cult to demonstrate that a one-story building is more harmful to values of adjoining property than the vacant lot. Conservation of values does not mean increase thereof. It is one thing to say that the citizen may be required to so use his property as to conserve the values of surrounding property, and another and quite astounding proposition to say that he shall so use his property as to increase the value of surrounding property. The ordinance does not find sanction under this purpose of the act. The language, "to regulate and limit the height and bulk of buildings hereafter to be erected," is to be construed in the -buildingsordinance regulating heightincrease of land values. Statutes-construction-zoning act. light of the purposes expressed in the act. The word "limit," in its general application, means to restrict. To restrict the height of buildings in furtherance of the purposes as set out in § 1 of the act confers only the power to prescribe the height to which buildings may go, and not to compel the erection of buildings of a prescribed height. As the height of buildings in cities increases, fire hazards increase, especially where the fire equipment cannot reach fires in high buildings. "Limit," therefore, must be construed to mean "abridge, confine, and restrict," and, when used in connection with the word "height," it seems clear that the only power given by the statute to the city council is that of fixing a height above which a building shall not be erected. Appellants urge that no such restrictive meaning can be imposed on the word "regulate." In People ex rel. Goldberg v. Busse, 240 Ill. 338, 88 N. E. 831, it was held that the power to regulate does not include the power to prohibit. The language construed in that case was that of the Cities and Villages Act (Hurd's Rev. Stat. 1908, chap. 24, § 62, cl. 95), conferring upon city councils the power "to tax, license and regulate secondhand and junk stores." It was held that the word "regulate" did not give the city council the power to fix the location of junk stores. See also Huesing v. Rock Island, 128 Ill. 465, 15 Am. St. Rep. 129, 21 N. E. 558. A similar question arose in Dorison v. Saul, 98 N. J. L. 112, 118 Atl. 691. The action there was likewise for mandamus to compel the issuance of a building permit for a twostory building. A permit was refused on the ground that the zoning ordinance of the city prohibited the erection in that district of buildings of less than three stories in height. The zoning act of New Jersey was entitled, "An Act to Enable Cities to Regulate and Limit the Height and Bulk of Buildings," etc. Act April 20, 1920 (Pamph. Laws, p. 436). The act also there provided that the regulations should be for the purpose of securing safety from fire and other dangers and to promote the public health and welfare, to secure adequate light, air and convenience of access. In construing the ordinance there in question, the court said: "It seems to us that this act confers on municipalities only the power to limit the height of buildings and not to compel the erection of buildings of a prescribed height. The height of buildings in cities increases the fire hazard, especially if the fire department of the city is inadequately equipped to reach fires in high buildings. To permit a city to meet such conditions this statute was probably enacted. The use of the word 'limit,' both in the title and body of the statute, is significant. The word, it seems to us, is used in the sense of abridge, confine, and restrict. Followed by the word 'height,' it is clear that the only power given to the municipality is that of fixing a height above which a building shall not be erected. This construction is supported by the statute itself, as the statute expressly states that such regulation shall be designed to secure safety from fire and other dangers and to promote the public health and welfare, etc. Two-story buildings are cer (327 Ill. 644, 159 N. E. 225.) tainly no more subject to fire hazards than three-story buildings. Neither is the public health or welfare the better conserved by the erection of three-story buildings than two-story buildings. The prohibition of the erection on the relator's land of two-story buildings is not, we think, a power which is given by the statutes the defendants invoke. It is also not a reasonable and proper exercise of the police power, if that power can be invoked by a municipality in the absence of specific legislative authority." In Kilgour v. Gratto, 224 Mass. 78, 112 N. E. 489, the town of Lexington, Massachusetts, accepted the provisions of a certain statute giving to towns the power to regulate the inspection, materials, construction, alteration, repair, height, area, location, and use of buildings, and pursuant thereto adopted a code of building by-laws, one of the provisions of which was, in effect, that no building should be erected for use as a factory without a permit countersigned by the selectmen. It was held that such provision of the building code was not included in the power to regulate buildings and was not authorized by the act. We are of the opinion that the words "regulate" and "limit" cannot be construed ings-ordinance power to compel the Zoning-build establishing minimum height zoning act. as erection of a build-validity under ing of any specified height. This construction of the language also harmonizes with the purposes set forth in § 1 of the zoning act. struction sought to be placed on the act by appellants is correct, the act is invalid as violating the due process clauses of the state and Federal Constitutions. Counsel for appellants do not contend that this ordinance can be sustained upon the ground that it is carrying out one of the purposes expressed in the act other than that hereinbefore considered, but they say that the ordinance is authorized by the act, and that the latter is grounded on esthetic reasons and can therefore be sustained as a