Rare Periodicals

Public corporations

Media

Part of The Lawyers Journal

Title

Public corporations

Language

English

Source

The Lawyers Journal XIX (5) May 31, 1954

Year

1954

Subject

Corporations -- Philippines

Local Government Units -- Philippines

Rights

Abstract

Continued from April 1954 issue

Fulltext

PUBLIC CORPORATIONS (Continued from April Issue) (§297] AA.RepOf't conoerning p6'1'sons sojourning; statutory provision,, as to municipalities in f"egular provinces. "When the pro. 'Vince or municipality is infested with out1aws, the municipal council, with the approval of the provincial governor, may further require each householder of any municipal center or of any barrio of the municipality to make prompt report to the ma.yor or municipal councilor of the barrio, as the case may be, of the name, residence, and description of any person not a resident of such municipal cen. ter Or barrio who may enter the house of such householder 01· receive shelter or accomodations therein. The report made to the municipal 'councilor of the barrio shall be transmitted by such councilor. within twenty.four hours after its receipt to the mayor. "116 [§298] BB. Rewards. "If; is generally held that municipal corporations, unless authorized by statute, are not empowered to offer rewards for the arrest or conviction of offenders against the criminal Jaw of the state, a.nd that the power to provide for the general welfare does not confer such power. By virtue of express grant or or by necessary implication from power expressly granted ·such corporations may have t~e power to offer such rewards. When authorized to offer rewards the power may, and must, be exercised wi'thin its scope. It has been held that a municipal corporation may Qf.fer & reward for the arrest and conviction of a person for arson as a means of protection against fire, and such power ha1 ·been held authorized under the welfare claUse. The offer of a reward. when made by a municipal corporation empowered to _make such an offer must be made ·by the proper municipal' authorities."188 . (§299] CC. Schools,· statut°'11 provisiona as to Philippine mu. nicipal corporation.a . .:..... 1. Municipalities in regular 'Pf'O'llinees. "It shall be· the duty of the municipal c:ouncil to establish and maintain primary schools in the municipality, to ·be conducted as a part of the publi~hool system in conformity with the provisions of the School Law."1" ''Special a"4 profeslriO'nal schools. - After adequate provision has been made for the primary schools of a municipality, the council may establish ·and maintain intermediate, secondary, or professional schools,; and with the approval of the Director of· Public Schools, rea.aonal:iie tuition fees may be charged for instruction in such inatitutions. "118 "Cooperation of municipalities in maintenance of school, giving intermediate imtruction, - Where the number of pupils eligible for intermediate instruction in any municipality is not sufficient to justify the maintenance by it of a school giving intermediate instruc. tion or where the municipal funds are insufficient to make adequa.te provision therefor, the municipal council may, with the approval of the Director of Public Schools, eoopera.te with the authorities of any other municipality or municipalities in the same province in the maintenance of such a school. "1811 (§300] 2, Municipalities in specially orgtlnized provinces. "Tht" municipal council have power by ordinance or resolution: ,.. . . . . ''Cg> Schools. - To establish and maintain primary schools, sub. jec:t ~ the limita~ons oi law.• .,, 190 (§301] 3. City of Manila. ''The Municipal Board shall have the fono:,ng legislatiV: powers: (d) To provide for the establishment and maintenance of free public schools for intermediate instruction and to acquire sites for school houses fOl" primary and intermediate classes through purchases or conditional or 1t.bsolute donation. "Ce) To establish secondary, and professiona.1 schools; and. with the approval of the Director of Public Schools, to fix reasonable tuition fees for instruction therein. • • "'"191 [§302] DD. Sign.a, bi.UboarU, atul oth6'r stmcturea or devices for advertising. - 1. In generol. "With the limitations to be discussed hereinafter, as a general rule municipal corporations may control and regulate the construction a.nd mainteii.ance of 'billboards, signs, ~Rev. Adm. Code. 186 48 c. J. 481. i:~ ~: ~~~; ~v. Adm. Code. i:: ~: H~~: ~. Adm. Code. 191 See. 18, Rep. Act No.