252 S.W. 404 | Mo. | 1923
Lead Opinion
This is a proceeding to restrict the use and to condemn certain rights in property along Gladstone Boulevard in Kansas City, under Ordinance No. 39946, called a "Protective Ordinance."
Owners of certain property abutting on Gladstone Boulevard and within a benefit district were made defendants. Five defendants appeared and filed separate motions to dismiss the proceeding. The motions of two of these, Fred Liebi and T.A. Smart, with a supplemental motion of Smart, are set out in the record. The other motions are not in the record. All the motions to dismiss were sustained December 15, 1921, the cause dismissed and the plaintiff appealed.
In addition to the defendants who moved to dismiss, forty-six defendants appeared and filed their joint answer, expressing their satisfaction with the proceeding and praying the court to carry it into effect.
The proceeding affects Gladstone Boulevard from Independence Boulevard to Wheeling Avenue, a distance of about three miles. Section 1 of Ordinance No. 39946 recites that Gladstone was the first boulevard or parkway established in the city, and that all the buildings along its entire length are used exclusively for residential purposes, and that the overwhelming sentiment of the property owners immediately interested and of all citizens who desire to make Kansas City a good place to live in, is that the enactment and enforcement of the ordinance would "enhance and stabilize the value and utility of each and every piece of property within the benefit district herein prescribed and add to the beautification of said highway and North Terrace Park." Section Two of the ordinance is as follows:
"Section 2. From and after the enactment of this ordinance no house or building shall be constructed in *588 whole or in part within thirty-five feet of the nearest adjacent side line of said boulevard within twenty years from the enactment of this ordinance, nor shall any house or building within the said benefit district be used within that period for any other than residential purposes or for purposes that are incidental and appurtenant to residential uses. No bill boards shall be erected, maintained or used during that period within the said benefit district. No gasoline tank, or gasoline tanks used in connection with others having a capacity of more than one hundred gallons shall be placed at one locality within the said benefit district during said period, nor shall any gasoline filling station be erected or maintained within said district during said period."
Section 3 provides for a benefit district comprising all lands on either side of Gladstone Boulevard between Independence Boulevard and Wheeling Avenue, lying within one hundred and fifty feet of the respective side lines of said boulevard, and provides certain methods of measurement for laying out the lines.
Section 4 provides for a condemnation proceeding to determine the damage, if any, which the several property owners within the said benefit district might sustain by reason of the enactment and enforcement of the ordinance, and the manner in which the proceedings should be prosecuted.
Section 5 of the ordinance provides that damage caused by the enforcement of the ordinance should be paid for by special assessment upon real property situated within the benefit district.
Section 6 recites that the Common Council shall prescribe the terms and describe the limits within which property shall be benefited by this ordinance and assessed to pay the damages.
Section 7 provides that within a period of twenty years the ordinance could be repealed only upon petition of a majority of the owners of private property abutting upon the boulevard and within the benefit district. *589
The motions to dismiss allege numerous grounds why the proceeding should not be maintained. These may be classified in general as:
(1) Those which questioned the constitutionality of the ordinance and the proceeding. It is claimed that the ordinance and the proceeding are contrary to Sections 20, 21 and 30 of Article 2 of the Constitution of Missouri, and the Fourteenth Amendment to the Constitution of the United States. The briefs and arguments of the respondent upon this point mainly go to the provision of Section 20, Article 2, that no private property can be taken for private use except for certain given purposes, and the provision of Section 21, that property shall not be taken nor damaged for public use without just compensation.
(2) Those which asserted reasons why the proceeding is not authorized by the charter of Kansas City. Several questions are presented in considering the charter power of the city, which will be noticed later in the opinion.
On the hearing of the motion the movers introduced evidence to show that some of the buildings upon the boulevard were much nearer than the thirty-five feet. Section Two does not require buildings already on the property to be moved, but prohibits any building to be constructed within less than thirty-five feet of the nearest side line, after the enactment of the ordinance. A petition signed by one hundred and seven persons interested in the development of Gladstone Boulevard urging the immediate passage of the ordinance, and suggesting certain changes in it, was offered by the defendants to show that the petition was not in accordance with the provisions of the charter. It was shown that no other petition was on file in the office of the city clerk having reference to the subject-matter of the ordinance.
The city offered as witnesses a number of persons who owned property on Gladstone Boulevard, as well as *590 real estate men, to show that the erection of structures forbidden by the ordinance would injure the boulevard for residences. Several witnesses testified that the value of property on the boulevard would be greatly appreciated by enforcement of the ordinance; that because of benefits arising from the scheme the enhanced value of the property affected would be much more than the damages to property owners. Mr. George E. Kessler, landscape architect, gave his idea of zoning in a city:
"Q. What do you understand city zoning to be? A. An assembling of the uses of lands for their various purposes in given areas and an attempt to anticipate expansion; and in order to bring about a greater stability; and an ascertainment of this the uses of the property in a rational way throughout the city; placing of limiting lines, throughout the city in different areas; classifying their use into, principally, industrial areas, commercial areas, residential areas; and again subdividing those areas into further smaller units for different uses that would be applicable within its activities. This has usually been done on the broadest scale in recent years, say, only five or six years, under the usual State's powers, or police powers of the State, but for very many years before, both on the European Continent and in the United States, there have been efforts to bring about the same results of stability of property through the right of eminent domain, establishing building lines, establishing areas of use so that invasion of contrary uses would be checked, and thereby preventing the very great losses that have occurred in most American cities by the need of shifting from one area to another, due to unnecessary or untimely invasion of contrary uses."
