In the exercise of the police power the Legislature may regulate and limit personal rights and rights of property in the interest of the public health, public morals and public safety. Com. vs. Pear, 153 Mass. 242, 63 N. E. 719; Com. vs. Strauss, 191 Mass. 545, 78 N. E. 136; California Reduction Co. vs. Sanitary Works, 199 U. S. 306-318, 26 Sup. Ct. 100, 50 L. Ed. 204. With considerable strictness of definition, the general welfare may be made a ground, with others, for interference with rights of property, in the exercise of the police power. Com. vs. Strauss, ubi supra.
The erection of very high buildings in cities, especially upon narrow streets, may be carried so far as materially to exclude sunshine, light and air, and thus to affect the public health. It may also increase the danger to persons and property from fire, and be a subject for legislation on that ground. These are proper subjects for consideration in determining whether in a given case, rights of property in the use of land should be interfered with for the public good.... In People vs. D’Oench, 111 N. Y. 359, 18 N. E. 562, a statute limiting the height of dwelling houses to be erected in the city of New York, was treated as unquestionably constitutional. See 1 Abbott, Mun. Corp. 237, 2 Tiedeman on State and Federal Control, 754....
... It is for the Legislature to determine whether the public health or public safety requires such a limitation of the rights of land owners in a given case. Upon a determination in the affirmative, they may legislate accordingly.
The next question is whether the General Court may establish different heights for different neighborhoods, according to their conditions and the uses to which the property in them is put. The statute should be adapted to the accomplishment of the purposes in which it finds its constitutional justification. It should be reasonable, not only in reference to the interests of the public, but also in reference to the rights of land owners. If these rights and interests are in conflict in any degree, the opposing considerations should be balanced against each other, and each should be made to yield reasonably to those upon the other side. The value of land and the demand for space, in those parts of Boston where the greater part of the buildings are used for purposes of business or commerce, is such as to call for buildings of greater height than are needed in those parts of the city where the greater part of the buildings are used for residential purposes. It was, therefore, reasonable to provide in the statute that buildings might be erected to a greater height in the former parts of the city than in the latter, even if some of the streets in the former are narrower than those in the latter.
The general subject is one that calls for a careful consideration of conditions existing in different places. In many cities there would be no danger of the erection of high buildings in such locations and of such a number as to affect materially the public health or safety, and no statutory restrictions are necessary. Such restrictions in this country are of very recent origin, and they are still uncommon. Unless they place the limited height at an extreme point, beyond which hardly any one would ever wish to go, they should be imposed only in reference to the uses for which the real estate probably will be needed, and the manner in which the land is laid out, and the nature of the approaches to it.
It was decided in Com. vs. Boston Advertising Company, 188 Mass. 348, 74 N. E. 601, 69 L. R. A. 817, 103 Am. St. Rep. 494, that a statute of this kind cannot constitutionally be passed for a mere esthetic object. It was said in Attorney General vs. Williams, 174 Mass. 476-480, 55 N. E. 77, that the statute then before the court, enacted under the right of eminent domain, with compensation for landowners, would have been unconstitutional if it had been passed “to preserve the architectural symmetry of Copley Square,” or “merely for the benefit of individual landowners.” The inhabitants of a city or town cannot be compelled to give up rights in property, or to pay taxes, for purely æsthetic objects; but if the primary and substantive purpose of the legislation is such as justifies the act, considerations of taste and beauty may enter in, as auxiliary. We are of opinion that the provision of St. 1904, p. 283, c. 333, for dividing parts of the city into two classes, in each of which there is a prescribed limit for the height of buildings, was within the power of the Legislature, and in accordance with the constitutional principle applicable to the enactment.
The delegation to a commission of the determination of the boundaries of these parts of the two classes was within the constitutional power of the General Court. The work of the commissioners under the first act was not legislation, but the ascertainment of facts, and the application of the statute to them for purposes of administration. Such subsidiary work by a commission is justified in many cases.
The delegation to a commission of the power to fix different heights in different places in the parts included in class B, under St. 1905, p. 309, c. 363, goes further, and allows the commissioners to make rules and regulations which are in the nature of subsidiary legislation. This is within the principle referred to in Brodbine vs. Revere, ubi supra, and in some of the other cases above cited. It is that under our system in Massachusetts, matters of local self-government might always be intrusted to the inhabitants of towns. On the establishment of cities this power is exercised by the city council, or by some board or commission representing the inhabitants. Even in towns such powers have long been exercised by local boards, for example,—by the board of health. Originally such representatives of the local authority were elected by the people; but for many years local boards, appointed by the governor or other executive authority, have sometimes been entrusted with the exercise of this legislative authority. It is true that they are further from the people than the members of a city council, for whom the people vote, but in a true sense they represent the inhabitants in matters of this kind. Our decisions cover this point also. Com. vs. Plaisted and Brodbine vs. Revere, ubi supra. It does not follow that all rules and regulations made under such a delegation of authority would be constitutional, merely because the original statute is unobjectionable. Such rules may be tested by the courts to see whether they are reasonably directed to the accomplishment of the purpose on which the constitutional authority rests, and whether they have a real, substantial relation to the public objects which the government can accomplish. A statute, ordinance or regulation will not be held void merely because the judges differ from the legislators as to the expediency of its provisions. But if it is arbitrary and unreasonable, so as unnecessarily to be subversive of rights of property, it will be set aside by the courts....
We do not see that the action of the commissioners, under St. 1905, was beyond their power under the Constitution. It was seemingly in accordance with the general purpose of the Legislature, and was directed to considerations which they deemed proper in adjusting the rights and interests of property owners and the public. The question is not whether the court deems all the provisions wise; but whether they appear to be outside of the constitutional power of the commission. In prescribing heights in the district, the commissioners might make the width of the streets on which a building was to be erected one factor to be considered. Their action in this particular relates wholly to buildings in class B, which includes only the residential parts of the city.