The respondent interposes the objection that his action in refusing to grant the permit can. only be reviewed by certiorari and that, therefore, he , cannot be compelled to grant the permit in any event by the writ of mandamus. That he is mistaken in his position is demonstrated by the ruling of the Court of Appeals in People ex rel. Kemp v. D’Oench, 111 N. Y. 359, and People ex rel. Schau v. McWilliams, 185 id. 92.
I think it is also reasonably' clear that no power to adopt the ordinance setting aside the alleged residence district was conferred upon the common council by any provision in the charter of the city or in the Second Class Cities Law and that the only authority, if any exists, for the adoption of such ordinance is section 9 of the Housing Act. So that the sole question remaining to be decided is whether or not section 9 of the Housing Act embodied a constitutional exercise of power by the legislature. This legislation cannot be' sustained as a proper exercise of the power of eminent domain because, if for no other reason, no provision is made therein for compensation to the owners of property taken. The legislation can only be sustained, if at all, as an exercise of the police power. I think I may adopt in part the language of Judge Dillon upon this subject, which seems fully sustained by the courts: *443“ Of recent years, in response to a growing demand for the preservation of natural beauty and the conservation of the amenities of the neighborhood resulting from the maner in which it has been laid out and built upon, legislatures and municipalities have sought, by statute and by ordinance, to prevent the encroachment of undesirable features, unsightly erections, and obnoxious trades. This legislation, induced mainly by aesthetic considerations, has given rise to a series of novel questions affecting the legislative power of both the State and its governmental agent, the city. * * * Several cases have laid down the rule that by virtue of the police power merely, neither the legislature, nor the city council exercising delegated power to legislate by ordinance, can impose restrictions upon the use of private property which are induced solely by aesthetic considerations, and have no other relation to the health, safety, convenience, comfort, or welfare of the city and its inhabitants. The law on this point is undergoing development, and perhaps cannot be said to be exclusively settled as to the extent of the police power. * * * It has been held that it is not within the power of the legislature by direct legislation, or by delegation of legislative authority to enact ordinances, to so limit and control the use of private property as to deprive the owner of the beneficial use thereof for causes other than the health, safety, convenience, or public welfare of the people. Thus, the legislature cannot, for the purpose of promoting the beauty of parkways or boulevards, authorize a city to establish by ordinance a building line within the limits of private property to which all buildings must conform without complying with the constitutional requirements as to making compensation for property taken. Nor can the legislature confer authority on a city to exclude from *444boulevards business' occupations which are not noxious in their nature and to restrict buildings thereon to residence uses only. * * * The right of an owner to use his property in the prosecution of a lawful business, and one that is recognized as necessary in all civilized communities, cannot be made to rest upon the caprice of a majority, or any number of those owning property surrounding that which he desires to use.”
The foregoing is taken from section 695 of Dillon’s Municipal Corporations, 5th edition. That section and the accompanying notes state the present condition of the law on this subject and I am compelled to follow it. Nevertheless, I would very much like to see the law broadened, not in the direction of socialism, nor to take away, one whit, from the proposition that all men are endowed with certain unalienable rights, not to interpose a single obstacle to the reasonable and healthy • growth of a city, but to prevent a person who owns real estate in a residence district from using the same .for any purpose unusual in such districts, unreasonably and in a spirit that fair men would not commend.
I am not considering the undertaking business as different from any other business. If, however, the business to be conducted upon the premises in question should prove to be a nuisance, it could be abated and an injunction'would lie to compel its discontinuance without régard to any ordinance or statute.
The peremptory writ may go, but without costs.
Ordered accordingly.