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 co-partners 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 feat 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 seventytwo, seventy-three, seventy-four, seventy-five, seventy-six, seventy-seven, eighty-three, eightyfour, 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."

(1-3) 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 constiutes 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 re

"Nor as a police regulation is it essential that its provisions should be applicable to all parts of the commonwealth. Density of popu lation is itself an element which may increase the danger to be provided against, and which in any locality may justify the interference of the Legislature and relieve it from the objection that its action is partial and unequal. The same rule is provided for all, to be applied only where from the surrounding circumstances there is the same exposure. Commonwealth v. Alger, 7 Cush. 53; Baker v. Boston, 13 Pick. 184; *Coates v. New York, 7 Cowan, 585, 604."

*

See, also, Welch v. Swasey, 193 Mass. 365, 79 N. E. 745, 23 L. R. A. (N. S.) 1160, 118 Am. St. Rep. 523.

(4) The owner's right in property when unrestricted extends not only downward under the surface to an unlimited extent, but also upwards, and the latter right, from common experience, would appear to be the more valrable. In large cities, in congested business areas, the value of property consists almost exclusively in the right of the owner to erect business and industrial structures thereon, and the well-defined distinction appears from the authorities that the unrestrictable right in such localities to build to a considerable height is greater than in residential districts. Such rule seems to follow from the necessity arising out of the situation. Welch v. Swasey, 193 Mass. 265, 79 N. E. 745, 23 L. R. A. (N. S.) 1160, 118 m. St. Rep. 523. Without such right to erect buildings to considerable height upon business reas, the ownership of property therein would become more a liability than an asset.

As is said in Commonwealth v. Clear View Coal Co., 256 Pa. 328, 331, 100 Atl. 820, L. R. A. 1:17E, 672:

"For practical purposes, the right to coal consists in the right to mine it."

And as is said in Pennsylvania Coal Co. v. Mahon et al., 43 Sup. Ct. 158, 67 L. Ed.

"What makes the right to mine coal valuable is that it can be exercised with profit. To make it commercially impracticable to mine certain coal has very nearly the same effect for constitutional purposes as appropriating or destroying it."

(5) As the value of the ownership of coal or mineral lands consists in the right to mine it, so the value of business property in a business district in a city consists in the right to use the property for business purposes, and any unreasonable police regulation restricting such right, in substance, amounts to the taking of private property for a public use, without compensation. True, in one sense such a restriction under the police power does not transfer property from the private owner to the public, as is the case where the power of eminent domain is exercised; nevertheless such restriction may be of such a nature as to practically accomplish the same result, and the distinction as above indicated with reference to the two methods sanctioned for the taking or restricting of the private right for the public use is often identical, subject only to a technical distinction.

It has also been held that any regulation which deprives any person of the profitable use of his property constitutes a taking of property and entitles him under the Constitution to compensation, unless the invasion of rights is so slight as to permit the regulation to be justified under the police power. Pumpelly v. Green Bay Co., 13 Wall. 166, 20 L. Ed. 557; United States v. Lynah, 188 U. S. 445, 23 Sup. Ct. 349, 47 L. Ed. 539; Grand Rapids v. Jarvis, 30 Mich. 308; Edwards v. Bruorton, 184 Mass. 529, 69 N. E. 328; Hutton v. Camden, 39 N. J. Law, 122, 23 Am. Rep. 203.

