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city into six use districts, and provided houses, a community clubhouse, a memothat, with certain exceptions not ma- rial building, nurseries, greenhouses, and terial here, no building should be erect- buildings necessary [118] for the opered for any purpose other than that per- ation of public utilities. § 3c. It demitted in the district in which the site clared that the section should not be is located. § 2. The land in question construed to prohibit the use of vacant is in the "first residence district." The property in such district for gardening ordinance permitted in that district or fruit raising, or its temporary use single family dwellings, public schools, for fairs, circuses, or similar purposes. certain private schools, churches, parks and playgrounds, an art gallery, private conservatories for plants and flowers, railroad and shelter stations. § 3a. And, upon specified conditions, it also permitted garages, stables, buildings for domestic animals, the office of physician, dentist or other professional person when located in his or her dwelling (§ 3b), fraternity, sorority and boarding

1 The pertinent provisions of the ordinance as amended follow:

"The title is:

"(a) For the purpose of regulating, classifying and restricting the location of trades and industries and the location of buildings designed, erected or altered for specified uses, the city of Seattle is hereby divided into six (6) use districts, namely: First residence district, second residence district, business district, commercial district, manufacturing district and industrial district.

§ 3e. By an ordinance (No. 49,179) passed in 1925, § 3c was amended by adding: "A philanthropic home for children or for old people shall be permitted in first residence district when the written consent shall have been obtained of the owners of two thirds of the property within four hundred (400) feet of the proposed building." 1

[119] Subsequently the trustee, with"(6) Art gallery of library building. "(7) Private conservatories for plants and flowers.

"An Ordinance Regulating and Restrict- "(8) Railroad and shelter stations. ing the Location of Trades and Industries; "(b) In a first residence district, buildRegulating and Limiting the Use of Buildings and uses such as are ordinarily appurings and Premises and the Height and Size tenant to dwellings shall be permitted, subof Buildings; Providing for Yards, Courts ject to the limitations herein provided. A or Other Open Spaces; and Establishing garage in a first residence district shall Districts for the Said Purposes. not occupy more than seven per cent (7%) "Section 2: of the area of the lot, and the business of repairing motor vehicles shall not be conducted therein. In the case of a private stable, the written consent must be obtained of the owners of fifty (50) per cent of the property within a radius of two hundred (200) feet of the proposed building. The number of animals, not counting sucklings, in a private stable shall not exceed one for every two thousand (2,000) square feet contained in the area of the lot on which such building is located. Not more than one appurtenant building having a floor area of not to exceed thirty (30) square feet which is used for the housing of domestic animals or fowls shall be permitted on any lot in the first residence district, except that a building of greater area or a greater number of buildings shall be permitted when the written consent shall have been obtained of the owners of fifty (50) per cent of the dwellings within two hundred (200) feet of the proposed building; provided that such consent shall not be required if the number of said dwellings is less than four (4). The office of a physician, dentist, or other professional person when located in his or her dwelling, also home occupations engaged in by individuals within their dwellings shall be considered as accessory uses, provided that no window display is made or any sign shown other than one not exceeding two (2) square feet in area and bearing only the name and occupation of the occupant. The renting of rooms for lodging purposes only, for the accommodation of not to exceed six (6) persons, in a single family dwelling shall be considered an accessory use.

"(b) The boundaries of the aforesaid districts are laid out and shown upon the map designated 'use map,' filed in the office of the city comptroller and ex-officio city clerk. The use districts on said map are hereby established. "(c) No building shall be erected, altered or used, nor shall any premises be used, for any purpose other than that permitted in the use district in which such building or premises is located.

"(d) Where a use in any district is conditioned upon a public hearing or the consent of surrounding property, such use if existing at the time this ordinance becomes effective, shall be allowed repairs or rebuilding without such hearing or consent. "Section 3. First Residence District. "(a) The following uses only are permitted in a first residence district: "(1) Single family dwellings.

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'(2) Public schools.

