181 Wis. 519 | Wis. | 1923
Lead Opinion
These actions are brought to test the validity of ch. 424 of the Laws of 1923, being sec. 4444/ of the Statutes. The law in question is set out in full in the margin.
“The police power is 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. To so hold would preclude de*523 velopment 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.” Hadacheck v. Sebastian, 239 U. S. 394, 36 Sup. Ct. 143.
“In a general way the police power extends to all the great public needs. It may be put forth in aid of what is sanctioned by usage, or held by the prevailing morality or strong and preponderant opinion to be greatly and immediately necessary to the public welfare.” Noble State Bank v. Haskell, 219 U. S. 104, 111, 31 Sup. Ct. 186.
“The police power of a state embraces regulations designed to promote the public convenience or the general prosperity as well as those to promote public health, morals, or safety; it is not confined to' the suppression of what is offensive, disorderly, or unsanitary, but extends to what is for the greatest welfare of the state.” Bacon v. Walker, 204 U. S. 311, 27 Sup. Ct. 289; Chicago, B. & Q. R. Co. v. People, 200 U. S. 561, 26 Sup. Ct. 341.
This power has been exercised to authorize the destruction of buildings without compensation to prevent the spread of conflagration. American Print Works v. Lawrence, 23 N. J. Law, 9. To prohibit the .further use of buildings and appliances for brewing purposes, although they have been erected and fitted for that purpose, and brewing was a lawful business. Mugler v. Kansas, 123 U. S. 623, 8 Sup. Ct. 273. To prohibit the erection of fences on one’s own land to gratify spite against others. Karasek v. Peier, 22 Wash. 419, 61 Pac. 33, 50 L. R. A. 345; Smith v. Morse, 148 Mass. 407, 9 N. E. 393. To prohibit the wasteful burning of natural gas by the owner. Townsend v. State, 147 Inch 624, 47 N. E. 19. To prohibit the use of artificial means by the owners of gas wells to increase the natural flow of the gas from them. Manufacturers’ G. & O. Co. v. Indiana N. G. & O. Co. 155. Ind. 461, 57 N. E. 912. To authorize dams for the purpose of reclaiming swamp lands where the effect was to oblige landowners to construct and maintain dikes to protect their lands from the water raised. Manigault v. Springs, 199 U. S. 473, 26 Sup. Ct. 127. To
Under this power businesses of various kinds within municipalities have been regulated, restricted, or prohibited, such as the manufacture of bricks, the maintenance of a livery stable, a public laundry, a garage, stone crusher, machine shop-, carpet-beating establishment, slaughter of animals, the erection of bill-boards exceeding a certain height, prohibiting the discharge of smoke, and the storing of oil. The installation of sinks and water-closets in tenement houses has been regulated and the registration of plumbers has been required. Lincoln Trust Co. v. Williams B. Corp. 229 N. Y. 313, 128 N. E. 209, and cases there cited.
The imperial nature of this power is strikingly illustrated in Hadacheck v. Sebastian, 239 U. S. 394, 36 Sup. Ct. 143, where a brick-yard consisting of a bed of clay for the manufacture of brick of a fine quality, having a value of $800,000, was abated pursuant to an ordinance of the city of Los Angeles, although at the time of its purchase by the owner it was outside of the limits of the city and distant from dwellings and other habitations, and at a time when no one expected or believed that the territory would be annexed to the city.
Legislation limiting the height of buildings pursuant to this power has been expressly upheld by the supreme court of the United States. Welch v. Swasey, 214 U. S. 91, 29 Sup. Ct. 567, affirming the decision of the supreme court of Massachusetts. Similar legislation has also been upheld by
Recently so-called zoning laws, authorizing municipalities to enact ordinances prescribing zoning districts and limiting the height and character of buildings therein, have become quite common. Such laws and ordinances enacted pursuant thereto have been sustained in Des Moines v. Manhattan Oil Co. 193 Iowa, 1096, 184 N. W. 823; In re Opinion of the Justices, 234 Mass. 596, 127 N. E. 525; Lincoln Trust Co. v. Williams B. Corp. 229 N. Y. 313, 128 N. E. 209; Ware v. Wichita, 113 Kan. 153, 214 Pac. 99, although contrary conclusions were reached in Spann v. Dallas, 111 Tex. 350, 235 S. W. 513, and in State ex rel. Lachtman v. Houghton, 134 Minn. 226, 158 N. W. 1017. We have a similar law (sec. 62.23, Stats.), and numerous cities throughout the state have enacted so-called zoning ordinances by the terms of which limitations are placed upon the height of buildings which may be erected in such cities. That this is a more scientific and satisfactory way of limiting the height and character of buildings is quite apparent. It enables the individual city to prescribe regulations which conform to local requirements and conditions and are supported by local public sentiment. In view of the general sentiment developing throughout the country favorable to such regulations, as indicated by the many states which have passed statutes authorizing cities to enact such ordinances, and the many cities which have acted under such laws, the respectable authority which has upheld such laws and ordinances as a valid exercise of the police power, and the reasoning by which we think such conclusions are supported, we are little inclined to question the constitutionality of the law under consideration.
