I dissent.
Plaintiff, in 1945, bought a piece of property on which some nine bungalows had been built some 20 years previously. He then subdivided the property into nine parcels which averaged 925 square feet in size. Eight of these parcels were sold to individual purchasers in violation of a municipal ordinance which prohibited reduction of residential lots below 5,000 square feet of area with a 50-foot frontage. The property *108purchased by the plaintiff is in a C-2 Zone, and the ordinance permits the present construction of the same type of units as those owned by the plaintiff on a lot area of 800 square feet per dwelling unit. But these units must be held in single ownership.
The property here involved is situated in a C-2 Zone for which the ordinance provides in part as follows:
“C-4. Lot Area. Buildings hereafter erected and used wholly or partly for dwelling purposes shall comply with the lot area requirements of the R4 Zone—Sec. 12.11-C, 4.”
“Section 12.11-R4.
"C-4. Lot Area. Every lot shall have a minimum average width of fifty (50) feet and a minimum area of five thousand (5000) square feet. The minimum lot area per dwelling unit shall he eight hundred (800) square feet.” [Emphasis added.]
In Devaney v. Board of Zoning Appeals, 132 Conn. 537 [45 A.2d 828], the Supreme Court of Connecticut aptly stated that “Zoning consists of a general plan to control and direct the use and development of property in a municipality, or a large part of it, by dividing it into districts according to present and potential use of property. ’ ’ It has also been said that a zoning statute or ordinance is one regulating by districts the building development and uses of property and imposing restrictions on the use of the land itself. The term “zoning” within the meaning of a constitutional provision permitting laws authorizing zoning ordinances means a separation of the municipality into districts and the regulation of buildings and structures in such districts in accordance with their construction and the nature and extent of their use and the dedication of such districts to the particular uses designed to subserve the general welfare and pertains not only to use but to structural and architectural design of the building. (Yokley, Zoning Law and Practice.) In Goodrich v. Selligman, 298 Ky. 863 [183 S.W.2d 625], it was said that the theory of zoning is to foster improvements by confining certain classes of buildings and uses to certain localities without imposing undue hardship on property owners.
It would seem that the ordinance here involved is not the usual type of zoning ordinance, nor does it fall within the definitions given above insofar as it applies to the ownership of lots of a certain size. By it a restriction is placed on the' ownership, not the use, of parcels of land below a certain specified area.
I concede that the objectives of zoning are within the *109police power—that the public health, safety, morals and general welfare must be safeguarded. Bui there must be a rational connection between the means used and the end result to be attained. The majority opinion sets forth the reasons why this ordinance providing for single ownership of the units, rather than individual ownership, is a rational basis for the ordinance enacted under the police power of the municipality. These reasons would have validity if, and only if, the ordinance prohibited more than a single dwelling or two on each 5000 square foot parcel of land (which was heretofore used by the occupants of the nine bungalows). These reasons are: (1) Avoidance of congestion in the streets. The absurdity of this is apparent—because a man owns his own home, does he tend to make for greater congestion in the streets ? (2) Prevention of overcrowding the land—because a man owns his land, does he tend to have more children, more guests, more relatives? (3) Facilitation in furnishing transportation, water, light, sewer and other public necessities—I may be obtuse, but it appears that this reason is less than valid. In bungalow courts, unfurnished apartments, and the like, each tenant usually pays for his own water, light, and public utilities—these facilities are furnished to him as an individual tenant, and have nothing whatsoever to do with his ownership of the property. The transportation argument seems so ridiculous as to require no answer. (4) Provision of recreational space for children to play—how can individual ownership of the various units have the slightest bearing on such space? (5) Encouragement of the cultivation of flowers, shrubs, vegetables—it has been my experience that individual ownership tends toward the encouragement of interest in the land, rather than tending to diminish it, and the same argument applies so far as the upkeep of property is concerned. Tenants are only too willing to let the landlord take care of any repairs, and if the landlord fails to do so, the tenant is not willing to expend his funds on someone else’s property. (6) As another reason we are told that a “probable increase in occupancy” would add to the noise and other irritations which militate against orderly, quiet and peaceful living. As I have pointed out previously, this is a valid argument if we are to prohibit absolutely such bungalow courts, but, in the very nature of things, can have no validity when we take into consideration the fact that these units will be occupied in the same manner whether or not they are individually owned. (7) Health and Sanitary regulations—this argument is equally *110delusive. There is one incinerator and two sewer connections serving the nine units and it would seem that individual ownership would not make these services less adequate. There are common walkways which will need to be cleaned, we are told, and there are easements over other property which will need to be regulated. And on these very speculative and improbable future neighborhood squabbles, we are asked to say that the ordinance has a reasonable basis in that it will tend to promote the public health, welfare, safety and general well-being! A corollary of finding this ordinance a sound and rational exercise of the police power of the municipality is to restrain the free alienation of property.
