Dissenting Opinion
Emmert, J.Decatur, a city of the Fifth Class, is the county seat of Adams County and has a population of 7,271 according to the 1950 census. State highways 224, 33 and 27 lead into and through the city, and each is a high type of paved roadway. The application for the building permit discloses that the proposed church building was to be located on the northeast corner of the intersection of Monroe and Ninth Streets. State highways 224 and 33 are routed over Monroe Street on the south side of the lot in controversy, and on Sunday afternoon the traffic is particularly heavy on Monroe Street, and of such density that one of the near neighbors often has to wait from five to ten minutes in order to back his car from his lot onto Monroe Street. At the time of the hearing before the Board of Zoning Appeals, parking was permitted on both sides of Ninth Street. There was a Lutheran Church two blocks west on Monroe Street, a Methodist Church four blocks east on Monroe Street, and a United Brethren Church one block south on Ninth ' Street, ' all of these- churches being located there prior to. the adoption of the zoning ordinance. Parking is only permitted on one side of Monroe Street, which is the route of the two state highways, but automobiles are parked on both sides of this street.
The lot owned by the appellee was rectangular in shape and extended 66 feet on Monroe Street and 108 feet on Ninth Street. The application for the permit discloses the building was to be set back 14 feet from the *96line of Monroe Street and was to be rectangular in shape, 34 feet wide facing Monroe Street and 60 feet long parallel to Ninth Street. The building was to have a seating capacity of 150 persons. The zoning ordinance required the building to be set back 18.48 feet from Monroe Street, and the failure to do so was one of the two reasons for the rejection of the building permit.
The other reason for the rejection of the building permit was the ordinance required 6,250 square feet of off-street parking space, whereas the application only disclosed 2,244 square feet for off-street parking. The ordinance required theaters, sports arenas, churches, temples, mortuaries, and other places of congregation to have one vehicle parking space of 250 square feet for each six seats of seating capacity, which would require the appellee to have a parking space for 25 automobiles.
At the time the appeal was argued before us, counsel for appellee stated that he was not contending that the facts of this case were within the rule announced in Yick Wo v. Hopkins (1886), 118 U. S. 356, 6 S. Ct. 1064, 30 L. Ed. 220, but it was appellee’s position that the ordinance as applied to the appellee was unconstitutional. The Board of Zoning Appeals very carefully excluded the religious beliefs of appellee from its consideration.
Zoning ordinances and regulations have been sustained as a reasonable exercise of the police power in the interest of public health, safety, morals, and the general welfare. General Outdoor Advertising Co. v. City of Indianapolis (1930), 202 Ind. 85, 97, 172 N. E. 309; 1 Yokley, Zoning Law & Practice (2d ed.) §20.
Our city streets are too often choked with automobiles and automobile traffic, which endanger the general public as well as the traveling public, because cities were planned for horse and buggy transportation. What *97might have been an unreasonable exercise of the police powers in the days of the Model T may be clearly valid now under the growing menace of the automobile, which in the Nation has been taking an annual toll of more than 30,000 killed and over a million injured.1
No better statement of the reason for zoning regulations has been made than that by Mr. Justice Sutherland in Euclid v. Ambler Co. (1926), 272 U. S. 365, 386, 387, 47 S. Ct. 114, 71 L. Ed. 303, 54 A. L. R. 1016:2
“Building zone laws are of modern origin. They began in this country about twenty-five years ago. Until recent years, urban life was comparatively simple; but with the great increase and concentration of population, problems have developed, and constantly are developing, which require, and will continue to require, additional restrictions in respect of the use and occupation of private lands in urban communities. Regulations, the wisdom, necessity and validity of which, as applied to existing conditions, are so apparent that they are now uniformly sustained, a century ago, or even half a century ago, probably would have been rejected as ar*98bitrary and oppressive. Such regulations are sustained, under the complex conditions of our day, for reasons analogous to those which justify traffic regulations, which before the advent of automobiles and rapid transit street railways, would have been condemned as fatally arbitrary and unreasonable. And fin this there is no inconsistency, for while the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation. In a changing world, it is impossible that it should be otherwise. But although a degree of elasticity is thus imparted, not to the meaning, but to the application of constitutional principles, statutes and ordinances, which after giving due weight to the new conditions, are found clearly not to conform to the Constitution, of course, must fall.”
The concepts of religious freedom, freedom of speech and the press, which are embodied in the Fourteenth Amendment, have never been construed as absolute rights, and beyond the power of reasonable regulation under the police power. Religious freedom does not include the right to practice polygamy. Reynolds v. United States (1878), 98 U. S. 145, 25 L. Ed. 244; Davis v. Beason (1890), 133 U. S. 333, 10 S. Ct. 299, 33 L. Ed. 637; Mormon Church v. United States (1890), 136 U. S. 1, 10 S. Ct. 792, 34 L. Ed. 478. Nor does it grant a right to a parent to have her child violate the child labor laws of a state. Prince v. Mass. (1944), 321 U. S. 158, 64 S. Ct. 438, 88 L. Ed. 645.3
It could scarcely be contended that religious freedom would prevent the City of Decatur from requiring the *99church doors to swing to the outside. Even if the religious doctrine of a church condemned a fire resistant roof, the city, in the exercise of the police powers for the safety of the members as well as the public and other property, could properly require the roof to be constructed of fire-resistant material.4 Many other examples could be stated.
