" ( Hadacheck v. Los Angeles, 239 U.S. 394, 410.) It is not the function of the courts but of legislators to determine the "reasonableness, wisdom and propriety" of the regulations needed to protect the community ( South Carolina Highway Dept. v. Barnwell Bros., 303 U.S. 177, 191), and their regulatory power, as the United States Supreme Court has pointed out, governs preexisting uses ( Queenside Hills Co. v. Saxl, 328 U.S. 80; Matter of Engelsher v. Jacobs, 5 N.Y.2d 370, cert. denied, 360 U.S. 902). Recognizing, therefore, that this court may not question the need for the legislation ( Olsen v. Nebraska, 313 U.S. 236, 246) where there is found, as here, a rational basis for the legislative choice and no factual support for declaring it arbitrary ( Lincoln Bldg. Associates v. Barr, 1 N.Y.2d 413, 418-420), we do not believe that this ordinance can be declared as a matter of law to go beyond regulation to a degree which would impair its validity. The judgment appealed from, therefore, should be affirmed, with costs.
In the present case, the tablets are admittedly drugs, and as such, directly affect the health of the people of this State (cf. Matter of Engelsher v. Jacobs, 5 N.Y.2d 370). That the State can regulate and control the sale and distribution of drugs, per se, cannot be doubted ( State Bd. of Pharmacy v. Matthews, 197 N.Y. 353). Plaintiff's position, however, is that while the State may regulate the sale and distribution of drugs which are harmful, it may not do so when a drug is not harmful.
On appeal, the Appellate Division affirmed, without opinion, Justice BENJAMIN dissenting. We have long recognized that "[w]ithout zoning restrictions, the self-interest of the individual property owners will almost inevitably dictate the form of the development [within a particular] district" ( Arverne Bay Constr. Co. v. Thatcher, 278 N.Y. 222, 228); and we have defined the police power to include all reasonable restrictions upon the use of property in the hope of promoting urban and rural development according to plans calculated to advance the public welfare generally ( Matter of Wulfsohn v. Burden, 241 N.Y. 288; Arverne Bay Constr. Co. v. Thatcher, 278 N.Y. 222, 229, supra; see, also, Hesse v. Rath, 249 N.Y. 436, 438; Stevens v. Town of Huntington, 20 N.Y.2d 352, 359 [dissenting opn., BERGAN, J.]). Neverehtless, though long-range planning for zoning purposes may be a valid exercise of the police power, that power, broad though it may be ( Matter of Engelsher v. Jacobs, 5 N.Y.2d 370, 373, cert. den. 360 U.S. 902), is not plenary and must, characteristically, reasonably relate to the promotion of the health, comfort, safety and general welfare of the community ( Matter of Overhill Bldg. Co. v. Delany, 28 N.Y.2d 449; Nettleton Co. v. Diamond, 27 N.Y.2d 182; Contino v. Incorporated Vil. of Hempstead, 27 N.Y.2d 701, revg. 33 A.D.2d 1043 on the dissenting opn. at the Appellate Division; Stevens v. Town of Huntington, 20 N.Y.2d 352, supra; Barrett v. State of New York, 220 N.Y. 423): "`The ordinance * * * must find [its] justification in some aspect of the police power, asserted for the public welfare'" ( Dowsey v. Village of Kensington, 257 N.Y. 221, 228; Vernon Park Realty v. City of Mount Vernon, 307 N.Y. 493, 498-499; Arverne Bay Constr. Co. v. Thatcher, 278 N.Y. 222, 228, supra). Undoubtedly, every restriction upon the unencumbered use of property, quite apart from its professed purposes, will have an adverse effect upon its market value.
The issue is again double-edged: (1) Is the Mason Law a valid exercise of the police power and, (2) does it deprive the Industry of property without due process of law. At the outset it must be emphasized that "[t]he police power of the State is the least limitable of all the powers of government" ( Matter of Engelsher v. Jacobs, 5 N.Y.2d 370, 373, cert. den. 360 U.S. 902) and we have sustained its application to the conservation of fish and wildlife ( Barrett v. State of New York, 220 N.Y. 423, supra) and other areas of beauty and esthetics ( New York State Thruway Auth. v. Ashley Motor Ct., 10 N.Y.2d 151; People v. Stover, 12 N.Y.2d 462, app. dsmd. 375 U.S. 42 [for want of substantial Federal question]). In Barrett ( supra, at p. 428) we said: "The police power is not to be limited to guarding merely the physical or material interests of the citizen.
The Legislature, moreover, may have felt that different treatment was necessary, or justified, because of the special tax incentives afforded nonprofitmaking hospitals, or the absence of a profit motive in their continued operations. In any event, there is no evidence that the distinction was entirely arbitrary or invidious (cf. Matter of Engelsher v. Jacobs, 5 N.Y.2d 370, cert. den. 360 U.S. 902). On the other hand, one may take judicial notice from the current scene, the long-standing difference in statutory treatment long before the present statute, and the incidence and kind of litigation involving nonprofitmaking and proprietary hospitals, that the classification is reasonable.
