Atkinson v. Piper

• Decision Date: 18 October 1923
• Citation: 195 N.W. 544,181 Wis. 519
• Parties: ATKINSON v. PIPER ET AL. STATE EX REL. BUCHHOLZ ET AL. v. HOTEL WISCONSIN REALTY CO. STATE EX REL. KLEFISCH ET AL. v. WISCONSIN TELEPHONE CO.
• Court: Wisconsin Supreme Court

181 Wis. 519

195 N.W. 544

ATKINSON

v.PIPER ET AL.

STATE EX REL. BUCHHOLZ ET AL.

v.HOTEL WISCONSIN REALTY CO.

STATE EX REL. KLEFISCH ET AL.

v.WISCONSIN TELEPHONE CO.

Supreme Court of Wisconsin.

Oct. 16, 1923.

Dissenting Opinion Oct. 18, 1923.

In Atkinson v. Piper:

Appeal from Superior Court, Dane County; O. A. Stolen, Judge.

In State ex rel. Buchholz v. Hotel Wisconsin Realty Co.:

Appeal from Circuit Court, Brown County; Henry Graass, Judge.

In State ex rel. Klefisch v. Wisconsin Telephone Co.:

Appeal from Circuit Court, Milwaukee County; John J. Gregory, Judge.

Actions by the State, on the relation of Anthony V. Klefisch and others, against the Wisconsin Telephone Company, by the State, on the relation of Frank R. Buchholz and others, against the Hotel Wisconsin Realty Company, and by L. D. Atkinson against Charles E. Piper and others. From orders overruling demurrers to the answers in first two cases, plaintiffs appeal, and from an order overruling a demurrer to the complaint in the third case, defendants appeal. Order in first case affirmed. Orders in second and third cases reversed and remanded, with directions.

Owen, Rosenberry, Crownhart, and Eschweiler, JJ., dissenting in part.

In Atkinson v. Piper:

Hall, Baker & Hall, of Madison, for appellants.

Theo. G. Lewis, Dist. Atty., and Philip G. Sanborn, Asst. Dist. Atty., both of Madison, for respondent.

H. L. Butler, of Madison, amicus curiæ.

In State ex rel. Buchholz v. Hotel Wisconsin Realty Co.:

Herman L. Ekern, Atty. Gen., Robert M. Rieser, Deputy Atty. Gen., and Raymond E. Evrard, of Green Bay, for appellants.

Olwell & Brady, of Milwaukee, for respondent.

H. L. Butler, of Madison, amicus curiæ.

In State ex rel. Klefisch v. Wisconsin Telephone Co.:

Herman L. Ekern, Atty. Gen., Robert M. Rieser, Deputy Atty. Gen., and Geo. A. Shaughnessy, Dist. Atty., Daniel W. Sullivan, Asst. Dist. Atty., and Fred C. Siebold, all of Milwaukee, for appellants.

Miller, Mack & Fairchild, of Milwaukee, for respondent.

H. L. Butler, of Madison, amicus curiæ.

OWEN, J.

These actions are brought to test the validity of chapter 424 of the Laws of 1923, being section 4444f of the Statutes. The law in question is set out in full in the margin.¹ It is claimed that the law is not a valid exercise of the police power, and that it takes private property without just compensation, contrary to the provisions of the state and federal Constitutions.

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 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.” Hadacheck v. Los Angeles, 239 U. S. 394, 36 Sup. Ct. 143, 60 L. Ed. 348, Ann. Cas. 1917B, 927.

“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, 188 (55 L. Ed. 112, 32 L. R. A. [N. S.] 1062, Ann. Cas. 1912A, 487).

“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, 51 L. Ed. 499; C., B. & Q. Ry. Co. v. Illinois, 200 U. S. 561, 26 Sup. Ct. 341, 50 L. Ed. 596, 4 Ann. Cas. 1175.

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, 590, 57 Am. Dec. 420); 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, 31 L. Ed. 205); 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, 19 N. E. 393); to prohibit the wasteful burning of natural gas by the owner (Townsend v. State, 147 Ind. 624, 47 N. E. 19, 37 L. R. A. 294, 62 Am. St. Rep. 477); to prohibit the use of artificial means by the owners of gas wells to increase the natural flow of the gas from them (Manufacturers' Gas & Oil Co. v. Indiana Natural Gas & Oil Co., 155 Ind. 467, 57 N. E. 912, 50 L. R. A. 768); 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, 50 L. Ed. 274); to prohibit one from allowing weeds to grow on his own land (St. Louis v. Galt, 179 Mo. 8, 77 S. W. 876, 63 L. R. A. 778); to limit the quantity of land any person or family may cultivate within city limits (Summerville v. Pressley, 33 S. C. 56, 11 S. E. 545, 8 L. R. A. 854, 26 Am. St. Rep. 659); to prohibit the flow of water from a private artesian well except for certain specified beneficial purposes, as irrigation or domestic use (Ex parte Elam, 6 Cal. App. 233, 91 Pac. 811); to restrict owners of private oyster beds in taking oysters from them (Windsor v. State, 103 Md. 611, 64 Atl. 288, 12 L. R. A. [N. S.] 869); to prohibit the growing of rice within city limits (Green v. Savannah, 6 Ga. 1). 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, 229 N. Y. 317, 128 N. E. 209, and cases there cited.

The imperial nature of this power is strikingly illustrated in Hadacheck v. Los Angeles, 239 U. S. 394, 36 Sup. Ct. 143, 60 L. Ed. 348, Ann. Cas. 1917B, 927, where a brickyard 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, 53 L. Ed. 923), affirming the decision of the Supreme Court of Massachusetts. Similar legislation has also been upheld by the Supreme Court of Maryland. Cochran v. Preston, 108 Md. 220, 70 Atl. 113, 23 L. R. A. (N. S.) 1163, 129 Am. St. Rep. 432, 15 Ann. Cas. 1048.

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 City of Des Moines v. Manhattan Oil Co., 193 Iowa, 1096, 184 N. W. 823, 188 N. W. 921, 23 A. L. R. 1322;In re Opinion of the Justices, 234 Mass. 597, 127 N. E. 531;Lincoln Trust Co. v. Williams, 229 N. Y. 317, 128 N. E. 209;Ware v. City of Wichita, 113 Kan. 153, 214 Pac. 99--although contrary conclusions were reached in Spann v. City of Dallas, 111 Tex. 350, 235 S. W. 513, 19 A. L. R. 1387, and in State ex rel. Lachtman v. Houghton, 134 Minn. 226, 158 N. W. 1017, L. R. A. 1917F, 1050. We have a similar law (section 62.23), 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 this law.

[1] 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 promote the public health and public safety is so well established that it is a truism in the law. Granting that the more scientific and satisfactory way of accomplishing this result, so far as high buildings in populous centers, constituting a menace to public health and safety, are concerned, is by means of the so-called zoning ordinances, it cannot be...