The majority say that “The courts may differ with the zoning authorities as to the ‘necessity or propriety of an enactment'", but so long as it remains a ‘question upon which reasonable minds might differ’, there will be no judicial interference with the municipality’s determination of policy.” I am of the opinion now, as I have been in the past, that this court, when viewing a record on appeal, must sustain the findings of the trial court when there is substantial evidence in support thereof. The evidence in the instant case in support of the reasonableness of the ordinance appears to me to be sadly lacking. I fail to see that there is a question on which “reasonable minds might differ”! It seems to me that this is a clear case of arbitrary interference with the rights of an individual, and that the public gain from that interference is nonexistent.
The majority tell us that “. . . it is fairly arguable that numerous other advantages might well suggest themselves when one attempts to visualize the appearance of a sizable area of a city subdivided into lots akin in dimension to those of plaintiff, upon each of which there stood an individually owned and maintained dwelling ...” The fact remains that plaintiff’s property is in a zone in which these bungalow units (under single ownership) are permitted by this ordinance. Just how an observer would be able to say whether or not they were individually owned an'd what difference that would make in one’s visualization of the area in question, I am at a loss to understand. There is no reasonable relation between a reduction of the area of an improved lot, without change in its improvements, its use or its existing yard areas and the protection of the public health, safety, morals or welfare. The exercise of the police power, though an essential attribute of sovereignty for the public welfare and arbitrary *111in its nature, cannot extend beyond the necessities of the case and be made a cloak to destroy constitutional rights as to the inviolateness of private property. (House v. Los Angeles County Flood Control Dist., 25 Cal.2d 384 [153 P.2d 950].)
I consider it a duty of this court—a duty imposed on it by the will of the people of the state—to protect the individual against state or municipal action which deprives an individual of a right guaranteed to him not only by the Constitution of the United States, but by the Constitution of the State of California, when that action is not validly necessary for the benefit of the public at large. I have long argued against stateism and for the protection of individual rights when it is not necessary that those rights should be abridged for the benefit of the public. I consider that the people of this state and of the United States voluntarily relinquished certain of their rights that they collectively might benefit, but that they did not intend that all individual rights should be so relinquished. Our Constitutions embody that intent, and they stand as shields protecting the individual against arbitrary state action. It is the duty of this court to hold those shields. I do not feel that the declaration in the majority opinion that this ordinance is a reasonable and valid exercise of the police power has any support in reason.
In affirming the judgment, the majority fall into the error of assuming, just because municipal legislation on zoning is involved, that every such restriction is valid and that it is beyond the power of this court to inquire into the reasonableness thereof. Ordinances are held invalid and unconstitutional (Page v. City of Portland, 178 Ore. 632 [165 P.2d 280]; Lee v. City of Chicago, 390 Ill. 306 [61 N.E.2d 367]; Koch v. Toledo, 37 F.2d 336; American Wood Products Co. v. Minneapolis, 35 F.2d 657; Van Auken v. Kimmey, 141 Misc. 105 [252 N.Y.S. 329]; Lombardo v. City of Dallas, (Tex.Civ.App.) 47 S.W.2d 495; Johnson v. Village of Villa Park, 370 Ill. 272 [18 N.E.2d 887]; Village of Terrace Park v. Errett, (Ohio) 12 F.2d 240; Women’s Kansas City St. Andrew’s Soc. v. Kansas City, (Mo.) 58 F.2d 593; Glencoe Lime & Cement Co. v. City of St. Louis, 341 Mo. 689 [108 S.W.2d 143]), because unreasonable and discriminatory. “The courts usually will hold a zoning ordinance invalid when it clearly appears that the restrictions are arbitrary and unreasonable and have no substantial relation to health, safety, morals or the general welfare.” (State v. City of Miami, *112156 Fla. 784 [24 So.2d 705, 163 A.L.R. 577].) Zoning restrictions must bear a substantial relation to the promotion of public health, safety, morals or general welfare. (Ex parte Angelus, 65 Cal.App.2d 441 [150 P.2d 908]; Grant v. Board of Adjustment, 133 N.J.L. 518 [45 A.2d 184]; Merrill v. City of Wheaton, 379 Ill. 504 [41 N.E.2d 508]; Zadworny v. City of Chicago, 380 Ill. 470 [44 N.E.2d 426]; 140 A.L.R. 1369.)