"(3) Private schools in which prescribed courses of study only are given and are graded in a manner similar to public schools or are of a higher degree.

"(4) Churches.

"(5) Parks and playgrounds (including usual park buildings).

"(c) A fraternity house, sorority house

Nectow V. Cam[72 L. ed. 844, 48 Legislatures may

Headnote 2

out having obtained consents of other general welfare." landowners in accordance with the pro- bridge, supra, p. 188 vision just quoted, applied for a permit Sup. Ct. Rep. 447]. to erect the new home. It is the superin- not, under the guise tendent's official duty to issue permits of the police power, for buildings about to be erected in ac- impose restrictions that are unnecescordance with valid enactments and sary and unrcasonable upon the use of regulations. He denied the application private property or the pursuit of usesolely because of the trustee's failure ful activities. Lawton v. Steele. 152 to furnish such consents. Then the U. S. 133, 137, 38 L. ed. 385, 388, 14 trustee brought this suit in the superior Sup. Ct. Rep. 499; Adams v. Tanner, court of King county to secure its judg- 244 U. S. 590, 594, 61 L. ed. 1336, 1342, ment and writ commanding the superin- L.R.A.1917F, 1163, 37 Sup. Ct. Rep. 662, tendent to issue the permit; and it Ann. Cas. 1917D, 973; Meyer v. Nemaintained throughout that the ordi- braska, 262 U. S. 390, 399, 400, 67 L. ed. nance, if construed to prevent the erec-1042, 1045, 1046, 29 A.L.R. 1446, 43 Sup. tion of the proposed building, is arbi- Ct. Rep. 625; Jay Burns Baking Co. v. trary and repugnant to the due process and equal protection clauses of the 14th [120] Amendment. That court held that the amended ordinance so construed is valid and dismissed the case. Its judgment was affirmed by the highest court of the state. 144 Wash. 74, 256 Pac. 781. The trustee concedes that our recent decisions require at in its general scope the ordinar? be held valid. Euclid v. Ambler Realty Co. 272 U. S. 365, 71 L. ed. 303, 54 A.L.R. 1016, 47 Sup. Ct. Rep. 114; Zahn v. Board of Public Works, 274 U. S. 325, 71 L. ed. 1074, 47 Sup. Ct. Rep. 594; Gorieb v. Fox, 274 U. S. 603, 71 L. ed. 1228, 53 A.L.R. 1210, 47 Sup. Ct. Rep. 675; Nectow v. Cambridge, 277 U. S. 183, 72 L. ed. 842, 48 Sup. Ct. Rep. 447. Is the delegation of power to owners of adjoining land to make inoperative the permission, given by § 3 (c) as amended, repugnant to the due process clause? Zoning [121] measures must find their justification in the police power exerted in the interest of the public. Euclid v. Ambler Realty Co. supra, 387 [71 L. ed. 310, 54 A.L.R. 1016, 47 Sup. Ct. Rep. 114]. "The governmental power to interfere by zoning regulations with the general rights of the landowner by restricting the character of his use, is not unlimited and, other questions aside, such restriction cannot be imposed if it does not bear a substantial relation to the public health, safety, morals, or or boarding house when occupied by students and supervised by the authorities of a public educational institution, a private school other than one specified in paragraph (a) this section (3), a community club house, memorial building, nursery or greenhouse, or a building which is necessary for the proper operation of a public utility may be permitted by the board of public works after a public hearing. A philanthropic home for children or for old people