· 409. and other struotures or devices for advertisinl' purposes. Such power .may l;le expressly conferred or it may be implied; and it is usually derived from the police power of municipal corporations. For the preservation of the public health, safety, moral&, or general welfare, municipal corporations may have the right to prescribe the manner of construction of such structures; to compel the use of safe material in their construction, as that the material be incombustibl~; to prohibit the erection of insecure billboards or similar structure&; to restrict reasonably or limit· their size, length, height, and Joca .. tion; to require th.at they be maintained in a secure and sanitary condition; to provide for their removal, if they become dangerous or unsa.nitary, and that at the expense of the owners; and to prohibit advertisements thereon of indecent or immoral tendencies. But such regulations must have some reasonable tendency to protect the public safety, health, morals, or general welfare; they tnust be rea.. sonable, and not arbitrary or discriminatory; they _must not unnecessarily invade private property rights. Following the general rule the power cannot be exercised merely for the benefit of adjoining owners or other particular individuals .. Aesthetic considerations alone do not justify the exercise of the power. Some· regulations may be reasonable in a particular 16cality or district of the corpora.. tion and unreasonable in other localities or districts; in such case a regulation, without qualification or limitation, applicable to sign& or billboards !!like in aU portions of the corporation, is unreasonable. "Permits and absolute prohibition. While a municipal corporation may require permits for the construction s.:nd maintenance of such structures, the grant or refusal must not be left to absolute or despotie power or without reference to prescribed and duly enacted rules and reiu1ations. While, under its power to regulate streets, it has been held that a municipal corporation may prohibit the erection of signs, sheds, or other obstructions on or over any part of the side.. walk, roadway, or neutral ground of certain streets, as in residential districts, and may compel the removal of such existing structures, the prohibition of the erectioii of filtructures designed for advertising purposes, however safe, sanitary, and morally unobjectionable they may be, is warra.nted and invalid. "Retroactive effect of regulations. Some of such regulations have been held to apply, to structures erected prior to their passage or enactment· and they have been regarded as not offensive to the provisions of ihe organic law protecting vested interests e:r inhibiting retrospective legislation, Other regulations have been held not to apply to existing billboards a.nd signs: and it has been held that any attempt to interfere with existing billboards, signs, etc., except tq make them safe and secure, will be invalid provided they complied with the ordinanct!s or regulations at the time of their erection. Even though the regulation may have no retrOaetive effect. it may apply to billboards or signs previously erected when there is a desire or necessity to remove them to some other place. "Advertising truck. A regulation prohibiting the use of a.dvertising trucks, vans, or wagons in the city streets has been valid, as an exercise of the police power. "Official biUpostfW. In the absence of express legislative authority a municipal corporation cannot create the office of billposter and gi~e him exclusively the right to post advertisements."10 (§303] 2. Statutorg provisions as to Philippine municipal c&rporation.a. - a. Municipalities in 'l"egular provinces. "The munici-. pal council shall have authority to exercise the following !liscretionary powers: ,.. "' • * • * ''<r> To regulate ••. signs, signboards, and billboards displayed or maintained in any place exposed to public view except those displayed at the place or at places where the profession or business advertised thereby is in whole or part conducted. ... . . "' (§304] b. Municipalities in speciaU11 Of'f/Gnized provinces. 1'The municipal coancil shall have the power by ordinance or resolution: "• • • * • * ''<d> . , . To regulate , . . signs, signboards, and billboards, displayed or main.ta.ined in any place exposed 1lo pub1ic view, except those displayed at the place or places where the profession or busi~22-82&. 193 Sec. 11248, Rev. Adm. Code. 260 LAWYERS JOURNAL May 31, 1954 neas advertised thereby is in whole or in part conducted , . , ... • ... • * 1 (§805] c. City of Manila. "The Municipal Board shall have the following legislative powers: ''¥ * • * • ... "<ee> • • • to regulate or prohibit • • . the use of property on or near public ways, gi"Ounds, or place, or elsewhere within the city, for a display of electric signs or the erection or maintenance of bill. boards or structu1-es of whatever material, erected, maintained, or used for the display of poste1·s, signs, or other pictorial or reading matter except signs displayed at the place or places where the p1·0fession of business advertised thereby is in whole or part conducted.le& ... * • * • * council shall have power by ordinance or resolution: ... • • * • * "Cy) Slaiughterhousea and markets. To establish or authorize the establishment of slaughterhouses . . , and inapeet a.nd regulate the use of the same . . , " ... • • "' "' *"J01 [§811] City of MBniT.a. "The Municipal Board shall have the following legislative powers: ... • • • * "(cc) Subject to the provisions of. ordinances issued by the Department of Health Jn accordance with law, to , , , prohibit or permit