(dissenting).
I concur with Justice Holt.
After reargument the following opinions were filed January 23, 1920:
Holt, J.Mandamus on relation of the Twin City Building & Improvement Company against James Gr. Houghton, inspector of buildings of Minneapolis, to require him to issue it a building permit. There was an answer to the alternative writ to which a demurrer was sustained, and judgment was then entered for the relator, from which the defendant appeals.
The only question is upon the constitutionality of Laws 1915, p. 180, *14c. 128. Tbe relator claims that tbe statute is unconstitutional, because its subject is not expressed in its title, and because the use for which, it is proposed to exercise the power of eminent domain is not a public use.
1. The act is entitled: “An act authorizing cities of the first class to designate and establish restricted residence districts and to prohibit the erection, alteration and repair of buildings thereon for certain prohibited purposes.” It provides for establishing restricted residence districts by condemnation. The claim of the relator is that the subject of the act-is not expressed in its title within the constitutional requirement. Const, art. 4, § 27. We have given this matter consideration and reach the conclusion that the subject of the act is sufficiently expressed in its title. The matter has been gone over frequently and the question does not call for discussion. Dunnell, Minn. Dig. and 1916 Supp. § 8906, et seq.
2. The remaining question is whether there is any public use in aid of which .the right of eminent domain may be used.
On March 8, 1918, the city council passed a resolution pursuant to Laws 1915, p. 180, c. 128, designating block 8 in J. T. Blaisdell’s Revised Addition of Minneapolis as a restricted residence district. The relator owns lot 13 and the south 34.9 feet of lot 12 in this block. It was proposing to erect a three-story apartment building costing approximately $50,000, and for this building a permit for certain parts of the structure was asked and denied. Laws 1915, p. 180, c. 128, provide for the designation by the common council of restricted residence districts and the prohibition of the erection therein of buildings of a certain class, including such as the apartment building intended by the relator. Sections 1 and 2 of the statute, important here, are as follows:
Section 1. Any city of the 'first class may, through its council, upon petition of fifty (50) per cent of the owners of the real estate in the district sought to be affected, designate and establish by proceedings hereunder restricted residence districts within its limits wherein no building or other structure shall thereafter be erected, altered or repaired for any of the following purposes, to-wit, hotels, restaurants, eating houses, mercantile business, stores, factories, warehouses, printing establishments, tailor shops, coal yards, ice houses, blacksmith shops, repair shops, paint shops, bakeries, dyeing, cleaning and laundering establishments, bill*15boards and other advertising devices, public garages, public stables, apartment houses, tenement houses, flat buildings, any other building or structure for 'purposes similar to the foregoing. Public garages and public stables shall include those, and only those, operated for gain.
Nothing herein contained shall be construed to exclude double residences or duplex houses, so-called, schools, churches, or signs advertising for rent or sale the property only on which they are placed.
No building or structure erected after the creation of such district shall be used for any purpose for which its erection shall be prohibited hereunder.
The term “council” in this act shall mean the chief governing body of the city by whatever name called.
Section 2. The council shall first designate the restricted residence district, and shall have the power to acquire by eminent domain the right to exercise the powers granted by this act by proceedings hereinafter defined, and when such proceedings shall have been completed the right to exercise such powers shall be vested in the city.
The Constitution provides that “private property shall not be taken, destroyed or damaged for public use, without just compensation therefor first paid or secured.” Const, art. 1, § 13. The parties agree that the only question involved, the question of the title aside, is the constitutionality of the statute under the eminent domain provision of the Constitution. That question is the single question whether the legislature may authorize á common council to establish by condemnation a restricted residence district, which shall exclude apartment buildings, and that question is whether there is a public use in such restriction.
That the public gets no physical use of the premises condemned is clear. It cannot travel upon or occupy them. The use acquired so far as the general public is concerned is rather negative in character, except, perhaps, that its sense of the appropriate and harmonious will not be offended by the erection in the condemned district of proscribed buildings. The condemnation does not take any part of the ground away from the owner; the taking consists in restricting its use. He is compensated for the restriction imposed, but compensation is merely an incident to the *16exercise of the right of condemnation, and without a public use to be served gives no right.
' Naturally enough we do not find parallel cases. It is not supposed that a considerable portion of the public will derive benefit from the restriction. This is evidenced by the requirement that the condemnation money ultimately be paid from assessments for benefits to the restricted district, which in this case is one block. It is not paid out of the general fund, though the city’s credit is pledged for it. It is treated much as a local benefit or use; but this fact, or the fact that only a small part of the public is appreciably or directly benefited does not make the use not public. 10 R. C. L. p. 31. “In holding a use to be public, it has never been deemed essential that the entire community, or any considerable portion of it, should directly enjoy or participate in the improvement or enterprise.” Sisson v. Supervisors, 128 Iowa, 442, 104 N. W. 454, 70 L.R.A. 440.