That high buildings in densely populated areas are injurious to health and increase fire hazards, resulting in a menace to the safety of property and persons, is scarcely open to question. That the police power may be exerted to
But it is claimed that this law is not limited to cities or populous centers — that it prohibits the erection of buildings exceeding 100 feet in height in villages and farming communities. If such be the construction of the law, it would be far more difficult to uphold it as a reasonable exercise of the police power. This is true because a congestion of population must co-exist to constitute a building a menace to public health and, we think, also, to public safety; at least we have heard of no popular demand for limiting the heights of buildings in rural districts. The police power can only be put forth to meet public needs and requirements and to remedy existing evils. It caninot be exercised arbitrarily or fancifully. In order to place limitations upon the use to which an owner may devote his property, such limitations must be essential to the promotion of public interests. Besides, while there may occasionally be structures in rural
The first subsection of the law deals with cities of the first class. In such cities buildings of a height of more than 125 feet are prohibited. In drawing that subsection the legislature certainly had cities in mind. The next subsection provides : “Except in cities of the first class, no building shall be erected to more than 100 feet above the grade of the street upon or nearest which the building fronts.” It is very common for the legislature in enacting legislation applicable to cities to enact one regulation for cities of the first class and a different regulation for other cities. By sub. 1 we think it was intended to provide for cities of the first class; by sub. 2 for all other cities. If the legislature intended to extend this legislation to the country districts, the phrase “more than 100 feet above the grade of the street upon or nearest which the building fronts” is most inapt. The word “street” is not commonly used to designate , a country highway, and, in fact, buildings in the country, as a rule, seldom front on a highway. ■ Very frequently they are erected on a hill or knoll much higher than the highway, and it is quite conceivable that if the law were intended to limit buildings to a height of 100 feet above the grade of the nearest highway, many fine building spots could not be. utilized at all. This
Certain classifications of the law are also assailed. It is said that there is no reason for permitting buildings of 125 feet in cities of the first class and limiting them to 100 feet in other cities because they constitute a greater menace in the more populous than they do in the less populous communities. This is perhaps true; but the legislature was confronted with the fact that in the only city of the first class in the state numerous buildings far exceeding that height already existed and that a height of 125 feet would constitute a lesser shock to existing conditions. Legislative classification should not be condemned unless it is beyond all reason, and in the classification here under consideration we cannot say that the legislature could not reasonably take into consideration established conditions and temper their regulation somewhat with reference thereto.
Then, again, it is claimed that the exemption of grain and coal elevators, sugar refineries, and cement works from the operation of the law constitutes an arbitrary classification. It is not our task to justify these exemptions. We cannot condemn them unless they are beyond all reason, and this we do not feel warranted in saying. It may well be that these exemptions were in the legislative mind entitled to special consideration owing to the requirements of these particular industries with reference to the height of buildings, their usual location with reference to the populous portion of the city, the number of people employed therein, the material of which they are constructed, and the usual fire hazard to which they are subjected. At any rate, a similar exemption did not invalidate the statute of the state of Massachusetts, under consideration in Welch v. Swasey, 214 U. S. 91, 29 Sup. Ct. 567, although that very classification appears to have been urged to the court for the purpose of invalidating the law. See page 100 of the report of the case.
In response to the suggestion of H. L. Butler, Esq.,
It is further contended that the law is invalid because the legislature enacted it to accomplish what it failed to accomplish by sec. 4444g, Stats. 1921, which was held unconstitutional in Piper v. Ekern, 180 Wis. 586, 194 N. W. 159. There is ample reason to suspect that a desire on the part of the legislature to limit the height of buildings around the Capitol Square in the city of Madison prompted’ the enactment of this law. But the motives which prompted the legislature to exercise its power in this respect are not subject to judicial review, approval, or condemnation. State ex rel. Rose v. Superior Court, 105 Wis. 651 (81 N. W. 1046), and cases cited at pages 676 and 677; Tilly v. Mitchell & Lewis Co. 121 Wis. 1, 98 N. W. 969.
It is further argued that the law is invalid because it was not approved by the governor. It is conceded that he signed the act, but, in a memorandum attached to the act, he indulged in some criticism thereof. It is argued that the memorandum indicates that the act did not meet with his approval, and that, unless approved by him, it did not become a law. We hold his signature to the act is conclusive evidence of his approval thereof, and that a court can take no notice of the memorandum attached to the act. It is ap
Up' to this point the questions considered have 'involved the validity of the law injuriously affecting the respective defendants in the three several actions above entitled. Perhaps it should have been stated at the beginning of this opinion that because the dominant question involved in each action was the constitutionality of the statute we have considered, the actions were argued together, and it was thought proper to dispose of them in a single opinion. The question now arises whether the law applies to each of the three defendants. As the situation of each is somewhat peculiar, it becomes necessary to deal separately with the facts presented in each case.
