DISTRICTING 63 



The validity of a building line regulation under the above ordinance 

 came before the Supreme Court of Appeals of Virginia in Eubank v. City 

 of Richmond, 110 Va. 749, 67 S. E. 376, decided March 10, 1910. In deliv- 

 ering the opinion of the court Judge Whittle refers to the case of Welch 

 v. Swasey and concludes as follows : " In the present case the statute is 

 neither unreasonable nor unusual, and we are justified in concluding that 

 it was passed by the Legislature in good faith and in the interest of the 

 health, safety, comfort or convenience of the public, and for the benefit 

 of the property owners generally who are affected by its provisions, and 

 that the enactment tends to accomplish all, or at least some, of these objects. 

 The validity of such legislation is generally recognized and upheld." 



The case was appealed to the Supreme Court of the United States 

 (Eubank v. City of Richmond, 33 Sup. Ct. 76, decided December 2, 1913). 

 Justice McKenna in delivering the opinion of the court first comments 

 generally on the police power as follows : 



" Whether it is a valid exercise of the police power is a question 

 in the case, and that power we have defined, as far as it is capable 

 of being defined by general words, a number of times. It is not sus- 

 ceptible of circumstantial precision. It extends, we have said, not 

 only to regulations which promote the public health, morals and 

 safety, but to those which promote the public convenience or the 

 general prosperity. But necessarily it has its limits and must stop 

 when it encounters the prohibitions of the Constitution. A clash 

 will not, however, be lightly inferred. Governmental power must be 

 flexible and adaptive. Exigencies arise, or even conditions less 

 peremptory, which may call for or suggest legislation, and it may be 

 a struggle in judgment to decide whether it must yield to the higher 

 considerations expressed and determined by the provisions of the 

 Constitution." 



The court found the regulation unconstitutional, its finding being based 

 on the fact that under the ordinance a building line must be established 

 whenever two-thirds of the property owners abutting on any street shall 

 petition the committee on streets to establish such a line. The court holds 

 that an important power of this kind cannot be vested in any number of 

 property owners with power to use as they see fit and presumably in their 

 own interest and not in the interest of public comfort or convenience. 

 Though the particular ordinance in question was held to be unconstitutional, 

 the opinion of the state court and the general treatment of the case by the 

 Supreme Court of the United States give considerable ground for the hope 

 that building line regulations properly based will be held constitutional. 

 This is clearly the view of the matter taken by the city of Richmond, for, 

 following the above decision by the Supreme Court of the United States, 

 it passed another ordinance (April 22, 1913) prescribing the procedure by 



