*1 3927] ChRistopheR. Statu ex eel. Cadillac Co. Company
The State ex rel. Oliver Cadillac E. Chris Edward topher, Building Commissioner and John H. Director Jr., Brod, Safety, Public Appellants. of St. Louis, S. W. Banc, September Court en 27, 1927. !(cid:127) CONSTITUTIONAL PROVISION: Eminent Domain: Limitation: As Affected Damaged. Word The addition of “damaged? the word to word “taken” in Section 21 of Article 2 of the Constitution of 1875 did not broaden the limitation of this clause, eminent-domain operated only but to prior correct a error of construction of the eminent domain law. In this respect interpretation of the words of declaring that section that “private property shall damaged not be taken or just use without compensation,” ever since the Hill, decision in St. Louis v. 116 Mo. has been universally consistent with the accepted upon limitations not the law of domain, unique eminent “damaged” the word place did sep- Missouri in a arate or class to herself. Held, by GRAVES, J., dissenting, BLAIR, J., concurs, with whom that the “damaged” addition of the word to the constitutional section did consequential broaden associated with an damages the field arising wholly in cases dis- physical taking by right actual the exercise of the domain, of eminent upon and created an additional limitation property public use, use requires compensation to where for a paid to be property, though actually taken, damaged in its use to the owner.
Held, also, any existing that section was not an amendment of constitu- provision, operate previous tional nor did it to correct errors of con- struction, right, prior it but created new and nullified the decisions English which had followed rule that the owner could not recover consequential damages injury property to his caused an ordi- grade changing nance of a street. Taking Equal Damaging: --: -: -: 2. Process. out Protection: Due damaging private property A for a use with- justify just compensation, unless under circumstances which it under power, depriving general police would be owner of his denying equal protection process law and to him the of the due without laws, Amendment, Fourteenth and would also fall under in violation every nearly process in the constitution the due clause found the ban of state. city-wide ordinance, Compensation. City Zoning: An -: -: 3. in its impose seeks, power, restrictions to operation, under the compensation, through zoning, private property without the use uses, to mul- others portions residence by restricting tiple certain uses, uses industrial others to dwellings, commercial others to Enabling Act of uses, with in accordance to unrestricted others the Constitu- 21 Article Section 1925, page violate does not Laws tion, declaring damaged for taken or property shall not be “private that just compensation.” public use without ¡317. [April COURT OR Missoula, Vou. Tona, SuiutBMJs Held, by GRAVES, J., dissenting, J., BLAIR, concurs, with whom Enabling ordinance, said they Act and said provide in that for no com- pensation for property, the restricted use of violate said constitutional deny the owner a lawful use of de- section;, quality, damage of its most valuable within prive.him meaning provision; peculiar said constitutional that said *2 among constitutions, it, may American and under whatever be the hold- ings jurisdictions, private property damaged other cannot be for public just compensation. a use without impracticable: 4. CITY Eminent ZONING: Domain: Police To Power. great city through proceedings practically zone a impossible; condemnation would be police power, city it must be zoned under the or not all. A at living, thing, constantly organic changing, expanding, aas social unit is a growing, attempt residence, and to to divide it into districts restricted to uses, by power or or commercial eminent industrial condemnation under the of domain, thereby would tend to it and fossilize defeat of the es- one purposes zoning. sential of Held, by J., dissenting', GRAVES, property, that a restricted use under guise police power through zoning the the exercise of the a ordinance lawfully statute, just compensation or cannot be done without to damages use, owner caused restricted until the constitu- declaring “private property tional that taken cannot be or damaged just compensation” changed. public use without Enabling Regulation. Enabling -: Act: Police Act 5. The The 3) (Laws 1925, p. large sees. authorized cities divide the and to districts, regulate municipality re- into and within such districts to and erection, construction, reconstruction, alteration or use of build- strict the land, regulations ings, a secure with or such to be made accordance structures streets; congestion plan, designed comprehensive in the to and to lessen fire, dangers; promote safety panic and and other to health from air; welfare; adequate light prevent general provide to and to population; land; and to overcrowding undue concentration to avoid water, schools, transportation, sewage, adequate provisions for facilitate necessities; public and and ordinance parks harmony congestion conveniences and other having relationship police regulation, a a real act is with such hazard, public traffic, and to the health to fire police power, con- safety, and not be a exercise of the and is valid (GRAVES and eminent domain. exercise of as an sidered J., dissenting. WALKER, JJ., BLAIR, C. I and Decaying Arbitrary Houses. District: Residence -: Classification: 6. districts from industrial establishments and of commercial exclusion The churches, hospitals, hotels, clubs, and fiats, apartments, schools apart for set and club dwellings apartments and the hotels are old although and arbitrary classifica- imposing, unreasonable not an or buildings large and paving, fire police protection, street necessary cost extra The tion. n uses is to or industrial to commercial a devoted protection in district churches, schools, residents, dlubs considered, is also noises, nuisances. other protected odors from hospitals to be expediency es- Legislative or The wisdom Matter. -: -:7. secondary quasi-residential or or a tablishing district primary residential a establishments, industrial excluding district, both commercial from 'judgment. legislative its exercise of in the council to determine is for estab- The fact that -: -: Convenient Stores. may be stores in which districts small commercial and there here lishes maintained dis- residence comparatively distances short within Christopher. 1927] Cadillac Co. State ex eel.
tricts, permits oil-filling- stations, grocery drug beauty stores, par- lors, etc., to be maintained within these isolated commercial districts of easy near-by access to the districts, dwellers in the residence does not make ordinance, excluding large from the residence district commercial or establishments, discriminatory industrial police power. or unreasonable exercise of the Non-Injurious Regulation. 9. -:-: Establishment: General particular fact commercial establishment excluded the or- district, permitted exist, from a dinance ful residence if or would be harm- health, safety convenience, consequence, to the is of no if other establishments of its kind would be harmful. ordinance must be through general, apply persons designated all alike to of a if class: and circumstances, universality class, special of the member because of render, hardship, fact does not to him. suffers the ordinance void as Application Day 10. BUILDING PERMIT: The ment excluding before Effective Ordinance. application building permit fact that for a establish- ordinance commercial within the residence district was made before effect, went no reason such from the district into establishments applicant subject why ordinance applicable after not be the ordinance should held applicant all operative. The his lots at times became held applica- every filing power, and the of the valid exercise right. gave him vested tion *3 Domain, 13, p. J., Corpus Juris-Cyc. 20 References: Eminent C. Section Corporations, J., 314, 299, 82; Municipal p. 526, n. Section 43 C. n. 86. 365, 75; 335, 52, 53, 62; p. 336, 366, 364, p. p. Section n. Section n. Section 369, 342, 35; 343, 55; 370, p. 344, 337, 88, 89; p. p. n. Section n. n. Section n. 73. Anthony F. City of St. Appeal Court of Louis.—Hon. from Circiiit Ittner, Judge.
