The opinion
ST. PAUL, J.
(concurring). I concur in the opinion of the Chief Justice, who has so clearly brought out that the ordinance complained of contains no discrimination whatever against any one on account of race or color. In effect, the ordinance provides merely that no person of
either race
shall establish his residence in a section already occupied by a majority of the other race, without the consent of [a majority of] such majority. Hence equal
restrictions
are placed upon persons of
both
races, and equal
rights
(of exclusion) given to the majority residing in a section whether they be of the one race or of the other. <
I.
The ordinance therefore operates
equally
upon
all
owners of property, whether white or black. For the owners of property in a white section, whether white or black, are equally forbidden to let it be occupied by negroes, and
per contra
are equally permitted to have it occupied by whites; and the owners of property in a negro section, whether white or black, are equally forbidden to let it be occupied by whites, and
per contra
equally permitted to let it be occupied by negroes.
So that the sum and substance of the ordinance is, that property in a white section, by whomsoever owned (whether white or black), shall not be occupied by negroes; and property in a negro section, by whomsoever owned (whether black or white), shall not be occupied by whites.
Clearly, therefore, the ordinance discriminates neither against a white owner nor against a negro owner;' for it clearly permits to the one what it permits to the other, and forbids to this one what it forbids to that one. In other words, the ordinance simply restricts the
use
to which certain property may be put; thus, property in a white section may be used only for housing white persons, and may
not
be used for housing negroes; and property in a negro section may be used only, for housing negroes and may
not
be used for housing whites; all regardless of who may
omi
it, be he white or be he black.
In State ex rel. Civello v. City of New Orleans, 154 La,. 271, 283, 97 So. 440, 444 (33 A. L. R. 260) this court said, citing ample authority:
“Hue process of law and the equal protection of the laws are had when the laws affect alike all persons similarly situated. * * *
“An ordinance that forbids any and every citizen to conduct any business establishment
*461
in a designated residence district does not discriminate arbitrarily against persons owning property in the district. The ordinance affects alike all persons similarly situated. In fact, it affects absolutely every one alike, in that the same privilege is denied to any and every one.”
II.
Accordingly the only question which can arise herein is, does such a restriction upon the
use
of property
deprive
an owner of his property (with or) without due process of law. And the only answer to that is that
it does not.
In State ex rel. Civello v. City of New Orleans, 154 La. 271, 285 , 97 So. 440, 445 (33 A. L. R. 260), this court said again:
“The Supreme Court of the United States has decided * * * that a municipal government may, for the general welfare, exercise the police power to the extent of forbidding the owners of property in a designated residence district to use their property for business purposes. See Hadacheck v. Los Angeles, 239 U. S. 394 , 36 S. Ct. 143 , 60 L. Ed. 348 , Ann. Cas. 1917B, 927; Cusack v. Chicago, 242 U. S. 529 , 37 S. Ct. 190 , 61 L. Ed. 472 , L. R. A. 1918A, 136, Ann. Cas. 1917C, 594; St. Louis Poster Co. v. St. Louis, 249 U. S. 269 , 39 S. Ct. 274 , 63 L. Ed. 599 . [Also Welch v. Swasey, 214 U. S. 91 , 29 S. Ct. 567 , 53 L. Ed. 923 ; herein all cited again by the Chief Justice.]
“And the court of last resort in each of the following states has recognized the authority of cities to enact so-called zoning ordinances, creating residence districts and commercial districts, and prohibiting business establishments in residence districts, viz.: In New York, ♦ * *; Massachusetts, * * *; New Jersey, * * *; Iowa, * * *; Utah, * * *; Missouri, * * * ; Kansas. * * * ”
See, also, Harris v. Louisville, 165 Ky. 559 , 177 S. W. 472 , Ann. Cas. 1917B, 149; Hopkins v. Richmond, 117 Ya. 692, 86 S. E. 139 , Ann. Cas. 1917D, 1114.
The Chief Justice, who was also the organ of this court in the Civello Case, was doubtless too modest to quote therefrom; but I have found his statement of the law in that case so clear and succinct, that I felt constrained to reproduce it here.
And I agree with the Chief Justice, that there is no difference in principle between an ordinance which restricts the use of property in residential • districts to residential purposes, and an ordinance which restricts the use of property in white residential districts to white residential purposes, and in negro residential districts to negro residential purposes. Both put
some
restrictions on an owner’s
use
of his property in the general public interest. But so also do
most
laws place some
restraints
on the conduct of individuals; whence comes civil liberty.
And if a man’s so-called
natural liberty
may be restrained for the common good, there is no sound reason under the sun why his
natural right
to do as he pleases with his own, may not • also be restrained in the interest of the general welfare.
A man is none the less free because restrained in-his personal conduct by wholesome laws; nor is his property any less valuable because restricted to such use as will best promote the general welfare. If this be not true, then the bushmen of Australia enjoy the
blessings of freedom
to a greater degree than do the citizens of this great republic; and property in central Africa ought to be more valuable than in London or New York.
III.
If the doctrine in
Buchanan v. Warley
conflicts with these views, and that doctrine be adhered to, then that case marks a long step backwards in the march of civilization; not so much because it interferes with the segregation of the races (which will take care of itself), but more especially because it will serve in future as a precedent against still
other
restrictions on the use of property, which, in time, may become necessary in the public interest; and it ought therefore to be
overruled
before the rolling pebble becomes an avalanche. At any rate, this court should add nothing to the growing mass.
I concur in both opinion and decree.