It was shown that Gladstone Boulevard was essentially a residence district, and values along the boulevard were based on the use of the land for dwellings; that use for any other purpose would have a tendency to destroy values. It was said that establishment there of business enterprises would immediately reduce its value for residence purposes, including a very large *591 area immediately adjoining the property on which such business might be placed. The purpose was thus expressed:
"A. Primarily, the purpose, of course, is to give outdoor recreation. The good appearance and attractiveness is a very distinct value, not usually considered as the prime element, but is one of the large factors in establishing pleasant use. Attractive surroundings always give a greater consciousness of the better things in a community and finally through that very attractiveness increase and sustain the city's growth and the comfort and welfare of the people living, regardless of those who may come."
All this evidence was introduced without objection, generally being the opinions of real estate experts and of experts upon city planning.
The trend of the evidence was that the planning of the city in relation to the use of different parts would tend to prevent overcrowded and congested districts, thereby promoting health and the general welfare of the city, would make the city more attractive and thereby promote its growth and general prosperity — afford means of recreation to people who desired to drive or walk along such streets in the same way that a public park or playground would.
I. The propriety, expediency and necessity of a legislative act are purely for the determination of the legislative authority, and are not for determination by the courts. That applies to a municipal ordinance authorized by statute. A legalLegislative presumption of its validity attends the ordinancePower. under consideration and if there is doubt as to its constitutionality we must hold it to be constitutional. [County Court of St. Louis County v. Griswold,
II. It is contended here that Ordinance No. 39946 has not for its purpose a "public use" of the property affected, which is a matter for the determination of the courts, underPublic Use. Section 20, Article II of the State Constitution.
No satisfactory definition of the term "public use" has ever been achieved by the courts. Two different theories are presented by the judicial attempts to describe the subjects to which the expression would apply. One theory of "public use" limits the application to "employment," "occupation." A more liberal and more flexible meaning makes its synonymous with "public advantage," "public benefit." [20 C.J. p. 552, sec. 39; 1 Lewis, Eminent Domain, sec. 257; 1 Nichols, Eminent Domain, sec. 40.]
The first theory, advocated by respondents, is expressed in a quotation from Cooley on Constitutional Limitations, as follows: "The public use implies a possession, occupancy and enjoyment of land by the public at large, or by the public agencies."
Nichols on Eminent Domain (Vol. 1, pp. 130-131) thus generalizes the more liberal interpretation of the term: "Anything which tends to enlarge the resources, increase the industrial energies, and promote the productive powers of any considerable number of the inhabitants of a section of the State, or which leads to the growth of towns and the creation of new resources for the employment of capital and labor, manifestly contributes to the general welfare and the prosperity of the whole community, and, giving the Constitution a broad and comprehensive interpretation, constitutes a public use."
A little investigation will show that any definition attempted would exclude some subjects that properly should be included in, and include some subjects that must be excluded from, the operation of the words "public use."
Naturally a definition or description of the limits of "public use" is likely to vary with the character of case *593 in which the term is employed. The expenditure of public money for pure ornamentation, statuary, pictures and the like; the condemnation of property for the alleged public purpose with compensation to the owner; the enforcement of a pure police regulation for public safety where no compensation is contemplated — each of these different circumstances naturally causes a different application of the term.
As might be expected, the more limited application of the principle appears in the earlier cases, and the more liberal application has been rendered necessary by complex conditions due to recent developments of civilization and the increasing density of population. In the very nature of the case, modern conditions and the increasing interdependence of the different human factors in the progressive complexity of a community, make it necessary for the government to touch upon and limit individual activities at more points than formerly.
In order to constitute public use it is not necessary that the whole community or any large part of it should actually use or be benefitted by a contemplated improvement. Benefit to any considerable number is sufficient. [4 Words Phrases (2 Ed.) p. 44.] Nor does the mere fact that the advantage of a public improvement also inures to a particular individual or group of individuals deprive it of its public character. [West v. Whitehead, 238 S.W. (Tex.) l.c. 978; Henderson v. Lexington, 22 L.R.A. (N.S.), l.c. 80; 20 C.J. p. 558.]
