volts. Testifying before the coroner's jury that the normal supply to plaintiff's premises was 110 volts, and, while it would be possible for him to increase the voltage to 220, this had to be done by climbing a pole and connecting another wire, and without such manipulation of the wires he could not deliver more than the normal quantity of 110 volts. There was some other evidence, not entirely clear, that the voltage might be run up to 220, but that in neither instance was the charge a dangerous one or liable to destroy human life. It further appeared by the defendants' evidence that it would require something like a charge of 1,000 or more volts to deliver a fatal stroke. If it were found, as we hold it might be under the evidence, that this woman was killed by electric shock, it follows of necessity that in some way the wiring extending into and through the basement of the house was overloaded with excessive and dangerous current, much in excess of the normal and safe supply. An accident so occurring speaks for itself and demonstrates the existence of a defect in the plant, or

in its care and management, and casts upon the defense the burden of its explanation upon some theory consistent with its exercise of due care."

It is to be observed that neither of the cases within the scope of this annotation refers to a rule, which is apparently well recognized, that the doctrine of res ipsa loquitur has been held to have no application in an action against an electric lighting company for injury sustained on account of defective wiring on private premises, where the wiring was not done by the company, but by the owner of the building under an independent contract, and was under the exclusive control of the owner, the duty of the company being merely to furnish current, it not being required to inspect the condition of the wiring of the building. Minneapolis General Electric Co. v. Cronon (1908) 20 L.R.A. (N.S.) 816, 92 C. C. A. 345, 166 Fed. 651; Harter v. Colfax Electric Light & P. Co. (1904) 124 Iowa, 500, 100 N. W. 508; Peters v. Lynchburg Light & Traction Co. (1908) 108 Va. 333, 22 L.R.A. (N.S.) 1188, 61 S. E. 745. W. A. S.

cessity of taking.

proof of ne

2. To justify a taking of property. under the power of eminent domain it must be established that the taking is necessary for a public use.

[See 10 R. C. L. 27; 2 R. C. L. Supp. 968; 4 R. C. L. Supp. 650.]

Constitutional law, § 695 power extent.

police

3. All private property is held subject to a reasonable exercise of the police power of the state, pursuant to which property rights may be regulated and diminished in value, for the benefit either of the general public, or

There was an arbitrary taking of property without any legal proceeding whatever.

Janesville V. Carpenter, supra; Mehlos v. Milwaukee, 156 Wis. 591, 51 L.R.A. (N.S.) 1009, 146 N. W. 882, Ann. Cas. 1915C, 1102; 28 Cyc. 735.

This is not a proper exercise of police power.

Freund, Pol. Power, § 143; State v. Redmon, supra.

The restraint imposed by the act is out of proportion to the danger alleged, and is unreasonable.

State v. Redmon, supra; State ex rel. Winkler v. Benzenberg, 101 Wis. 172, 76 N. W. 345; Bonnett v. Vallier, supra.

There is a vast difference between the "public purpose" which warrants a state taking property by eminent domain, and a "public necessity" which warrants the exercise of the police power to the extent of an absolute taking without compensation.

Com. v. Boston Adv. Co. 188 Mass. 348, 69 L.R.A. 817, 108 Am. St. Rep. 494, 74 N. E. 601.

Messrs. Herman L. Ekern, Attorney General, and William R. Curkeet, for respondent:

The state may protect its property by law from destruction at the hands of individuals creating possible causes of such destruction in the use of their private property.

State v. Redmon, 134 Wis. 89, 14 L.R.A. (N.S.) 229, 126 Am. St. Rep. 1003, 114 N. W. 137, 15 Ann. Cas. 408; Prentice, Pol. Power, pp. 6, 7; Freund, Pol. Power, § 3; Cochran v. Preston, 108 Md. 220, 23 L.R.A. (N.S.) 1163, 129 Am. St. Rep. 432, 70 Atl. 113, 15 Ann. Cas. 1048; Barbier v. Connolly, 113 U. S. 27, 28 L. ed. 923, 5 Sup. Ct. Rep. 357; Mehlos v. Milwaukee, 156 Wis. 591, 51 L.R.A. (N.S.) 1009, 146 N. W. 882, Ann. Cas. 1915C, 1102; Welch v. Swasey, 214 U. S. 91, 53 L. ed. 923, 29 Sup. Ct. Rep. 567, 193 Mass. 364, 23 L.R.A. (N.S.) 1160, 118 Am. St. Rep. 523, 79 N. E. 745; Atty. Gen. v. Williams (Knowlton v. Williams) 174 Mass. 476, 47 L.R.A. 314, 55 N. E. 77.

Per Curiam:

It is held that § 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 con

sidered 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.

The promised opinion was handed down on June 18, 1923, by Doerfler, J., as follows:

The appeal is from an 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 Mifflin streets, in the city of Madison, having a frontage of 44 feet on Pinckney street, and extending back on Mifflin 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 eleven 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 § 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 proIceed 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 an annual loss in the income of the

proposed hotel of $35,000; that the state of Wisconsin owns the socalled 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 attempt ing to enforce the provisions of said statute against them.

The defendant in his answer admits the location and ownership of plaintiff's 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 § 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.

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 14th Amendment to the Federal Constitution, and the provisions of § 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, seventyfour, seventy-five, seventy-six, seventy-seven, eighty-three, eightyfour, eighty-nine, ninety, ninetynine, 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

(2)

measured as above provided. 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."

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

Eminent domain-proof of necessity of taking.

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

Constitutional law-police power-extent.

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

Buildings

-limiting

ings.

the police power, height of build- 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, 53 L. ed. 923, 29 Sup. Ct. Rep. 567; Cochran v. Preston, 108 Md. 220, 23 L.R.A. (N.S.) 1163, 129 Am. St. Rep. 432, 70 Atl. 113, 15 Ann. Cas. 1048; 4 R. C. L. pp. 398, 399; 6 R. C. L. p. 213; Tiedeman, State & Fed. Control of Persons & Property, 754; Watertown v. Mayo, 109 Mass. 319, 12 Am. Rep. 694; People ex rel. Kemp 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, whilè 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 police regulation for the preservation of health or protection against a threatened nuisance; and when it appears that such is not the real object and purpose of the regulation, courts will interfere to protect the rights of the citizen.