The notion of what is public use changes from time to time. Public use expands with the new needs created by the advance of civilization and the modem tendency of the people to crowd into large cities. Such a taking as here proposed could not possibly have been thought a taking for public use at the time of the adoption of our Constitution when the state was practically a wilderness without a single city worthy of the name. “The term ‘public use’ is flexible, and cannot be limited to the public use known at the time of the forming of the Constitution.” Stewart v. Great Northern Ry. Co. 65 Minn. 515, 68 N. W. 208, 33 L.R.A. 427. What constitutes a public use at the time it is sought to exercise the power of eminent domain is the test. The Constitution is as it was when adopted, but, when it employs terms which change in definition as conditions change, it refers to them in the sense in which they are meant when the protection of the Constitution is sought. The Constitution of this state nowhere attempts to define what may be a public use, nor does it prohibit the legislature from determining what shall be deemed such a use.
In comparatively recent times it was questioned whether a public use extended so far as to justify the condemnation of property and. the expenditure of money for public parks, or for boulevards, or for pleasure drives, or for public baths, or for playgrounds, or for libraries and muse*17ums or for numerous other purposes which contribute' to the general good. Now condemnation and expenditure for these and like or similar purposes is common, and recognized as lawful. Not so very long ago there would have been a revolt against restricting a property owner in 'the full use of his lot to the street line. But a condemnation for the purpose of widening a street by adding a strip on each side which is not to be used for travel, but for ornament and beauty, and with the reservation of a limited use in the owner, is held valid. In re City of New York, 57 App. Div. 166, affirmed in 167 N. Y. 624, 60 N. E. 1108. The talcing of land used 'as a stone quarry along the Palisades of the Hudson, for the purpose of preserving the scenic 'beauty of the river and of the park, has been sustained as a taking for public use. Bunyan v. Commissioners, 167 App. Div. 457, 153 N. Y. Supp. 622. A case often cited is Attorney General v. Williams, 174 Mass. 476, 55 N. E. 77, 47 L.R.A. 314, where a statute limiting the height of buildings 'about Copley Square, on compensation paid, was sustained. And condemnation was sustained for preserving and improving and ornamenting the battle-field of Gettysburg. United States v. Gettysburg Ele. Ry. 160 U. S. 668, 16 Sup. Ct. 427, 40 L. ed. 576. The condemnation was thought clearly for a public use.
In the prevailing and dissenting opinions in State v. Houghton, 134 Minn. 226, 158 N. W. 1017, L.R.A. 1917F, 1050, where the question was upon the propriety of the exclusion of a store from a restricted residence district under the police power, there was a thorough examination of the authorities, many of which are of value here, but they do not call for reconsideration. The right to restrict under the police power without compensation, and to restrict by condemnation with compensation, differ, but have much in common. It is likely that many of the businesses and buildings referred to in the statute could be excluded under the police power. It is unnecessary to cite or discuss authorities at length, but the following may be noted: Nichols, Em. Dom. §§ 40, 58, 100, 101; 1 Lewis, Em. Dom. § 271, et seq.; 2 Dillon, Mun. Corp. § 695; 10 R. C. L. 36; 4 McQuillin, Mun. Corp. § 1485, et seq.; 20 Harvard Law R. 35; 27 Harvard Law R. 665; 15 Michigan Law R. 75; 1 Minn. Law R. 489.
The tendency is in the direction of extending the power of restriction, either through the exercise of the police power or the exercise of the right *18of eminent domain, in aid of the so-called city planning or the improvement of housing conditions Our elaborate Housing Code of 1917 is an illustration of an effort, on the part of the state, through the exercise of the police power, to so regulate the construction of buildings that living conditions .shall be better. Chapter 137, p. 185, Laws 1917. The tendency is also illustrated by such decisions as State v. Houghton, 142 Minn. 28, 170 N. W. 853, where we held that the exclusion of 'a factory, manufacturing cereal products, from a residence district, was sustainable under the police power, although the district was sparsely settled, and of the ordinary class of dwellings, and though the property was naturally suited for the use of such a factory, located as it was on a railway line.
■The expression is often found in the decisions that whether a use is public is a judicial question. No doubt it needs be where the legislature has not attempted to designate or define the public use for which condemnation is sought. Justice Mitchell, in Fairchild v. City of St. Paul, 46 Minn. 540, 49 N. W. 325, in speaking of the limitation upon the power of eminent domain, said: “Of course, there is the further limitation, necessarily implied, that the use shall be a public one; upon which question the determination of the legislature is not conclusive upon the courts.” This implies that in the first instance the legislature may designate what is a public use for which condemnation can be exercised. “The question as it presents itself to the courts is not whether the use is public, but whether the legislature might reasonably have considered it public. The presumption is that a use is public if the legislature has declared it to be such, and the decision of the legislature must be treated with consideration due to a co-ordinate department of the government of the state.” 10 R. C. L. pp. 29, 30, and, among the cases there cited, we find Justice Marshall, in Chicago & N. W. Ry. Co. v. Morehouse, 112 Wis. 1, 87 N. W. 849, 56 L.R.A. 240, 88 Am. St. 918, conceding that “the right to declare what shall be deemed a public use” being “vested primarily in the legislature.” In Bankhead v. Brown, 25 Iowa, 540, Justice Dillon said: “If a public use be declared by the legislature, the courts will hold the use public, unless it manifestly appears by the provisions of the act that they can have no tendency to advance and prosecute 'such public use.”