In the Wisconsin Telephone Company Case the facts as disclosed by the answer, to which a demurrer was overruled, may be summarized as follows: Prior to 1917 the Wisconsin Telephone Company acquired certain lands in the city of Milwaukee for the purpose of housing its Broadway street central office and such additional central units as may from time to time become necessary in its proper conduct of its telephone business, and for the further, purpose of providing' office space for its principal office and for the various departments of its business and with a view to the erection thereon of a modern telephone and office building. For such purpose it caused to be designed a building 225 feet in height, to consist of sixteen stories and a basement, with a foundation building plan and architectural design suitable for a building of that height. It proceeded to the erection of eight stories of said building, placing a temporary roof above the ninth floor- and postponing the completion- of the
On April 12, 1923, the company had contracted for the structural steel at an approximate cost of $12,000. On April 2 and 13,1923, it contracted for brick for the further construction of said building to the amount of $33,334. These brick were of special sizes to conform to the architectural requirements of the building. On June 29, 1923, it had entered into a contract for additional elevators at an expense of $49,500. It had acquired a building permit from the city of Milwaukee and had actually entered upon the further construction of the building, all prior to the passage of the law. It is further alleged that the cost of the completed portion of the building was $75,000 in excess of the amount required for an eight-story building in order to make it suitable to carry the additional stories contemplated. The question is whether the law applies to this building.
The provision of the law is that “no building shall be erected,” etc. Plainly it does not contemplate the razing of buildings heretofore erected in cases above the specified heights. Just as plainly it prohibits the erection of any buildings hereafter exceeding the specified heights. It is silent concerning buildings in the process of erection at the time the law took effect. A construction of a statute which gives it a retrospective effect is not favored, and this is especially true where vested rights are affected. In 25 Ruling Case Law, 787, it is said:
“Every law that takes away or impairs rights that have vested under existing laws is generally unjust and may be oppressive. Hence such laws have always been looked on with disfavor.”
In the Hotel Wisconsin Realty Company Case the facts disclosed by the answer, to which a demurrer was overruled, may be summarized as follows: Prior to the.enactment of said ch. 424 this defendant entered upon the construction of a hotel in the city of Green Bay, designed to be 100 feet in height. Prior to the enactment of said chapter the construction of said building had progressed to the fourth floor. The defendant then decided to add a ninth story to the building, but made no application for a building permit until after the passage and publication of said act, at which time such permit was denied. The ninth story which the de
In the Piper Brothers Case the complaint, in the action which was brought to restrain them from erecting a hotel building 115 feet in height on property owned by them in the city of Madison, a demurrer to which was overruled, shows that prior to the passage of said ch. 424, to wit, on the 12th day of June, 1923, the city of Madison granted a permit to said defendants to erect a hotel building ho a height of 115 feet; that pursuant to and in reliance upon said permit said defendants proceeded with their building project, which included the erection of a building across the street from said property; that they engaged architects who prepared plans for a fire-proof building of modern construction, suitable for a hotel building, to the height of 115 feet, at considerable cost and expense to the said defendants, all prior to the enactment of said ch. 424; that said defendants arranged for the financing of the said building project upon the basis of a hotel building to the height of
• These facts place this case on middle ground as compared with the other two cases. While these defendants secured a permit and commenced building operations prior to the enactment of the law, there is no allegation that they had incurred any expense which will be lost to them if the building cannot be erected to- a height of more than 100 feet. True, it is alleged that they had actually commenced work on the project and had arranged for its financing. Whether these facts constitute vested rights entitled to judicial protection is much more debatable than the situation presented in the other cases already disposed of, and the question must rest for the most part a matter of individual opinion.
In our consideration of these cases down to this point Mr. Justice Jones took no part. Upon the question as to whether the law should be held applicable in the Piper Brothers Case the court was equally divided. Mr. Justice Jones, having no interest in the case after the question of the constitutionality of the law was decided, felt that he could properly participate in the decision of this question. As a result of his participation the court holds that the law' should not be held applicable in this case, and that the demurrer to the complaint should have been sustained. Upon this question Mr. Justice Rosenberry, Mr. Justice Crown-hart, and the writer are of a contrary view and think that the law should be held applicable.
It follows that the order appealed from in the case of
By the Court. — So ordered.
Section 1. Section 4444# of the statutes is hereby repealed.
Section 2. A new section is added to the statutes to read: Section 4444/. 1. In cities of the first class no building shall be erected to a height of more than one hundred twenty-five feet above the grade of the street upon or nearest which the building fronts.