Reversed. Holland, Jr., appellants. T. Mu-ench Leonard
Julius J. it is a (1) garage may per se, though Even be a nuisance not knowledge potential is a nuisance matter common likely city if was to cause harm districts. The located certain enacting prohibiting 34103, Ordinance therefore warranted No.
garages Kings- on Lindell Boulevard between Grand Avenue and 8; Russell, 116 highway. Galt, St. v. St. v. 179 Louis Louis Mo. 255; 48; 301 ex McKelvey, People rel. v. Mo. rel. State ex 365; Russell, Supp. 162; v. 158 Park, Keller Oak 266 Y. Ill. Re N. Rock, 171; Sebastian, Reinman v. 237 Hadacheck Little U. S. v. 394; parte Quong 220; Montgomery, 239 S. Ex 161 Tn Wo, IT. Cal. re Term, SupRbme [April 317.
1182 Missouri, You. Court garage, building is .a (a) respondent’s proposed 163 Cal. accepted commonly according both as defined 2559; 1914, sec. Louis meaning term. Revised Code St. of the ’ substitutes modern Dictionary. (b) Garages are Webster’s and similar livery stables livery stables, applied to and the rules ex 1107; People 23 C. J. to them. ’applicable kinds of business are (the zon- 35003 (2) No. Park, supra. v. Oak Ordinance rel. Keller Enabling Act of ing pursuance ordinance), enacted in “promot- purpose of authorizing zoning cities, for the ordinances ing general communi- health, safety, morals, or the welfare of the ” State Constitu- ty, does not violate inhibition the Federal police power-delegated to tion, but is a valid exercise of Orleans, 154 v. New the State of Missouri. State ex rel. Oivello 569; 271; Beery Houghton, 204 W. Wulfsohn La. State ex rel. v. N. (N. County 120; City v. Burden N. v. Y.), E. Fourcade 150 (Mass.l, Francisco, Inspector 934; Spector Building San 238 v. Pac. E. 265; Building (Mass.), 145 N. 145 N. E. Brett v. Commissioner 269; 148; City of Aurora Harper, State ex rel. v. 182 Carter Wis. 30; v. 149 N. (Ill.), 784; (Ohio), Burns 149 N. E. Pritz v. Messer E. Improvement 104 Ohio Comrs., Pontiac Co. v. Board St. 459; 561; Chicago Drainage Comrs., 200 H. S. Railroad Co. v. Freund Power, 511; City Stephens v. Police sec. of Providence (R. 465; 133 I.), 614; Tighe (Md.), Atl. v. 133 Atl. Mor- Osborne (N. Pettigrew, Y.) 453; rison v. 14 Fox 134 (Va.), Fed. Gorieb v. 916; 914; E. (La.), S. State ex v. rel. Palma New Orleans So. Herring 321; v. (Ark.), Stannus 275 S. W. Pfeifer Tuttle Rock v. (Ark.), 277 883; 536; S. (Ore.), W. Kroner Portland Pac. Deynzer (Ill.), 790; City E. Evanston of Bismarck v. N. (N. Hughes D.), 711; 208 N. W. ex rel. Roberts v. (La.), Bigelow (N. New Orleans 110 So. J.), Portnoif (3) Atl. 534. While Ordinance'No.'35003 was effect when respondent’s application permit for a made, it had been *4 passed almost a days before and was to month take effect two after. appellants refusing were therefore warranted in permit, ground that no use respondent could be made of it with- violating Wichita, out the law. 153; Ware v. 113 In Cherry, Kan. re Supp. 57; Spector 193 N. Y. Building v. Inspector, 265; 145 N. E. (Cal.), 381; Miller Board of 234 v. Public Works Pac. Fox-Lane Corporation Mann, (4) v. Y. Supp. 215 N. 334. Under the circum- stances shown in evidence, designate it was not unreasonable to district in controversy which the multiple is located’as a dwelling district, forming map as it part the use of Ordinance No. 35003. Authorities cited under Point 2. Christopher. 1183 State ex bel. Cadillac Co. v.
1927]
respondent.
Louis Kuwin and
é Ba/rtlett for
Swarts,
S. L.
Caulfield
purpose
and effect
(1)
zoning
is the same
The new
ordinance
zoning
St. Louis.
It undertakes
re
as
former
ordinance of
throughout
city.
legitimate
private property
strict
uses
deprive
proprietary rights
prop
owners of
their
It undertakes to
ety
compensation
process
is,
of law.
and without due
without
therefore,
ex
Better Built H.
State
unconstitutional
void.
rel.
495;
&
256 W.
ex
McKelvey,
130,
M. Co. v.
301 Mo.
S.
State
rel.
301
256 W.
Louis
McKelvey,
474;
Penrose Inv. Co. v.
Mo. 1.
S.
St.
c.
v.
116
Evraiffj
489;
Hill,
v.
Mo.
256
Louis
Mo.
231,
301
W.
St.
S.
1000;
527;
217,
243 Mo.
147 W.
State
Dreisoerner,
St. Louis v.
S.
80;
307,
ex
Better
302
259 W.
Davis,
rel.
Built H. & M. Co. v.
S.
481;
Q.
1921, p.
Chicago,
226,
Laws
166
S.
C. B. & Railroad v.
U.
236;
439;
ex
v.
282
v.
Kinsey,
State
rol.
S. W.
Calvo New
Knese
320; Spann
136
Orleans,
480;
1184
Couet
permitting
time
same
and at the
proposes
establish,
lator
in the basement
or
ground floor
vicinity storage garages on the
same
deny
They
discriminatory.
hotels, apartments, or tenements
restrictions
Likewise,
the laws.
equal protection of
to relator the
its
at
Sarah Street
on
establishing its business
barring
from
relator
on Sarah
business
such
permitting
Lindell, but
intersection with
thirty feet
than
property,
less
alley
relator’s
across an
Street
density of
regard to
city, without
in the
away, and elsewhere
dwelling
proximity of
streets, the
population,
narrowness of
equal
relator
denying to
discriminatory,
arbitrary
houses, are
Constitution; Barbier
O’.S.
14th Amendment
protection of the laws.
a local and
zoning
(c) The
Connolly, 113
S. 31.
U.
Sec.
Cl.
Constitution.
the Missouri
special law in violation of
Lerner, 281 Mo.
Missouri;
parte
Ex
IV,
Art.
