60 HEIGHTS OF BUILDINGS COMMISSION 



in reference to the interest of the public, but also in reference to the rights 

 of landowners." If these rights and interests are in conflict " the opposing 

 considerations should be balanced against each other and each should be 

 made to yield reasonably to those upon the other side." The court indicates 

 that this consideration makes it necessary in considering the height limita- 

 tion to have reference " to the use for which the real estate probably will be 

 needed." The court calls attention to the fact that the value of land and 

 demand for space in the business district is such as to call for buildings of 

 greater height than in the residential district. 



The case was carried to the Supreme Court of the United States and 

 the constitutionality of the act again affirmed. (Welch vs. Swasey, 214 U. S. 

 91, 29 Sup. Ct., 567, decided May 17, 1909.) It was contended by the 

 appellant that the real purpose of the act was to preserve architectural sym- 

 metry and regular sky line, and that the police power could not be exercised 

 for such a purpose. It was further contended that the infringement upon 

 property rights was unreasonable and disproportional to any public necessity 

 and that the distinction between 125 feet for the height of buildings in 

 District A and 80 feet to 100 feet for buildings in District B was wholly 

 unjustifiable and arbitrary, having no reference to public safety or to any 

 purpose appropriate to the police power. The Supreme Court rejected these 

 contentions, stating that the reasons contained in the opinion of the State 

 court were, in the opinion of the Supreme Court, sufficient to justify the 

 validity of the regulations in question. Justice Peckham, in delivering the 

 opinion of the court, refers to the justification of the districting provision 

 based on the greater value of land in District A, presented by the State 

 court. He also finds an additional reason for the districting provision in a 

 greater danger in case of fire from tall buildings in a residential district. 

 He says (at pages 106-108) : 



" In this case the Supreme Judicial Court of the State holds the 

 legislation valid, and that there is a fair reason for the discrimination 

 between the height of buildings in the residential as compared with 

 the commercial districts. That court had also held that regulation 

 in regard to the height of buildings, and in regard to their mode of 

 construction in cities, made by legislative enactments for the safety, 

 comfort or convenience of the people and for the benefit of property 

 owners generally are valid. Attorney General vs. Williams, 174 

 Mass., 476. We concur in that view, assuming, of course, that the 

 height and conditions provided for can be plainly seen to be not un- 

 reasonable or inappropriate. 



" In relation to the discrimination or classification made between 

 the commercial and residential portion of the city, the State court 

 holds in this case that there is reasonable ground therefor in the very 

 great value of the land and the demand for space in those parts of 

 Boston where a greater number of buildings are used for the pur- 

 pose of business or commercially than where the buildings are situ- 



