Mr. Justice McKenna

delivered the opinion of the court.

. Habeas corpus prosecuted in the Supreme Court of the State of California for the discharge of plaintiff in error from the custody of defendant in' error, Chief of Police of the City of Los Angeles.

Plaintiff in error, to whom we shall refer as petitioner, was convicted of a misdemeanor for the violation of an ordinance of the City of Los Angeles which makes it unlawful for any person to establish or operate a brick yard or brick kiln, or any establishment, factory or place for the manufacture or burning’ of brick within described limits in the city. Sentence was pronounced against him *405and he was committed to the custody of defendant in error as Chief of Police of the City of Los Angeles.

Being so in custody he filed a petition in the Supreme Court of the State for a writ of habeas corpus. The writ was issued. Subsequently'defendant in error made a return thereto supported by affidavits, to which petitioner made sworn reply. The court rendered judgment discharging- the writ and remanding petitioner to custody. The Chief Justice of the court then granted this writ of error.

The petition sets forth the reason for resorting to habeas corpus and that petitioner is the owner of a tract of land within the limits described in the ordinance upon which tract of land there is a very valuable bed of clay, of great value for the manufacture of brick of a fine quality, worth to him not less than $100,000 per acre or about $800,000 for the entire tract for brick-making purposes, and not exceeding $60,000 for residential purposes or for any purpose other than the manufacture-of brick. That he has made excavations of considerable depth and covering a very large area of the property and that on account thereof the land cannot be utilized for residential purposes or any purpose other than that for which it is now used'. That he purchased the land because of such bed of clay and for the purpose of manufacturing brick; that it was at the time of purchase outside of the limits of the city and distant from dwellings and other habitations and that he did not expect or believe, nor did other owners of property in the vicinity expect or believe, that the territory would be annexed to the city. That he has erected expensive machinery for the manufacture of bricks of fine quality which have been and are being used for building purposes in and about the city.

That if the ordinance be declared valid he will be compelled to entirely abandon his business and will be deprived of the use of his property.

*406That the manufacture of brick must necessarily be carried on where, suitable clay is found and the clay cannot be transported to some other location, and, besides, the clay upon his property is particularly fine and clay of as good quality cannot be found in any other place within the city where the same can be utilized for the manufacture of brick. That within the prohibited district there is one other brick yard besides that of plaintiff in error.

That there is no' reason for the prohibition of the business-; that its maintenance cannot be and is not in the nature of a nuisance as defined in § 3479 of the Civil Code of the State, and cannot be dangerous or detrimental to health or the morals or safety or peace or welfare or convenience of the people of the district or city.

That the business is so conducted as not to be in any way or degree a nuisance; no noises arise therefrom, and no noxious odors, and that by the use of certain means (which are described) provided and the situation of the brick yard an extremely small amount of smoke is emitted from any kiln and what is emitted is so dissipated that it is not a nuisance nor in any maimer detrimental to health or comfort. That during the seven years which the brick yard has been conducted no complaint has been made of it, and no attempt has ever been made to regulate it.

That the. city embraces 107.62 square miles in area and 75% of it is devoted to residential purposes; that the district described in the ordinance includes only about three square miles, is sparsely settled and contains large tracts of unsubdivided and unoccupied land; and that the boundaries of the district were determined for the sole and specific purpose of prohibiting and suppressing the business of petitioner and that of the other brick yard.

That there are and were at the time of the adoption of the ordinance in other districts of the city thickly built up with residences brick yards maintained more detrimental to the inhabitants of the city. That a petition was filed, *407signed by several hundred persons, representing such brick yards to be a nuisance and no ordinance or regulation was passed in regard to such petition and the brick yards are operated without hindrance or molestation. That other brick yards are permitted to be maintained without prohibition or regulation.

That ho ordinance or regulation of any kind has been passed at any time regulating or attempting to regulate brick yards or inquiry made whether they could be maintained without being a nuisance or detrimental to health.

That the ordinance does not state a public offense and is in violation of the constitution of the State and the Fourteenth Amendment tó the Constitution of the United States.

That the business of petitioner is a lawful one, none pf the materials used in it are combustible, the machinery is of the most approved pattern and its conduct will not create a nuisance.

There is an allegation that the ordinance if enforced fosters and will foster a monopoly and protects and will protect other persons engaged in the manufacture.of brick in the city, and discriminates and will discriminate against petitioner in favor of such other persons who are his competitors, and will prevent him from entering into competition with them.

The petition, after almost every paragraph, charges a deprivation of property, the taking of property without compensation, and that the ordinance is in consequence .invalid.

We have given this outline of the petition as it presents petitioner’s contentions, with the circumstances (which we deem most material) that give color and emphasis to them.

But there are substantial traverses made by the return to the writ, among others, a denial of -the charge that the ordinance was arbitrarily directed against the business of *408petitioner, and it is alleged that there is another district in which brick yards are prohibited.

There was a denial of the allegations that the brick yard was conducted or could be conducted sanitarily or was not offensive to health. And there were affidavits supporting the denials. In these it was alleged that the fumes, gases, smoke, soot, steam and dust arising from petitioner’s brick-making plant have from time to time caused sickness and serious discomfort to those living in the vicinity.

There was no specific denial of the value of the property or that it contained deposits of clay or that the latter could not be removed and manufactured into brick elsewhere. There was, however, a general denial that the enforcement of the ordinance would “entirely deprive petitioner of his property and the use thereof.”