Constitution
building and its-intended
proposed
(2) Relator’s
18,
RAGLAND, a statement of the J. For concise ap- parties thereto, quote from objective we action, and the pellants’ brief: brought bjr at the proceeding mandamus, a the State
“This is corporation, against Company, a relation of the Oliver Cadillac Safety, Building and Director of Public appellants, as Commissioner require them to issue the respectively, Louis, St. Company permit for the erection on lot at the Oliver Cadillac Louis, Street, St. of Lindell Boulevard and Sarah southwest corner building, reinforced-concrete, brick-and-stone with two-story, aof place basement, occupied and as a of business for to be used the dis- adjustment automobiles, play, and for- the sale and in- sale parts and accessories. stallation automobile front of question Boulevard, has a feet Lindell “The lot alley. along Street proposed feet Sarah and runs back occupy lot, feet of the building was the eastern was to thirty line on Lindell. feet from be set back 1927] Christopher. *6 ex Co. v. bee. Oadillao relator, the showed, that charged, and the evidence petition
“The appellants, applied the May 24, 1926, to had on respondent here, the time building had at that permit, and respondents below, the building existing code. complied the requirements with then the Application was permit been refused. It the had was admitted that mandamus, was writ of thereupon for an alternative made appellant Brod on May 24, on the 1926, issued on and was served May Christopher May on 26th. 25th, appellant and on the first, proposed the permit on grounds,
“The was refused the meaning building garage within of Section constituted 1914, and erection would therefore violate Revised its Code city Louis, prohibiting garages Ordinance No. 34103 of the of St. on Kingshighway; and, Lind ell and Boulevard between Grand Avenue building structure, secondly, that, being a could business violating provisions of No. constructed without Ordinance zoning go ordinance, days the new which was to into effect two later, placed building proposed on which the and which the lot district, dwelling multiple to be in which commercial erected buildings and prohibited.” industrial were May 26, ordinance to effective 1926. referred became objectives pre-
Its its purported authorization and are disclosed title, amble and as follows:
“In to Act powers order avail itself of the conferred Assembly, day approved April, 1925, General 30th Laws Missouri, page 309, through city Louis, legisla- of St. its tive body, appointed has heretofore Plan members Commission to be and Zoning constitute a commission known as the Commission, to original recommend the boundaries of the various dis- tricts proposed into which it is purpose for the of this ordinance pursuant and said act, city divide the and to ap- recommend propriate regulations to be enforced therein. ap- Pursuant to said pointment, Zoning said prepared Commission has pre- amade liminary report, public hearings held thereon, and thereafter made report, submitted to the Board of Aldermen its final recommend- ing original regulations boundaries said districts and the to be enforced therein.
“An regulate ordinance to height, restrict number of stories, bulk, buildings volume and size of and structures, the size of yards, spaces, courts and open other location, erection, alteration buildings, use of purpose structures and land for pro- moting health, safety, general morals and city welfare of Louis; St. and for said purposes city to divide the of St. Louis into provide districts; change of the regulations, restrictions and boundaries districts; provide such for a Board of Adjustment; Sup.
317 Mo. —75. op Term, Supreme [April You. 317. Missouri, Court 11.86 penalties for violation of prescribe enforcement, to provide for provisions hereof.” one. comprehensive is a its title indicates the As height and city: (1) (2) into into use districts the entire zones 3 and are as of Sections pertinent portions districts. area follows: ‘‘ erection, location, restrict the regulate Section 2. In order to land, St. Louis buildings, alteration or use of structures hereby Districts, known as: divided five Use into 1. Residence District. Multiple Dwelling District.
3. Commercial District.
4. Industrial District.
5. Unrestricted District. hereby the five districts “The of St. Louis is divided into shown districts are aforesaid the boundaries such being designated District map hereto, Map, as the Use attached hereby part ordinance. which made building prem- .or “Section In Residence District no Three. erected or building ises shall be no therein shall be struc- used and turally following except purposes: altered Family Dwelling.
1. One Family Dwelling.
2. Two
3. Church. offering secondary 4. Schools primary, collegiate instruction in or study. courses Library,
5. museum, park playground, or buildings recreational operated are by which or Municipality. owned Accessory Buildings; including-one 6. private garage or when thirty stable located not less than feet front lot line any less than five line; feet from side street or a private part garage constructed as a main building. Multiple
“Section Four. Dwelling In the building District or premises shall building be used and no therein shall be erected or structurally except altered following purposes: Any
1. permitted use in the Residence District.
2. Multiple Dwelling.
3. Hotel. 4. Private Lodge, Club or excluding any which has as its chief activity a customarily service on as carried a business.
5. Boarding Lodging or House. Hospital
6. or clinic. 7. An institution of an educational, philanthropic or eleemosynary nature. Christopher. Cadillao Co. ex eel.
1927] storage garages including private and Accessory buildings; front thirty feet from less than on the lot not when located same unless any side street line five feet from and not less than line, lot per- shall building; however, it part main be as a of the constructed operate storage garage basement or maintain and missible to fireproof apartments, garage hotels and ground on the floor guests for the use of the or tene- operated and maintained ’’ residing apartment. or ments within hotel such Adjustment delegating Board of provisions creating powers Enabling 7 of closely it certain follow Section Act. p. may any Appeals by to this board be taken
[Laws any or person aggrieved by officer, department, or board bureau of municipality by any decision of an administrative affectéd officer. practical upon appeals, And in where there are difficulties or passing hardships way carrying out unnecessary in the the letter of the vary modify application ordinance, the board is authorized provisions relating regulations the ordinance buildings or use, construction or alteration of structures or the spirit observed, pub- so of the ordinance shall be of land use justice safety However, every lic and substantial done. such secured reported immediately variation or modification must be to the Board way Aldermen and embodied amend- it can become effective. All ment thereto before decisions of the Adjustment subject Board of review "on certiorari cir- cuit court. *8 districts
None of used into which by is divided compact is composed contiguous territory. The mul- tiple dwelling district, example, for widely consists of sepa- many rated areas. one involved in triangular this case is in form, the resting base Kingshighway on apex extending and the east to Grand triangle Avenue. The is bi-sected Lindell Kings- Boulevard. highway boundary forms the eastern of Forest Park. Sarah Street crosses Lindell Kingshighway Boulevard five blocks east of and three blocks west of .Grand Avenue. Whittier Avenue comes into Lindell Boulevard the south about a half block west of Street, Sarah and Vandeventer crosses Lindell Boulevard a block east of Sarah. is at the southwest comer of Lindell and Sarah. quo
The lo&us respondent’s survey One witnesses made a with reference to the uses of both sides of Lindell Boulevard from Whittier to Vandeventer.