III. The taking for "public use," when applied to land, is not limited to actual occupation by the public. Any regulation which imposes a restriction upon the use of property by the owner, and any neighboring public improvement which tends to impair the enjoyment of property by affecting some right or easement appurtenant thereto, may be, under certain circumstances, a public use within the meaning of the Constitution. [1 Nichols on Eminent Domain, sec. 101, p. 280; 10 R.C.L. p. 73.] *594
In the recent case of Peters v. Buckner,
Consideration of some of the cases in various jurisdictions sustaining the constitutionality of zoning ordinance is important as throwing light on the attitude of the courts regarding the subject. The validity of a statute limiting, in the city of Boston, buildings to a certain height in one part of the city and to another height in another part of the city, was attacked in the case of Welch v. Swasey,
In Attorney-General v. Williams,
In the case of State v. Houghton, 176 N.W. 159, the Supreme Court of Minnesota had under consideration the constitutionality of an act providing for residence districts in cities of the first-class and prohibiting the erection in such residence districts of certain business structures. The court reviewed the authorities at length and held the act constitutional. The opinion quotes also from an earlier Minnesota case to the effect that the term "public use" is flexible and cannot be limited to the public use known at the time of the framing of the Constitution (l.c. 161). The court thus states the historical expansion of "public use" at page 161:
"In comparatively recent times it was questioned whether a public use extended so far as to justify the condemnation of property and the expenditure of money for public parks, or for boulevards, or for pleasure drives, or for public baths, or for playgrounds, or for libraries and museums, or for numerous other purposes which contribute to the general good. Now condemnation and expenditure for these and like or similar purposes is common, and recognized as lawful. Not so very long ago there would have been a revolt against restricting a property owner in the full use of his lot to the street line. But a condemnation for the purpose of widening a street by adding a strip on each side, which is not to be used for travel, but for ornament and beauty, and with the reservation of a limited use in the owner, is held valid."
The opinion then cited many cases illustrative of the more liberal doctrine interpreting public use. *596
The Supreme Court of Massachusetts on a request of the House of Representatives of that State, gave their opinion on the constitutionality of a contemplated zoning act, and held the act would be constitutional, using this language (
That statement of the extent of the State's exercise of eminent domain is generally recognized by the authorities. [20 C.J. 519.] Other pertinent cases are Zircle v. Southern Railway Co., 102 Am. St. l.c. 813; Cochran v. Preston,
An examination of cases in this State will show this court is inclined to a more liberal application of the term "public use." As early as 1874, in considering the act establishing Forest Park entirely outside the city limits of Saint Louis, this court held that act to be constitutional. [St. Louis County v. Griswold, 58 Mo. l.c. 192-193.]
In the case of the City of St. Louis v. Hill,
In the case of St. Louis v. Dorr,
In the case of St. Louis Gunning Company v. St. Louis,
There is not a single argument or reason advanced in favor of the constitutionality of an act or an ordinance providing for a public park, or for a parkway along the street between the sidewalk and the driveway, over which the public cannot travel, which does not apply to the ordinance in this case. The parkway along *598 the street is not traveled, it is not taken in possession by the public in the sense that the public occupies it; it is merely ornamental, but tends to enhance the attractiveness of a street and the value of property upon a street. It has an educational value and promotes the physical enjoyment of people who travel the street: All of which applies to Gladstone Boulevard with the proposed restrictions.
Section 2 of the ordinance provides for a building line thirty-five feet from the street for buildings thereafter constructed; prohibits buildings other than for residential purposes, including gasoline tanks of capacity more than one hundred gallons, filling stations, and billboards. Any person damaged by such restrictions is to be compensated in the manner provided. Each and all of those restrictions, and restrictions of like character, have been held legitimate exercise of the sovereign power of the State in the interest of health, safety, morality, general enjoyment and education of the community. We hold, therefore, that the ordinance is constitutional.
IV. Another point against Section Two is urged with great pertinacity by respondents — that it is unreasonable. And they point to the general doctrine that a court willUnreasonable nullify an ordinance because of itsOrdinance. unreasonableness in its operation upon the persons affected.
Usually an ordinance will not be declared unreasonable if it is within the express power of the municipal authorities which ordain it. The question usually arises regarding a regulatory ordinance claimed to be within the merely implied powers of a municipal corporation. [Dillon on Mun. Corp. (4 Ed.) 405; Coal-Float v. Jeffersonville,
In a condemnation proceeding the court having determined that the proposed use is a "public use," the expediency and propriety of the enactment under which it is authorized are for the legislative body and not a *599
subject of judicial inquiry. [So. Ill. Mo. Bridge Co. v. Stone,
V. Respondents urge that the proceeding in this case is not within the charter powers of Kansas City. They point to Sections 40 and 41, Article 13, of the charter, as providing a method by which the purpose contemplated here may be carriedCharter through. These sections provide for buildingMethods. restrictions and for the establishment of building lines through the instrumentality of the Board of Park Commissioners. The proceeding in this case does not conform to the method provided for in those sections of the charter. A further objection to the proceeding is that this charter was adopted in 1908, and Sections 40 and 41 provide they shall not apply to any boulevard, etc., established prior to the taking effect of the charter. Gladstone Boulevard was established long before that. Neither by the terms nor by intendment can it be said that the subjects to which those sections of the charter donot apply are governed by them. If the charter of *600 Kansas City and the general laws of the State authorize the city to proceed by ordinance in the manner in which it is proceeding here, then the adoption of Sections 40 and 41 and the restriction of their operation to future thoroughfares would not prohibit the proceeding. Those sections simply provide what the municipal authorities suppose to be a practical method by which the property along future thoroughfares may be regulated. It did not prohibit nor restrict the powers of the city with regard to property along thoroughfares already established.