How the Supreme Court dealt with the allegations, denials and affidavits we can gather from its opinion. The court said, through Mr. Justice Sloss, 165 California, p. 416: “The district to which the prohibition was applied contains about three square miles. The petitioner is the owner of a tract of' land, containing eight acres, more or less, within the district described in the ordinance. He acquired his land in 1902, before the territory to which the ordinance was directed had been annexed to the city of Los Angeles. His land contains valuable deposits of clay suitable for the manufacture of brick, and he has, during the entire period of his ownership, used the land for brickmaking, and has erected thereon kilns, machinery and buildings necessary for such manufacture. The land, as he alleges, is far more valuable for brickmaking than for any other purpose.”

The court considered the business one which could be regulated and that regulation was not precluded by the fact “that the value of investments made in the business prior tó any legislative action will be greatly diminished,” and that no complaint could be based upon the fact that *409petitioner had been carrying on the trade in that locality for a long period.

And, considering the allegations of the petition, the denials of the return and the evidence of the affidavits, the court said that the latter tended to show that the district created had become primarily a residential section and that the occupants of the neighboring dwellings are seriously incommoded by the operations of petitioner; and that such evidence, “when taken in connection with the presumptions in favor of the propriety of the legislative determination, overcame the contention that the prohibition of the ordinance was a mere arbitrary invasion of private right, not supported by.any tenable belief that the continuance of the business was so detrimental to the interests of others as to require suppression.”

The court, on the evidence, rejected the contention that the ordinance was not in good faith enacted as a police measure and that it was intended to discriminate against petitioner or that it was actuated by any motive of injuring . him as an individual.

The charge of discrimination between localities was not sustained. The court expressed the view that the determination of prohibition was for the legislature and that the court, without regard to the fact shown in the return that there was another district in which brick-making was prohibited, could not sustain the claim that the ordinance was not enacted in good faith but was designed to discriminate against petitioner and the other brick yard within the district. “The facts before us,” the court finally said, “would certainly nQt justify the conclusion that the ordinance here in question was designed, in either its adoption or its enforcement, to be anything bur what it purported to be, viz., a legitimate regulation, operating alike upon all who came within its terms.”

We think the conclusion of the court is justified by the evidence and makes it unnecessary to review the many *410cases cited by petitioner in which it is decided that the police power of a state cannot be arbitrarily exercised. The principle is familiar., but in any given case it must plainly appear to apply. It is to be remembered that we are dealing with one of the most essential powers of government, one that is the least limitable. It may, indeed, seem harsh in its exercise, usually is on some individual, but the imperative necessity for. its existence precludes any limitation upon it when not exerted arbitrarily., A vested interest cannot be asserted against it because of conditions once obtaining. Chicago & Alton R. R. v. Tranbarger, 238 U. S. 67, 78. To so hold would preclude development and fix a city forever in its primitive conditions; There must be progress, and if in its march private interests are in the way they must yield to the good of the community. The logical result of petitioner’s contention would seem to be that a city could not be formed or enlarged against the resistance of an occupant of the ground and that if it grows at all it can only grow as the environment of the occupations that are usually banished to the purlieus.

The police power’ and to what extent it may be exerted we have recently illustrated in Reinman v. Little Rock, 237 U. S. 171. The circumstances of the case were very much like those of the case at bar and give reply to the contentions of petitioner, especially that which asserts that a necessary and lawful occupation that is.not a nuisance per se cannot be made so by legislative declaration. There was a like investment in property, encouraged by the then conditions; a like reduction of value and deprivation of property was asserted against the validity of the ordinance there considered; a like assertion of an arbitrary exercise of the power of prohibition. Against all of these contentions, and causing the rejection of them all, was adduced the police power. There was a prohibition of a business, lawful in itself, there as here. It was a livery stable there; a brick yard here. They differ in *411particulars, but they are alike in that which cause and justify prohibition in defined localities — that is, the effect upon the health and comfort of the community.

The ordinance passed upon prohibited the conduct of the business within a certain defined area in Little Rock, Arkansas. This court said of it: granting that the business was not a nuisance per se, it was clearly within the police power of the State to regulate it, “and to that end to declare that in particular circumstances and in particular localities a livery stable shall be deemed a nuisance in fact and in law.” And the only limitation upon the power was stated to be that the power could not be exerted arbitrarily or with unjust discrimination. There was a citation of cases. We think the present case is within the ruling thus declared.

There is a distinction between Reinman v. Little Rock and the ease at bar. There a particular business was prohibited which was not affixed to or dependent upon its locality; it could be conducted elsewhere. Here, it is contended, the latter condition does not exist, and it is alleged that the manufacture of brick must necessarily be carried on where suitable clay is found and that the clay on petitioner’s property cannot be transported to some other locality. This is not urged as a physical impossibility but only, counsel say, that such transportation and the transportation of the bricks to places where they could be used in construction work would be prohibitive “from a financial standpoint.” But upon the evidence the Supreme Court considered the case, as we understand its opinion, from the standpoint of the offensive effects of the operation of a brick yard and not from the deprivation of the deposits of clay, and distinguished Ex parte Kelso, 147 California, 609, wherein the court declared invalid an ordinance absolutely prohibiting the maintenance or operation of a rock or stone quarry within a certain portion of the city and county of San Francisco. *412The court there 'said that the effect of the ordinance was “to absolutely deprive the owners of real property within such limits of a. valuable right incident to their ownership, — viz., the right to extract therefrom such rock and stone as they might find it to their advantage to dispose of.” , The court expressed the view that the removal could be regulated but that “an absolute prohibition of such removal under the circumstances,” could not be upheld.