the establishment or operation within the city. limits of public • • • slaughterhouses by any person, entity., e.ssociation, 01· [§806] d. Power of mayOTs. "If after due investigation, and corporation other than the city. having given the owner an opportunity to be heard, the mayor "¥ ¥ ¥ * shall deCide that any sign, signboard, or billboard displayed or ex- [§812] GG. Sunday observance. "The securing of the proper posed to public view is offensive to the sight or is otherwise a nui- observance of Sunday may be the subject of reasonable policl' sance, he may order the removal of such sign, signboard, or bill- regulation by municipal corporations, either under the general board, and if same is not removed within ten days after he has issU:ed police power, or un@r an express or implied grant of power. fat such order he may himself· cause ifs removal, and the sign, sign- the pui·pose. The gene1·eJ statutes of the state on this subject fix board, or billboard shall thereupon be forfeited to the municipality, the limit and measure of municipal police power, unless the charter and the expenses incident to the i·emoval of the same shall become --expressly confers more. But the n1bnieipality need not cover the a lawful charge against any person or property liable for the entire field of the statute; and an ordinance forbidding only a erection or display thereof. "198 · portion Qf the acts denounced by statute may yet be valid. In (§807] EE. Searches and seizures. "A municipal corporation the exercise of the power under consideration municipal corporations in the absence of express authority may not authorize the search may regulate the conduct of business on Sunday; may within rea.for, and seizure of, property kept for unlawful use. "19'1 sonpble limits prohibit work or labor on such day; may pl'ohibit the' [§808] FF. Slaughtering animals and slaughterhouses. - 1. sale of particular merchandise on that day; and may regulate SunIn general. "The slaughtering of animals for food within municipal day amusements. While such regulations should not be discriminabound&ries is a prope1· subject fo1• regulation by municipal corpora- tory a.nd must be reasonable, the fact that the municipal authorities tions, under the police power to protect the health of their inhabi- to whom the power is delegated single out certain occupations does tants, unless especially governed by the supe1ior power of a state not operate as an unre~sonable or illegal disCJ•imination against those statute. Following the-general rules, slaughtering regulations must engaged in those occupations."JOJ: , be reasonable and not arbitrary or discriminatory. In the exercise (§818] HB. Vehicles and mean.s of trnnspOTtation'.· - 1. Jn of ita power a municipal corporation may prescribe the character 1;:eneral. ."Subject to the limitations discussed he1·einafter, ordina.. of buildings and equipment for slaughterhouses; may provide for rily municipal ccrporations have power to regulate the traffic of their inspection, the inspection of those employed therein, the inspec:- · vehicles t.f all kindS, commonly used within the corporate limite, as tion of the animals to 1>e slaughtered· and of their meats; and may an exercise of their police powers, not inherent, but granted to the prohibit the sale as food of aninrals not inspected and slaughteretJ corporation exp1·essly or impliedly. But such regulations must ~ &t such slaughterhouses. It has been held that a municipal regulation reasonable, and not arbitrary or discriminatory. And the power providing that licensed slaughterhouses shall slaughter for the public to regulate such vehicles does not authorize prohibition. But under Without discrimination is valid. In some jurisdictions municipal a grant of express power a municipal corporation may prohibit par~ corporations maintain abattoirs for the l>Urpose of pl'oviding a. place ticular kinds of vehicles from operating on its _sb:eets or other public where cattle may be killed and prepared for food by those skilled in p1aces. Vehicles merely passing through the municipality may not the work of that kind and under the control of regulations of the be included; but thoae may which belong to non~dents if publicly municipa.l corporation; such abattoirs_ are not itltended to provide used in the municipality, or if the route terminus is within it. The a place of business for slaughterers.188 municipal corporation may prescribe what style· of vehicles sha11 11 As nuiscinca per se. Although the maintenance of a slaughter- be used for public passenger service, but not for private use; what house is a legitimate business and not a nuisance per se, a slaughter- streets they must travel, if regular lines; and where hacks must house may be a nuisance when located near an inha.bited locality. s~~m~; whether the driver may leave them; and what mark of dis. So under the rules as to the authority of municipal corpol'&tions over tmction he skall wear. It me.y prohibit anyone from riding on the nuisances such corporations may declare slaughterhouses to be seat with the driver. It