Piper v. Ekern

Decision Date18 June 1923
PartiesPIPER ET AL. v. EKERN, ATTY. GEN.
CourtWisconsin Supreme Court

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Dane County; E. Ray Stevens, Judge.

Action by Charles E. Piper and others against Herman L. Ekern, as Attorney General of the State of Wisconsin. From an order overruling a demurrer to the answer, plaintiffs appeal. Reversed and remanded, with instructions.

Crownhart, J., dissenting.

PER CURIAM.

It is held that section 4444g of the Revised Statutes of 1921, prohibiting the erection around the Capitol Square of buildings exceeding 90 feet in height, is unconstitutional, because it is not a valid exercise of the police power of the state, and if considered as the exercise of the power of eminent domain it is void, because it does not provide for compensation.

An injunction as prayed for in the complaint will issue. An opinion will be filed later.

JONES, J., took no part.

This is an appeal from the order overruling the general demurrer of the plaintiffs to defendant's answer. The material allegations of the complaint, in substance, are as follows:

Plaintiffs are copartners and the owners of real estate situated on the corner of Pinckney and Miflin streets, in the city of Madison, having a frontage of 44 feet on Pinckney street, and extending back on Miflin street 120 feet; that they have had plans prepared for the construction of a fireproof hotel building 115 feet high above the curb on Pinckney street, and covering said real estate, the building to be 11 stories in height; that the estimated cost of said proposed building is the sum of $350,000, and that the value of the ground, exclusive of the building, when the building shall be erected thereon, will be $150,000; that plaintiffs claim that section 4444g of the Statutes, which limits the height of a proposed building to be erected upon the so-called Capitol Square to 90 feet above the curb, is unconstitutional, and that they intend to proceed with the erection of the building in accordance with their proposed plans, notwithstanding such section, and that they have been threatened with prosecution, under the provisions of said statute, by the defendant acting in his official capacity; that in order to make the contemplated hotel enterprise a paying investment it is necessary to construct a building of the proposed height, and that if the building be limited to 90 feet in height a loss on the value of the real estate would be sustained in the sum of $50,000, and a total net loss in the income of the proposed hotel of $35,000; that the state of Wisconsin owns the so-called Capitol Square and the capitol building, in its proprietary capacity. Plaintiffs ask for relief, a permanent injunction, enjoining the defendant, in his official capacity, from attempting to enforce the provisions of said statute against them.

The defendant in his answer admits the location and ownership of plaintiffs' property, as set forth in the complaint, and the preparation of plans, but denies that the building will be of fireproof construction, alleging that the hotel building as proposed will be built of stone, wood, concrete, iron, and brick; admits that in order to provide for 200 guest rooms as shown by the plans, it would be necessary to erect a building of eleven stories, 115 feet above the curb on Pinckney street; admits the estimated cost of the proposed building; that the real estate would be more valuable with the building erected as proposed than if restricted to a height of 90 feet; that a building 115 feet in height when conducted for hotel purposes will yield a greater financial return than one 90 feet in height; admits the ownership of the Capitol Square and the capitol building, as is alleged in the complaint; alleges that the Capitol Square consists of about 15 acres of land, and that the capitol building is located in about the center of such square, and that the government and public offices, records, etc., are contained in such building, and that such building and records are of great value; that the property contained in said building is essential to the welfare of the public and the discharge by the state of its governmental functions; that the capitol building is constructed of stone, wood, steel, and other modern building material, but that the property contained therein is readily subject to destruction by fire; that to erect the building in accordance with the proposed plans would materially increase the danger and hazard to the capitol building and the contents thereof from fire; that the distance between said capitol building and the plaintiffs' premises is 387 feet; that the plaintiffs have expressed their intention to proceed with the construction of said hotel building in accordance with the proposed plans; and that the defendant has threatened to enforce the provisions of section 4444g of the Statutes.

Plaintiffs thereupon entered a general demurrer to the answer of the defendant, which demurrer the circuit court overruled, and from the order overruling said demurrer plaintiffs have taken this appeal. Additional facts are set forth in the opinion.

