SUPREME COURT REPORTER
:, .: 828 U.S. 80
QUEENSIDE HILLS REALTY CO., Inc.,
SAXL,.Com'r of Housing and Buildings
Sof City of New York.
Argued March 28, 1946.
Decided April 22, 1946.
I. Constitutional law <70(3)
The United States Supreme Court
passing on constitutionality of state legis
tion is not concerned with the wisdom
or need'for such legislation.'
2. Constitutional law e=I
,, :. Thestate may exercise its police pov
for protection of the safetyof persons.
3. Constitutional law 4=70(3)-
, Whatsaregulations.are needed to redi
' fire hazards in lodging houses; to the mi
mum is for state legislature to decide.
4. Consttrtttenal law =81r -
Construction of a building in full cc
pliance with existing laws does not g
owner immunity against exercise of pol
power to regulate the use thereof.
5. Constitutional law =>81-
A statute may be sustained as a pro]
exercise-of state's police power, thot
some of the objects affected by. it may,
wholly -innocent. .
6. Health- <21
The validity of state statute impos
new safety requirements with respect
existing lodging houses turns on the po%
of the legislature to deal with the p
7. Constitutional law e>278(4)
New York, statute requiring existing
: lodging-houses of nonfireproof .construc-
tion to comply with new requirements, in-
cluding installation of automatic wet pipe
sprinkler system, does not deprive owner of
property without due process of law, though
lodging house was constructed in com-
pliance with all existing building laws and
regulations, part of it is fireproof and the
remainder not dangerous to occupants, and
required installation would' cost almost one--
third of value of building. Multiple Dwell-
ing Law N.Y. 13, as amended by Laws
1944, c. 553, 4; U.S.C.A.Const. Amend. 14.
8. Constitutional law e=212 ,
v. Health =21
New York statute requiring existing-,
lodging houses of nonfireproof constructionL.
to comply with new requirements, including
: : installation of automatic wet pipe sprinkler
.' system, does not deny equal protection of'
the laws merely because it applies only to .
existing lodging houses and not to similar_
houses which may be erected or converted.
in to use as lodging houses in the future, ina;-,
la- the absence of showing that lodging houses:
of to. which the statute does not apply .are.
actually in existence; Multiple Dwellin
Law N.Y. 13, as amended by Laws 1
c. 553, 4; U.S.CA.Const. Amend. 14.
rer -. i
9. Constitutlonal law =211 ,
S A state legislature may attack an;ex
isting evil without taking account of new
ice. and hypothetical inequalities that may com`
ni- into existence as time passes or as cond
tions change.-: .-... ;
:T 10. Evidence S=20(1)
im- --' That due to war conditions there l~.as
ive been little construction in the lodging housc.
ice field in recent years is common knowledge_:
II. Constitutional law C=211 -
Lack of equal protection of the laws
per in violation of Fourteenth Amendment must -
igh be found in the actual existence of anj
be invidious discrimination, and not in thch
mere possibility that there will be -like-or'
similar cases which will be treated more
leniently. U.S.CA.Const. Amend. 14. ,*
Appeal from the Court of Appeals of the;
State of New York.
Action by Queenside Hills Realty' Com
pany, Inc., against T. Newton Saxl, a.
Commissioner of Housing and Buildings'otf
the City of New York, for a declaratota
judgment holding Laws N.Y.1944, c. 553
4, amending Multiple Dwelling Law N-Y.
13, by requiring lodging houses of non-u
fireproof construction, existing prior to en-,
actment of such amendment, to comply witft4
new requirements, including installatioqfol
automatic wet pipe sprinkler system.
constitutional and restraining its enforce
ment. A judgment-of the Appellate Divi
sion, Queenside Hills Realty Co. v. Wilson,
269 App.Div. 691, 54 N.Y.S2d 394, affirm-'
ing a judgment of the Supreme Courtdis.
missing the complaint was affirmed by th
QUEENSIL- HILLS REALTY CO. Y. SAXL
Cite-" as .CL &s
Court of Appeals, 63 N.E2d 116, 294 N.Y.
917, which in 64 N.E2d 278, 295 N.Y.
567, denied a-motion for, reargument but
amended the remittitur so as to show that
questions involving the-Fourteenth Amend-
ment to the. Constitution--of- the 'United
States were presented and necessarily
S passed upon, and the Realty: Company ap-
peals. .-.- -:
Affirmed. v,:;' .-; .. .: .... .
