the sea breezes. The statute and the ordinance described these erections as nuisances; but it was held that the prohibition of a use of property adapted to the needs of the poorer classes was an unconstitutional taking of property.34 § 179. Assignment to specified districts.35-The assignment of noxious establishments to designated limits is closely related to their exclusion from specified districts, and would be derived from the power to regulate and direct their location. It is, however, not the practice to exercise the power in this form; the closest approximation to it is found in excluding them from all parts of the city excepting some particular portion. This may leave their status in that portion to the common law. In the most notable case bearing upon this subject,36 an ordinance of the City of New Orleans prohibited lewd women from living anywhere without the limits of two particularly described districts, but added that this should not be held to authorise such a woman to live in any portion of the city. The Supreme Court, however, in upholding the ordinance as not violating any federal right broadly sanctions this kind of discrimination: "The power to prescribe a limitation carries with it the power to discriminate against one citizen and in favor of another. Some must suffer by the establishment of any territorial boundaries." "If the power to prescribe territorial limits exists, the courts cannot say that the limits shall be other than those the legislative body prescribes. If these limits hurt the present plaintiffs in error, other limits would hurt others. But clearly the inquiry as to the reasonableness or propriety of the limits is a matter for legislative consideration, and cannot become the basis of judicial action. 34 Quintini v. Bay St. Louis, 64 Miss. 483. 35 See also, §§ 245, 689. 36 L'Hote v. New Orleans, 51 La Ann. 93, 177 U. S. 587. The ordinance is an attempt to protect a part of the citizens from the unpleasant consequences of such neighbors. Because the legislative body is unable to protect all, must it be denied. the power to protect any?''37 This statement will hardly command general assent, and not being called for by the circumstances of the case, need not be accepted as authoritative. It is sufficient that in the case before the court the owners in the district were not deprived of any remedy civil or criminal which they had before; and the ordinance expressly disclaimed being a license. On general principles an ordinance must not be partial or oppressive, and it is difficult to imagine greater possibilities of partiality and oppressiveness than in the exercise of an uncontrolled power to determine districts for noxious establishments. Moreover it is well established that a nuisance cannot be legalised which is a violation of a private right except through the power of eminent domain.38 An ordinance withdrawing merely the liability to prosecution, might be legally and practically unobjectionable.39 So far as private rights are concerned, it would leave owners to their remedy by damages and injunction, if injury could be shown; but in the case of the selection of a district already given over to offensive establishments. there would as a rule be no ground for private complaint, an injunction could be refused,40 and the damages would be nominal. An ordinance assigning limits might thus practically accomplish its purpose without injustice or violation of legal rights. UNSIGHTLINESS. §§ 180-183. § 180. Limiting the height of buildings on public parks.— The various forms of offensiveness over which the police power is exercised do not as yet include unsightly objects. In prohibiting the exhibition of persons whose deformity attracts public curiosity11 the state places a check upon an indecent and scandalous practice. The question whether mere ugliness not involving any consideration of decency can be placed under police restraint has hardly advanced beyond the range of tentative discussion. 37 177 U. S. 597. 38 See §§ 507-510, infra. 39 Commonwealth V. Rumford Chemical Works, 16 Gray, 231. 40 High, Injunctions, §§ 742, 752. 41 Illinois Act April 22, 1899. The case of Attorney General v. Williams42 deals with this question, although not directly from the point of view of the police power. An act of Massachusetts of 1898 limited buildings in the neighborhood of Copley Square, Boston, to a certain height, providing at the same time for the payment of compensation to those property owners who should suffer by the limitation. The act was upheld as an exercise of the power of eminent domain, and the principal question discussed by the court was whether the use could be regarded as public. "It is argued by the defendants that the legislature in passing the statute was seeking to preserve the architectural symmetry of Copley Square. If this is a fact, and if the statute is merely for the benefit of individual property owners, the purpose does not justify the taking of a right in land against the will of the owner. But if the legislature for the benefit of the public was seeking to promote the beauty and attractiveness of a public park in the capital of the commonwealth, and to prevent unreasonable encroachments upon the light and air which it had previously received, we cannot say that the law-making power might not determine that this was a matter of such public interest as to call for an expenditure of public money, and to justify the taking of private property." The court, however, also suggests another theory for the exercise of such a power. "In view of the kind of buildings erected on the streets about Copley Square, and the use to which some of these buildings are put, it would be hard to say that this statute might not have been passed in the exercise of the police power, as other statutes regulating the erection of buildings in cities are commonly passed." A later statute of Massachusetts43 limited the height of buildings on a small tract west of the State House to 70 feet and allowed petitions for the assessment of damages in so far as the act or proceedings to enforce it might deprive the petitioners of rights existing under the constitution. It was contended on the part of the commonwealth that the act was an exercise of the police power, and in so far as the limitation was reasonable no rights under the constitution were impaired. The court however held that without express statutory pro 42 174 Mass. 476, 55 N. E. 77, 1899; Williams v. Parker, 188 U. S. 491, 1903. 43 1899 ch. 457. vision to that effect it could not be assumed to have been the legislative will and judgment that property rights should be restricted without compensation. "The objection to the interpretation is that it supposes the legislature without clear words to have used the police power in one of its extreme manifestations for a purpose which although conceded to be public is a purpose which may be described as a luxury rather than necessity. So that to sustain the restriction to its whole extent under the police power would be a startling advance upon anything heretofore done. ''44 This decision shows after all considerable hesitation and doubt as to whether the police power can be validly exercised without compensation for mere aesthetic interests.45 * * * § 181. Building regulations not for purely aesthetic purposes.-General municipal building regulations in this country are enacted exclusively in the interest of health or safety. An ordinance of the City of Baltimore providing for the refusal of building permits unless the size, general character and appearance of the building or buildings to be erected will conform to the general character of the buildings previously erected in the same locality, and will not in any way tend to depreciate the value of surrounding improved and unimproved property, was held void as not authorised by the city's charter powers, the court leaving the question open whether such power can be conferred upon a city at all.46 In America buildings have never been controlled by law with a view to securing beauty or symmetry, whereas such regulations are not unknown in European cities. It may be conceded that the restrictions imposed rarely inflict actual damage, nevertheless they constitute a substantial impairment of the right of property, and the maintenance of an official standard of beauty would not easily be recognised under our theory of constitutional law as a sufficient warrant for the exercise of the police power. The statute of Massachusetts may be regarded as authorising the condemnation of air space for the purpose of securing additional light for a public park, or a public building, a purpose closely related to these public improvements and hence sufficient to justify the exercise of the power of eminent domain. 44 Parker v. Com., 178 Mass. 199, 59 N. E. 634. 45 See § 514, infra. 46 Bostock v. Sams, 95 Md. 400, 52 Atl. 665. |