In the present case there is no prohibition of the removal of the brick clay; only a prohibition within the designated, locality of its manufacture into bricks. And to this feature of the ordinance our opinion is addressed. Whether other questions would arise if the ordinance were broader, and opinion on such questions, we reserve.

■ Petitioner invokes the equal protection clause of the Constitution arid charges that it is- violated in that the ordinance (1) “prohibits him from manufacturing brick Upon his property while his competitors are permitted, without regulation of any kind, to manufacture brick upon property situated in all respects similarly to that of plaintiff in error”; and (2)- that it “prohibits the conduct of his business while it permits the maintenance within the same district of any other kind of business, no matter how objectionable the same may be, either in its nature or in the manner in which it is conducted.”

If we should grant that the first specification shows a violation of classification, that is, a distinction between businesses which was not within the legislative power., petitioner's contention encounters the objection that it depends upon an inquiry of fact which the record does not enable us to determine. It is alleged in the return to the petition that brickmaking is prohibited in one other district and an ordinance is referred to regulating business in other districts. To this plaintiff in error replied that the ordinance attempts to prohibit the operation of certain *413businesses having mechanical power and does not prohibit the maintenance of any business or the operation of any machine that is operated by anima] power. In other words, petitioner makes his contention depend upon disputable considerations of classification and upon a comparison of conditions of which there is no means of judicial determination and upon which nevertheless we are expected to reverse legislative action exercised upon matters of which the city has control.

To a certain extent the latter comment may be applied to other contentions, and, besides, there is no allegation or proof of other objectionable businesses being permitted within, the district, and a speculation of their establishment or conduct at some future time is too remote.

In his petition and argument something is made of the ordinance as fostering a monopoly and suppressing his competition with other brickmakers. The charge and argument are too illusive. It is part of the charge that the ordinance was directed against him. The charge, we have seen, was rejected by the Supreme Court, and we find nothing to justify it.

It may be that brick yards in other localities within the city where the same conditions exist arp not regulated or prohibited, but it does not follow that they will not be. That petitioner’s business was first in time to be prohibited does not make its prohibition unlawful. And it may be, as said by the Supreme Court of the State, that the conditions justify a distinction. However, the inquiries thus suggested are outside of our province.

There are other and subsidiary contentions which, we think, do not require discussion. They are disposed of by what , we have said. It may be that something else than prohibition would have satisfied the conditions. Of this, however, we have no means of determining, and besides we cannot declare invalid the exertion of a power which the city undoubtedly has because of a charge that it does *414 not exactly accommodate the conditions or that some other exercise would have been better or less harsh. We must accord good faith to the city in the absence of a clear showing to the contrary and an honest exercise of judgment upon the circumstances which induced its action.

We do not notice the contention that the ordinance is not within the'city’s charter powers nor that it is in violation of the state constitution, such contentions raising only local questions which must be deemed to have been decided adversely to petitioner by the Supreme Court of the State.

Judgment affirmed.

WESTENH1AVER, District Judge.

This suit is brought to have declared null and void and enforcement enjoined of Ordinance No. 2812, enacted by the municipal council of the village of Euclid, November 13, 1922, and amended by Ordinances Nos. 3367 and 3368, enacted June 11, 1923. This ordinance is what is popularly called a “zoning ordinance,” i. e., one imposing a variety of restrictions upon the use of land within the village limits. After issue joined, the evidence was taken and submitted in deposition form.

This case is obviously destined to go higher. On appeal in equity cases, a reviewing court weighs the evidence, and when taken in deposition form it can do so as well as the trial court; hence it is unnecessary to make special findings of fact. Much of the evidence is immaterial ; still more of it is without weight. Upon the facts the case really comes down to the provisions of the ordinance, certain physical facts characterizing the situation as it affects plaintiff’s land, and the nature- and extent of the impairment of its value by the ordinance restrictions. None of the important or controlling facts are in dispute, . with the single exception of the extent of that damage; but even here there is no substantial denial that this damage is not only in excess of the jurisdictional amount but is substantial. As an instance of immaterial testimony may be noted the large volume relating to the inadequacy of the present water supply of the village of Euclid. Manifestly, the police power of the village to legislate in the interests of the public health or public safety cannot be enlarged by its failure or refusal to perform its fundamental duty of providing an adequate water supply. Upon the whole case, it is sufficient to say that the material and substantial allegations of plaintiff’s bill are sufficiently proved.

