DISTRICTING 



55 



Court of Mass. 1 : ' Difference of degree is one of the distinctions by 

 which the right of the legislature to exercise the police power must be 

 determined. Some small limitations of previously existing rights inci- 

 dent to property may be imposed for the sake of preventing a mani- 

 fest evil. Larger ones could not be without the exercise of the right 

 of eminent domain.' And the Supreme Court of the U. S. 2 : 'A 

 Statute or a regulation provided for therein, is frequently valid or 

 the reverse, according as the fact may be, whether it is a reasonable 

 or an unreasonable exercise of legislative power over the subject 

 matter involved, and in many cases questions of degree are the con- 

 trolling ones by which to determine the validity, or the reverse, of 

 legislative action,' and in Plessy vs. Ferguson, 3 in answer to the con- 

 tention that the principle of separation might be carried to the length 

 of assigning to black and white different quarters of the city for 

 living or different sides of the street for walking, the Supreme Court 

 said : ' The reply to all this is, that every exercise of the police power 

 must be reasonable.' * * * There are few forms of control that 

 cannot become unreasonable by an excess of degree: and there are 

 many cases where no other principle of limitation is discoverable than 

 that of reasonableness." 



The districting of a city for building restriction purposes is made neces- 

 sary by the fundamental characteristic of " reasonableness " which is the 

 essential feature of a valid exercise of the police power. Especially in a 

 city like New York it becomes necessary that building regulations should 

 vary according to the character of the district and according to the type and 

 use of the building. In certain districts suburban conditions of light and air 

 can be maintained with great public advantage and with slight private loss ; 

 in other districts such favorable conditions of light and air, while theoreti- 

 cally just as desirable, are entirely impracticable, and any law that attempted 

 to enforce them would be clearly unreasonable and void. 



A classification based on proportionateness of means to ends is recog- 

 nized in practically all building regulations. General maximum height regu- 

 lations, for example, apply only to buildings hereafter constructed. In doing 

 so they discriminate in favor of the owners of buildings already constructed. 

 A lopping off of existing buildings in excess of the prescribed height is of 

 no less importance to the health, safety and convenience of the public than 

 the restriction of the height of an equal number of buildings hereafter to be 

 erected. A discrimination in favor of buildings already constructed cannot 

 be justified directly on the grounds for which the police power may be 

 exercised. Such discrimination or classification finds abundant justification, 

 however, when we apply the controlling principle of reasonableness and pro- 

 portionateness of means to ends. The reconstruction of existing buildings 



"Rideout vs. Knox, 148 Mass., 368. 



"Wisconsin M. and P. R. R. Co. vs. Jacobson, 179 U. S., 287 (1906). 



'163 U. S., 537. 