In Pennsylvania Coal Co. v. Mahon et al., supra, which involved the constitutionality of the so-called Kohler Act (P. L. 1921, a. 1198), forbidding the mining of anthracite coal so as to cause the subsidence of certain buildings and places, it was held that such act cannot be sustained as an exercise of the police power, so far as it affects the mining of coal under streets or cities in places where the right to mine such coal has been reserved, and it is said:

"The general rule at least is that, while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking. It may be doubted how far exceptional cases, like the blowing up of a house to stop a conflagration, go, and if they go beyond the general rule, whether they do not stand as much upon tradition as upon principle. Bow

ditch v. Boston, 101 U. S. 16, 25 L. Ed. 980. In general it is not plain that a man's misfortunes or necessities will justify his shifting the damages to his neighbor's shoulders. Spade v. Lynn & Boston Ry. Co., 172 Mass. 488, 489, 52 N. E. 747, 43 L. R. A. 832, 70 Am. St. Rep. 298. We are in danger of forgetting that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change. As we already have said this is a question of degree, and therefore cannot be disposed of by general propositions."

The opinion in the Pennsylvania Coal Company case states that the facts in that case go beyond anything reported in the books. The act was declared unconstitutional by the Supreme Court of the United States, as being in violation of the contract clause and due process clause of the federal Constitution.

(6) Whatever may be our opinion as to whether the Pennsylvania Coal Company case, above referred to, in its facts is extreme, we are convinced, however, that the facts in the instant case far exceed it from the standpoint of an infraction of private rights. Not one square foot of private property for the Capitol Square could be acquired for the purposes of the state without resorting to the power of eminent domain, nor could a single item of material be obtained by the state for the construction of the building without making proper compensation therefor. The necessity for the acquiring of property on which to build a state capitol in which are to be performed the gov ernmental functions of the state is great, and it is readily conceded that a proper building is necessary for such a purpose. It has also been deemed necessary, in order to provide a heating system for the state capitol, to cons ruct a heating plant some considerable distance from the building, so as to avoid both danger from explosion and fire. Nevertheless no one can contend that real property could be taken for this purpose without due compensation, nor could the right be acquired to construct a tunnel under private property, connecting the capitol with such plant, in order to enable such heating plant to furnish heat for the capitol, without acquiring the necessary easement under the soil of the owners of private pro”erty, pursuant to the power of eminent domain.

The public school system is guaranteed by the Constitution, and it cannot be contended to the contrary that there is anything more essential and necessary to promote the general welfare and to maintain our democratic system of government than the establishment and

maintenance of such system. Nevertheless every inch of property when acquired for such school purposes from private owners must be taken under the power of eminen: domain, and compensated for. The same may be said of public hospitals and other similar institutions.

To deprive the plaintiffs, for the purposes stated in the act of their right to erect the proposed building at the height contemplated substantially amounts to a taking of heir property right above a certain height limit. It is conceded in the answer of the defendant that the restriction included in the act not only ma terially affects the value of plaintiffs' proposed building, but also of the real estate. It would be useless to otherwise contend. Such restric tion practically amounts to the granting of an easement over and above the 90-foot height provided for in the act for the benefit of the state and its capitol, and such easement does not differ materially from the easement re quired for the tunnel, to insure the connection of the heating plant with the capitol; and the counsel for the defendant admit that the latter is properly the subject of acquirement by the power of eminent domain. If such easement underground must be obtained by condemnation, then is there any reason why the state, in order to protect its interests, should not resort to a similar proceeding to acquire what amounts to an easement above the surface of plaintiffs' property?

The government of this great state, repre senting the ideals of its citizens on the subject of a democratic form of government, cannot afford, under the guise of a police regulation, to acquire rights to private property, as is attempted by the act in the instant case, unless under the Constitution it is willing to make proper compensation therefor. This act is not designed to promote the public welfare of the private owners of property abutting upon the Capitol Square. It is solely based upon a selfish motive, and is confined to the protection, from fire, of the state's property. The state owns this property as any private citizen owns property. It constructed the capi tol building, with its vaulting dome, to a height far beyond anything contemplated by the plaintiffs in the erection of their proposed building. The building itself is one of the most beautiful in the country, and, from the standopint of cost, involved an expenditure of many millions of dollars. From an æsthetic and architectural standpoint, it stands as the equal, in the minds of many people, of any public building in the world. Notwithstanding the allegations in defendant's pleadings, it is a fact well known