He great majority found that buildings of the were used as multiple dwellings; rooming apartments houses, and hotels. In ad- dition to these oil-filling he found three stations, two automobile show drug rooms, store, sales grocery one one store and two other Term, [April Yod. Missouri, Súfreme Court to de-
buildings was unable purposes used for which he commercial testi- survey. He City Planning Engineer made a scribe. The also Kings- ninety-three per fied that Boulevard between cent of Lindell foot) used highway front was (calculated by Grand Avenue by the for defined “dwelling,” meaning as within the of that term ordinance. permit stated, respondent
As seeks a building heretofore concrete, erect is a structure two-story, reinforced briek-and-stone basement, fireproof. with a presumably It is to front 170 feet on Lindell Boulevard along and extend back south Sarah Street alley. feet to an According building to the architect was de- signed portion to be automobiles, used as front sales room for on being Lindell Boulevard intended for a show room for new auto- mobiles, portion and the on for a show the Sarah Street side room alley automobiles, portion second-hand on the is in- while to be used people who come in to have their automobiles tended. inspected. manager respondent prob- The sales said that it would ably carry eighteen twenty ears, stock at all times new and have cars; twenty twenty-five sale for customers from used that a part of placed the new second floor cars would be on the major adjustment work on that floor. would be done
It is conceded building that the intended is commercial use of the or industrial, and in á therefore one which the ordinance forbids multiple dwelling district. ground principally by appellants justification stressed building their refusal permit sought to issue is that the is to multiple
be erected and in a dwelling used district for commercial or industrial purposes, in violation of the ordinance. The respondent (1) zoning ordinance, answers: considered general aspect, (a) unconstitutional and void it pro- because vides for the damaging use just without compensation, (b) deprives it owners of their process without protection (c) due law, of the it equal denies them the laws; (2) applied respondent’s that as prop- erty, all the facts and circumstances considered, it violates the con- provisions stitutional just to, though referred even general in its application might valid; be deemed to (3) that it can in operate event deprive respondent building permit question, permit such applied because for before the *9 ordinance became effective. These contentions of respondent indi- scope cate the inquiry. of our I. The constitutionality zoning applicable laws as large fully cities has been so recently considered in a multitude of cases CadiijjAC Christopher. Go. v. ex eel.. 1927] country that little jurisdictions in all of the arising abnost suggested, subject. It has been said remains 1° Eminent Missouri and a few however, that the Constitution Domain. respect to limitation unique in somewhat others are damaged taken or shall not be private property provides “that II, Art. Consti (Sec. 21, just compensation” public for use without a in Missouri puts such limitation tution), consequently validity in which apart jurisdictions separate class from the provision private upheld. The usual has laws been just compensation; public use without property shall not be taken for damaged” in our Constitution whether the addition of the words “or construction from broadens limitation must be determined containing put upon them. which we have permit a in as to Constitution, 1875, so “When we amended the for property damaged in of other recovery meaning- what public question as to purposes, became serious In Van given provision. should be to the amended constitutional (Van 83), 107 Mo. this court case Kansas City, DeVere’s DeVere v. ruling has never been in that ease question,
threshed out the ruling.” J., in Peters any subsequent departed from [Graves, Buckner, we said: v. 288 Mo. l. c. In that ease shall “Our 1875 declares ‘that Constitution of just compensation.’ damaged public use without not be taken or the word prior constitutions did not contain The same clause change organic question damaged; and first is whether the compensation damages which he plaintiff law secures for the will of this case. Previous sustain under the circumstances given to very meaning of 1875 a had been Constitution restricted Gurno, v. ‘property. taken and Thus it was held St. Louis words thqt Taylor Louis, 20, 12 Mo. Mo. and affirmed St. resulting damages property-owner was not liable
grading paving street, where work done under an ordi- was assigned nance the charter. The reason was that to authorized grade appropriation a street use was not the dedicated private property simply but the exercise of a lawful use, public property, property- over what had become and that the remedy consequential damages. owner had And in such Hoff- Louis, applied man St. 15 Mo. was same rule where the grade changed. of the street had been The rule of these cases disapproved City Joseph, in Thurston of St. Mo. but in Kansas, the ease of Schattner v. court re- doctrine, law continued turned to the old so the down to the adoption . . . Constitution *10 op Term, Supreme [April Von. 337. Missouri, Court cases- danse amended so as include
“The eminent domain was damaged, hard- property to overcome the where as well 'taken/ is. ship growing' the old rules. out of in applied and view the “The must be construed of amendment designed remedy. which seen that evils it was We have before corpus many the of the this amendment there were cases where taken, yet directly property rights property was annexed to the not damages injured, consequential prop for such were and that the act authorized erty remedy, had no the law. owner because now', claiming plaintiff in all cases when that Whether the must his ‘damaged’ injury public use, has been show that might is for which if act had one he have maintained action by authority law, say in not been done of we need not this case. say this, property itself, we do or is he must that the What show therewith, directly affected, some or easement connected is it City, DeVere v. Kansas specially affected.” [Van Mo. l. c. 87-88, 89-91.] “taking”
In order in private property, to determine a what is a sense, principle Mr. thus: constitutional Lewis states tangible
“If property, things themselves, but then, consists, not in that, rights in certain appurtenant things, in and it follows those person deprived rights, when he those is to that ex- deprived property may property, hence, tent be his that his possession taken, though sense, the constitutional his title and undisturbed; may general proposi- remain and it laid down as a be tion, property itself, that, based the nature of whenever rights possession, enjoyment the lawful use or an individual to any degree destroyed of his land abridged are in or reason of the tanto, domain, property, pro exercise eminent his taken, compensation.” ishe entitled to Lewis on Eminent [1 (3 Ed.) Domain sec. 65.] universally
That the text embodies the
rule
construction now
applied by
appears
abundantly
courts
from the eases cited
appended
foot notes
to Section
Sections
supra.
holdings
Our
own
have
with
been
consonance
it ever since
Hill,
decision
St. Louis
In view of the it is clear that addition of the word “damaged” to that of “taken” domain eminent clause of our Constitution did not broaden its limitation. oper- The amendment nothing ated to correct an error construction more. why occupy does unique There another reason Missouri po- with respect safeguards sition to the constitutional with which she hedges taking private property A use. taking damaging private property just without use com- pensation, justify unless under gen- circumstances under Christopher. 119.1 State ex eel. Cadillac Co. 1927} power, depriving would of his with- eral the owner process equal denying protection out of law and him of the due laws, in violation of the 14th amendment of the Constitution States; damaging United fall sueh a would also under nearly process” ban of constitution of the “due clause found every Q. Drainage Railway state in the Union. B. & Co. v. Com- [C. *11 missioners, Baker, 269; 172 U. U. S. Norwood S. Staton v. 111 N. Railroad, C. 278.]
Again, provision the of Illinois limiting Constitution contains a the power practically exercise of the eminent domain identical with j^et as wording; apparently Supreme ours it never occurred to the Court of insuperable that State that such a an barrier adoption by cities of laws of the character of the one proceeding, specific involved in this pro- for without reference to the validity vision that court [City sustained the of such laws. of Au- rora v. Burns, (Ill.) E.N. 784.]
In State ex rel.
McKelvey,
.by.
Mo. l. c.
it was held
majority of this court as then
city zoning
constituted that
pub
is a
lic
use for which
property may
City
be taken.
In Kansas
v. Liebi,
“In a broad no property sense or property right can be taken from the individual except through police power the of the State. This power may be exercised to abate a nuisance, to restrict the uses of property to lawful and purposes, private- non-deleterious or to take property, rights growing out property, use payment In therefor. words, other eminent domain is but a limited -police use of the power of I the State. know that eases and text- distinguish writers police between power domain, eminent but analyses ultimate principle basic of eminent domain is the police power inherent sovereign that, my State. So judg- ment, eminent domain is but the limited police exercise of the power. So rights that some cases in property may limited, be through the police power, without compensation, require whilst other cases com- ’’ pensation. But what are the rights cases in which in property may be limit- ed, through police power, without compensation? and what those Tenn, put op [April You 317. MisrouRI, Co Suubkmb law constitutional principle What require compensation? aof recent The author classification? determines the ques- attempts to answer zoning' law
Polic text-book on e Regulation. to show analysis seems of the cases tions “The thus: power (the line of difference between degree. domain) largely Is it reasonable one of eminent public good sought circumstances, all proper, under rights those compensation to whose should be attained without whole, affected are benefited If, on those be limited to this end? light longer, measure, if can surrendered present its fullness advancing opinion, he retained slight possessor, if to him is or if the number affected the sacrifice compensation all such com- great, impracticable so that cases —in it. In pensation provided for; law demands otherwise the custom, opinion, surrounding history, as decision, well circum- Planning play part.” stances their Law of [Williams p. and Zoning,
To great city through proceed- zone a like St. Louis condemnation ings practically impossible. would But from that aside *12 a living, as social organic thing; unit is a while changing, all the expanding, growing; zoning a by condemnation under the of eminent thereby domain would tend to fossilize it and one defeat of the purposes zoning. essential of It must zoned under he therefore police power, the or not at all.