may also prohibit fast driving, but not nuisances when the facts and circumstances warrant it; rna.y pro. slow driving; and may assess a penalty against B: public. conveyance vide the limits within which they may be erect.ed. and maintained· for refusal to carry a passenger. It may confine vehicles to the may demand their removal from particular districts, though the; righ.than~ sid~ of the centers of sti-eets, ~ith reference to ~e di. may have been established pursuant to ordinances authorizing rections Jn which they are severally moving, and may forbid the them; a.nd may even entirely exclude them from the corporate bound- leaving of any vehicle standing on a street elsewhere than on the aries, But af course the facts and circumstances must show them to righthand side thereof with reference to the direction in which it be nuisances in fact. "189 faces. A municipal regulation which interferes with its lawful {§809] 2. Sta.tutory statement as to Philippine municipal CtW· us.e of sidewalk~ ~y pede~trians and e~dangera ~he safety of P.edesporations. - a, Municipcilities in regular provinces. "It shall be tr1ans by permitting vehicles on the sidewalks is unreasonable and the duty of the municipal council, conformably with law: invalid. ''¥ * ¥ • ¥ "Chmrges and prices. Generally speaking, a municipal corpora"(q) To establish or authoriz.e the establishment of sla.ughter- tion, under its properly delegated police power, may prescribe rates houses , . . ~md inspect and 1 -egulate the use of the same. for carriage by cab, hack, coach, omnibus, car, or other vehicle, tl8ed "¥ ¥ ¥ "' * *"200 in transportation within the municipal boundaries. [§810] b. Municipalities in regular provinces. "The municipal "Delegation of power. While a. municipality may vest upon desig ... - - - - nated officials or officers certain power of discr'etion to carry into ~=: ~: ~~r;:~~d~~-~; effect the regulation under consideJ:ation, and in doing so may autho6 196 r:i~.2~. 8:;26;!r'·Id~~Jt:'':,;:!::0~ ~ui:~~~8:;~!1e;~la~!~~:f:i rize police officers .to requ~re drivers to obey ~eir ~irections in regard 197 ~ See. 19, Rep, Act No. '109, with reference to City of Mimlla. to the places which vehicles may occupy, it cannot confer upor. 198 "' "' May 31, 1954 201 See. 2621), Rev. Adin. Code. 202 See. 18, Rep. Act No. .t.09, 203 43 a. J.-.aas. LAWYERS JOURNAL 261 such officials wtlimited discretion in prescribing the rules fc.r the regulation of vehicles on the streets or other public places. "Jilt: [§31'] 2. Statutory· provisfons as to city of Manila. "The Municipal Board shall h3ve the following legislative powers: . . .. (v) ••• to regulate the speed of horses and other animnls, motor and other vehicles, cars, and Jocomotives, within the limits of the city; to regulate the lights used on all such vehicles, cars, and loeomotives; to regulate the locating, constructing, and Jsying of the track c..f horse, electric, and other fo11ns of railroad in the stl·ects or other public places of the city authorized by Jaw; to provide for and change the location. grade, and crossings of rii.ili-o&ds, and compel any such rai1road to raise or Jower its h·acks to conform to such provisions for changes; and to require railroad companies to fence their ptoperty, or any part thereof, to provide suita'hle Jirotection ·age.inst injury to persons or property, and to construct and repair ditches, drains, i;ewers, and culverts along and under ·their tracks, so that the natui·aJ drairiage of the -streets and adjacent 11roperty shall not be obstructed. ... • * * 't"ll05 (§315) II. Zoning. - 1. Definition, nature, a.nd history. "The verb .'zone' ha.a acqui~d a comparatively new meaning, that is, to sep~rate the commercial or industrial districts from the resident districts, and to prohibit the establishment of places of business in · any designated residence district, or vice versa. In its original and primary sense, zoning is simply the division of a municipal corporation· into districts and the prescription and applica.tion of different regulations in each district. Roughly stated, these regulations, which may be called 'zoning i-egulations,' are divided into two classes: Those which regulate th"' height or bulk of buildings within certain designated districts, in other words, those regulations which have to do with stl'Uctural a.nd architectural designs of the building; and those which prescribe the use to which buildings within certain designated districts may be put. Zoning c.rdinances are of com. paratively recent origin. The subjP.ct of zoning hRS certainly beccme .