The legislation here considered is arbitrary and discriminatory. It is arbitrary and unreasonable in that it has no substantial justification based on “imperious considerations of public health, morals, and safety, ...” (Miller v. Seaman, 137 Pa.Super. 24 [8 A.2d 415].) It is discriminatory in that it prohibits ownership of small parcels of land in a district where rental of lesser parcels of land is permitted. As the court said in the case cited by the majority (Simon v. Town of Needham, 311 Mass. 560 [42 N.E.2d 516, 141 A.L.R. 688]): “A zoning by-law cannot be adopted for the purpose of setting up a barrier against the influx of thrifty and respectable citizens who desire to live there and who are able and willing to erect homes upon lots upon which fair and reasonable restrictions have been imposed nor for the purpose of protecting the large estates that are already located in the district.” This ordinance discriminates against those wishing to live in the district in homes owned by them and favors those who wish only to rent property there. It definitely sets up a barrier and discriminates against thrifty persons of small means while favoring those who can afford to buy property and build small homes thereon for rental and income purposes.
In Harmon v. City of Peoria, 373 Ill. 594 [27 N.E.2d 525], the ordinance limited the houses in a district to one family dwellings. Nevertheless, an owner was permitted to use his house for a multiple family dwelling because there was no substantial relation between the police power and the ordinance inasmuch as under it there was no limit on the number of people that could be considered a family. Thus the test in the ordinance was really not the number of people in a house but whether they happened to consist of more than one family. The analogy to the instant case is pronounced. The ordinance here is not aimed at preventing more than one house on each 5,000 square feet. It only prevents separate ownership of the houses. The court in the Harmon case stated at page 528 [27 N.E.2d]: “Here, the validity of the ordinance as *113applied to the entire subdivision is not challenged. In short, it is only to the extent that the ordinance applies to plaintiffs’ property that an unreasonable exercise of the police power is claimed. . . . The Ordinance, it has been observed, defines a ‘family’ as one or more persons occupying premises and living together as a single housekeeping unit as opposed to a group occupying a boarding house, lodging house or hotel. Admittedly, a person may legally lodge and board four persons for remuneration upon premises located in an ‘A’ one-family district and, specifically, in the block where plaintiffs reside. Plaintiffs, it is conceded, enjoy the right under the ordinance to rent rooms to a maximum of four individual roomers and if they so desire, may serve meals to such persons. Indeed, any number of persons may occupy a house as a ‘family,’ within the contemplation of the ordinance, and divide the housekeeping expenses, provided only they, live as a solitary housekeeping unit, using a single kitchen. Manifestly, the term ‘one-family dwelling,’ hears no relation in fact to the number of persons or families living in a building. On the other hand, the ordinance prohibits plaintiffs from renting their suits of rooms equipped with adequate kitchen facilities to two couples. The harsh reality of the' distinction made by the ordinance is evidenced by the refusal of the zoning officials to permit the use last described. Tested in the light of the applicable principles set forth the distinction is unreasonable in the extreme, particularly since less than one-half of the residences in the block are actually used as single-family dwellings. The use of plaintiff’s one-family residence by six persons maintaining three separate housekeeping units appears no more inimical to the public welfare than the devotion of their property to the accommodation of four roomers and boarders.” [Emphasis added.]