The village of Euclid is a suburb of the city of Cleveland and a part of its great metropolitan and industrial area. It comprises ap*309proximately 16 square miles. If fully built up as a city, it will accommodate a population of several hundred thousand, but its present population is only a few thousand. It is traversed from east to west by the New York Central and Nickel Plate Railways, both being through interstate trunk lines. It is likewise traversed from east to west by three main thoroughfares: the Rake Shore Boulevard, near to its northerly boundary, parallel with the south shore of Rake Erie; St. Clair avenue, through its center; and Euclid avenue near its southern side. Plaintiff owns a tract of 68 acres of unimproved and unallotted land lying a short distance east of the easterly limits of the city of Cleveland. This tract is bounded on the north by the Nickel Plate Railway, and on the south by Euclid avenue. Industry and population have followed these railways and street highways eastwardly, and manufacturing plants have already been established within the village and beyond its limits along the line of the railways, and to a lesser extent along the line of St. Clair and Euclid avenues. From the Public Square in Cleveland throughout its entire length, including spots in and beyond Euclid village, Euclid avenue has become the great business and commercial street of the metropolitan area of Cleveland, and such, the evidence shows, is its natural, obvious, and ultimate use within and beyond the village of Euclid. Plaintiff’s tract is rectangular in form, having a frontage on Euclid avenue and1 the Nickel Plate Railway of approximately 1,800 feet, and a depth of approximately 1,950 feet. Ordinance 2812, with its amendments, restricts the present and future use of this land. The frontage on Euclid avenue to a depth of 150 feet may be used only for a single-family dwelling. The next 470 feet in the rear thereof may bq used only for two-family dwellings. The next 130 feet farther to the rear may be used only for apartment dwellings and not for any form of trade or industry. The remaining 1,200 feet north to the Nickel Plate Railway may be used for industrial and manufacturing purposes. Many additional restrictions are imposed as to the height of any and all kinds of buildings, as to the lot area which may be built bn and'which must be left free, and as to the set-back distances from street and lot lines. All industrial, manufacturing, trade, and commercial uses or occupations, including wholesale and retail stores, are forbidden upon the part of plaintiff’s land restricted for single or double family dwellings and apartment houses. The entire area of the village, comprising nearly 16 square miles, and now largely farm land, is restricted in like manner to six different classes of uses. In the restrictive scheme, however, no provision is made, and none seems to be contemplated, for the opening of necessary highways or the preservation of land for that purpose. The evidence clearly shows that the normal and reasonably to be expected use and development of plaintiff’s land along Euclid avenue is for general trade and commercial purposes, particularly retail stores and like mercantile establishments ; and that the normal and reasonably to be expected use of the residue, including the restricted area, is for industrial and trade purposes. The evidence also clearly shows that the restrictive provisions of the ordinance in question impair the salability of this land and depress its present market value to the extent of several hundred thousand dollars. These restrictions, if sustained, the evidence further *310shows, will prevent the normal and reasonably to be expected increased value due to the availability of this land for trade, industrial, and commercial purposes.

[1] 1. No doubt exists upon the foregoing facts as to the jurisdiction of a court of equity to grant relief if the ordinance is in fact void. It was enacted under color of authority and is apparently valid. While it is outstanding, it creates a substantial cloud upon plaintiff’s title, and the only adequate relief is a decree ascertaining and declaring its invalidity and canceling the cloud. See Kennington v. Palmer, 255 U. S. 100, 41 Sup. Ct. 303, 65 L. Ed. 528; United States v. Swartz, 255 U. S. 102, 41 Sup. Ct. 304, 65 L. Ed. 531; Willard v. Palmer, 255 U. S. 106, 41 Sup. Ct. 305, 65 L. Ed. 534; Adams v. Tanner, 244 U. S. 590, 37 Sup. Ct. 662, 61 L. Ed. 1336, L. R. A. 1917F, 1163, Ann. Cas. 1917D, 973; Truax v. Raich, 239 U. S. 33, 36 Sup. Ct. 7, 60 L. Ed. 131, L. R. A. 1916D, 545, Ann. Cas. 1917B, 283; Block v. Hirsh, 256 U. S. 135, 41 Sup. Ct. 458, 65 L. Ed. 865, 16 A. L. R. 165; Brown Holding Co. v. Feldman, 256 U. S. 170, 41 Sup. Ct. 465, 65 L. Ed. 877; Ex parte Young, 209 U. S. 123, 28 Sup. Ct. 441, 52 L. Ed. 714, 13 L. R. A. (N. S.) 932, 14 Ann. Cas. 764.

[2] 2. Nor, in my opinion, can it be doubted that the ordinance is void because its provisions are in violation of article 1, § 1, Constitution of Ohio, which provides, “All men * * * have certain inalienable rights, -among which are those of enjoying and defending life and liberty', acquiring, possessing, and protecting property,” and ' of article 1, § 19, which provides, “Private property shall ever be held inviolate,” and that, “Where private property shall be taken for public use, a compensation therefor shalRfirst be made in money, or first secured by a deposit of money, and such compensation shall be assessed by a jury,” and also of section 1 of the Fourteenth Amendment to the Constitution of the United States, which provides, “Nor shall any state deprive any person of life, liberty, or property, without due process of law.” In reaching this conclusion, I assume that the village of Euclid, by virtue of article" 18, § 3, of the Constitution of Ohio, and section 4366 — 7 to 4366 — 12, inclusive, General Code of Ohio, possesses all the police power sought to be exercised which the Ohio Legislature might properly confer upon a municipality.