Headnote 1

Headnote 3

Bryan, 264 U. S. 504, 513, 68 L. ed. 813,
826, 32 A.L.R. 661, 44 Sup. Ct. Rep.
412; Norfolk & W. R. Co. v. Public
Serv. Commission, 265 U. S. 70, 74, 68
L. ed. 904, 907, 44 Sup. Ct. Rep. 439;
Pierce v. Society of Sisters, 268 U. S.
510, 534, 535, 69 L. ed. 1070, 1077, 1078,
39 A.L.R. 468, 45 Sup. Ct. Rep. 571;
Weaver v. Palmer Bros. Co. 270 U. S.
402, 412, 415, 70 L. ed. 654, 657, 658, 46
Sup. Ct. Rep. 320; Tyson & Bro.-
United Theatre Ticket Offices v. Banton,
273 U. S. 418, 442, 71 L. ed. 718, 727,
58 A.L.R. 1236, 47 Sup. Ct. Rep. 426.
The right of the trustee to devote its
land to any legiti-
mate use is property
within the protection of the Constitu-
tion. The facts disclosed by the record
make it clear that the exclusion of the
new home from the first district is not
indispensable to the general zoning plan.
And there is no legislative determina-
tion that the proposed building and use
would be inconsistent with public health,
safety, morals or general welfare. The
enactment itself plainly implies the con-
trary. The grant of permission for
such building and use, although purport-
ing to be subject to such consents,
shows that the legislative body found
that the construction and maintenance
of the new home was in harmony with
the public interest and with the general
scope and plan of the zoning ordinance.
The section purports to give the owners
of less than one-half the land within
shall be permitted in first residence dis-
trict when the written consent shall have
been obtained of the owners of two thirds
of the property within four hundred (400)
feet of the proposed building.

(e) Nothing in this section shall be construed to prohibit the use of vacant property for gardening or fruit raising or its temporary use, conformable to law, for fairs, circuses or similar purposes."

We need not decide whether, consistently with the 14th Amendment, it is within the power of the state or munic

clude the proposed new home from a district defined as is the first district in the ordinance under consideration. Judgment reversed.

400 feet of the proposed building au-, trustee is entitled to have, the permit thority [122] uncontrolled by any applied for. standard or rule prescribed by legislative action-to prevent the trustee from using its land for the proposed home. The superintendent is bound by the de-ipality by a general zoning law to excision or inaction of such owners. There is no provision for review under the ordinance; their failure to give consent is final. They are not bound by any official duty, but are free to withhold consent for selfish reasons or arbitrarily, and may subject the trustee to their will or caprice. Yick Wo v. Hopkins, 118 U. S. 356, 366, 368, 30 L. ed. 220, 225, 226, 6 Sup. Ct. Rep. 1064. The delegation of power so attempted is repugnant to the due process clause of the 14th Amendment. Eubank v. Richmond, 226 U. S. 137, 143, 57 L. ed. 156, 158, 42 L.R.A. (N.S.) 1123, 33 Sup. Ct. Rep. 76, Ann. Cas. 1914B, 192; Browning v. Hooper, 269 U. S. 396, 70 L. ed. 330, 46 Sup. Ct. Rep. 141.

Headnote 4

Thomas Cusack Co. v. Chicago, 242 U. S. 526, 61 L. ed. 472, L.R.A.1918A, 136, 37 Sup. Ct. Rep. 190, Ann. Cas. 1917C, 594, involved an ordinance prohibiting the putting up of any billboard in a residential district without the consent of owners of a majority of the frontage on both sides of the street in the block where the board was to be erected. The question was whether the clause requiring such consents was an unconstitutional delegation of power and operated to invalidate the prohibition. The case was held unlike Eubank v. Richmond, supra, and the ordinance was fully sustained. The facts found were sufficient to warrant the conclusion that such billboards would or were liable to endanger the safety and decency of such districts. pp. 529, 530. It is not suggested that the proposed new home for aged poor would be a nuisance. We find nothing in the record reasonably tending to show that its construction or maintenance is liable to work any injury, inconvenience or annoyance to the community, the district or any person. The facts shown clearly distinguish the proposed building and use from such billboards or other uses which by reason of their nature are liable to be offensive.

As the attempted delegation of power cannot be sustained, and the restriction thereby sought to be put upon [123] the permission is arbitrary and repugnant to the due process clause, it is the duty of the superintendent to issue, and the

FRANK C. JORDAN, Secretary of State, and Robert V. Jordan, Deputy Secretary of State, Petitioners,

K.