2. Except in cities of the first class, no building shall be erected to a height of more than one hundred feet above the grade of the street upon or nearest which the building fronts.
3. The restrictions contained in this section shall not apply to grain or coal elevators, sugar refineries nor cement works. The provisions of this section shall not apply to steeples, domes, towers, belfries, statuary or other ornamentation, covered with fireproof materials and intended and used for strictly ornamental purposes. This section shall not apply to flagstaffs, chimneys, pipes, cupolas or roof houses not exceeding fifteen feet in length or width nor twelve feet in height, providing such cupolas or roof houses be covered with fireproof materials.
4. Any person, firm or corporation violating the provisions of this section shall forfeit to the state not more than one hundred nor less than twenty-five dollars for each day such violation continues. It shall be the duty of the district attorney of the county in which such violation occurs, with the aid of the attorney general, to enforce the collection of such forfeiture.
5. The erection, use or maintenance of any building in violation of the provisions of this section may be restrained at the instande of any citizen or taxpayer of this state, and upon his request it shall be the duty of the district attorney of any county wherein such violation occurs or is threatened, to institute and prosecute any necessary action to restrain such erection, use or maintenance.
Section 3. This act shall take effect upon passage and publication.
Dissenting Opinion
(dissenting in part). I agree with the result reached in each of the three cases so far as the particular buildings are concerned in view of the majority holding that the law challenged is constitutional. I cannot agree, however, with the views expressed by the majority upon which the constitutionality of this act is supported.
The majority opinion construes this law to be limited to restrictions on buildings hereafter to be erected within the corporate boundaries of cities, for if it were held to be state-ryide in its application the court would undoubtedly have to hold it unconstitutional as an unreasonable and improper classification under the doctrine laid down by this court in the case of Bonnett v. Vallier, 136 Wis. 193, 116 N. W. 885, the Tenement House Law.
So far as the claimed purposes of the law are concerned, namely, the exercise of the police power of the legislature for the health, safety, or welfare of the general public, it is, as now construed, a purely arbitrary classification, for it is held to apply only to assemblages of peoples and dwellings which so happen to be within the corporate boundaries of one particular class of municipal corporations, namely, cities; while excluding from its operation the same, or in many instances larger, numbers of peoples and dwellings that may be found within incorporated villages. That a classification between larger, 'and smaller communities is
But the classification now established cannot be placed upon the theory of including the large and excluding the small communities of the state or upon any theory as to the density of population. The foregoing is demonstrated by a compilation from the Wisconsin Blue Book of 1923, based upon reports as to the population in the respective communities in 1920. (Some of the incorporated villages are excluded in this tabulation because they are reported without giving their populations.) The table is as follows:
Number Number of fourth- of incor-class cities, porated villages.
With population of less than 500 ... 1 151
With population of between 500 and 1,000 ... 9 120
With population of between 1,000 and 1,500 ... 12 29
With population of between 1,500 and 2,000 ... 24 4
With population of over 2,000 ... 69 4
Total ...115 308
By this law the one city of the first class, Milwaukee, is placed separately, presumably because of its large population. Included with the cities of the fourth class shown above are also included by this law three cities of the second class containing a population of over 40,000 and less than 150,000, and seventeen of the third class containing a population of between 10,000 and 40,000 inhabitants.
If this law is founded upon the idea of the protection of the people of the state from harm to life or health, then it would surely seem that a fair and reasonable exercise of this great police power of the state should furnish to any
If the legislature had intended to make this much narrower classification than an ordinary reading of the statute would indicate and is done by the majority opinion, it would have been extremely easy for the legislature to have done so. That they so omitted to do is plain from an inspection of the law itself. That they did not want to so limit it is almost demonstrated by an incident in the history of the passage of this act through the legislature. At one time a substitute amendment was presented and defeated identical with the law as it now stands except' that the penalty clause was not therein inserted, and that, in what is now sec. 2, the significant words “In all cities” were inserted to precede the phrase in the paragraph as it now stands, reading, “except in cities of the first class.” The reason for the defeat of such substitute amendment which would have made the legislative act read precisely as the court now reads it ■ does not appear. But the fact remains that the words “In all cities” were read out by the legislature and are now read in again by the court.
I think also that the giving to grain and coal elevators, sugar refineries, and cement works the right to build to heights necessarily deemed dangerous and excessive, while prohibiting all other industries or enterprises from doing the same thing, is a purely arbitrary classification and clearly within what was condemned by this court in the peddlers’ license law passed upon in State v. Whitcom, 122 Wis. 110, 99 N. W. 468.
The law here upheld may hereafter seriously curtail the powers given for regulating building by the general charter law, supra. Baraboo v. Dwyer, 166 Wis. 372, 165 N. W. 297.