Instead of it manifestly appearing that the legislature has authorized *19tlie taking for a nse not public, by the law in question, we think good reason exists for saying that the restrictions which may be imposed upon the owner of property, under the provisions of the act, constitute a taking for a public use. That the act unmistakably implies that the taking, or the restricting, is deemed to be for a public use is clear from the fact that condemnation is the means employed to achieve the end in view. No one will gainsay that the chief aim of all legislation is the general good, or public welfare. Legislators must ascertain and determine what malfes for public welfare, in order to enact laws designed to promote and secure the same.
Many reasons might he suggested as sufficient for the adoption of this statute. We will mention but one or two.
It must be admitted that owners of land in congested cities have of late, through selfish and unworthy motives, put it to such use that serious inconvenience and loss results to other landowners in the neighborhood. In large cities, where the lots for residences must necessarily be of the minimum size, especially where the man of small means must dwell, it is readily seen that if a home is built on such a lot and thereafter three-story apartments extending to the lot line are constructed on both sides of the home it becomes almost unlivahle and its value utterly destroyed. Not only that, but the construction of such apartments or other like buildings in a territory of individual homes depreciates very much the values in the whole territory. The loss is not only to the owners, but to the state and municipality by reason of the diminished taxes resulting from diminished values.
The absence of restrictions of- use also gives occasion for extortion. The occurrences have been common in our large cities of unscrupulous and designing persons securing lots in desirable residential districts, and then passing the word that an apartment or other objectionable structure is to be erected thereon. In order to protect themselves against 'heavy loss and bitter annoyance the adjacent owners, or parties interested in property in the neighborhood, are forced to buy the lots so held at exorbitant price. The well-to-do may in this way be able by financial sacrifice to protect their homes against undesirable invasions. But when this occurs in territory occupied by people of modest homes and moderate means, where all they have is represented by the home and that, perhaps, not *20free of mortgage lien, there is nothing to do but to submit to the loss and the injustice. There should be a lawful way to forestall such wrongs. Courts have often resorted to the rule sic utere tuo alienum non laedas in administering justice between property owners. Why should not the legislature also make use of this rule?
Another reason is that giving the people a means to secure for that portion of a city, wherein they establish their homes, fit and harmonious surroundings promotes contentment, induces further efforts to enhance the appearance and value of the home, fosters civic pride and thus tends to produce a better type of citizen. It is time that courts recognized the aesthetic as a' factor in life. Beauty and fitness enhance values in public and private structures. But it is not sufficient that the building is fit and proper, standing alone, it should also fit in with surrounding structures to some degree. People are beginning to realize this more than before and are calling for city planning, by which the individual homes may be segregated from not only industrial and mercantile districts, but also from the districts devoted to hotels and apartments. The act in question responds to this call and should be deemed to provide for a taking for a public use. In Commonwealth v. Boston Adv. Co. 188 Mass. 348, 74 N. E. 601, 69 L.R.A. 817, 108 Am. St. 494, is this language: “We agree that the promotion of the pleasure of the people is a public purpose for which public money may be used and taxes laid, even if the pleasure is secured merely by delighting one of the senses.” There it was sought to prevent bill-boards on private property adjoining parks, but the court held it could not be done without compensation. The inference from the reasoning is that the law authorizing the rule prohibiting the bill-boards would have been sustained had the restriction upon the owner’s use been acquired by condemnation.
Closely analogous to this law is the drainage act, which was upheld in Lien v. Board of Co. Commrs. of Norman County, 80 Minn. 58, 82 N. W. 1094. It was there stated that all courts sustained such laws “when enacted in the interest of the public health, convenience or welfare.” That act left the county commissioners to determine whether the proposed drainage would be “of public utility, or conducive to public health, or of public benefit or convenience.” Many of the drainage projects established under this law have no direct effect on the public at large. In *21many cases the public acquires no more right to pass over or to occupy any part of the land of the drainage system than the public, as such, does under the taking in the act under consideration. The direct benefits are to the individuals owning the land comprising the drainage district, the same as to the owners of lots in the restricted building* district. The, public health proposition is really of no more actual consequence in the one than in the other. We think there is a public use served by the taking authorized by chapter 128, p. 180, Laws of 1915. It does not seem to impinge any inhibition of state or Federal Constitution.
Given a public use, the propriety and necessity of the tailing and the mode prescribed for the compensation are for the legislature. State v. District Court of Fourth Judicial District, 133 Minn. 221, 158 N. W. 240. We are concerned only with the question of the constitutionality of the statute as against the two objections urged and above disposed of. There may be some provisions in the 'act which permit of an oppressive use, under certain conditions, but we are not interested in them at present. The method of compensation might have been more attractive had it afforded the right to a jury aw;ard. But the one provided was held constitutional as long ago as in Ames v. Lake Superior & M. R. Co. 21 Minn. 241.
The former opinion rendered herein is overruled.
The judgment is reversed.