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

Herman L. Ekern, Atty. Gen., and Wm. R. Curkeet, Deputy Atty. Gen., for respondent.

DOERFLER, J. (after stating the facts as above).

We will first consider the attack made by the plaintiffs upon said section as being an unlawful taking of private property for a public purpose, in violation of the due process clause of the Fourteenth Amendment of the federal Constitution, and the provisions of section 13, art. 1, of the state Constitution, which provides:

“The property of no person shall be taken for public use without just compensation therefor.”

The statute in question reads as follows:

Sec. 4444g. 1. For the purpose of preventing damage to the state capitol building and state property therein because of fire hazard, no building or structure hereafter erected in the blocks, or any part thereof, surrounding state property included in the capitol park in the city of Madison, namely, blocks seventy-two, seventy-three,seventy-four, seventy-five, seventy-six, seventy-seven, eighty-three, eighty-four, eighty-nine, ninety, ninety-nine, one hundred, one hundred one, one hundred two, one hundred three or one hundred four shall exceed ninety feet in height, and exclusive of chimneys and elevator houses erected thereon, measuring from the highest point of the curb line immediately in front of any lot or lots upon which such building or structure is erected; and no building now erected or in process of erection in any such block or any part thereof shall be altered or reconstructed so that the same when completed will exceed ninety feet in height when measured as above provided.

2. Any person, firm or corporation who shall cause, allow or permit any building or structure to be erected, altered or reconstructed in violation of the provisions of this section shall forfeit the sum of twenty-five dollars for each day such violation continues.

3. The Attorney General shall enforce the provisions of this section and shall institute proper proceedings to restrain violations thereof.”

[1][2][3] Private property taken for a public purpose under the power of eminent domain is transferred to the public or to a public agency upon the payment of its reasonable ascertained value, and when private property is taken under such power it must first be established that the taking is necessary for a public use; and, second, the reasonable value must be duly established and paid. All private property is held subject to a reasonable exercise of the police power of the state, which is based on an implied restriction pursuant to which property rights may be regulated and diminished in value for the benefit of either the general public or of a certain portion of the public in a specified area. It has therefore been held, and it appears now to be firmly established, that the state may in the exercise of the public power impose regulations which limit the height of buildings to be erected in cities where such regulation is reasonably necessary for the protection of the public health, the public safety, or the public welfare. Welch v. Swasey, 214 U. S. 91, 29 Sup. Ct. 567, 53 L. Ed. 923;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; 4 R. C. L. pp. 398, 399; 6 R. C. L. p. 213; Tiedeman on State and Federal Control of Persons and Property, 754; Watertown v. Mayo, 109 Mass. 319, 12 Am. Rep. 694;People v. D'Oench, 111 N. Y. 361, 18 N. E. 862.

Such regulation affecting the owners of property in a certain area, to a large extent, is founded upon the mutual and reciprocal protection which owners of property derive from a general law, and, while in a sense a material diminution in value may result, nevertheless a reciprocal advantage accrues which in many instances it is impossible to estimate from a financial standpoint, but which nevertheless constitutes a thing of value and a compensating factor for the interference by the public with property rights.

As is said in Watertown v. Mayo, 109 Mass. 319, 12 Am. Rep. 694:

“Laws passed in the legitimate exercise of this [the police] power are not obnoxious to constitutional provisions, although in some measure interfering with private rights, merely because they do not provide compensation to the individual whose liberty is restrained. He is presumed to be rewarded by the common benefits secured. It differs from the right of eminent domain, which involves the appropriation of private property to public use, and requires, in its lawful exercise, pecuniary compensation for the loss inflicted on the owner. * * *

To a great extent the Legislature is the proper judge of the necessity for the exercise of this restraining power. It is not easy to prescribe its limit. The law will not allow rights of property to be invaded under the guise of a...

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    • United States
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    ...is not the real object and purpose of the regulation, courts will interfere to protect the rights of the citizen. Piper v. Ekern, 180 Wis. 586, 592, 194 N.W. 159, 161 (1923) (citation 26 By contrast, in Just, the supreme court concluded that a shoreland zoning ordinance prohibiting property......
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