By Enabling the to, Legislature Act heretofore referred the lias said to municipalities: St. Louis may and other You divide the mu- nicipality into districts, regulate and within such districts and restrict construction, erection, reconstruction, the alteration or use of build- ing's, or regulations, however, structures land. Such shall be in made comprehensive accordance a plan, designed conges- with to lessen streets; tion in safety the fire, dangers; to secure and other panic promote general to welfare; provide light adequate health to air; prevent over-crowding land; to of to avoid undue con- population; centration of adequate to provisions facilitate the of transportation, water, sewerage, schools, parks public and other re- quirements 2 (Sees. 308) 1925, p. ; and Laws and this the ordinance under purports consideration provisions to Tf may do. its be re- garded as a reasonably appropriate accomplishing means of the ends specified, so it is a power. valid exercise of the Tn this con- nection it should be said that the test is not whether the individual members of this or other think expe- court ordinance wise dient, that was for the determination in the first of leg- instance must, body islative passed which it; before we can hold it invalid we find that provisions its have no real substantial relation to the evils congestion of streets, hazard, fire over-crowding, etc. [Pritz Christopher. Co. v. ex Cadillac rel. 1.9,27] Harper, Wis. (Ohio) State ex rel. N. E. Messer. 148.] has worked large cities been zoning applied to principle of Tlie -It social science. of students’ through the reached conclusions out bodies, Council by various eminent scientific strongly advocated As- Federation, American Agencies, Plealth Public Social Architecture as Engineers, American Institute and the sociation specifically designated promoting public interests means of a. strong advocacy Enabling demand Act. As a result of Secretary demand zoning legislation arisen. To meet such has experts appointed a of the States United commission Commerce prepared has been enabling act.” The act so prepare “standard including twenty states, Missouri. enabling acts of the basis of the zoning passed authorizing in all laws [Forty stales have ordinances.] January Supreme Da- according Court North to the On zoning municipalities in effect in with ordinances were kota. aggregate population 24,000,000 [City of citizens. Bismarck sociologists and Hughes, 208 N. W. The views others who form with through study investigation competent opinions, are accepted. light In respect zoning, generally now with question, it cannot be said that considered these the ordinance general features, relationship conges- its has real reference to traffic, hazard, tion of health and to fire safety. constitutionality of city intimated at
As the outset painstakingly so fully many laws has been courts considered so resort, including Supreme States, of last United Court of the attempt survey police power general for us to and then particular bring point out the features such laws with them sphere supererogation. ivould be a constitutional Avorkof We say pre deem therefore sufficient to that we .are accord with judicial opinion gen which holds dominant that an ordinance of the character one involved a valid this case is exercise of eral. the *13 police power. holding Village Some of the cases follow: so Realty Sup. 4Co., Op. Euclid v. Ambler U. 171; S. Ct. Ad.
Opinion
Supreme
of the Justices of the
Judicial Court of Massa
chusetts, 234
597;
(Cal.),
Mass.
Miller v.
Public
Board of
Works
;381
v.
234 Pac.
State
154
Orleans,
271;
ex rel. Civello New
La.
State
Beery
Houghton (Minn.),
rel.
et al. v.
1194 Missouri, Court You. 916; Herring 109 So. v. Stannns (La.), Palma v. New Orleans 321; (Ark.), Rock 277 Little v. Pfiefer W. (Ark.), S. W. S. Deynzer 536; 883; (Ore.), Pae. v. Evanston Kroner v. Portland (Ill.), City supra; Hughes, E. State ex N. of Bismarck v. rel. (La.), Roberts v. of New Orleans So. 201. Having reached the that the ordinance its basic conclusion
aspects spe- consider constitutional, we come next to some its respondent challenges arbitrary cial which and features unreason- principal point able. attack is the character of district from which the ordinance excludes all commercial and industrial uses. embody appears The district as its central feature Classification. Lindell between Grand Avenue the east Boulevard Park bn Lindell and Forest the west. Boulevard a continuation of leading one the main traffic from heart of the down town arteries city question business district west to. the limits. The district practically and there are surrounded commercial districts a few buildings general such here and there within botuidaries. The largely within the district, according use, consist characterized houses, apartment old dwellings, boarding houses, rooming flats, large buildings small, hotels, houses both and club schools. Many lodge buildings large im- the hotels and and club posing just Owing respond- structures. to the conditions mentioned decayed insists ent that the district is a residential district into which pushed way business and commerce have their in the course growth natural expansion reason thereof is longer no purposes. suitable for residential Hence the ordinance in attempting palpably to exclude uses therefrom arbitrary business and unreasonable.
Respondent's analysis contention in its final at basis strikes adopted by of classification apparently the ordinance. It concedes reasonableness classification excludes business or com purely mercial uses from a district, is, residential having one only family one or two dwellings it; but denies that a classifica tion which excludes such uses a district in which are found apartment houses hotels is based intrinsic, natural or Now, constitutional distinction. the ordinance excludes from “resi dence flats, apartment districts” hotels, houses and validity and its respect in this can longer questioned. be v. Board of [Miller Works, Public supra; Wulfsolm v. Burden, supra.] Then must those apartments who dwell in flats, hotels, through whether neces sity subjected choice, to the conditions which obtain in commer cial or districts? industrial Those justify conditions which on ground of .welfare comfort the exclusion of business from residence districts have been length many set forth at recent *14 Christopher. State ex red. Cadiulao Go. v. 1927] Orleans, ex Civello New courts. In State rel. decisions of tbe supra, l. c. is said: from place,
“In tbe business establishments first tbe exclusion of give municipal government might residence districts enable the police larger, and there- protection. better beats are Patrolmen’s neighborhoods. fewer, neighborhoods fore than in business residence place A an excuse neighborhood in a furnishes business residence a any go otherwise, neighborhood, for criminal into the where stranger suspicion. Besides, open shops would be under the ban of congregate; places invite loiterers and of such con- idlers gregations police zoning of protection. place, need In the second city a into residence commercial districts is a matter of districts and economy hauling freight paving. Heavy trucks, street to and places city from districts, require of business in residence costly pavement required maintain the same in such districts that is districts; whereas, for business district, where busi- residence excluded, cheaper pavement pur- establishment are a ness serves the pose. greater pointed too, in the out, the fire hazard neighborhood than it is residence dis- business establishments expensive equip- department tricts. A better and more fire —better younger stronger ment and business cen- men—are needed ters, buildings taller, where the are than the residence districts. administration, of economic in the mat-
“Aside considerations paving, etc., any protection, ter street business es- fire likely genuine neighborhood in a tablishment is to be a nuisance noisy; they apt residences. Places of business are are to be disturb- malodorous; ing night; unsightly; at some them are some some are rats, apt mice, roaches, ants, Property brings flies, breed etc. price neighborhood
better in residence where business establishments neighborhood objectionable than iñ a excluded residence where apt any business is to be established at time.”
