The opinion
SCHAUER, J.
I dissent.
It is a matter of history that the device of zoning by ordinance was conceived as providing a method whereby discriminatory measures otherwise unlawful could be sustained. As related by W. L. Pollard of the Los Angeles Bar (Annals of the American Academy of Political and Social Science (May, 1931), vol. 155, part II, Zoning in the United States, pp. 17-18), “The so-called ‘laundry cases’ in San Francisco and elsewhere in northern California were the first California cases wherein the right of the City Council or the Board of Supervisors to restrict and prohibit certain uses within given districts in a city was recognized. . . . From 1870 to 1890, much of the laundry work in San Francisco was done by Chinese. This period marks the time of the violent anti-Chinese disturbances in California. Many state laws and city ordinances were enacted which sought to discriminate against the Chinese. All of these laws and ordinances were invalidated by the courts.
“At one time there were over three hundred Chinese laundries scattered through the residence and business districts of San Francisco. Practically all the structures of San Francisco were frame, and the presence of these laundries presented a definite fire hazard, as they had much combustible material—cloth and wood, and so forth—piled on the floors in buildings where fire was extensively used for boiling water, *562 heating irons, and other purposes. Likewise, these laundries used large quantities of water which, having been used for washing purposes, became impregnated with soap and the substances washed from the clothes, and when turned into the gutters or other drainage facilities then present in the city, was objectionable from the standpoint of odor. The laundries were also unsightly, in that the buildings were usually frame structures with drying lines on the roofs or inside the yards.
“The City Council of San Francisco seized upon these facts as a basis for their regulatory ordinances. The fact that the laundry buildings were becoming the clubs of the Chinese added to their objectionable features in the popular mind, and stirred the legislative body to drastic action. . . . The ordinances carried penal clauses and were enacted under police power ...” They declared that “the indiscriminate establishment of public laundries ... is injurious and dangerous to public health . . . and prejudicial to the well-being and comfort of the community, and depreciates the value of property ...” Such ordinances “did not entirely prohibit laundries in certain districts but required them to procure permits from the Fire Wardens, the Board of Public Health, or the Board of Supervisors ...”
The Annals of the American Academy continues: “While the ordinances did not specifically mention Chinese laundries, they were so drafted that in effect they were directly aimed at the existence and the operation of such establishments conducted by the Chinese. On December 28, 1885, a Chinese named Yick Wo was arrested . . . and charged with violating one of these ordinances.”
Yick Wo, it seems, was well possessed of some of those admirable attributes of the Chinese people which have given so many of them (as has been apparent to the world in later generations, before, during, and since World War II) the will, the courage and the perseverance to fight on against powerful aggressors who would enslave them. Mr. Yick was convicted. He carried his fight through several courts, including this court, which in denying him relief (In the Matter of Yick Wo (1885), 68 Cal. 294, 299, 305 [ 9 P. 139 , 58 Am.St.Rep. 12 ]) admitted that “ Clothes-washing is certainly not opposed to good morals, or subversive of public order or decency,” but held that “it may be highly dangerous to the public safety,” that “The process of washing is not prohibited by . . . regulating the places at which, and the surroundings by which, it must be exercised,” and that “We have not *563 deemed it necessary to discuss the question in the light of supposed infringement of petitioner’s rights under the constitution of the United States ...” Yick Wo, however, was not licked. He carried his fight to the Supreme Court of the United States and in the now historic decision (Yick Wo v. Hopkins (1886), 118 U.S. 356 [ 6 S.Ct. 1064 , 30 L.Ed. 220 ]) he was freed.
I think it regrettable that this court, from its Yick Wo decision down to date, has shown so little inclination to protect private citizens against discriminatory, unfair, and, as concerns all legitimate objectives of valid zoning regulations, unnecessarily harsh, measures. The wnole concept and the course of application of zoning laws, from their genesis in Yick Wo for the very purpose of accomplishing unlawful discrimination by “legal” means, have been characterized by a lack of reciprocating fairness. As stated in the Annals of the American Academy (p. 21) above referred to, “the courts have not as yet fully [and I would interpolate, fairly] recognized the zoning idea by holding that, once a city has zoned its area and set aside some portions thereof for industrial use, thereafter any industry permitted therein shall have full right to operate unhampered by nuisance charges, so long as it uses up-to-date machinery and conducts its business under rules of standard practice.” In other words, the zoning concept and its application, to be more nearly fair, should include protection for property rights rather than being used exclusively, or predominantly and controllingly, for taking such rights without compensation.
The framers of our form of government did not contemplate that private property should be taken for public use without compensation. (U.S. Const., Fifth Amendment; Cal.Const., art. I, § 14; Chicago, Burlington & Q. R. Co. v. Chicago (1897), 166 U.S. 226, 236, 241 [ 17 S.Ct. 581 , 41 L.Ed. 979 ].) Zoning does take it for a public use—often a purely esthetic and very nebulous one—and the way our court has interpreted and applied the law, no compensation has been allowed. Upon my view of the record here the plaintiff is being quite unnecessarily, arbitrarily, and to no substantially good end, deprived without compensation of valuable property rights.
Under the ordinance here involved, although plaintiff may continue to produce oil and may redrill, it is precluded from drilling to depths beyond the present level. It is a matter of common knowledge among those who have had any substantial contact with the oil producing industry that in Cali *564 fornia some of its richest production has been achieved by tapping the deeper sands after shallower production had been largely exhausted. It seems difficult to conceive of a more useless, unnecessary and wholly arbitrary “regulation” than that involved herein, which while permitting the drilling for, and the production of, oil on plaintiff’s property limits the drilling and production to preexisting depths.
I would reverse the judgment.