& very important bran~ of the law affecting municipal cor. porations. ''lllOll • [§~16] 2. Source and dtlegation of power to municipal cor. vorotonu. "The powe1 of municipal corporations to enact zoning regulations ~ay be derived frum constitutional or statutory provisions. Within its ccnstitutional limitatirns the legislature may auhoriZe such enactment. The power may also be derived direetly from ~e constitution ·>f the stat.e; and state constitutional provisions con~ernng the power have been upheld as against the objection that thel'.' violated the federal constitution as a denial of the equal pro.. te.::tion. of the law, or discrimination. Also, the statutes conferring :;1:tia;:e::~: ~:r:fhc:a:~~~~~st the objection that they were "Construction of statute. It has been held that statutes conferring upon the mtmicipal corporations the power to enhot zonir1g n:gulations should be liberally construed. ''P~lice power as su.fficihl.t sOtwce, It has been suggested that the -police power residing in the state legislature is sufficient to au~orize the enactment of zoning statutes, i~ done wisely; that zoning_ wtder the power of eminent domain is unwise; and that ::~g:~.~: necessity. for constitutional amendment to provide for (§317) 3. Eriste."Ule and limits of power. - s. In g~eral. "As a genera] rule, subject to the limitations to be noted here.. inafter, municipai corporations may enjoy th~ right or power to enact reasonable zoning ngulatil ns. Regulations to that effeet Ji:.ave been upheld as against the objection that they were unconstitutfonal, as deni&l of due process or equal protection of the law and that they ware discriminatory. The power is not an inhe1•eni one; it oan be exercised only when it is expressly ~nferred on t-he ?1unicipal corporation or rises by necessary imptication. While it has been held that the power to enact certain zoning regulations ~ercised as an incidomt of the municipal police power, 204 4S c. J. 440-442. 205 See. 18, Rep. Act No. 409, 206 43 c. J. 333. 207 43 c. J. 333.a34. the weight of a.uthority is to the effect that reasonable zoning regulations may be proper exercise of the municipal police power. But the question whether municipal corp•>l'ations have power tr.. enact zoning regulations often depends on the particular regula.. tion in question. It depends on conditions. Unde1· certain conditions and circumstances zoning regulations may be the constitutional and proper exercise of the municipal police power, but under other conditions and circumsta.nces they may be considered unconstitlltional as being an attempt to deprive owners of real property of their rights of dominion over it without due compensation or in an unreasonable manner. In this connection it should be noted that the police power of a municipal corporation must be responsive, in the interest of common welfare to the changing conditions and developing needs of growing communities. And, as it is the case with police powers genera.lly, zoning regulations which may at one time be regarded as not within the power of a municipal corporation may, at another time, by 1·eason of changed conditions be recognized as a legitimate subject of municipal power. Also, zoning regu1a.. tions which may be regarded as within the powei· of one municipal corporation ma.y not be so regarded. as to another. "!108 [§318] b. Limits on uercise. - In g61UWO.l. ''The power to enact zoning i-egulations. by municipal corporations, if it exists, must be exercised subject to the limitations and restrictions which the legislature may have imposed up011 the municipal corporation. It must be exercised reasonably, not arbitrarily. without diser.imiriation. The regula.tfon must have some tendency to promote the 1>ublic health, public safety, and publie welfare. The power of the municipality to zone is not limited to the protection of established districts, but extends ta aid in the dew!opmenti of new distriots. "209 [§319] (2) Matters considered. "In determining whether a J.oning regulation is valid two q!nlstiona present themselves: <1> Whether the scheme •)f zoning is as " whole sound, that is. to say, whether the methDd of c1assification and the districting is reason.. ably necessary W the public health, saftey, morals, or gene1:al w,elfare. (2) Whether the scheme of classification and districting has been applied fairly and impartially in ea.ch instance. It is difficult to isolate the several factors which may be considered in the enactment of zoning regulations. Such regulations may i11volve complicated and conflicting elements and interests. Zoning regulations must take into consideration the ehar~te1· of the district, the fuLurc development of the municipality, and the dh-eetion of municipal improvements. All questions affecting the public and private intc1-ests must be consider~. The peculiar suitability for particular uses, the conservation of property valu~s, the· permanency of the structure and ita use, are all matters to be · C')nsidered. Zoning regulations must be in accordance with some wen considered plan and must adopt a definit.e policy. 'rhey should describe with certainty the district or districts within which they arc applicable. Tl-e authority ta zone contemplates fixed areas with defined boundarici. To what extent it is necessary to zone the entire municipal bounda1ies often depends on circumstances, and also the rule ma.y diffe1 as ltl different municipal corporations. An absolute identity of treat.. ment of particular parcels of land is not 1·equired. Under partfoular circumstances zoning may be limited to one street only. When the statute so requires it, zo:iiing regulations should be in accordance with well-considel'ed plans applying within the entire municip,al boundaries."