State ex rel. Carter v. Harper

• Decision Date: 11 December 1923
• Citation: State ex rel. Carter v. Harper, 182 Wis. 148, 196 N. W. 451 (Wis. 1923)
• Parties: STATE EX REL. CARTER v. HARPER, BLDG. COM'R.
• Court: Wisconsin Supreme Court

182 Wis. 148

196 N.W. 451

STATE EX REL. CARTER

v.HARPER, BLDG. COM'R.

Supreme Court of Wisconsin.

Dec. 11, 1923.

Appeal from Circuit Court, Milwaukee County; Oscar M. Fritz, Judge.

Mandamus by the State, on the relation of Charles Carter, against William D. Harper, Building Commissioner of the City of Milwaukee, to compel the issuance of a building permit.Judgment for defendant, and relator appeals.Affirmed.

Mandamus to compel the issuance of a building permit.The relator is in the wholesale and retail milk and dairy products business in the city of Milwaukee.In September, 1919, he purchased a lot and erected thereon a building which he is using as a dairy and milk pasteurizing plant.During the summer of 1921he found that his business had outgrown the capacity of his plant to such an extent that it became impossible for him to conduct his business in said building in accordance with city and state health regulations.He made application to the inspector of buildings of the city of Milwaukee for a permit to erect an addition to the present building.The application was denied, for the reason that the proposed addition to the building was in violation of the terms of the so-called zoning ordinance of the city of Milwaukee, adopted pursuant to authority conferred by section 62.23, Stats.An alternative writ of mandamus issued out of the circuit court for Milwaukee county in the usual form, addressed to the inspector of buildings of the city of Milwaukee, to compel the issuance of said permit.The respondent made return, setting forth the so-called zoning ordinance, to which return the relator demurred.The demurrer was overruled, and judgment ordered quashing the alternative writ and dismissing the relation.From the judgment thus entered, this appeal is taken.Gugel & Greenthal, of Milwaukee, for appellant.

John M. Niven, City Atty., and Charles W. Babcock, Asst. City Atty., both of Milwaukee, for respondent.

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

The so-called zoning ordinance of the city of Milwaukee establishes within said city four classes of use districts designated: Residence districts, local business districts, commercial and light manufacturing districts, and industrial districts.Relator's property is within a residence district.The ordinance then prescribes the uses to which property within the districts so created may be devoted.The present use of relator's property does not conform to the use permitted by the ordinance in residence districts.The ordinance further provides that no building within a residence district devoted to a nonconforming use shall be enlarged unless the use is changed to a conforming use.

This is a brief statement of the provisions of the ordinance upon which the building inspector relies as a justification for the denial of the permit.That the terms of the ordinance to furnish such justification, if the ordinance is a valid regulation, is not denied by the appellant.He claims, however, that the ordinance is unreasonable and oppressive, that it deprives him of the equal protection of the laws, and takes his property without due process of law and without just compensation.

[1]The Constitution of this state (section 13, art. 1) provides that the property of no person shall be taken for public use without just compensation therefor, and the Fourteenth Amendment of the federal Constitution provides that no person shall be deprived of his property without due process of law.These provisions are intended to secure the enjoyment of most substantial and fundamental rights, and the allegation that one is being deprived of his property without just compensation or without due process of law calls for most serious consideration.It has long been settled, however, that these constitutional provisions interpose no barrier to the exercise of the police power of the state.Thus it was said in State ex rel. Kellogg v. Currens, 111 Wis. 431, 435, 87 N. W. 561, 562(56 L. R. A. 252), speaking of constitutional limitations upon legislative power:

“These limitations, however, according to all the authorities, state and federal, are to be read as not extending so far as to deprive the states of their power to so control the conduct of individuals as to protect the welfare of the community--a power commonly described as the ‘police power.’ ”