3. The constitutional validity of an ordinance of this nature under the Ohio Constitution has not been expressly passed on by the state Supreme Court. Euclid-Doan Co. v. Cunningham, 97 Ohio St. 130, 119 N. E. 361, L. R. A. 1918D, 700, involves merely building code restrictions of the kind usually enacted to prohibit fire risks and hazards and always and everywhere held to be within the state police power. Ohio Co. v. Rendigs, 98 Ohio St. 257, 120 N. E. 836, involves merely the power to prohibit the maintenance in a residence district of a business which upon the facts as well as by common experience either is or may become a nuisance, and exercises only the well-known^ power to abate existing nuisances or to prevent the creation of nuisances in the future. In Pontiac Co. v. Commissioners, 104 Ohio St. 447, 135 N. E. 635, 23 A. L. R. 866, it was said that the imposition of restrictions by the exercise even of the power of eminent domain upon property contiguous to a public park, some of which restrictions *311were akin to those now in question, lyould be a taking of property not for public use, and would, violate the provisions protecting the right of property, alrea4y cited, of the Ohio Constitution. However, these statements of the law in the opinion are not incorporated in the syllabi, and inasmuch as the syllabi are, by rule of court, to be prepared and approved as embodying the law of the case, and inasmuch as the decision of this question was not indispensable ’ in disposing of the case, these statements may be regarded as dicta, no matter how well considered and deliberately made they appear to have been.' The decisions of the subordinate courts are in conflict. See Lucas v. State ex rel. Abt, a decision of the Court of Appeals of the Fifth District, 21 Ohio Law Reporter, 363 (December 31, 1923), holding such an ordinance invalid, and State ex rel. Morris v. East Cleveland, 22 Ohio N. P. (N. S.) 549, holding such an ordinance valid. Other conflicting unreporte4 decisions have been made.

4. It .cannot be said that the Supreme Court of the United States has decided definitely or finally the exact questions here involved. The problem, therefore, is to determine in the light of the principles of law announced and the decisions made upon analogous facts, just what will be the ultimate decision of that court when a case like this goes to it.

The rent law cases, Block v. Hirsh, 256 U. S. 135, 41 Sup. Ct. 458, 65 L. Ed. 865, 16 A. L. R. 165, sustaining the District of Columbia rent law, and Brown Holding Co. v. Feldman, 256 U. S. 170, 41 Sup. Ct. 465, 65 L. Ed. 877, and Levy Leasing Co. v. Siegel, 258 U. S. 242, 42 Sup. Ct. 289, 66 L. Ed. 595, sustaining the New York City rent law, seem to be the high-water mark of state police power. Those laws were sustained, however, only as a temporary expedient to meet a great emergency 4ue to the disastrous effects of a world war. In passing, it is well to note that both of these emergency laws, limited when enacted to expire in two years, have been extended for an additional term of two years, and that it is now proposed to extend them for two years more, thus emphasizing - the warning of Mr. Justice Bradley (Boyd v. U. S., 116 U. S. 635, 6 Sup. Ct. 524, 29 L. Ed. 746) to withstand at the very beginning every invasion of a constitutional guaranty of life, liberty, or property.

In the later case of Pennsylvania Coal Co. v. Mahon, 260 U. S. 393, 43 Sup. Ct. 158, 67 L. Ed. 322, Mr. Justice Holmes, who had delivered the majority opinion in the rent law cases, points out their limited application. He says:

“The late decisions upon laws dealing witli the congestion of Washington •and New York, caused by the war, dealt with laws intended to meet a temporary emergency and providing for compensation determined to be reasonable by an impartial board. They went to the verge of the law, but fell far short of the present act.”

The present act thus referred to and held void was a Pennsylvania statute prohibiting the mining of coal so as to cause the caving-in, collapse, or subsidence of public buildings, streets, roads, or dwellings, or other structures, but excepting from its operation certain territory sparsely populated. It was held, that as applied to surface land under the city of Scranton, which ha4 been conveyed to the surface own*312ers with a reservation of a right to mine and remove the underlying coal without liability for damage, the law was unconstitutional 'and void and in excess of the police power, despite definite findings by the state Legislature that its passage was necessary to protect the lives and safety of the citizens of the state. In summing up the court’s conclusion, Mr. Justice Holmes says:

“The protection of private property in the Fifth Amendment presuppose? that it is wanted for public use, but provides that it shall not be taken for such use without compensation. A similar assumption is made in the decisions upon the Fourteenth Amendment. [Cases cited.] When this seemingly absolute protection is found to be qualified by the police power, the natural tendency of human nature is to extend the qualification more and more until at last private property disappears. But that cannot be accomplished in this way under the Constitution of the United States. * * * In general it is not plain that a man’s misfortunes or necessities will justify his shifting the damages to his neighbor’s shoulders. [Cases cited.] We are in danger of forgetting that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change.”

Since have been announced the decisions in Adkins v. Children’s Hospital, 261 U. S. 525, 43 Sup. Ct. 394, 67 L. Ed. 785, 24 A. L. R. 1238, declaring void the minimum wage law for women, and in Wolff Co. v. Industrial Court, 262 U. S. 522, 43 Sup. Ct. 630, 67 L. Ed. 1103, declaring invalid certain provisions of the Kansas Compulsory Anti-Strike Law. The principles of law therein announced, while dealing with different facts, are pertinent to the present case because of the clearly defined limitations set to the legislative disposition to extend the police power until private property is destroyed and the guaranties of the Constitution are annihilated. In the light 'of these several decisions, I am of opinion that the ordinance under consideration is, and the Supreme Court would so hold, a taking of plaintiff’s property without due process of law, and that, as applied to property situated as is plaintiff’s, it can be sustained, if at all, only as an exercise of the power of eminent domain and on the condition of making' just compensation. !