VI. It remains to inquire whether Kansas City under its charter and the general laws had authority to condemn property for the purpose mentioned. Section 16, Article 9, of the Constitution of Missouri, authorizes a city of more than one hundred thousand inhabitants to frame a charter for its "ownAuthorized government consistent with and subject to theby Charter Constitution and the laws of this State." Inand Statute. pursuance of that authority Kansas City adopted its charter. Section 1, Article 1, of the Charter adopted in 1908 provides that the city may "acquire by gift . . . condemnation proceeding or otherwise . . . lands or other property" for certain public purposes. The section then provides that the city might acquire in the manner aforesaid: "any property real, personal or mixed for art gallaries, museums,educational, benevolent, charitable or other public purposes,whatsoever."
It is not claimed that the provision is unconstitutional. It is certainly comprehensive enough to cover any purposes for which the city authorities might deem it necessary to condemn property, provided the use for which it was taken was a public use, and of the same general character as those specifically mentioned.
Section 8906, Revised Statutes 1919, relating to cities of more than one hundred thousand inhabitants, provides that such cities may acquire and hold by gift, etc., *601
"by the exercise of the power of eminent domain by condemnation proceedings, lands for public use" for certain public purposes mentioned, including parks, "or for any other public purpose
and to provide for managing, controlling and policing the same." Other sections of the charter also bear upon the subject and have been held by this court to invest Kansas City "with the power of eminent domain for the condemnation of property for public purposes." [State ex rel. Realty Co. v. Thomas, 278 Mo. l.c. 95; Kansas City v. Oil Co.,
Those provisions in the charter, and Section 8906, Revised Statutes 1919, are comprehensive enough to cover the ordinance and the proceedings here. The purpose is educational, means of recreation, enhancement of property values, and all those elements which promote civic pride and consequent growth and prosperity of the city.
VI. The rulings of the Federal Supreme Court in the case mentioned under Paragraph III above sufficiently answer the contention of the respondents that the proceeding here is contrary to the Fourteenth Amendment to the Federal Constitution. We have not been pointed to any reason why theFourteenth proceeding in this case is contrary to theAmendment. Constitution, nor to any reason why it is not within the powers granted to Kansas City. The order sustaining the motions to dismiss was therefore erroneous. The judgment is reversed and the cause remanded. All concur, exceptWalker, J., who dissents in separate opinion, in which DavidE. Blair, J., concurs.
Dissenting Opinion
I do not agree with the arguments adduced or the conclusion reached in the majority opinion. A review of the facts and the relevant cases since the rehearing has but confirmed my conclusion *602 that the enactment and enforcement of ordinance No. 39946, will result in the confiscation of private property for purely aesthetic purposes. A brief statement of the facts can but aid in a clearer understanding of the matter at issue. A petition was filed in the Circuit Court of Jackson County, in the name of Kansas City (hereinafter designated as appellant), but in fact by certain property owners residing along Gladstone Boulevard in said city. Others owning property on said boulevard and in the adjacent territory defined as "the benefit district" who opposed the proceedings, were made defendants (hereinafter designated as respondents). The ordinance in question has subsequently been adopted by the legislative assembly of Kansas City. This suit, therefore, involves a discussion of the right of condemnation of private property thereunder. It is contended by the appellant that the powers of eminent domain and taxation are invoked. The first, in that it seeks to condemn private property for an alleged public use; and the second, that the damages or benefits to each of the lots within the benefit district are determined, distributed and charged against said lots and to owners within the defined district and against Kansas City ratably according to the measure of the estimated benefits or damages.
The burden of the petition is that the enforcement of the ordinance "will render it impossible to desecrate Gladstone Boulevard, the Concourse, the Colonnade, and the open Plaza, connected therewith, forming a part of the convergence of Benton Boulevard with Gladstone Boulevard and St. John Avenue by the erection thereon of gasoline filling stations, billboards and cheap commercialisms." The limitations in this plea are that none of the things sought to be prevented may be erected within two hundred feet of any residence and that such restrictions "be extended as far as may be necessary to protect the park development against all inappropriate and derogatory encroachments; and that the ordinance *603 may contain condemnatory provisions such as may be deemed expedient." To this end is added a plea, purely precatory, addressed to the receivers of the street railway company and managers of oil companies, to co-operate with the city "in maintaining and preserving this first typical parkway development in accordance with the high standard of the civic aspirations in which it was conceived and laid out." To this is added a request that the park board "carry forward and complete the development of the Concourse in accordance with the original plan therefor and thus add more strikingly to the beauty of the particular locality now under consideration and to the joy the public will receive therefrom."
Omitting purely argumentative matters expressed in language much akin to that employed in the petition, the ordinance recites, among other things, that the (1) buildings along the boulevard are used exclusively for residential purposes and that the sentiment of the property owners is that the enactment and enforcement of the ordinance would enhance and stabilize the value and utility of the property within the benefit district and add to the beautification of said highway and North Terrace Park; (2) that for twenty years hereafter no building or part thereof shall be constructed within thirty-five feet of the nearest sideline of said boulevard, nor shall any building within the benefit district be used within that period for any other than residential purposes, and that no bill boards or gasoline tanks with a capacity of over one hundred gallons shall be placed at any one locality, nor shall any gasoline filling station be erected or maintained within the benefit district during said period; (3) that the benefit district shall comprise all lands lying within one hundred and fifty feet of the respective side lines of Gladstone Boulevard from Independence Boulevard to Wheeling Avenue, and within one hundred fifty feet of St. John Avenue from Gladstone east, approximately four hundred feet; (4) that a condemnation *604 proceeding should be begun forthwith and prosecuted to ascertain the damages and benefits in accordance with Article 13 of the charter of Kansas City; (5) that the damages shall be paid by special assessments upon the real property within the benefit district and just compensation assessed, collected and paid as provided in said Article 13; (6) defines the limits of the property deemed to be benefited within the benefit district; (7) provides for repeal within twenty years upon a petition of a majority of the owners of private property abutting upon the boulevard between the termini stated.