!110 "Aesthetic Cw111idtrationa. .Aesthetic considerations alone do not justify the enactment of zoning regulations. But when once it is determined that regulation tends to promote the public health, public !33.fety, or public '5"elfal-e, l\esthetic considerations may M considered in the enactment of the particula.r regulation.''211 [§320] c. Pa.rticular 1•ou•et"s. - (1) Architectwral design and structural designs. Municipal zoning regulations may consist in regulating th~ architectural and structural designs of buildings within specified districts in regard to bulk, building lines, heights, open spaces, yards, etc, In the exercise of the power apartmeiits,· tenements, and like structures may be. zoned and their height, bulk, open spaces, etc., regulated; as for inEttanee, the particular 208 4.3 c. J. 884.-836. 209 48 c. J, 886. 210 " c.,1. aae.8a8. 211 Stat.e v. Harper, 182 Wl1. 14l!, 158, 88 A.L.R. 289. 262 LAWYERS JOURNAL May 31, 1954 nwnber of families for which such structures may be built may be regulated,212 ''It is needless to . . . analyze and enumerate all of the factors which make a single family home "'In.Ore desir11.ble for the promotion and perpetustfon of family 1ife than an apartment, hotel, or flat. It will suffice to say that there is a sentiment pra.etically universal, that this is so. But few persr.ns, if given their choice, would, we think, deliberately prefer to establish theil' homes and rear their chi1dren in an apartment house neighborhood rather than in a single home neighborhood. The general welfare of a c<immuw nity is but the aggrega.te welfare of its constituent members and that which tends to promote the welfare of the individual members of society cannot fail to benefit '!IOCiety as a whole. The entrallce · of one apartment house or flat into n district usua11y means thP. entrance of others, and while it m&y mean an enhancement of value of the adjacent property for the building of similar structurPs, it detracts from the value of neighboring property for home building. The man who is seeking to establish a permanent home would not deliberately choose to build next to an apartment house, and it is common experience that· the me.Ya W'ho has ah'eady built is dissa.. tisfied with his home location and desires a change, In other words, the apartment house, tenement, flat, and like structures tend to the exclusion of homes. The home owner may move to another district but this may not be a sufficient solution . , . (of) his problem, for if no protP.ction can be given to strictly borne districts - such as is contemplated by a comprehensive and 11roperly constructed zoning plan - he may be forced by the e.verincreasing encroachment of apartments and flats to relinquish, if not altogether abandon, the benefits emanating from a permn.. nent home site. "2ll ' "With particular refet'ence to apartment houses, it is pointed out that the development of detached house sections is greatly retarded b7 the coming of apartment houses, which has sometimes resulted in destroying the entire section for private house purposes; that in such sections very often the &pa1tment house is a mere parasite, constructed in order to take advantage of the open spaces and at. tractive surroundings created by the residential character of ihe district. Moreover,, the coming of one apartment house is followed by others, interfering by their height and bulk with the free cir. cula.tion of air and monopolizing the i·ays of the sun which othel'WiR& would fall upon the smaller homes, and bl'inging, as their necessary accompaniments, the disturbing noises incident to increased traffic and business, and the occupation, by means of moving and 11arked automo:>bilots, of larger portions of the streets, thus detract-ing from their safety an.d depriving children of the privilege of quiet e.nd open spaces for play enjoyed by those in more favored localitie.11 - until, filially, the residential character of the neighborhnod and its desirability as a place of detached residences arc utte1·Jy destroyed, Under these circumstanCf:s, apartment houses. which in a different environment would be not only entirely unobJectionable but highly desirable come v~ry near to being nuisances."21• ''Discussion of, a1'.d nason. for, m.le. - Restriction of the use of land to buildings each to be occupied as a re1idence for a singlP family may be viewed at least in two aspects. It may be regarded as preventive of fire. It seems tn us manifest that. other circwnstances being- the same, there ia less danger of a building ~ ~oming ignited if occupied by one family than if occupied by two or more families. Any increase in the number of persons or of stoves or lights under a sirteie roof increases the risk of fire. A regqla.. tion designed to decrease the number of families in one house may reasonably be thought to diminish that l'isk. The space betwef'n buildings likely to arise from th,; separation of people into a single family under one roof may rationally be thought also to diminish the hazard of conflag1·ation in a neighborhood . . . It may he a reasonable view that the health and general physical and mental welfare of society would be promoWd by each family dwe1ling in a house by itself. Increase in fresh air, freedom for the play of childreJI: and of movement of adults, the opportunity to cultivate a bit of land, and tke reduction in the spread of contagious diseases may be thought to be advanced by a general custom that each family 212 4.8 c. J. 838-368. 