Many suggested in foregoing excluding of the reasons one-and-two-family dwelling business establishments from districts just grounds excluding would be as valid as such establishments apart flats, apartments, hotels, clubs, hospitals, from districts set In expediency schools and churches. event the wisdom of es tablishing primary secondary quasi- residential distinct and also a excluding residential district and from both commercial and indus trial establishments is for the council to determine in the exer legislative judgment. Works, cise of v. Board of Public [Zahn (Cal.) County 234 Pac. Fourcade v. of San Francisco, 238 Pac.
The fact that the ordinance establishes here there small com- may mercial districts comparatively where stores be maintained within short distances from residence districts does not make it irrational Supreíie Term [April Missouri, Yol. oe Court *15 beauty store, drug filling station, grocery, discriminatory. Tlie or easy districts commercial isolated parlor, etc., in these small found dis- a serve districts near-by residence in the access the dwellers phase They represent a characteristic tinct and insistent social need. as a boulevard Linclell growth. And of course the use of urban question district which the use
no wise affects the residential apart. has been set building and its proposed “respondent’s It is next contended was de things ordinace any of the will not cause intended use panic fire, danger streets, in the signed prevent congestion — welfare, obstruc general danger and the dangers, to health other concentra undue air, over-crowding land or the light tions to transportation, provisions with population, interference tion requirements”— public schools, pai’ks and other water, sewerage, respondent both affects as it consequently that the ordinance its com discriminatory. if establishes respondent But arbitrary and may right fol plant less innocuous in the district others mercial officers to permit administrative A ordinance cannot low. occupy particular may a pick may who not as to who choose law, special a or as one Tf it is condemned as use district. laws, ra upon rest some denying equal protection of it must things persons and alike to all apply of classification and tional basis universality in through falling designated within If its class. fact special hardship, circumstances suffers dividual because of him. interest void as to The does not render the ordinance Burden, Spec good. supra; public v. to the subordinate [Wulfsohn Milton, Building supra. l. Inspector v. c. tor 267.] respondent permit application for a before The fact that filed why it should not be held ordinance went into effect is no reason operative. respondent applicable to from and after became Re eveiy spondent subject all held its at times to valid exer gave power. filing application of its it no cise Inspector Building right. Milton, supra, c. vested l. [Spector permit granted applied on the date it was Had the been 268.] respondent additional have no it would conferred merely respondent right; prose have rendered immune from it would Building City’s Code. cution for violation of the awarding peremptory court judgment of the circuit writ White, Gantt, J.J., concur; Atwood and reversed. mandamus Blair, separate J., opinion; in a dissents and Graves, J., dissents con- dissenting opinion of Graves, reached curs conclusions J.: Walker, G. Jdissents. Cadillac; (¡o. CiiiíistopiieR.
J!);>7
J
State ex eel.
GRAVES,
(dissenting) .—I.
I
J.
cannot concur in
opinion,
It
part
thereof.
overrules a line of Missouri cases, without
mentioning
say
should
Hill,
even
them.
that cases like St. Louis v.
Dorr,
ner, Mo. state sound law. Thus Correcting pertinent ruling police power last case on the is well Judicial stated thus: Error. police power necessary “The is a and wholesome facul government, only ty municipal regulation but it extends prejudicial employments safety, health, good morals and government citizenry, and it ‘ends where those interests beneficially thereby.’ are not [Gunning Louis, served Co. St. supra, Mo. l. c. It cannot sanction the confiscation of *16 private property purposes. for aesthetic It was not shown in this case that any ivas there status of affairs in St. Louis which demanded the inclusion prohibition against within this ordinance of a the main ‘manufacturing plant size, tenance of a of whatsoever wherein ma chinery any by of kind operated whatsoever shall be maintained or means of steam, gas power, any or electricity, other motive build ing, any ground lot of within six hundred feet of Tower Grove ’ Park. provision think this power
“"We was an unwarranted exercise of by municipal assembly; face; the that it is unreasonable on its and applied if calling deprive defendant, the of it would him of the full uses his property compensation of without and due without process of law. void and afforded no warrant whatever therefore for his conviction the lower court. judgment Brown, discharged.
“The is reversed the defendant and C., concurs. adopted foregoing opinion CttRiam:—The of
“PER Bond, C., opinion as of All judges the the court. concur.” present opinion police power The extends the to the destruction of private private rights. property its Under definition of limit, power, taking property. there no of Under its broad police power doctrine of the authorities could take the whole _ person’s of a property, desired, if it so that a cent too without compensation. police power taking of Tf the authorizes the of part public of property use, by token, the as the same title well as use of property, could taken. be We, just McKelvey (301 adhere to what we said in the case Mo. thus; 39) l. c. ‘‘Our broader,, State in that Section of Constitution is little provides: IT property Article shall not be taken or ‘That Supreme MissouRi, Court Gif' Von. [April 317. Term, damaged just compensation.’ use without Note the words damaged’ provision. prop- ‘or in our constitutional Damage to ei’ty actually public use, does-not have be taken for the Private (for purpose compensation) but it suffices
Property. merely damaged it be the furtherance of the may property put gives use. It is the uses which value. it Strip all it of its uses and is worthless as the most spot Strip part legitimate barren Great Desert. of a damaged you it to extent uses and have out uses off. legitimate use inflicted this restrictions being property pro tanto; is a ordinance destruction there compensation, ordinance is Louis v. void. [St. Dorr, Hill, 116 Mo. St. Louis Mo. l. 485 et in seq., c. cluding dissenting opinion of JJ.; St. Burgess, Sherwood Dreisoerner, 243 Louis v. Mo. These three cases condemn They They here were well have involved. considered. today. stand In never overruled and as the law of been case, Hill c. language J., supra, Siierwood, 533: “ composed then, object, in a determinate ‘Property, certain elements, enjoy to-wit: of use, consistuent The unrestricted premise disposal, object. It follows ment and of that destroys anything which or subverts of the essential elements pro property, though is a or destruction tanto aforesaid undisturbed, disposal of the land remain possession physical quo. locus actual invasion though there be no (6 Ed.) 670; Wynehamer v. Limitations Constitutional [Cooley’s *17 J.; Otis, l. c. People 90 N. Y. per N. Y. c. l. People, Selden, 53, per Andrews, C. J.] “ object and given of a is the most essential beneficial ‘The use all property; of without it other elements which quality attribute If city no effect. al- up property would be of were go make lot, of the use of his entire it would deprive the defendant lowed to title; barmecidal and what but a barren and in his hands leave integer portion. true fractional rights as an of each property of true “ theory correct, pass en- then the could plaintiff’s be ‘If his deprive ordinance, which defendant of use of would an force taking within- the terms of ivould be no lot, there and still entire right Constitution, consequently, no 2, of 21, Article Section position of such is sufficient to ac- The statement compensation. repudiation. day before the ordinance complish its utter right unquestionable had the defendant operation, went into build effectually prevented day afterwards .he lot; will his at on peril except punish- under of forty-foot strip, building on the it, ment, this too without around city had wall built as if the Cadiljoao Chbistojpher. State ex eel. Co. \ form of notice, species any judicial of inquiry, tender of com- pensation. “taking” If this is not mere arbitrary it is edict, express difficult to in words meaning which should characterize ’ city. the act of the “The dealing case was with a restriction upon the use of upon it boulevards, equally but applicable to the restrictions the use of property in involved this ordinance. In the matter of restricting the lawful use there can be difference be- tween the boulevard and a stated district.
