(dissenting).
We adhere to the views expressed in the former opinion.
The reargument brings nothing of moment that is new. It cannot be successfully urged that there is a public use upon which to rest a condemnation, 'which will prevent an owner from building upon his private property an apartment, upon the sole claim, assumed to be well founded, that his building deteriorates property values in the vicinity. If this is so the owner of vacant land may be restricted in its improvement to such a use as leaves values stationary or enhances them. The suggestion that a condemnation such as is sought can be supported to prevent- extortion we cannot accept as sound. No public use can be found and condemnation money is not paid as tribute. Nor unless the prevailing opinion changes the law of the state can it be rightly said that the question *22whether a use is a public use is not strictly a judicial one. Dunnell, Minn. Dig. and 1916 Supp. § 3027.
The maxim, sic utere tuo ut alienum non laedas, quoted in the prevailing opinion, is not a foundation principle of eminent domain. It finds application in the exercise of the police power under which restrictions are imposed without compensation, and it states a principle which we apply in controversies between conflicting private owners. Under the police power, with some reference to this principle, we support restrictions upon the use of private property in a way substantially interfering with the rightful enjoyment by another of his private property. State v. Houghton, 142 Minn. 28, 170 N. W. 853, where a cereal factory, the conduct of which substantially annoyed the residents of the community because of noise and dust, was excluded, is an illustration. And in a controversy between private parties, and without a resort to the police power, we restrict the use of private property when it brings substantial physical discomfort to residents of the community, as when it is used for a stone quarry or for stabling purposes. Brede v. Minn. Crushed Stone Co. 143 Minn. 374, 173 N. W. 805; Lynch v. Shiely, 131 Minn. 346, 155 N. W. 390.
However far we follow the arguments we return to the question whether a residence district, voluntarily organized under legislative authorization upon a 50 per cent vote, may exclude from its midst apartment buildings, which are thoroughly sanitary and which furnish satisfactory dwelling places to large numbers of our people who either cannot live or do not choose to live in detached dwellings with more or less commodious grounds surrounding. If there may be such an exclusion there may be a like exclusion of an unsightly cottage, which is -the only possible home the owner of the land can build or have, whenever it is displeasing to the composite good taste of the community; and by a like exclusion the architectural fashion of a community may be fixed. Back of all the suggestion of aesthetic considerations, and potent in urging the result here sought to be attained, is the disinclination of the exclusive district to have in its midst -those who dwell in apartments. It matters not how mentally fit or how morally correct or how decorous in conduct they are; they are unwelcome. The exclusive district is unwilling to battle with the economic law which changes the -character of residence districts as *23time goes, or the natural instinct which prompts flat-dwellers to seek agreeable surroundings; and so it asks the exercise in its behalf of the state’s power of eminent domain. It is the same feeling which often finds expression in the making of distinctions based on race or nationality or upon natural or artificial social status. All talk of beautifying parks and public squares and boulevards and establishing playgrounds is quite beside the present discussion. No one questions the public use which justifies condemnation and taxation for them. This court readily gives relief, in a proper case, to a private owner whose right to the enjoyment of his property is interfered with by another private owner not using his own with a just regard to the enjoyment of his neighbor, but it has not given effect to class distinctions imposed by law.
In conclusion, 'and without further discussion, our judgment is that the present decision is without constitutional basis for its support, and is directly opposed to the fundamental principle that one may use and enjoy his property as best suits his convenience, so long as no unnecessary injury is done to his neighbor. The statute in question is aimed in the wrong direction, and not in promotion of the general welfare, as that term for many years has been understood and applied by the courts. The intelligent thought of the day notes with some concern the increasing unrest .and discontent with the trend of our civil affairs, prevalent among the people not only of this state and nation, but the world over. Yet that same intelligence, apparently without thought or reflection, ¡at the same time-demands the enactment and enforcement of laws, the only tendency of which is to add to and accentuate in a measure conditions made the basis of such discontent — legislation, like the statute here involved, which in effect segregates the people into classes founded on invidious distinctions, extending to one thereof by positive law the powerful eminent domain arm of the state, by Which one class may, on aesthetic or fanciful grounds, exclude from their selected neighborhood members of the other classes, and thus deprive them arbitrarily of the free enjoyment of their property, although they may be of equal intelligence and moral standing with those thus temporarily vested with the use of that powerful state weapon. Heretofore the people in this country have been permitted to work out their own social relations unaided by direct legislation. And those Who are willing to take cognizance for the moment of the history *24of civil governments and of the reasons for the downfall of many of them cannot but be impressed that the general welfare will best be promoted by a continuance of that method of regulating matters of that kind. This ease, briefed favorably to the result by both lawyers and editors, will create no disturbance nor attract any special attention. The statute which is sustained is but a straw indicating a drifting from constitutional moorings toward class distinctions created and fostered by law.