The opinion
HOUSER, J.,
Dissenting. — I dissent. As it is apparent that no consideration of public health, morals, safety, or welfare is here involved, it follows that in my judgment none of the reasons assigned for the exercise of the police power in the premises is sound. I cannot but think that the suggestion that more light, or more air, or more or better fire protection will be afforded in a residence district by reason of the enforcement of a set-back ordinance which forbids the erection of any building nearer than thirty feet to the front property line, is untenable. It may not be doubted that in a downtown business district in a city like New York, for example, where extremely tall buildings are permitted, such an ordinance might be helpful, if not essential, to the public welfare. But on a fairly wide street, in a residence district, the only consideration which can be reasonably urged for the passage of such an ordinance is that without it the beauty of the street will be marred; in other words, the reason is founded solely on esthetieal considerations. No one contends but that the police power is elastic; but the upholding of the ordinance in question as legal stretches the police power to the breaking point. The ordinance is arbitrary in its nature, and at least morally discriminatory, if not legally so.
In addition to such criticisms on the exercise of the so-called police power as affecting the ordinance here under consideration, it is clear that the effect of such ordinance is
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nothing less than confiscatory. It is possible that a thirty foot corner lot, which may face on a street intersecting at right angles with the street affected by the ordinance in question, so that the length of the lot will run lengthwise of such street, in effect will be taken without compensation and without “due process of law.” The owner of such a piece of property, as will the owner of every other piece of property fronting on the street affected by the proposed ordinance (to the extent of thirty feet thereof), will be deprived of practically every useful benefit connected therewith, so far as pecuniary considerations are concerned. That one may'be the owner and possessor of real property and yet by ordinance be so restricted as to be prevented from putting it to any beneficial use, presents an anomalous situation. The only remaining privileges to the owner of property so affected are to pay taxes and street assessments levied thereon and keep it cleared of weeds, garbage, and other refuse. In such circumstances, especially as affecting a corner lot fronting on an intersecting street, as hereinbefore suggested, the owner thereof, far from having a property of value, exchangeable for currency or marketable commodity, might even experience difficulty in inducing its acceptance by any person as a gift: To one so situated, if it be possible that the upholding of the ordinance amounts to the safeguarding of his constitutional property rights, by comparison it would seem that the classic myths depict what were stern realities. To my perception, the fact of the matter is that the ordinance is both arbitrary and oppressive and a clear invasion and infringement upon the rights guaranteed by the constitution of this state and of the United States. With the, recognition of such legislation as lawful, every other constitutional right possessed by each citizen of the state is in danger of being disregarded at the whim or caprice of any legislative body. As affecting the principle, it was said by Burke:
“The moment you abate anything’ from the full rights of men each to govern himself, and suffer any artificial positive limitation upon these rights, from that moment the whole organization of government becomes a consideration of convenience.”