matter of public welfare. Whether acts of the character of zoning acts, which are sustained as a valid exercise of the police power of the state (Deynzer v. Evanston, 319 Ill. 226, 149 N. E. 790; Aurora v. Burns, 319 Ill. 84, 149 N. E. 784), may be held valid for purely esthetic reasons, is argued at length in the briefs of counsel, but it does not become necessary to decide that issue. The purposes set forth in § 1 of the act, empowering city councils to pass zoning ordinances, include the substantial purpose to protect the safety, health, comfort, morals, and welfare. A one-story building no more injuriously affects the public health, safety, comfort, morals, or welfare than a three-story or fivestory building. The promotion or protection of a refined esthetic taste is not among the purposes enumerated. The act does not authorize the section of the ordinance complained of. For the reasons herein given, the judgment of the Circuit Court was right, and that judgment is affirmed. ANNOTATION. Appellees contend that, if the con Validity of statute or ordinance prescribing minimum height of buildings. [Zoning, § 1; Buildings, § 7.] The constitutionality of statutes or ordinances limiting the height of buildings is the subject of the annotation in 34 A.L.R. 46. As there shown, the power to fix a maximum limit on the height of buildings has been frequently challenged, but there is little authority on the constitutionality of an attempt to impose a minimum limit doubtless for the reason that regulations of that character are not com mon. In the reported case (BROWN V. BOARD OF APPEALS, ante, 242) it was held that a zoning act giving a city power to regulate and limit the height of buildings, for the purpose of conserving land values did not justify the city in passing an ordinance requiring all buildings, on the building line, to be at least 40 feet high, as such an ordinance has for its purpose the increasing of land values rather than their conservation, and the power to regulate and limit the height of buildings did not give the city power by ordinance to compel the erection of buildings of a prescribed height. In brief, for the city it was contended at great length that the ordinance came within the city police power, in that it advanced the public welfare by promoting and protecting a refined esthetic taste, but the court observed that it was not necessary to decide that issue. A statute conferring upon municipalities authority to regulate, control, and prescribe the method and manner of building does not confer upon the municipality authority to prohibit by ordinance the erection of one-story buildings on a certain street. Romar Realty Co. v. Haddonfield (1921) 96 N. J. L. 117, 114 Atl. 248. In this case a city ordinance provided that no building of any kind less than two stories high shall be erected on a named street, within 80 feet of the building line, without the consent of the board of commissioners. The court observed that the ordinance was not a regulation, but a prohibition, and that to be a valid exercise of the police power it must be necessary for the public safety; that esthetic considerations would not justify the taking of private property without compensation. The court further observed that a greater possibility of fires in one-story buildings, if such a fact could be demonstrated, is not a sufficient reason to justify depriving the owner of the use of his land for onestory stores. Where a city ordinance undertook to prevent the erection of one-story buildings in the fire zone of a certain city, the court, in Mobridge v. Brown (1917) 39 S. D. 270, 164 N. W. 94, observed that there was no statutory authority for the ordinance, and hence that it exceeded the city's power. In State ex rel. Sale v. Stahlman (1917) 81 W. Va. 335, L.R.A.1918C, 78, 94 S. E. 497, the city refused to grant a lot owner a permit to construct a one-story building in the business section of the town, on the ground that it was the city's policy to require all buildings in that section to be three stories high. The city predicated its right to adopt such a policy on the ground of public safety from fire, but the court, in granting a peremptory writ of mandamus requiring the issuance of the permit, said: "Artistic, civic, and economic views of a onestory building between three- or fourstory buildings, in a section in which, as a rule, only the higher structures are put up, severely condemn it, but certain obvious laws of physics effectually exclude the assumption that it is substantially conducive to danger from fire. Of course, an open fire between tall buildings may be more dangerous, in the absence of resistance, than a smothered one, but a fire in a one-story building would not be an open one. It would be subject to the restraining influence of the roof and walls, in a manner similar to that exerted by the walls, floors, and roof of a higher structure. Besides, a low building is more accessible to firemen than a high one. The combustible matter on which the fire feeds is all near the ground and within easy reach. Water may be poured directly upon it from the windows and roofs of the adjacent and neigboring buildings. Its low altitude decreases the danger to firemen and facilitates their work. There is nothing by which the fire can spread directly upward, the direction in which it runs most rapidly, -and the volume of combustible matter is smaller than that of a higher building. Any slight tendency of a one-story building situated between higher ones to danger by fire is manifestly outweighed and reduced to nothing by these obvious and commonly known factors and principles." In Dorison v. Saul (1922) 98 N. J. L. 112, 118 Atl. 691, it was held that a city did not have authority, under a statute authorizing it to regulate and control the construction of buildings, to pro (162 La. 453, 110 So. 648.) Libel, § 149 effect of failure to reply. 