The court states in Women’s Kansas City St. Andrew’s Soc. v. Kansas City, 58 F.2d 593, 603: ‘‘To justify such restriction the police power would have to be extended, not only to restricting certain districts to residence purposes, but to restricting such districts to particular classes of residents, and this has .been quite universally condemned by the decisions.” [Emphasis added.] The ordinance here restric
A zoning ordinance may be generally valid, but its enforcement with respect to particular property will be restrained *114by the courts if it is unreasonable, arbitrary and discriminatory in its application thereto. (Reynolds v. Barrett, 12 Cal. 2d 244, 250, 251 [83 P.2d 29]; Skalko v. City of Sunnyvale, 14 Cal.2d 213, 214, 216 [93 P.2d 93]; Bernstein v. Bush, 29 Cal.2d 773, 777 [177 P.2d 913]; Hagenburger v. City of Los Angeles, 51 Cal.App.2d 161, 163, 164 [124 P.2d 345].)
We are supposed to have a constitutional form of government where certain fundamental individual rights are guaranteed and protected. Section 1 of article I of our Constitution provides that “All men are by nature free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and property; acquiring, possessing, and protecting property; and pursuing and obtaining safety and happiness.” While I concede that the right to acquire and possess property is subject to the police power of the state in the advancement and protection of public health, safety, morals and general welfare, I think it is time for this court to declare that the police power of the state is so limited and that the right to own and possess property may not be impaired by the mere whim or caprice of any planning commission, city council, or board of supervisors which may have some pet notion abont what use should be made by an individual of property owned by him. In other words, I do not believe that these public agencies should be permitted to interfere with the ownership or possession of property unless it can reasonably be said that such interference is necessary in the interests of public health, safety, morals or welfare. In my opinion, the determination of this issue is for the courts who must interpret and apply the constitutional safeguards for the protection of the property owner.
I positively do not agree with the philosophy announced in the recent decisions of this court (Wilkins v. City of San Bernardino, 29 Cal.2d 332 [175 P.2d 542]; Lockard v. City of Los Angeles, 33 Cal.2d 453 [202 P.2d 38, 7 A.L.R.2d 990]; and Ayres v. City of Los Angeles, 34 Cal.2d 31 [207 P.2d 1]), in which it has completely abdicated its judicial function in favor of the arbitrary and unreasonable action of city councils, as shown by the record in those cases, who recognize no constitutional limitation of their power to control the use of private property.
It may be that we are going to have to stand up and be counted in order to determine whether constitutional rights in the ownership and possession of property still exist. Such rights certainly will no longer exist when the decision in this *115ease takes its place beside the Wilkins, Lockard and Ayres eases herein cited. Under these decisions the right of ownership and possession of real property is subject to the whim and caprice of any planning commission, city council or board of supervisors and the restrictions which any one of them may place upon an individual’s right to own, possess or use real property which will be upheld by a majority of this court is any one’s guess—the sky may be the limit—certainly not the Constitution which has become a dead letter—a forgotten document.
When the Constitution is disregarded we reach the perimeter of the police state. True, city councilmen are elected, but what chance has a property owner who may be in the minority to protect himself against arbitrary and unreasonable action by a city council who may see fit to zone his property for a use for which it is wholly unsuited ? This court has said it will not interfere with such action. Of what value to him is the inalienable right guaranteed by the Constitution to acquire, possess and protect property when a city council or board of supervisors tells him he can only use his property for a purpose dictated by whim or caprice and the courts refuse to grant him relief? The instant case is a shining example of such arbitrary action. The bungalow units were legally constructed and have been legally occupied, but they cannot be legally sold in separate units. Does this really make sense? Is there a scintilla of reason or logic behind such a rule ? If there is, it is not apparent to me, and I doubt that it would be to any unprejudiced mind.
I am of the opinion that the ordinance is invalid and unconstitutional in its application to these facts in that the evidence discloses that it bears no reasonable relation to the legitimate objectives to be attained by an exercise of the police power, and that it is wholly arbitrary and discriminatory. I would reverse the judgment.