The motion filed by respondents in the circuit court to dismiss the proceeding is based upon the general ground that the charter of Kansas City does not provide for this proceeding or for the enactment of such an ordinance. The grounds of this motion are that (1) Gladstone Boulevard was established by an ordinance numbered 4972, which became effective April 7, 1893, long prior to the taking effect of the present charter of Kansas City in 1909; (2) that ordinance numbered 39946 was not recommended by the Board of Park Commissioners of Kansas City; (3) that the owners of a majority in front feet of land abutting on Gladstone Boulevard had not petitioned for the restrictions defined by said ordinance; (4) that the Board of Park Commissioners had failed to find that a majority in front feet of the lands fronting on said boulevard had petitioned for said restrictions as required by Article 13 of the charter; (5) that the Common Council had not found that the majority in front feet of the owners had petitioned for such restrictions as required by said article; (6) that the Board of Park Commissioners had not adopted a resolution establishing said restrictions, and that the ordinance failed to recite that such a resolution had been adopted by said board; (7) that upon the property affected by the ordinance there were many substantial and elegant residences which had been built for more than twenty years within twenty-five feet of the *605 nearest line of said boulevard, mostly within twenty feet thereof; that said ordinance applied only to buildings thereafter to be erected and was therefore unreasonable, oppressive and lacking in uniformity and violative of the charter of Kansas City, the Fourteenth Amendment of the Constitution of the United States, and Sections 4 and 20 of Article 2 and Clause 26 of Section 53 of Article 4 of the Constitution of Missouri; (8) that Kansas City has no lawful right to establish a building line upon the property of the respondents without their consent; (9) that there was no power under Article 13 of the charter authorizing the framing of restrictions for the exclusion of billboards, the sole authority therefor being under Article 6, Section 18, of the charter; (10) that much of the land in said benefit district did not abut upon any boulevard, parkway, road or avenue under the control or management of the park commissioners; (11) that no provision of the law of Missouri or of the charter of Kansas City conferred power upon the legislative assembly of said city to prevent the carrying on of a business over fifty feet from a boulevard of said city; that said ordinance undertook to exclude business within one hundred and fifty feet thereof; (12) that said ordinance was class legislation; (13) that it undertook to withdraw from the respondents valuable rights, and that no property in the so-called benefit district was unaffected by the proposed restrictions; that all of it suffered the same injury, was subjected to the same burden and was, therefore, damaged, but that all of the compensation therefor must come from the property thus injured and damaged; that no provision was made for the assessment of benefits against the city or against property not bearing such burden or suffering such loss; that thereby valuable property rights of respondents were confiscated and their property taken and damaged without due process of law, in violation of the Constitution of the United States and the State of Missouri (citing the sections and articles); (14) that said ordinance created no genuine benefit district *606 and did not provide for the assessment of benefits against the city at large; (15) that the proceeding was not to condemn property for parkway or boulevard purposes as authorized by Article 13 of the charter, and is not a permanent appropriation for public use; (16) that the benefit district was unreasonably small; (17) that the ordinance was beyond the city's power and contrary to the Constitution and laws of the State of Missouri in that it seeks to condemn valuable property rights, not for the use and possession of the public, but exclusively for aesthetic purposes, and is confiscatory in its nature, thereby violating the Constitution of the United States and of the State of Missouri (citing articles and sections); (18) that said ordinance constitutes an effort to take private property for private use without the consent of the owners; (19) that while in the form of proceedings in the exercise of eminent domain, it is an unlawful attempt to exercise the police power of the city to exclude from the benefit district all public buildings without compensation and in violation of the laws of the State; (20) that no assessment of benefits in said proceeding could have legal effect for the reasons aforesaid; (21) that the defendants, owners of property in said district to be charged with special benefits, object and protest against the imposition of such benefits for the reasons aforesaid. Wherefore, respondents prayed that the ordinance be declared void and the cause dismissed.
Respondent's motion to dismiss was sustained by the circuit court, from which ruling this appeal is perfected.
Article 13, Section 40, of the charter of Kansas City, cited in the foregoing motion, provides that upon a recommendation of the Board of Park Commissioners building restrictions may be established and fixed on any boulevard, parkway, road or avenue under the control and management of the park commissioners and may prohibit the carrying on of business vocations within fifty *607 feet of such boulevard, or to establish building lines, provided that no restrictions should be fixed unless the owners of a majority of front feet of the lands abutting on such boulevard or part thereof should petition therefor, stating clearly the restrictions desired, and the Board of Park Commissioners and the council should in their resolutions and ordinances find and declare that such majority had petitioned therefor, but such provisions should not apply to any boulevard, parkway or avenue established prior to the taking effect of "this charter" but only to such boulevards, parkways, roads or avenues thereafter established.
