(dissenting in part). I agree with the result reached in each of the three cases so far as the particular buildings are concerned in view of the majority holding that the law challenged is constitutional. I cannot agree, however, with the views expressed by the majority upon which the constitutionality of this act is supported.
The majority opinion construes this law to be limited to restrictions on buildings hereafter to be erected within the corporate boundaries of cities, for if it were held to be state-ryide in its application the court would undoubtedly have to hold it unconstitutional as an unreasonable and improper classification under the doctrine laid down by this court in the case of Bonnett v. Vallier, 136 Wis. 193, 116 N. W. 885, the Tenement House Law.
So far as the claimed purposes of the law are concerned, namely, the exercise of the police power of the legislature for the health, safety, or welfare of the general public, it is, as now construed, a purely arbitrary classification, for it is held to apply only to assemblages of peoples and dwellings which so happen to be within the corporate boundaries of one particular class of municipal corporations, namely, cities; while excluding from its operation the same, or in many instances larger, numbers of peoples and dwellings that may be found within incorporated villages. That a classification between larger, 'and smaller communities is *536proper and may be made under the police power the basis for discrimination as to inclusion or exclusion is unquestioned. That was expressly so decided in upholding the law requiring different conditions in the carrying on of pharmacies in communities of over 500 inhabitants from those in smaller communities in State v. Evans, 130 Wis. 381, 110 N. W. 241.
But the classification now established cannot be placed upon the theory of including the large and excluding the small communities of the state or upon any theory as to the density of population. The foregoing is demonstrated by a compilation from the Wisconsin Blue Book of 1923, based upon reports as to the population in the respective communities in 1920. (Some of the incorporated villages are excluded in this tabulation because they are reported without giving their populations.) The table is as follows:
Number Number of fourth- of incor-class cities, porated villages.
With population of less than 500 ... 1 151
With population of between 500 and 1,000 ... 9 120
With population of between 1,000 and 1,500 ... 12 29
With population of between 1,500 and 2,000 ... 24 4
With population of over 2,000 ... 69 4
Total ...115 308
By this law the one city of the first class, Milwaukee, is placed separately, presumably because of its large population. Included with the cities of the fourth class shown above are also included by this law three cities of the second class containing a population of over 40,000 and less than 150,000, and seventeen of the third class containing a population of between 10,000 and 40,000 inhabitants.
If this law is founded upon the idea of the protection of the people of the state from harm to life or health, then it would surely seem that a fair and reasonable exercise of this great police power of the state should furnish to any *537one community of 2,000 people the same protection against the, evils at which the law is aimed as is furnished any other community of an equal number of inhabitants. The law as here construed, however, gives this protection to one community because it is a city and excludes it as to the other because it is not a city. Yet Main street in the one is precisely similar with Main street in the other, and which is within a city and within the law and which within a village and without the law cannot be told by the naked eye.
If the legislature had intended to make this much narrower classification than an ordinary reading of the statute would indicate and is done by the majority opinion, it would have been extremely easy for the legislature to have done so. That they so omitted to do is plain from an inspection of the law itself. That they did not want to so limit it is almost demonstrated by an incident in the history of the passage of this act through the legislature. At one time a substitute amendment was presented and defeated identical with the law as it now stands except' that the penalty clause was not therein inserted, and that, in what is now sec. 2, the significant words “In all cities” were inserted to precede the phrase in the paragraph as it now stands, reading, “except in cities of the first class.” The reason for the defeat of such substitute amendment which would have made the legislative act read precisely as the court now reads it ■ does not appear. But the fact remains that the words “In all cities” were read out by the legislature and are now read in again by the court.
I think also that the giving to grain and coal elevators, sugar refineries, and cement works the right to build to heights necessarily deemed dangerous and excessive, while prohibiting all other industries or enterprises from doing the same thing, is a purely arbitrary classification and clearly within what was condemned by this court in the peddlers’ license law passed upon in State v. Whitcom, 122 Wis. 110, 99 N. W. 468.
*538Under the present general charter law of this state, a law which it took a number of years to construct and under which apparently all of our cities but Milwaukee and Madison are now operating, permission is given to create by ordinance “a city plan commission” with power to suggest plans for the general improvement of the city. Sub. (1), (2), sec. 62.23, Stats. The councils of such cities may regulate by ordinance industrial districts and the regulating or prohibiting any particular industry or use of building therein, sub. (5), sec. 62.23; may regulate the sise of buildings hereafter erected, sub. (6); and may establish fire limits, sub. (7); and provide for a board of appeals to review orders made under such provisions, sub. (8).
The law here upheld may hereafter seriously curtail the powers given for regulating building by the general charter law, supra. Baraboo v. Dwyer, 166 Wis. 372, 165 N. W. 297.