V.

TASHIRO, M. D., Isami Sekiyama, M.
D., Pau K. Ito, M. D., et al.

construction

prin

(See S. C. Reporter's ed. 123–130.) Treaties, § 13 ciples. 1. The principles which control the diplomatic relations of nations, and the good faith of treaties, require that their obligations shall be liberally construed so as to effect the apparent intention of the parties to secure equality and reciprocity between them.

Note. On treaty guaranties to aliens -see annotation to Gandolfo v. Hartman, 16 L.R.A. 277.

On construction and operation of treaties-see annotation to United States v. The Amistad, 10 L. ed. U. S. 826.

Annotation.-Scope

of words "commerce," "commercial," or "trade,” as employed in treaties.

The operation of a hospital as a business undertaking was held a "commercial" purpose, and the formation of a corporation to lease land upon which to conduct that business was held "generally incident to or necessary for trade," within the Treaty with Japan, in JORDAN V. TASHIRO (reported herewith) affirming (1927) 201 Cal. 236, 53 A.L.R. 1279, 256 Pac. 545.

So, in holding that the same treaty protected an alien leasing land for, and operating thereon, a health resort and sanitarium, the court, in State v. Tagami (1925) 195 Cal. 522, 234 Pac. 102, expressed the view that the words "trade" and "commerce," as used in the treaty, "would include practically every business occupation carried on for the purpose of procuring subsistence or profit, and into which, or any material part of which, the elements of bargain and sale, barter, exchange, or traffic enter." And it added that no distinction should be

Treaties, 8 13 preferred.

liberal construction | cial" or "trade" may connote occupations
and recognized forms of business enter-
prise which do not necessarily involve trad-
ing in merchandise.
Treaties, § 10

2. When a treaty fairly admits of two constructions, one restricting the rights that may be claimed under it and the other enlarging them, the more liberal construction is to be preferred.

Treaties, § 19. construction.

3. The term "commerce" or "commerdrawn between a business venture of this character and the many others in which Japanese aliens had been engaged in that state, such as the keeping of hotels, lodging houses, tea houses, and eating places of various sorts, and the conduct of drug stores, bathhouses, barber shops, bookstores, theaters, and other places of amusement or recreation. The basis of the decision in Asakura v. Seattle (1924) 265 U. S. 332, 68 L. ed. 1041, 44 Sup. Ct. Rep. 515, that the same treaty was infringed by an ordinance denying a license for the transaction of pawnbrokers' business to other than United States citizens, was that that business was a "trade," involving the sale of merchandise when necessary to realize on the security.

But, the enumeration in that treaty of rights to own or lease for other specified purposes than for agriculture being held impliedly to negative the right to own or lease land for that purpose, the contention that the business of trading in farm products was authorized thereunder was overruled, in Terrace v. Thompson (1923) 263 U. S. 197, 68 L. ed. 255, 44 Sup. Ct. Rep. 15. And see to the same effect, Porterfield v. Webb (1923) 263 U. S. 225, 68 L. ed. 278, 44 Sup. Ct. Rep. 21.

So, stressing the point that residential and commercial purposes were the only ones for which aliens were entitled by the treaty to lease lands, the court in Webb v. O'Brien (1923) 263 U. S. 313, 68 L. ed. 318, 44 Sup. Ct. Rep. 112, held that a cropping contract with an alien was not for a commercial purpose.

And the treaty right to "carry on trade" was held not to give the privilege of acquiring stock in a corporation owning land for agricultural purposes, in Frick v. Webb (1923) 263 U. S. 326, 68 L. ed. 323, 44 Sup. Ct. Rep. 115.