Section 41 of said Article 13 prescribes the manner in which restrictions established by ordinance may be removed upon the recommendation of the Board of Park Commissioners, which proceedings, so far as practicable, shall be the same as those required to establish such restrictions, but the manner provided shall apply only to the area covered by the original proceeding.
Section 18 of Article 6 of the charter defines the power of the Board of Park Commissioners in the prohibition of the erection of bill boards and other matters connected therewith.
While it is conceded by the city that the power to enact and enforce the ordinance numbered 39946 is not based upon or derived from either Section 18 of Article 6 or Sections 40 and 41 of Article 13 of the charter, a consideration of certain provisions of said sections becomes pertinent in the discussion of this case, which explain the setting forth of the material portions of same, notwithstanding the disclaimer of the appellants or reliance upon them for the enactment of ordinance 39946.
The attitude of the appellant in this regard in its own language is that: "This is an action in the nature of a condemnation proceeding founded upon an ordinance (No. 39946) which calls into play the sovereign powers both of eminent domain and of taxation. Eminent domain, in that Kansas City seeks to acquire, take *608 over and pay for certain property rights for public use, and the power of taxation, in that it seeks to have the amount of the damages allowed for the rights so acquired determined, distributed and charged against the several tracts of land, and the owners thereof within a defined benefit district and against Kansas City, ratably according to the measure that the benefits therefrom are enjoyed by each. The proceeding is novel only because of the character and scope of the proposed improvement, that is, of the nature of the rights sought to be acquired; otherwise than in the respect noted, well trodden and familiar paths of procedure are followed."
I. Omitting the conclusion in said statement, the correctness of which we challenge, we will confine ourselves to the powers relied upon to sustain the enactment andPrivate Use. enforcement of the ordinance and the results which of necessity must flow therefrom.
It is material, therefore, that we determine in the beginning exactly what is meant by the exercise of the power of eminent domain. A well-considered English case tells us that this phrase was not known to the common law, nor was the doctrine itself or any other application of it to be found except in the exercise of the sovereign of the perogative right to enter upon lands for the defense of the realm. [Attorney-General v. Tomline, 12 Ch. Div. 214.] The phrase is said to have been originated by Grotius in 1625, who says that "the property of subjects is under the eminent domain of the State; so that the State, or he who acts for it, may use, and even alienate and destroy such property; not only in case of extreme necessity, but for ends of public utility, to which ends those who founded civil society must be supposed to have intended that private ends should give way." [De Jure Belli et Pacis, Lib. 3, c. 20.]
Couched in terms more applicable to present conditions, eminent domain may be defined as the right of the State or Nation, or those to whom the power has been *609
delegated, to condemn private property for public use and to appropriate the ownership and possession of same for such use upon the payment to the owner of due compensation to be determined according to law. Such is the nature of the power, evident from its very terms, that it is designated as eminent domain because it is superior to all private rights and is the exercise of the sovereign authority which of necessity resides in all governments for the common benefit and welfare of their citizens. [Twelfth Street Market Co. v. Philadelphia Ry. Co.,
It embraces, says the Civil Court of Appeals of Texas, "All cases whereby authority of the sovereign power and for the public good the property of the individual is taken without his consent." [Byrd Irr. Co. v. Smythe, 146 S.W. (Tex.) 1064.]
Our own court, following the trend of the foregoing and numerous decisions of like tenor in other jurisdictions, has more than once said that the right of eminent domain is a sovereign power to be used by the sovereign or by one on whom the sovereign has conferred it for a particular use; and when conferred, it is to be treated as an invasion of the rights of the individual whose property is to be taken and, therefore, strictly construed. [Chicago Ry. Co. v. McCooey,
In Kansas City v. Oil Co., supra, GANTT, J., speaking for the court, in his usual terse style, says: "The right of eminent domain is inherent in every government. In this State it is not conferred, but is limited by the Constitution. The necessity and expediency of exercising the right are political or legislative in character; its enforcement, judicial. It is not pretended that this power is inherent in a municipality created by the State. It must be conferred by the State." *610
It is further held in this opinion, about which there is no controversy here, that the right of eminent domain is conferred on such municipalities as Kansas City by Section 16 of Article 9 of the State Constitution, and that it may be exercised under such charter provisions as have been made therefor, subject to the limitations of the State Constitution. One of these clearly defined is that "whenever an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use be really public shall be a judicial question, and as such judicially determined, without regard to any legislative assertion that the use is public." [Sec. 20, art. 2, Mo. Const.]
Moreover, whatever power of the character here under consideration has been delegated to a municipality and called into existence by its charter, within the limitations stated, must, as we have said in Telephone Telegraph Co. v. Railroad Co.,
Before considering whether the power thus required to be made manifest exists, it is necessary to ascertain and determine whether in the exercise of eminent domain, contended for by the city, it has been shown that the purpose sought to be effected by the ordinance was a public one. While not conclusive, the ordinance should be so framed as to leave no doubt as to its character and, as a consequence, the purpose of its enactment. Under the constitutional provisions above quoted (Sec. 20, art. 2), a legislative assertion that the use is public will avail nothing if upon judicial inquiry such an use is found not to exist.