1. One is not precluded from recovering damages for the publication of a libel because he failed to reply to or deny charges made against him. [See annotation on this question beginning on page 255.] 2. Rulings upon exceptions of no cause of action are at all times within the control of the court and subject to reconsideration whenever the court considers it right and proper. [See 21 R. C. L. 530.] Appeal, § 514 what open. 3. An appeal by plaintiff in an action to recover damages for libel, from a final judgment against him, brings up for review all rulings on the validity of his cause of action, although made at different times by different judges. Damages, § 214 libellost salary. 4. One whose election to office is alleged to have been defeated by the publication of a libel cannot recover as damages the salary lost. Pleadings, § 616 alleged. assumption of fact Libel, § 73 charging candidate with crime. 8. Charging a candidate for a judgeship with being an agent and a partner of a notorious criminal, and with receiving payments from gamblers and other confessed criminals, and with demanding money in the name of a city official to cover a deficit which did not exist, is libelous per se. [See 17 R. C. L. 304, 354; 3 R. C. L. Supp. 648.] Libel, § 129 campaign. a 5. The court cannot assume as fact, even though alleged in a petition excepted to as not stating a cause of action, that one's nomination to office was defeated by the publication of a libel for which he seeks damages. [See 21 R. C. L. 510.] Pleading, § 611 cause of action exception of no effect. 6. An exception of no cause of action admits for the purpose of the trial of the exception all facts that are pertinent and well pleaded in the petition. [See 21 R. C. L. 506; 3 R. C. L. Supp. 1163; 4 R. C. L. Supp. 1418; 5 R. C. L. Supp. 1162; 6 R. C. L. Supp. 1271; 7 R. C. L. Supp. 713.] Libel, § 11- what considered. 7. In determining whether or not a 9. A newspaper is not justified in publishing libelous material against a candidate to defeat his election to office. [See 17 R. C. L. 355; 3 R. C. L. Supp. 664.] 10. A candidate for a public office submits to the electorate his qualifications and fitness for the office, and his private and public life may be freely and fairly inquired into, discussed, and criticized, with the qualification that the inquiry and investigation must be in good faith and the discussion and criticism must be fair and truthful. [See 17 R. C. L. 304, 355; 3 R. C. L. Supp. 664.] Libel, § 139 of candidate electorate as final tribunal. 11. The electorate is not the final tribunal for the determination of the liability of one who libels a candidate for public office. (Brunot, J., dissents.) APPEAL by plaintiff from a judgment of the Civil District Court for the Parish of Orleans (Skinner, J.) sustaining an exception of no cause of action in an action brought to recover damages for an alleged libel. Affirmed in part. The facts are stated in the opinion Messrs. Richard B. Otero and C. S. Hebert for appellant. Messrs. Dart & Dart and St. Clair Adams, for appellees: Under the privilege protected by law, and the failure of the candidate to deny the charges, the petition clearly sets forth no cause of action for libel. Hall v. Ewing, 140 La. 907, 74 So. 190; Dimitry v. Levy, 161 La. 11, 108 So. 109; Pattangall v. Mooers, 113 Me. 412, L.R.A.1918E, p. 17, 94 Atl. 561, Ann. Cas. 1917D, 689; Pavesich v. New England L. Ins. Co. 122 Ga. 190, 69 L.R.A. 106, 106 Am. St. Rep. 104, 50 S. E. 68, 2 Ann. Cas. 561; Coleman v. MacLennan, 78 Kan. 711, 20 L.R.A. (N.S.) 376, 130 Am. St. Rep. 390, 98 Pac. 281; Pettibone v. United States, 148 U. S. 203, 37 L. ed. 422, 13 Sup. Ct. Rep. 542; Schull v. Hopkins, 26 S. D. 21, 29 L.R.A. (N.S.) 693, 127 N. W. 550. of the court. candidacy for the office of judge of section. A criminal district court, in the primary election held September 9, 1924; (2) damage to his good name, fame, reputation, and credit in the sum of $50,000; and (3) for mortification and humiliation to his feelings in the sum of $50,000. The publication complained of is alleged to have been made in said newspaper September 3d, and emphasized and enlarged in the issue of September 8, 1924, and, as set forth in the petition, is as follows: (1) That petitioner possessed neither the ability, nor the other qualifications, for said judgeship. (2) That petitioner was first a minor employee, later a full-fledged associate, of the late D. C. O'Malley; that for years he was the agent and partner of Dominick O'Malley, no Thompson, J., delivered the opin- toriously the enemy of law and orion of the court: This case comes here on appeal by the plaintiff from a judgment sustaining an exception that the petition did not disclose a cause of action, or, to state it more correctly, that the allegations of the petition disclosed that the plaintiff had no legal cause of action. The suit is for damages in the sum of $172,000 alleged to have been sustained by the plaintiff by reason of the publication of certain matters and things in the Daily States, a newspaper published in this city and having an extensive circulation, both in the city and throughout the state. The damages claimed are divided into three elements: (1) An actual financial loss of $72,000 sustained by reason of plaintiff's defeat in his der. (3) That petitioner received weekly payments from handbooks and other operators who are, fundamentally, violators of the law; that he was the recipient of weekly largesses from confessed lawbreak ers. (4) That, claiming to represent one of the city's high officials, petitioner had demanded a considerable sum of money to cover a fictitious deficit in campaign expenses; that this was confirmed to the States verbally and in writing by one of the operators; that petitioner had sought to hold-up these lawbreakers, in the name of one of our leading politicians; that these charges were reported to Washington to the Woodrow Wilson administration, subsequently when petitioner be |