Mr. George G. Lake, of New York City,
for appellant. .-..
Mr. Edward :G.. Griffinof. :New. York
City, for appellee., -. .
Mr. Ju st DOUGLAS delivered the
S opinion of the Court._ :" "
In 1940 age'lant constructed.a four story
building on thefBowery in NewYork:City
and since that time has operated it as. a
lodging J.) Ise- Itwas.-constructed. so as
to comply with: all: the. laws.applicable .to
S such lodging; houses.. and in. force at that
S time.. New York amended -its Multiple
Dwelling Law in 1944,2 providing, inter
alia, that lodging houses "of non-fireproof
construction: existing prior..to-the. enact-
ment of- this subdivision"' should comply
with certain new requirements.4 Among
these was the installation of an automatic
wet pipe. sprinkler system.. Appellant re-
ceived notice to comply with. the new re-
quirements and thereupon.,.instituted this
suit in the New York courts for a declara-
tory judgment holding these provisions of
the 1944 law unconstitutional and restrain-
ing their enforcement.
a 8 .
The. bill alleged that the building was
safe for occupancy as a lodging house and.
did not constitute a-fire hazard or a danger
to the occupants; .that it complied with all
building laws and regulations at the time of
its construction; that part of it was fire-
proof and that the rest was so constructed
as not to be dangerous to occupants; that
the regulations existing prior to 1944 were
adequateiaid- sufficient- to prevent loss -of
life in lodging houses of this particular
type. It was further alleged that this
lodging house hasa. market value of about
$25,000, 'that 'the. cost of complying with
the 1944 law would be about $7,500;" and
that. the benefits to. be- obtained by the
changes were negligible. By reason of
those circumstances the 1944 law was al-
leged to:violate the due process clause of
the Fourteenth Amendment. It was also
alleged to. violate the equal protection
clause of the Fourteenth Amendment since
it was applicable to lodging houses "exist-
ing" prior to the 1944 law but not to iden-
tical structures erected thereafter. Ap-
pellee answered, denying the material al-
legations of the bill, and- moved to dismiss.
The Supreme Court granted the- motion.
The Appellate Division- affirmed, without
opinion. Queenside .Hills Realty Co. v.
Wilson, 269 App.Div. 691, 54 N.Y.S2d 394.
On -appeal to 'the- Court of Appeals the
judgment was likewise affirmed without
opinion;-. Id., 294 N.Y. 917, 63 N.E2d 116:
The case is here on appeal, the Court of
- Appeals.' having-certified by its. remittitur
that questions involvingg ::the. Fourteenth
Amendment were presented and necessarily
passed upon.- Ild, 295 N.Y. 567, 64 N.E2d
278 .1;! t ; ;4 -.
[1-7] Little need be said on the due
process question. We are not concerned
with the wisdom of this legislation or the
need for it. Olsen v. Nebraska, 313 U.S.
236, 246, 61 S.Ct. 862, 865, 85 LEd 1305,
133 A.LR. 1500. Protection of the safety
of persons is one of the traditional uses of
the police power of the States. Experts
may differ as to the most appropriate way
of dealing with fire hazards in lodging
houses. Appellant, indeed, says that its
Sfar from being a fire-trap, is
largely fireproof; and to- the extent that
any fire hazards exist; they' are adequately
safeguarded by a fire alarm system, con-
stant watchman service, and other safety
arrangements. But the legislature may
choose not to take the chance that human
life will be lost in lodging house fires and
adopt the most conservative- course which
science and engineering offer. It is for the
legislature to decide what regulations are
needed to reduce fire hazards to the mini-
mum. ;Many types of' social legislation
diminish .the value of the property. which
is regulated.- The extreme cases are those
where in the interest of the public safety
or welfare the -owner is prohibited :from
1 L.1929, ch. 713, Cons.L. h. 61-A.
2 L.1944, ch. 553.
4This followed a disastrous fire in an
old lodging house in New York City in
which there was a considerable loss of life.
852 6 ;PREME, COURT REPORTER
using his property. Reinman v. Little Rock,
237 U.S. 171, 35 S.Ct. 511, 59 L.Ed. 900;
Hadacheck v. Sebastian, 239 U.S. 394, 36
S.Ct. 143, 60 L.Ed. 348, Ann.Cas.1917B,
927; Pierce Oil Corp. v. Hope, 248 U.S.