First, therefore, it is pertinent that the ordinance be permitted to speak in its own behalf; not that it may be found finally lacking from its own words, but that from these the moving impulse, which actuated the minds of its framers, may be ascertained. In Section 1 the purpose defined is to "enhance and stabilize the value *611
and utility of each and every piece of property within the benefit district herein prescribed and add to the beautification of said highway and the North Terrace Park." In this delineation of character it must be admitted that a lofty purpose is defined, full worthy of a Ruskin's mind; but wherein does there appear a syllable or a word which, either in express terms or by necessary implication, authorizes the conclusion that the purpose for which the property to be affected or taken is a public one. The mere declaration, therefore, without more, as to the enhancing and stabilizing of the values of property by moving back a building line and prohibiting oil filling stations, not declared or shown to be nuisances, does not comport with what the average mind, guided by pages of precedents, would construe to be a taking of private property for public use. Instead of such use is the purpose not clearly defined in the latter part of the section, viz.: "to add to the beautification of said highway and the North Terrace Park." If for this purpose, then the action of the legislative department of Kansas City in enacting the ordinance was ultra vires and its effect nil. Certainly, it will not be gainsaid that Gladstone Boulevard was established for the use of the public and the cost of its establishment was charged as a special tax on the district affected. Under no reasonable construction of the language of the ordinance can it be said that all of the owners of property in the district will share proportionate burdens if the ordinance be enforced. While the State has delegated power to the city to condemn land for public use, this confers no power to condemn for private use. Public, as the term is used in the Constitution, means everybody; if the use is not for everybody, it is a private use. If to an individual or any number of individuals the right is given to use property in such a manner as will practically exclude the general public therefrom, it is the giving of the property to a private use and a destruction of its public service character. [Kansas City v. Hyde,
Further proof of the correctness of the conclusion that the use to which the property to be affected is not public is found in the fact that the entire control and management of such property would remain as at present in its owners. The representatives of the public, viz., the park commissioners, are not authorized to exercise any supervision over the same. A public use as defined by a well recognized treatise "implies possession, occupation and enjoyment of the land by the public at large, or by public agencies." [Cooley, Con. Lim. (7 Ed.) p. 766.] The property, therefore, although subjected to a quasi-control by the city, would remain private property and the effect of the ordinance would simply be to limit in some instances the right of private enjoyment of one's own property for the benefit of other private individuals. The law does not lend countenance to this character of proceeding.
II. The ordinance is not a zoning ordinance, and the suggestion made that the affirmance of this case will obstruct zoning is irrelevant. Public benefit might accrue from a wellZoning conceived zoning ordinance, but great detriment fromRegulation. an evil one. An invalid ordinance would be as subject to objection under the caption of a "zoning ordinance" as an evil one.
A zoning ordinance will not make that a nuisance which is not one in fact. And the power of eminent domain cannot be exercised to destroy the enjoyment of private property, even if paid for, unless the public obtains the use of it for a public purpose. Furthermore, three things must concur to effectuate a valid condemnation: (1) The public must obtain possession (Pa. Mut. Ins. Co. v. Philadelphia,
The reasons, therefore, why the proposed uses are not public are irrefutable, and are supported by a multitude of authorities. [Lewis on Em. Dom. (3 Ed.) pp. 506, 507, 508; Penn. Ins. Co. v. Philadelphia,
III. The use to which the property sought to be affected not being a public one, this should be sufficient to determine the question at issue. If it does not, however, itCharter remains to be determined despite appellants'Authority. concession to the contrary whether the charter makes any provision authorizing this proceeding.
Section 40 of Article 13 of the charter provides as we have seen for the placing of restrictions upon property abutting on boulevards, but this provision is only held applicable to such as "may thereafter be established." A portion of Gladstone Boulevard was established by an ordinance, numbered 4972, approved April 7, 1893, and this charter provision did not take effect until 1908, or fifteen years after the establishment of the boulevard. The fact that a part of Gladstone Boulevard may have been established after the charter was adopted does not remove the foregoing objection to the validity of this proceeding, which includes and comprehends within its terms the *614 boulevard in its entirety as now existing. If, therefore, the building line and other restrictions sought to be established by this proceeding are free from the limitations of the charter for a portion of said boulevard and subject to them for the remainder, then it is evident, requiring no argument or the citation of any rule of construction to sustain the conclusion, that the ordinance cannot stand. To hold otherwise would be to lend approval to a judicial amendment of the ordinance which would recognize the application of the limitation of the charter to a part of the boulevard and ignore it as to the remainder.
Other than Section 40, Article 13 of the charter, no power is found therein for the placing of restrictions upon boulevards. Unless such power expressly appears or may be necessarily implied, as we have said in more than one instance, there is no authority for its exercise. [Chicago Ry. Co. v. McCooey,
In St. Louis v. Dorr, 145 Mo. l.c. 472, we said: "It is not pretended that there is any other specific authority by which the city of St. Louis is empowered to exclude such a business avocation as that of the defendants from property fronting on, or adjacent to, any public street. Without a clear grant of such power no municipal ordinance [of the sort invoked in this case] could possibly be sustained."