“In strength the Dorr case, on the supra, supra, the Hill ease, it was ruled prevented a confectionary store Washington in Boulevard St. Louis was void because violative of constitutional we have above outlined. ‘‘ opinions recognized Even the bill-board case, rule the Hill distinguished but Gunning in St. Louis Co. v. St. Louis, 235 Mo. l. c. 151. ‘‘The provides ordinance before us for the prop- erty compensation use without judicial and without a hearing. regulation It is not which would fall within the reasonable exercise of power. pure It is a simple. confiscation, for rehearing motion should J., Woodson, overruled. G. JJ., David E. Blair and Walker, concur these views.” No conclusion can Right other be reached under our Constitution. let here me add a word as to the additional placed restrictions the Constitution of 1875.
My says foregoing learned Brother “In this: view it is ‘damaged’ clear that the addition the word to that ‘taken’ in domain of our Constitution did not eminent clause Ne operated to cor- broaden its limitation. The amendment w Limitation. rec¿ construction, nothing error more.” my learned Brother the view of to this view Opposite Faris, ‘' says: That Railroad, Mo. l. whereat he Louis v. c. J., in St. has wording of our Constitution broadened change in the arising wholly consequential damages cases disassociated field of taking by the exercise eminent physical actual with an question.” is no domain, there opinion is the us, before view, expressed
Opposite to Co., l. Paving 247 Mo. c. whereat McGrew court view this we said: consequential mean we do not above “By we haA7esaid what *18 change by abutting a a occasioned street property damages provisions fall within the constitutional damages which grade not are they do mean is that 2, supra, but what we 21 of Article of Section paid in advance reason of b'y assessed to be required not Supreme op 1200 [April Term, Missouri, Court You. 317. provision. such City constitutional As said in v. Hickman Kansas 120 l. City, c. Mo. “ adoption (although ‘Prior to the of the Constitution of 1875 doctrine vigorously City was Joseph, attacked Thurston v. of St. opinion by Judge 51 uniformly Mo. it was held Adams), any damage resulting abutting property-owner to an from change grade injuria was absque municipal dammm for which the ity liable, injury was not unless the could be shown to resulted have negligent in which improper or manner the work was done. 23; 415; Taylor 12 14 Gurno, Louis, Louis v. v. St. Mo. Mo. [St. 656; City 53 Kansas, Hoffman Mo. Louis, v. St. 15 Schattner v. 162; 119; Wegmann Springfield, Mo. v. of Jef Imler v. Mo. 157; 55; 69 Mo. v. ferson, Lexington, 61 Mo. v. Stewart Swensom Clinton, Mo. 603.] “ doctrine, provide compensation for when uproot ‘To this use, property public damaged, as well as when it is taken by amended, of 1865 the Constitution was clause eminent-domain as it has quoted, to read and since been the Constitution of State, property considered the settled law this that when raising by damaged establishing grade street, of a or lower by established, damaged ing grade previously of a street v. meaning of the Constitution. [Werth use within the 34; City Kansas, 107; v. 89 Mo. Springfield, Mo. State ex rel. Kansas, 488; Sheehy Railway, City of 83 Mo. Householder Owens, 115 Mo. Gibson “ law that this article of the ‘It is also well-settled Constitution although Legis- right self-enforcing, and gives an absolute providing a for the ascertain- law mode may have enacted no lature compensation may be provided for, resort payment ment common-law action right party had entitled to ’’’ appropriate of redress. adequate and means will him afford right lo gave of 1875 clearly rule that the Constitution We here right no such ex- damages where consequential property, recover an additional limitation isted In words there before. other i. e. if purpose, to use owner, actually damaged in its use to the actually taken, but is compensation paid. must be “The amendment sentence:
My emphasizes learned Brother nothing more.” construction an erior operated to correct new Constitu adopted a people just amendment; the (There was no con in the had erred courts tion) words, he savs that the In other . prior organic law used “taken” struction of the word by the Constitu wiped out 1875. The doctrine new Constitution long origin be “damaged” had word using tion of 1875 bears Constitution. a Missouri fore ivas a Missouri there any Constitution used “taken” relation to the word whatever *19 1927] Statu ex eel. 3 Cadillac Co. v. Giibistodtiek. 201 English origin that ever had. doctrine of Missouri The in the George year times George of III.—in the 32nd III. Governor [The Company of against and the British Plate Cast Manufacturers Mere others, dith 4 Reports, p. By Parliamentary and Term Act authority given grade there was to and in a pave place street in Surrey. The commissioners authorized do the work to lowered the grade ingress street, egress so that and to the the the warehouses plaintiff they sought been, plaintiff were had to not as re damages. consequential action, cover these So in a common-law damages, e., was ruled that there such i. was no action for that the yield to This must convenience. is the effect of ruling. the' Hern is 1875 the doctrine that the Constitution of put City Joseph, out, knocked as it well Thurston v. St. 51 Mo. c. l. 513: grading high if to
“So street it be raised so as throw the sur lot, prevent street; face free water back access to the if low to no the street be excavated so the easement of render thereby damaged to lot, use to the lot holder is the extent of question lot The is whether the loss such easement. here any remedy injuries. all The case under con has at for such holder city is a sewer Avhiehthe had con sideration doubt negligence graAmmen through complaint of the is that struct. But the seAver, Avasthrown the lot of of this Avater construction injured If still to thereby property. plaintiff and her Ave City Gurno, of St. Louis 12 folloAvthe rule as laid doAvn 414, Taylor subsequent Louis, 14 Mo. St. Mo. cases deny remedy all Louis, 15 Mo. Avemust Hoffman v. St. to, this court followed the injuries. referred In the cases such Governor, others, etc., King’s Meredith Bench in lead of by that (D. E.) laid doAvnin case 4 T. R. & 794. doctrines The KekyoN applicable my judgment are not judges, Lord and other injury AA'eremade improvements Avhiehcaused America. la The commissioners Avhiehauthorized of Parliament act under on the place decision their court seemed damages, but the alloAY ground alone omnipotent, this and on ground was Parliament that as held injured party. court remedy to the denied pop- maxim ‘salus public convenience, the improA’ementAvas yield must private rights and that applied, suprema lex esto’ uli reasoning maintained was line The same public convenience. leading case opinion in the judge who determined the learned St. Louis v. Gurno.” said: 424, it is c. 12 l. Gurno, v. Peter Tn Louis of St. 4 & others, D. Governor, etc. v. Meredith “In of the the case com- Parliament authorized an act held, AAhere E. it Avas injured Avas individual which an pave, reason missioners part on the jurisdiction no excess of was property, there his Sup. 317 Mo. —76. (w Vol. [April Term, Súmeseme Missouri, Couiot commissioners, of the they neither nor their servants liable were for such point acts. The same Clark, determined in Sutton v. Taunt. and Harman v. Bast, Tappenden, 555.” NaptoN 12 Mo., page At Judge thus states Gurno’s case: ‘‘ only question presented by record, whether the St. damages Louis to an action consequential liable upon the *20 grading and paving street, by city of a directed the in authorities pursuance of an by ordinance authorized the charter. The dec- in charged laration this case that the was negligently work done so improvement that water, the which before the passed the street off by channel, a natural upon was plaintiff’s thrown the premises, and overflowed his cellar, impaired and otherwise greatly the value of building; upon his but the trial, jury the court instructed the corporation the complained was liable for injury of, the whether the grading of the street and the culvert carry to constructed off the properly question water were pre- made not. So that the naked is sented, corporation