Operation of a pool room was held not to be engaging in commerce, within the meaning of a treaty merely extending to "merchants and traders" "protection and security for their commerce," in Ohio ex rel. Clarke v. Deckebach (1927) 274 U. S. 392, 71 L. ed. 1115, 47 Sup. Ct. Rep. 630, the court declaring that it would be an extravagant application of the lan

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with Japan to operate hospital.

right

4. Leasing land for the operation of a hospital as a business undertaking is within the provisions of the treaty with Japan guage quoted to say that it could be extended to include the owner of a place of amusement, who did not necessarily buy, sell, or exchange merchandise, or otherwise participate in commerce.

A treaty provision that citizens of the foreign state should have liberty to "carry on trades, . . and generally to do anything incident to, or necessary for, trade," was held not infringed by a statute providing that only citizens of this country might be employed in constructing public works, in Heim v. McCall (1915) 239 U. S. 175, 60 L. ed. 206, 36 Sup. Ct. Rep. 78, Ann. Cas. 1917B, 287; and Crane v. New York (1915)_239 U. S. 195, 60 L. ed. 218, 36 Sup. Ct. Rep. 85, nor infringed by an ordinance under which an alien's right to be employed by a city was denied, in Cornelius v. Seattle (1923) 123 Wash. 550, 213 Pac. 17.

In holding that, under a provision of an existing treaty of commerce and navigation that granted to Chinese aliens the right to enter the United States solely to carry on trade, a teacher was not entitled to be admitted, the court, in Jeu Jo Wan v. Nagle (1925; C. C. A. 9th) 9 F. (2d) 309, noted Webster's definition of "trade" as "to engage in commerce or business transactions of bargain and sale; barter; exchange; traffic; hence, to deal in something," and that of "commerce" as "the exchange of goods, productions, or property of any kind; especially, exchange on a large scale, as between states or nations;" and, after citing a previous treaty provision that granted rights to Chinese subjects proceeding to this country "as teachers, students, merchants or from curiosity," it declared that it was quite apparent that of the four classes thus mentioned the merchant alone carried on "trade," as that term was generally understood.

Insurance was held not commerce, within the contemplation of a treaty calling for a reciprocal liberty of commerce, and declaring that merchants and traders should "enjoy the most complete protection and security for their commerce," in Bobe v. Lloyds (1926; C. C. A. 2d) 10 F. (2d) 730 (certiorari denied in (1926) 270 U. S. 663, 70 L. ed. 788, 46 Sup. Ct. Rep. 472). E. W. H.

giving its citizens the right to carry on trade in this country, and lease land for commercial purposes, and generally to do anything incident to or necessary for trade, although the words "industrial and other lawful purposes" were eliminated from the original draft of the treaty. Treaties, § 10 right to incorporate. 5. Power conferred by treaty upon citizens of Japan to operate a hospital in this country includes the right to incorporate for that purpose, where the treaty expressly confers power to do anything incident to or necessary for trade upon the same terms as native subjects.

[No. 13.]

Argued April 13, 1928. Reargued October 9, 1928. Decided November 19, 1928.

ON

N WRIT of Certiorari to the Supreme Court of the State of California to review a judgment granting a writ of mandamus to compel the Secretary of State to file articles of incorporation for the operation of a hospital. Affirmed.

See same case below, 201 Cal. 236, 53 A.L.R. 1279, 256 Pac. 545.

The facts are stated in the opinion. Mr. U. S. Webb, Attorney General of California, argued the cause, and, with Messrs. Robert W. Harrison and William F. Cleary, all of San Francisco, California, filed a brief for petitioners and plaintiffs in error:

The use of land for the purpose of erecting and maintaining a hospital thereon is not the use of land for "commercial purposes" within the intendment of article 1 of the Treaty of Commerce and Navigation between the Government of the United States and the Empire of Japan, proclaimed April 5, 1911.