Compare, also, Eubank v. City of Richmond, 226 U. S. 137, 33 Sup. Ct. 76, 57 L. Ed. 156, 42 L. R. A. (N. S.) 1123, Ann. Cas. 1914B, 192, in which an act of the Virginia Legislature, sustained by the state Supreme Court, providing for the establishment of uniform building lines in a single city block, was held unconstitutional and void; Adams v. Tanner, 244 U. S. 590, 37 Sup. Ct. 662, 61 L. Ed. 1336, L. R. A. 1917F, 1163, Ann. Cas. 1917D, 973, in which a statute of the state of Washington, prohibiting employment agencies from taking compensation for their services, was held unconstitutional and void; Buchanan v. Warley, 245 U. S. 60, 38 Sup. Ct. 16, 62 L. Ed. 149, L. R. A. 1918C, 210, Ann. Cas. 1918A, 1201, in which an ordinance of the city of Louisville, held by the state Supreme Court to be valid and within the legislative power delegated to the city, districting and restricting residential blocks so that the white and colored races should be segregated, was held to be a violation of the Fourteenth Amendment and void. It seems to me that no candid mind can deny that more and stronger reasons exist, having a real and substan*313tial relation to the public peace, supporting such an ordinance than can be urged under any aspect of the police power to support the present ordinance as applied to plaintiff’s property. And no gift of second sight is required to foresee that if this Kentucky statute had' been sustained, its provisions would have spread from city to, city throughout the length and breadth of the land. And it is equally apparent that the next step in the exercise of this police power would be to apply similar restrictions for the purpose of segregating in like manner various groups of newly arrived immigrants. The blighting of property values and the congesting of population, whenever the colored or certain foreign races invade a residential section, are so well known as to be within the judicial cognizance.

[§] 5. The argument supporting this ordinance proceeds, it seems to me, both on a mistaken view of what is property and of what is police power. Property, generally speaking, defendant’s counsel concede, is protected against a taking without compensation, by the guaranties of the Ohio and United States Constitutions. But their view seems to be that so long as the owner remains clothed with the legal title thereto and is not ousted from the physical possession thereof, his property is not taken, no matter to what extent his right to use it is invaded or destroyed or its present or prospective value is depreciated. This is an erroneous view. The right to property, as used in the Constitution, has no such limited meaning. As has often been said is substance by the Supreme Court: “There can be no conception of property aside from its control and use, and upon its use depends its value.” See Cleveland, etc., Ry. Co. v. Backus, 154 U. S. 439, 445, 14 Sup. Ct. 1122, 38 L. Ed. 1041; Branson v. Bush, 251 U. S. 182, 40 Sup. Ct. 113, 64 L. Ed. 215; Block v. Hirsh, 256 U. S. 165, 41 Sup. Ct. 458; Pennsylvania Coal Co. v. Mahon, 260 U. S. 414, 43 Sup. Ct. 158, 67 L. Ed. 322; Buchanan v. Warley, 245 U. S. 74, 38 Sup. Ct. 16, 62 L. Ed. 149, L. R. A. 1918C, 210, Ann. Cas. 1918A, 1201. In the case last cited, Mr. Justice Day says:

“Property is more than the mere thing which a person owns. It is elementary that it includes the right to acquire, use, and dispose of it. The Constitution protects these essential attributes of property. [Cases cited.] Property consists of the free use, enjoyment, and disposal of a person’s acquisitions without control or diminution save by the law of the land.”

A, similar misconception or confusion of thought appears to exist touching the nature and extent of the police'power. In one brief it is said:

“As is well known, the police power is the whole reserved power of the community to legislate concerning persons and things in the interests of the promotion of the public health, the public morals, the public safety, the public convenience, the public order, the public prosperity, and the general welfare.”

It is from this broad generalization that counsel deduce the conclusion that since the ordinance in question does not take away plaintiff’s title or oust it from physical possession, the power of eminent domain has not been exercised, but that the police power has been. This conception recognizes no distinction between police- power and sovereign power. The power asserted is not merely sovereign, but is power un*314shackled by any constitutional limitation protecting life, liberty, and property from its despotic exercise. In defendants’ view, the only difference between the police power and eminent domain is that the taking under the former may be done without compensation and under the’latter a taking must be paid for. It seems to be the further view that whether one power or the other is exercised depends wholly on what the legislative department may see fit to recite on that subject. Such, however, is not the law. If police power meant what is claimed, all private property is now held subject to temporary and passing phases of public opinion, dominant for a day, in legislative or municipal assemblies.

Expressions, I do. not doubt, supporting each phase of counsel’s definition of police power can be found in opinions of the courts. Certain United States Supreme Court cases are cited and general language used therein is quoted. However, as was well said in Byrne v. Maryland Realty Co., 129 Md. 202, 98 Atl. 547, L. R. A. 1917A, at page 1218 :

“They rely upon certain general language of the court in those cases which, if disconnected with the context and read apart from the facts of the cases, would confer upon the legislature almost unlimited power, and would authorize it in the name of the police power to overturn the foundations of constitutional government. But when the language of the court is read in the light of the fact with which it was dealing, it is clear that the court did not intend to lay down any new doctrine of the police power.”