To a like effect was our ruling in St. Louis v. Kaime, 180 Mo. l.c. 318: "When there are both special and general provisions, the power to pass by-laws under the special or express grant can only be exercised in the cases and to the extent, as respects those matters, allowed by the charter or incorporating act; and the power to pass by-laws under the general clause does not enlarge or annul the power conferred by the special provisions in relation to their various subject-matters. [1 Dill., Mun. Corp. (4 Ed.) pp. 392, 393.]
"This court in Ruschenberg v. Railroad,
In addition, it is required by said Section 40, Article 13, that an ordinance of the charter of 39946 be approved by the Board of Park Commissioners. Not only was this not done, but so far as the record discloses, it was never submitted to the board; nor is there a finding by the board that a majority of the abutting owners had filed the petition for the ordinance; nor was such a finding made by the Common Council; nor was there a resolution by the park board establishing the restrictions. A compliance with these requirements of the charter constituted conditions precedent to the validity of the proceeding. That they were not complied with, the record affords ample evidence, which is supplemented by the affirmative admission of counsel for the appellant that no effort was made to comply with them. However, as stated, appellant disclaims reliance upon Section 40, Article 13, and Section 41, which follows and emphasizes the limitations of the former, and seeks authority for same upon the general power of the city to condemn private property for public use. There is no such general power conferred upon the city by charter or otherwise which would authorize the Common Council to exercise the power here sought to be invoked. While it is true that the power of eminent domain is inherent in the State, it exists in subordinate sovereignties only as the same has (as in Sec. 16 of Article 9 of our Constitution) been delegated by the State; and to determine the extent to which the powers thus delegated has been exercised we look to the charters of such sovereignties. Aside from Section 40 and a further Section 18 of Article 6 of the charter of Kansas City concerning bill boards, to which *616 ordinance 39946 does not conform, we find no general organic provision in the laws of said city authorizing the proceedings here sought to be inaugurated and conducted. In addition if, as we have indicated in the foregoing discussion, the power of eminent domain inheres in the State and can only be exercised by a municipality therein as delegated to it by the State, such power is purely derivative and as such finds no resting place to sustain its exercise in the common law, but must seek its origin in the Constitution of the State; and the extent to which it may be exercised must be set forth in the charter adopted by the municipality in conformity with the Constitution. Absent therefrom such power does not exist.
IV. Although relying upon the doctrine of eminent domain to sustain its action herein, it is somewhat vaguely contended that the ordinance in question may be upheld under the exercise of the police power. This power like the mantle of thePolice Persian monarch, may, upon a cursory considerationRegulation. of same, be held to be capable of indefinite extension; but an analysis of the facts in a given case illustrative of its exercise will demonstrate that to be upheld cogent reasons must be found for the invoking of same.
So far as the public is concerned, the exercise of the police power of eminent domain usually has the same foundation, viz., a consideration of the public good. To illustrate, under the doctrine of eminent domain the State may take and acquire property deemed necessary for the public good; under the police power it may prohibit the use of such property as is not for the public good. It will be seen, therefore, as stated by the respondents that when the taking assumes the form of a prohibitory easement, as at bar, the field of operation of the two powers becomes coincident. In short, if a certain use of property may not be prohibited for the public good by the exercise of the police power, it may not be prohibited for the public good by the exercise of the power of eminent domain. A learned treatise on this subject, which derives its inspiration from many sources, thus discusses *617 these two powers: "From one point of view there is a considerable resemblance between the police power and the power of eminent domain in that each power recognizes the superior right of the community against the selfishness of individuals. . . . In the exercise of eminent domain property or an easement therein is taken from the owner and applied to public use, because the use or enjoyment of such property or easement therein is beneficial to the public; in the exercise of the police power the owner is denied the unrestricted use or enjoyment of his property, or his property is taken from him, because his use or enjoyment of such property is injurious to the public welfare." [1 Nichols, Em. Dom. (2 Ed.) pp. 53, 54.]
In an illuminative opinion by this court in St. Louis v. Dreisoerner, 243 Mo. l.c. 223, the exercise of the police power by a city was thus defined: "The police power is a necessary and wholesome faculty of municipal government, but it only extends to the regulation of employments prejudicial to the public safety, health, morals and good government of the citizenry, and it `ends where those public interests are not beneficially served thereby.' [Gunning v. St. Louis, 235 Mo. l.c. 147.] It cannot sanction the confiscation of private property for aesthetic purposes." In that case as in the one at bar it was not shown that the power sought to be exercised was for the public good in that the requirements sought to be imposed or the restrictions attempted to be created were prejudicial to the public safety, health or morals of the citizens. The court held, therefore, as we hold here, that the ordinance was bad and could not be upheld.
V. An analysis of the cases cited in the majority opinion does not sustain the conclusion reached therein. AUnreasonable synopsis of same demonstrates the correctness ofRestriction. this statement as follows:
We are not here dealing with an admittedly valuable and subsisting easement as presented in State ex rel. Meadow Park Land Co. v. Buckner,
In consideration of all of which, the judgment of the trial court should be affirmed. David E. Blair, J., concurs. *619