State v. Tagami, 195 Cal. 528, 234 Pac. 102; Lottery Case, 188 U. S. 321, 367, 47 L. ed. 492, 505, 23 Sup. Ct. Rep. 321, 13. Am. Crim. Rep. 561; Paul v. Virginia, 8 Wall. 168, 183, 19 L. ed. 357, 361; Kidd v. Pearson, 128 U. S. 1, 20, 32 L. ed. 346, 350, 2 Inters. Com. Rep. 232, 9 Sup. Ct. Rep. 6; Crescent Cotton Oil Co. v. Mississippi, 257 U. S. 129, 136, 66 L. ed. 166, 170, 42 Sup. Ct. Rep. 42, 43; Terrace v. Thompson (D. C.) 274 Fed. 841, s. c. 263 U. S. 197, 68 L. ed. 255, 44 Sup. Ct. Rep. 15.

The first error of the court below was in assuming that incorporating is "incident to or necessary for trade" within the purview of the treaty.

Terrace v. Thompson, supra; Kidd v. Pearson, 128 U. S. 1, 21, 32 L. ed. 346, 350, 9 Sup. Ct. Rep. 6, 2 Inters. Com Rep. 232; Humphreys v. McKissock, 140

U. S. 304, 312, 35 L. ed. 473, 475, 11 Sup. Ct. Rep. 779; Hollins v. Brierfield Coal & I. Co. 150 Ú. S. 371, 382, 37 L. ed. 1114, 1116, 14 Sup. Ct. Rep. 127; Hale v. Henkel, 201 U. S. 43, 74, 50 L. ed. 652, 665, 26 Sup. Ct. Rep. 370; Paul v. Virginia, 8 Wall. 168, 181, 182, 19 L. ed. 357, 360,

361.

The treaty clause granting to the citizens and subjects of Japan the right "to do anything incident to or necessary for trade upon the same terms as native citizens or subjects" merely assures to them a liberty of their own action, and does not require or compel affirmative action upon the part of others.

Dartmouth College v. Woodward, 4 Wheat. 518, 4 L. ed. 629; Crease v. Babcock, 23 Pick. 334, 34 Am. Dec. 61; Abbott v. Johnstown, G. & K. Horse R. Co. 80 N. Y. 27, 36 Am. Rep. 572; Lawrence v. Rutland R. Co. 80 Vt. 370, 15 L.R.A. (N.S.) 350, 67 Atl. 1091, 13 Ann. Cas. 475; Paul v. Virginia, supra; Head v. Providence Ins. Co. 2 Cranch, 127, 167, 2 L. ed. 229, 242.

While there is no absolute necessity that the states discriminate between persons or between citizens in the matter of entering into those contracts known as corporate charters, yet it can be easily the people thereof, possess the right to demonstrated that the several states, and do so, and that the Federal government cannot interfere with the exercise of that right, even by treaty.

33 L. ed. 642, 645, 10 Sup. Ct. Rep. 295; Geofroy v. Riggs, 133 U. S. 258, 267, French Republic v. Saratoga Vichy Spring Co. 191 U. S. 427, 439, 48 L. ed. 247, 253, 24 Sup. Ct. Rep. 145; Disconto Gesellschaft v. Umbreit, 208 U. S. 570, 581, 52 L. ed. 625, 629, 28 Sup. Ct. Rep. S. 542, 550, 23 L. ed. 588, 590; Slaughter337; United States v. Cruikshank, 92 U. House Cases, 16 Wall. 36, 74-80, 21 L. ed. 394, 408, 409; M'Culloch v. Maryland, 4 Wheat. 316, 4 L. ed. 579.

The court declined to hear Mr. J. Marion Wright, of Los Angeles, California, for respondents and defendants

in error:

In construing the words "commercial purpose" and "generally to do anything incident to or necessary for trade," a liberal construction should be given, and aliens ineligible to citizenship should be permitted to maintain sanitariums and health resorts the same as citizens are doing.

State v. Tagami, 195 Cal. 522, 234 Pac. 102; Asakura v. Seattle, 265 Ú. S. 332, 68 L. ed. 1041, 44 Sup. Ct. Rep. 515;

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