498, 39 S.Ct. 172, 63: LEd. 381. We are
dealing: here with a less drastic measure;
But in no case does the owner of property
acquire immunity against exercise of the
police power because -he-constructed it in
full compliance with -the, existing laws.
Hadacheck v. Sebastian, supra, 239 U.S. at.
page 410, 36 S.Ct. at page 145, 60 L.Ed. 348,
Ann.Cas.1917B, 927. And see Chicago, B.
& Q. R..Co. v. Nebraska,.:170 U.S. 57, 18
SS.Ct.. 513,.: 42 L.Ed.. 948 .: Hutchinson v.
Valdosta.,227 U.S. 303,. 33 S.Ct. 290, 57
.* ":. L.Ed 520. The police-power is one of the
least limitable of governmental powers, and
Sin its.operation often cuts- down property
S rights. -,.Bldck v. Hirsh, 256 U.S. 135, 155,
41 .S.Ct.-458,,459, 65,L- Ed.865,I6 A.L.R.
165. -And-see Plymouth-Coal Co. v. Penn-
sylvania,,232. U.S.. 531; 34 S.Ct. 359, 58
L.Ed. 713. Appellant may have a lodging
house far less hazardous than the other
existing structures regulated by the 1944
law. Yet a statute may be sustained
through some of the objects affected by it
may be wholly innocent. "Purity Extract
& Tonic Co. v. Lynch, 226 U.S. 192, 204,
33 S.Ct. 44, 47, 57 L.Ed. 184. The question
of validity turns on the power of the legis-
lature to deal with the prescribed class.
That power plainly exists here.
Appellant's claim of lack of equal pro-
tection is based on the following argument:
The 1944 law applies only to
ing houses; if a new lodging house were
erected or if an existing building were con-
verted into a lodging house, the 1944 law
would be inapplicable.-:An exact duplicate
of appellant's building, if constructed today;
would not be under the-1944 law and hence
could be lawfully operated without the in-
stallation of a wet pipe sprinkler system.
That is said to be a denial of equal protec-
tion of the laws.
[8-11] The difficulty .is that appellant
has not shown that there.,are-in existence
lodging houses of that category which will
escape the law. The argument is based
on an anticipation that there may come
into existence a like or identical class of
lodging houses which will be treated less
harshly. But so long as that class is not
in existence; no showing of lack of equal -
protection can possibly be made. For
under those circumstances the burden which -
is on one who challenges the constitu-.
tionality of a law could not be satisfied.
Metropolitan Casualty Insurance Co. v..,
Brownell, 294 U.S. 580, 584, 55 S.Ct. 538.
540, 79 L.Ed. 1070. The legislature is en-
titled to hit the evil that exists. Patsone -
v. Pennsylvania, 232 U.S. 138, 144, 34 S.Ct.
281, 282, 58 L.Ed. 539; People of State
of New York ex rel. Bryant v. Zimmerman, .
278 U.S. 63, 49 S.Ct. 61, 73 L.Ed 184, 62 .'
A.L.R. 785;, Bain Peanut Co. v. Pinson,_
282 U.S. 499, 51. S.Ct. 228, 75 LEd. 482.
It need not take account of new and hypo-
thetical inequalities that may come into
existence as-time passes or as condition
change. -So'f far as we know; the 1944- la.
may have been designed as a stop-gap"
measure to'take-care of a pressing need
until. more-comprehensive legislation could.
be prepared.' It is common knowledge that .
due to war conditions there has been little-'2
construction in this field in recent years.
By the time new lodging houses appear
they, too, may be placed under the 1944
law; or different legislation may be adopted
to take care both of the old and the new
on the basis of parity. Or stricter stand- '
ards for new lodging houses may be adopted.
In any such case the asserted discrimina-
tion would have turned out to be fanciful,
not real. The point is that lack
of equal -.
protection is found in the actual existence:-'-
of an invidious discrimination (Truax v.-
Raich, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed.
131, L.R.A.1916D, 545, Ann.Cas.1917B, 283;
Skinner v. Oklahoma, 316 U.S. 535,'.62."
S.Ct. 1110, 86 L.Ed. 1655), not in the meire
possibility that there will be like or similar
cases which will be. treated more leniently.:
Mr. Justice RUTLEDGE concurs in the
Mr. Justice JACKSON took no part.im-
the consideration or decision of this case