[2][3] Many declarations appear in our reports, coming from the pen of Mr. Justice Marshall, tending to create the impression that there are constitutional limitations upon the exercise of this power.State ex rel. Milwaukee Medical College v. Chittenden, 127 Wis. 468, 107 N. W. 500;Bonnett v. Vallier, 136 Wis. 193, 116 N. W. 885, 17 L. R. A. (N. S.) 486, 128 Am. St. Rep. 1061;Mehlos v. City of Milwaukee, 156 Wis. 591, 146 N. W. 882, 51 L. R. A. (N. S.) 1009, Ann. Cas. 1915C, 1102.A careful reading of these cases, however, will indicate that the constitutional limitations which were there in the mind of the court was either some express constitutional provision prohibiting certain specified legislation, or the line of reasonableness beyond which the Legislature could not go.Those cases establish the principle that whether a given situation presents a legitimate field for the exercise of the police power placing restraints upon the use of property or upon personal conduct depends upon whether the situation presents a reasonable necessity for the imposition of restraint in order to promote the public welfare, and whether the means adopted bear a reasonable relation to the end sought to be accomplished.It goes without saying that the Legislature may not, in the exercise of its police power, pass a law expressly prohibited by the Constitution.It is also accepted doctrine, we think, everywhere that laws imposing restraints interfering with the use of property or personal liberty, in the absence of some public necessity therefor, cannot be sustained.The cases cited emphasize the judicial duty and function to determine whether a given exertion of the police power is a reasonable exercise thereof.

“There must be some reasonable basis for legislative activity in respect to the matter dealt with, else the subject is outside the scope of legislative interference.However, given a subject in respect to which there is some reasonable necessity for regulation, fair doubt in respect thereto being resolved in favor of the affirmative, in case of the Legislature having so determined, the degree of exigency is a matter wholly for its cognizance.What is said as regards to legitimacy of subjects for exercise of the police power may be repeated as to appropriateness of means; while given the two elements--legitimacy of subject and appropriateness of means--the degree of interference within the boundaries of reason is for the Legislature to decide, there being left in the end the judicial power to determine whether the interference goes so far as to violate some guaranteed right--regulate it so severely as to materially impair it, reasonable doubts being resolved in favor of legislative discretion,”Mehlos v. Milwaukee, 156 Wis. 591, 600, 601, 146 N. W. 882, 885(51 L. R. A. [N. S.] 1009, Ann. Cas. 1915C, 1102).

[4] It is thoroughly established in this country that the rights preserved to the individual by these constitutional provisions are held in subordination to the rights of society.Although one owns property, he may not do with it as he pleases, any more than he may act in accordance with his personal desires.As the interest of society justifies restraints upon individual conduct, so also does it justify restraints upon the use to which property may be devoted.It was not intended by these constitutional provisions to so far protect the individual in the use of his property as to enable him to use it to the detriment of society.By thus protecting individual rights, society did not part with the power to protect itself or to promote its general well-being.Where the interest of the individual conflicts with the interest of society, such individual interest is subordinated to the general welfare.If in the prosecution of governmental functions it becomes necessary to take private property, compensation must be made.But incidental damages to property resulting from governmental activities, or laws passed in the promotion of the public welfare, are not considered a taking of the property for which compensation must be made.This has been stated over and over again, but probably as lucid a discussion of the principle will be found in C., B. & Q. Railway v. Drainage Commissioners, 200 U. S. 561, 26 Sup. Ct. 341, 50 L. Ed. 596, 4 Ann. Cas. 1175, as anywhere, where it is held, in the language of the syllabus:

“Uncompensated obedience to a regulation enacted for the public safety under the police power of the state is not taking property without due compensation, and the constitutional prohibition against the taking of private property without compensation is not intended as a limitation of the exercise of those police powers which are necessary to the tranquillity of every well-ordered community, nor of that general power over private property which is necessary for the orderly existence of all governments.”

In that case it was held that the construction of a new and larger bridge by the railroad company over a stream, made necessary by the increased flow of the stream resulting from the drainage of submerged lands (a governmental project), did not constitute a taking of property without just compensation or due process of law.Many cases are therein cited where the prosecution of governmental projects resulted in incidental damages to private property, which were held not to be compensable claims against the government, because the result of the improvements did not constitute a taking of property although they seriously interfered with the use of the property.

Except in cases of nuisance, there is a reciprocity of benefits...