Language of Mr. Justice Holmes in Noble State Bank v. Haskell, 219 U. S. 111, 31 Sup. Ct. 186, 55 L. Ed. 112, 32 L. R. A. (N. S.) 1062, Ann. Cas. 1912A, 487, is specially stressed. His later explanation of this language on rehearing (219 U. S. 580, 31 Sup. Ct. 299, 55 L. Ed. 341) is overlooked. After saying that a wrong impression seems to have been conveyed as to some details by the language used in the original opinion, and that the cases had not been cited to establish that property might be taken for private use, he adds;

“The analysis of the police power, whether correct or not, was intended to indicate an interpretation of what has taken place in the past not to give a new or wider scope to the power.”

Obviously, police power is not susceptible of exact definition. It would be difficult, even if it were not unwise, to attempt a more exact definition than has been given. And yet there is a wide difference between the power of eminent domain and the police power; and it is not true that the public welfare is a justification for the taking of private property for the general good. The broad language found in the books must be considered always in view of the facts, and when this is done, the difficulty disappears. A law or ordinance passed under the guise of the police power which invades private property as above defined can be sustained only when it has a xreal and substantial relation to the maintenance and preservation of the public peace, public order, public morals, or public safety. The courts never hesitate to look through the false pretense to the substance. As instances in which false pretenses of exercising police power in the interests of public health, safety, morals, and welfare, were disregarded, attention is called to Pennsylvania Coal Co. v. Mahon, supra, and Adkins v. *315Children’s Hospital, supra. In the last case, a wider acquiescence in the assumed police power was shown than can be asserted in behalf of the power here involved.

The remaining United States Supreme Court cases cited by defendant call for little comment. Welch v. Swasey, 214 U. S. 91, 29 Sup. Ct. 567, 53 L. Ed. 923, involved merely a reasonable regulation of the height of buildings. Sligh v. Kirkwood, 237 U. S. 52, 35 Sup. Ct. 501, 59 L. Ed. 835, involved merely the shipment in interstate commerce of unwholesome and unripe citrus fruits not fit for human consumption. Reinman v. Little Rock, 237 U. S. 171, 35 Sup. Ct. 511, 59 L. Ed. 900, involved an ordinance prohibiting the maintenance of a livery stable in a residence district, a kind of occupation long and well recognized as likely to become, if not already, a public nuisance. Hadacheck v. Sebastian, 239 U. S. 394, 36 Sup. Ct. 143, 60 L. Ed. 348, Ann. Cas. 1917B, 927, involved the operation of a brick manufacturing plant in a purely residential district, and also falls within the nuisance classification, although somewhat extreme upon the facts. Cusack v. Chicago, 242 U. S. 526, 37 Sup. Ct. 190, 61 L. Ed. 472, L. R. A. 1918A, 136, Ann. Cas. 1917C, 594, and St. Louis Poster Advertising Co. v. St. Louis, 249 U. S. 270, 39 Sup. Ct. 274, 63 L. Ed. 599, involved ordinances regulating the manner of constructing and maintaining billboards. The exercise of police power in all of these cases was sustained because of its intimate relation to the prevention of nuisances. All of them also affirm decisions of state courts of last resort, and much weight is accorded in nuisance cases to the judgment of thé judges on the spot and steeped in local tradition. And as to the most extreme of the cases, the Chicago and St. Eouis billboard ordinances, it should be further noted that the respective supreme courts of Illinois and Missouri, which sustained them, are two of the courts which have uniformly and inflexibly stricken down zoning ordinances restricting the normal and legitimate use of private property. See People ex rel. Friend v. Chicago, 261 Ill. 16, 103 N. E. 609, 49 L. R. A. (N. S.) 438, Ann. Cas. 1915A, 292; City of St. Louis v. Dorr, 145 Mo. 466, 41 S. W. 1094, 46 S. W. 976, 42 L. R. A. 686, 68 Am. St. Rep. 575; State ex rel. Penrose Investment Co. v. McKelvey (Mo. Sup.) 256 S. W. 474, decided October 6, 1923.

[4] 6. Nor can the ordinances here be sustained by invoking the average reciprocity of advantage rule. Instances in which this principle was invoked to sustain exercises ’ Gf the police power are Plymouth Coal Co. v. Pennsylvania, 232 U. S. 531, 34 Sup. Ct. 359, 58 L. Ed. 713, holding valid a statute requiring owners of adjoining coal veins to leave supporting boundary line pillars, and Jackman v. Rosenbaum Co., 260 U. S. 22, 43 Sup. Ct. 9, 67 L. Ed. 107, holding valid the party wall law of Pennsylvania. It is a futile suggestion that plaintiff’s-present and obvious loss from being deprived of the normal and legitimate use of its property would be compensated indirectly by benefits accruing to that land from the restrictions imposed by the ordinance on other land. It is equally futile to suppose that other property in the village will reap the benefit of the damage to plaintiff’s property and that of others similarly situated. The only reasonable probability is that the property values taken from plaintiff and other *316owners similarly situated will simply disappear, or at best be transferred to other unrestricted sections of the Cleveland industrial area, or at the worst, to some other ,and far distant industrial area. So far 'as plaintiff is concerned, it is a pure loss. In the average reciprocity of advantage there is a measureless difference between adj oining property owners as regards a party wall or a boundary pillar, and the owners of property restricted as in this case. In the former there may be some reciprocity of advantage, even though unequal in individual caseá. In the present case, the property values are either dissipated or transferred to unknown and more or less distant owners.