Since this is so, since, in other words, the security required of all dealers is measured — whether under subdivision 7 or under the other security provisions of section 258-b — against this one common standard, there is no denial of equal protection of the laws. (See Matter of Engelsher v. Jacobs, 5 N.Y.2d 370, 374, cert. den. 360 U.S. 902; People v. Perretta, 253 N.Y. 305, supra; People v. Beakes Dairy Co., 222 N.Y. 416, supra; see, also, Ferguson v. Skrupa, 372 U.S. 726, 732; Morey v. Doud, 354 U.S. 457, 463-464.) The defendant's final argument — that the Commissioner may not require the escrow account to include funds to cover its purchases from co-operative associations — may be quickly answered.
We reverse. Plaintiffs have failed to meet their burden of establishing that "the regulation `is so lacking in reason for its promulgation that it is essentially arbitrary'" (Ostrer v Schenck, 41 N.Y.2d 782, 786, quoting Matter of Marburg v. Cole, 286 N.Y. 202, 212; see, Dake v. Bowen, 134 A.D.2d 684, 686). Because there is no suspect class or fundamental right involved here, the regulation will be upheld on equal protection grounds if it is rationally related to the achievement of a legitimate State objective (Trump v. Chu, 65 N.Y.2d 20, 25, appeal dismissed 474 U.S. 915). Under due process analysis, the provision will withstand the constitutional attack if it is "reasonable in relation to its subject and adopted in the interests of the community" (Treyball v. Clark, 65 N.Y.2d 589, 590). The regulation has a rational relation to a legitimate State objective, to promote the health and welfare of residents in adult homes by increasing the minimum size of their rooms (see, Matter of Engelsher v. Jacobs, 5 N.Y.2d 370, 375, cert denied 360 U.S. 902). To accomplish this, and acting pursuant to authority found in Social Services Law § 20 (3) (d) and § 34 (3) (f) and Social Services Law article 7, respondent Commissioner of Social Services promulgated a regulation which provides for a phasing out of substandard rooms with the least possible hardship to the operators of adult homes.
The lines of authorities cited by defendants in support of the opposite conclusion do not, in our view, alleviate the constitutional jeopardy in which the Act is placed by denial of full reimbursement. Regulation of space allotted to hospital beds, although impacting on hospital revenues ( see, Matter ofEngelsher v Jacobs, 5 N.Y.2d 370, cert denied 360 U.S. 902), clearly falls within the valid end of the "gamut [of governmental interference with use of private property] from out-right condemnation for which compensation is expressly provided to the regulation of the general use of land remaining in private ownership" ( Lutheran Church v City of New York, supra, p 128). In such cases, no significant destruction of the productive value of the property has taken place ( see, Matter of Keystone Assoc. v Moerdler, 19 N.Y.2d 78, 88).
We have previously concluded that municipalities have the authority to exempt certain classes of vehicles from metering requirements (1971 Op Atty Gen [Inf] 134). The exempt classification may not be arbitrary and must have a substantial and reasonable relation to the accomplishment of a legitimate governmental purpose ( Alevy v Downstate Medical Center, 39 N.Y.2d 326, 332). Furthermore, all persons in the exempt class must be similarly treated, otherwise the classification may be attacked as violative of equal protection rights ( Engelsher v Jacobs, 5 N.Y.2d 370, 374). Under the present circumstances, the village could be seen as creating an exempt classification, granting an initial half hour of parking time for all vehicles. The purpose is to encourage and facilitate parking, shopping and commerce in the Village of Clayton, and would thus appear to serve a legitimate public purpose. If all members of the class are receiving equal treatment, that is, if everyone gets the free half hour, it is our opinion that there is no basis for challenging the courtesy system.
This outcome perhaps inevitably follows whenever a decision hinges on the adoption of one of several alternative tests; it seems particularly unfortunate when constitutional issues of immense importance hang in the balance. There are signs that the Supreme Court is retreating from the use of all three tests (Rostker v. Goldberg, supra, pp ___, 2658-2659 [claim of gender-based discrimination]; Schweiker v. Wilson, 450 U.S. 221, 230-234 [claim of mentally ill patients for Social Security benefits]; Jones v. Helms, 452 U.S. 412, ___, 101 S Ct 2434, 2442 [claim that right to travel was violated]) to return to the standard of persons similarly situated under law receiving dissimilar treatment, a standard adhered to in the past by our courts (see, e.g., Matter of Engelsher v. Jacobs, 5 N.Y.2d 370, 374; Matter of Greenburgh No. 11 Federation of Teachers v Helsby, 41 A.D.2d 329, 330-331 [COOKE, J.]). Nevertheless, I am in accord with Justice LAZER'S conclusion that presently the three tests exist concurrently.