It is quite evident that the members of the appellee could be killed just as dead going to and from church as going to and from a theater or a basketball game. It is a proper exercise of the police power to protect appellee’s members from their own negligence as well as from the negligence of the traveling public. There would be just as much logic in holding that the members of appellee when going to church were not required to comply with the traffic regulations as in holding that the appellee is not required to make reasonable provisions for a lessening of the traffic hazards by off-street parking.
If it was a proper exercise of the police power for the city by its zoning ordinance to require the appellee to comply with the average setback line of the residences, which only has a very remote bearing on traffic hazards, a fortiori it was a reasonable exercise of the police power to require appellee to provide space for 25 cars to park off the streets. The right of appellee to exercise its religious freedom is not violated in either case.
*100The City of Porterville, California, is not as large as Decatur.5 In Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. City of Porterville (1949), 90 C. A. 2d 656, 203 P. 2d 823, the Fourth District Court of Appeals of California decided that the City of Porterville did not violate the religious freedom of the appellant by excluding it from an area of the city which was zoned solely for the erection of single family dwellings. The court said: “It is a matter of common knowledge that people in considerable numbers assemble in churches and that parking and traffic problems exist where crowds gather. This would be true particularly in areas limited to single family dwellings. There necessarily is an appreciable amount of noise connected with the conduct of church and ‘youth activities.’ These and many other factors may well enter into the determination of the legislative body in drawing the lines between districts, a determination primarily the province of the city.” (Page 659) The Supreme Court of the United States dismissed the appeal from the California court for want of a substantial federal question. 338 U. S. 805. Later the same court, speaking by Chief Justice Vinson, said: “When the effect of a statute or ordinance upon the exercise of First Amendment freedoms is relatively small and the public interest to be protected is substantial, it is obvious that a rigid test requiring a showing of imminent danger to the security of the Nation is an absurdity. We recently dismissed for want of substantiality an appeal in which a church group conténded that its First Amendment rights were violated by a municipal zoning ordinance preventing the building of churches in certain residential areas. Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Porterville, 338 U. S. 805 (1949). American Communi*101cations Assn. v. Douds (1950), 339 U. S. 382, 397, 398, 70 S. Ct. 674, 94 L. Ed. 925.
If it is not a denial of due process or equal protection of the law to exclude a church entirely from an area zoned for single family residences, it is not a denial of due process or equal protection of the law to require a church to provide a reasonable amount of off-street parking space. Nor has the appellee been deprived of any constitutional right granted by the Indiana Constitution.
The judgment should be reversed.
Flanagan, J., concurs.
Note. — Reported in 117 N. E. 2d 115.
. 38,000 persons were killed in motor vehicle traffic in the United States in 1952. In the same period 1,350,000 were injured. Accident Facts published by the National Safety Council, 1953 Ed., p. 43:
During the same period in Indiana 1,277 persons were killed. Indiana Traffic Fatalities, 1952 Accident Records Bureau of the Indiana State Police, p. 1. 33,382 persons were injured in Indiana during the same period.
The registration of motor vehicles for Indiana discloses the increasing traffic problem:
Year Passenger Cars All Types
1946 897,465 1,222,552
1947 952,595 1,323,777
1948 1,059,447 1,474,582
1949 1,090,255 1,302,398
1950 1,488,517 1,907,822
1951 1,658,326 2,080,181
1952 1,681,573 2,105,577
From Yearly Registrations — Bureau of Motor Vehicles.
. The Village of Euclid had a population of from 5,000 to 10,000 and an area of from 12 to 14 square miles._ The zoning ordinance substantially reduced the value of a considerable part of appellee’s lands.
. Freedom of the press does not grant an immunity against conspiracies in restraint of trade. Associated Press v. U. S. (1945), 326 U. S. 1, 65 S. Ct. 1416, 89 L. Ed. 2013. See also Natl. Broadcasting Co. v. U. S. (1943), 319 U. S. 190, 63 S. Ct. 997, 87 L. Ed. 1344; Mabee v. White Plains Pub. Co. (1946), 327 U. S. 178, 66 S. Ct. 511, 90 L. Ed. 607.
. Church controversy as to the kind of a church roof is not unknown. In the early 1800’s the church at Bryan Station, Kentucky, sustained a schism on matters of doctrine, the members snlitting into two .groups, but both groups continued to worship at different times in the same building. When it needed a new roof one group did not want a metal roof while the other group did. The matter was satisfactorily compromised by covering one-half of the roof with shingles, and one-half with metal. Virginia Webb Howard, Bryan Station Heroes & Heroines (1922), pp. 49, 50.
. City of Porterville 1940 census 6,270; 1950 census 6,904.