The plain truth is that,the true object of the ordinance in question is to place all the property in an undeveloped area of 16 square miles in a strait-jacket. The purpose to be accomplished is really to regulate the mode of living of persons who may hereafter inhabit it. In the last analysis, the result to be accomplished is to classify the population and segregate them according to their income or situation in life. The true'reason why some persons live in a.mansion and others in a shack, why some live in a single-family dwelling and others in a double-family dwelling, why some live in a two-family dwelling and others in an apartment, or i why some live in a well-kept apartment and others1 in a tenement, is primarily economic. It is a matter of income and wealth, plus the labor and difficulty of procuring adequate domestic service. Aside from contributing to these results and further,ing such class tendencies, the ordinance has also an esthetic purpose; that is to say, to make this village develop into a city along lines now conceived by the village council to be attractive and beautiful. The assertion that this ordinance may tend to prevent congestion, and thereby contribute to' the health and safety, would be more substantial if provision had been or could be made for adéquate east and west and north and south street highways. Whether these purposes and objects would justify the taking of plaintiff’s property as and for a public use need not be considered. It is sufficient to say that, in our opinion, and as applied to plaintiff’s property, it may not be done without compensation under the guise of exercising the police power.

7. Many state cases are cited, most of them of inferior courts. It would unduly prolong this opinion to review them, and no useful purpose would be subserved by so doing. I perceive no distinction between comprehensive zoning ordinances applied to an entire city, and zoning ordinances applied to parts only of a city, provided only that the part to which the same is applied is an area sufficiently large to justify separate treatment. The principle is the same in both classes of cases. The police power cánnot be enlarged or its nature changed by extending its operation over a wider area. In my opinion,, the great weight of state authority, as well as sound reason, is with the-cases which hold an ordinance and laws imposing restrictions such as are here involved, to be invalid, as an unreasonable taking of private property. . See Spann v. Dallas, 111 Tex. 350, 235 S. W. 513, 19 A. L. R. 1387, and cases reviewed in note; Byrne v. Maryland Realty Co., 129 Md. 202, 98 Atl. 547, L. R. A. 1917A, 1216, and cases reviewed in note page 1220; People ex rel. Friend v. Chicago, 261 Ill. 16, 103 N. E. 609, 49 L. R. A. (N. S.) 438, Ann. Cas. 1915A, 292, and cases reviewed in *317note; Willison v. Cooke, 54 Colo. 320, 130 Pac. 828, 44 L. R. A. (N. S.) 1030, and note; Val Fruth v. Board of Affairs, 75 W. Va, 456, 84 S. E. 105, L. R. A. 1915C, 981, and note; Haller Sign Works v. Physical Culture Training School, 249 Ill. 436, 94 N. E. 920, 34 L. R. A. (N. S.) 998, and note; Wineburgh Advertising Co. v. Murphy, 195 N. Y. 126, 88 N. E. 17, 21 L. R. A. (N. S.) 735, and note. Attention is also called to Miller v. Board of Public Works, 2d App. Dist. Cal. decided December 21, 1923, 227 Pac..-, because it contains an able discussion of the principles and a careful review of the authorities, and also because defendants’ counsel classify California as a state holding valid comprehensive zoning ordinances.

Defendants’ contention finds some support in the New York, Massachusetts, Wisconsin, Kansas, and Rouisiana Cases. In New York, the validity of the statute of the state and the ordinance of New York City is assumed rather than decided. Furthermore, the law and ordinance both provide, by means of a board, for suspending or varying restrictions on application of any aggrieved property owner. The opinion in Opinion of the Justices, 234 Mass. 597, 127 N. E. 525, was given to the Regislature and is not an authority. It rests in part upon a recent amendment to the state Constitution. However, in concluding the opinion, it is said:

“It is easy to imagine ordinances enacted under the assumed authority of the proposed act which would exceed the constitutional limits of the police power and be an indefensible invasion of private rights.”

In my opinion, we have that situation here. The Rouisiana decision is also the result of a similar constitutional amendment. It is not correct, as urged, that State ex rel. v. Houghton, 144 Minn. 1, 174 N. W. 885, 176 N. W. 159, 8 A. L. R. 585, overrules State v. Houghton, 134 Minn. 226, 158 N. W. 1017, L. R. A. 1917F, 1050. On the contrary, the restrictions were sustained only because imposed by virtue of the power of eminent domain, with reasonable provision for just compensation. It would seem that until quite recently the method of procedure in Massachusetts and other New England States was by exercising the power of eminent domain and making due compensation. See Windsor v. Whitney, 95 Conn. 357, 111 Atl. 354, 12 A. L. R. 669. So far as these cases conflict with the views herein expressed, I am unable to follow them.

8. My conclusion is that the ordinance involved, as applied to plaintiff’s property, is unconstitutional and void; that it takes plaintiff’s property, if not for private, at least for public, use, without just compensation; that it is in no just sense a reasonable or legitimate exercise of police power. This is not to say that many of the restrictions imposed throughout the village may not be valid, nor that many of them might not be established as against plaintiff’s property under the police power. But, however this may be, all the provisions of the ordinance, so far as they pertain to plaintiff’s property, are so intermingled and inseparable that as to its property at least, the ordinance must be declared wholly null and void. See Hill v. Wallace, 259 U. S. 44, 70, 42 Sup. Ct. 453, 66 L. Ed. 822; Lemke v. Farmers’ Grain Co., 258 U. S. 50, 42 Sup. Ct. 244, 66 L. Ed. 458.

A decree in conformity herewith will be entered.