218 Miller v. Loa An1relea Bd. or P11blic Worka, 196 Cal. 4.77, 4.93, 284. P 881. 214 Euclid v. Am.bier Realty Co., (U.S.) 4.1 $11p. Ct, 114. live in a house standing by itself with its own eurtilage. These features of family life are equally essential or equally advantageous for all inhabitants, whatever may be their social standing or material prospel'ity ~ The1·e is nothing on the face of this by.law to indicate thet it will not operate indifferently for the g'eneral benefit. It is a matter of common knowledge that there are in humerous distl'icts plans for real estate development involvine modest single-family dwellings within the reach as to price of the thrifty and economical of modP.rate wage earning capacity. "215 "The power is not an inherent one, it must be expressly gronted t.•r rise by necessary implication, and in many instances the existence of the power has been denied, as for instance, prohibiting tbP erection of four.story apartment houses, prohi.biting the ereetio~ of frame office buildings, prohibiting the erection of one-story buildings within a particular district, prohibiting the ~rectltin, within a specified district, of buildings to be used by more than one family, prohibiting the erection of a four.family flat within a i·esidential district, prohibiting the erection of two-family houses within a district. In l'..ny event the power must be exercised within its scope. Thus, a regulation providing that no buildings shall be erected, altered, or used as a residence for more than one family, but not regulating the size of the \ot or specifying how far buildings shall be separated, is not authorized by statute authorizing municipalities to regulate the location of industries and buildings with a view to promote the public health, safety, and general welfare. Also, authority to regulate th.e 'manner and method of building' does not autho1·ize the restrfotion of the location of cne-story build. fogs. The reaulations mu1t have the tendency to promote th~ health, safety, or general \velfare. The power must be exercisei'. reasonably, not arbitrari1y, and without discrimination, although reasonable classification ma.y be permitted. "210 215 Brett v. Brookline Blda"., Comr., 260 MRBI. n, 7S, 146 N.E. 289. 216 4.3 C:. J. 889-HO, <To be continued> TEXT OF COURT . . . <Continued from page 220> "Segregation of White and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law; for the pollcy of l!eparating the races is usually interpreted as denoting the inferiority of the Negro group. A sense of in. feriority affects the motivation of a child to learn. Segregation with the S&nction of the Jaw, therefore, has a tendency to retard the educational and mental development of Negro children and to deprive them of some of the benefits they would receive in a racially integrated school system." Whatever may have been the extent of psYchological knowledge at the time of Plessy V. Ferguson, this finding is amply supported by mod~rn authol'ity, any language in Plessy V. Ferguson contra.ry to thi"s finding is rejected. We conclude that in the field of public education th.e doctrine of 'separate but equal' has no place. Separate educational facilitie11 are inherently unequal. Therefore, we hold that the plaintiffs a.nd others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws raranteed by the fourteenth amendment. Because these arc class 8.ctions, beca.use of the wide applicability of this decision, and because of the great variety of local conditions, the formulation of decrees in these cases presents problems of considerable complexity. On i-eargument, the consideration of appropriate relief was necessarily subordinated to the primary question - the constitutionality of segrega.tion in public edueatioa. We have now announced t~at such St>gregation is a denial of the equal protection of the laws. In order that we may have the full assistance of the parties in formulating decrees, the cases will l>e restored to the docket, and the parties are requested to present further &rgument on questions 4 and 5 previously propounded by the court for the reargument this term. The Attorney-General of the United States is again invited to participate. The public education will also be permitted to appear as amici curiae upon request to do so by September 15, 1954, and sdbmission of briefs by October 1, 1954, It is so ordel'ed. May 31, Hl54 LA WYERS JOURNAL 263

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260-263