whether is answerable in civil action for consequential injuries character, agents of this skilfully however her may powers have executed the entrusted to them.” liability court ruled there was no English under this old Taylor City doctrine. So also the case of et Louis, al. St. 24, English Mo. l. c. and rests the same doctrine and cites Taylor just same case. In this case it is stated with clearness what the court had in mind. That pro doctrine the constitutional vision on domain ivas not this line of eminent eases is made clear NaptoN by Judge Taylor case, language: this question present action, alley “In the the street or was laid out by ancestor, probability and plaintiffs themselves their required public being graded, it, when the interest have must buildings grade been on when the were erected. calculated To alley, already public use, is an street or dedicated to not exercise of require compensation. domain, ap- so to not the eminent as simply private property public use, to but propriating exercise already property. damage power public over what is result- up falling ing, causing plaintiffs prop walls, rebuild or their by consequence consequential it is a of the exercise of a and as municipal corporations, public purposes, granted, by the State skillfuly discreetly abused, and ex- power has but and the not been responsible.” city authorities ercised, the Louis, of St. the doctrine In Hoffman Taylor approved, and extended to a where cases case Gurno and property improved according grade, was an established there changed grade improved city later grade, but the up houses the two theretofore erected filling it front of street, egress hampered ingress was grade. Free fixed on the Go. V. STATE EX REE. CaMLEAO CHRISTOPHER. Ji>;}’7\ property damaged. Held, that there liability, was no and so the (¡asescontinued io hold until the Constitution of 1875. [Hickman Kansas City, 120 Mo. l. In Judge c. this ease Bbace uses the word “amendment,” oversight but this is an because no there was amendment Constitution of 1865. There simply of. new Constitution of provided payment for the conse quential damages property, damaged if for a use. None of these cases, old beginning with case running Gurno’s clear say down line, a word about what meant by the word “taken” used as I, Constitution XVI, Article Section General 1865, page Statutes In fact these cases nowhere construe provision taking constitutional relative to the use. -had There no “error of been construction” because there had been construction of constitutional relative private projmrty. What those old cases did towas con
firm and adopt English an old doctrine with reference to conse quential damages. give What Constitution of 1875 did was to consequential damages a cause of action for when none existed be fore, English adopting court reason our rule to conse damages. quential how can it be Then said: *21 ‘‘ foregoing In the it is clear the of word view of that addition the ‘damaged’ ‘taken’ in the eminent domain of our to of clause oper- did broaden its limitation. amendment Constitution The nothing more.” construction, ated to correct an eiror of First, construction', there had been error of because there no as any in old cases of Missouri Constitution these no construction taking relating any “taken” or other to the word Secondly, new public the Constitution property for a use. private of action where “damaged” created the use of word Eng- destroying By this before. English none existed rule under upon the restrictions new broadened rule the Constitution lish nowas Theretofore there taking public use. private property If was. damages, thereafter there but consequential liability for private property, upon restriction is not a further this rule; English cases misconstrue these old is it? Nor did what of construction was no error So there they just it. followed kind to be corrected. the use of reasoning can said that it be By fair no method of nothing added “damaged” in the Constitution word I, of the Constitu- 16, Article 1865. Section previous Constitution taken ought to be private property no “That of 1865 reads: tion ” compensation. just use, without applied provision? We nothing to that 1875 add Did the Constitution are there to show that, attempt is made when did! So think it rather compared as Constitution, Missouri’s in restrictions additional used, it is not “damaged” word where the other constitutions with op tíupRiiMG Temí, [April, Missouiu, Von. 317. OüifRT weight. opinion my cannot learned Brother of its own falls ground. does differ upon stand this Missouri’s Constitution just with what makes the trouble others, and difference change organic people or laws in this State. Let the ordinances ignore not discuss this law, than it. We shall rather ask a court 1925, p. Such an act Enabling Act of. 1925. so-called [Laws just as would be would a violation the Constitution be much Legislature passed pursuance an such act. can- in not wipe out the Constitution.
Consequential damages allowed Constitution of damages Zoning property. to the use of the strikes at the use of just cutting property. It limits the as much as down an estab- use Yes, cutting grade more, lished a street would do. because . always fully earnestly grade destroy does not the use. Bo we insist ruling guided by rulings cannot be in States Missouri “damaged.” whose Constitutions do not have word The word “damaged” put our Constitution additional restriction pursuance interferences with aof purpose. goes property, This additional restriction use of the zoning. My and the destruction the use is the foundation of fully this, learned Brother seems to realize and hence the effort “damaged” show that nothing the additional word added to our T hope Constitution. we have demonstrated that it did. quoting part say
IT. After of what I as to eminent domain being police power, but limited exercise of the and that under police rights and eminent domain in some cases may limited, compensation, be without whilst other require compensation—McKelvey’s cases case, Other ' Constitutional 22—my Mo. l. c. learned Brother asks: “But what Provisions. rights property may are the in which cases through compensation? power, limited without and what compensation? require principle What those of constitutional *22 law the classification?” determines my my opinions McKelvey’s
Had learned Brother read in case, two partial questions. he would have found at least answer I to his re 301 Mo. l. c. and l. c. 37. fer interested to Of course the Con police stitution not define limits of power, does but in re no government publican go of can form it be said to to the extent of except, property legitimate private limited cases. The use by private property protected than pro more one constitutional persons In instrument it is said: vision. our sac/red “That all have right life, enjoyment gains liberty a natural and the their (cid:127)” industry this if property own does not mean that a citizen a has gained by industry, property legiti- put his own could be to a CiiRIStopheR. State ex Rel. Cadillac Co. 1927] use, giving great mate use and non-deleterious it value, then such swept away by limiting value can be the use. Yet such is the doctrine zoning of this ordinance. Other provisions constitutional have been McKelvey’s cited case, and still others could be cited. provision Constitution has a police power” as to of the “the
State. provision “taking likewise has a damaging” as to private property public use. The instrument must be so con- strued stand, possible as to allow both if it be so to do. ex- police power tension of by opinion my wipes made Brother out relating “taking latter of the Constitution damaging” property public use. again, Then i dissent, my because learned indorses brother some utterances from a indorse, I do I text-writer that cannot nor think this court wants opinion says: to indorse it. The before us
“The author of a attempts recent text-book on law an- question swer the analysis thus: ‘The eases to show of the seems (the that it line of police power difference between the and the eminent, domain) largely degree. one of Is rea-. Advancing proper, sonable and under circumstances, all the that the Public Opinion. public good sought compensa- be attained without should rights tion to those whose are to limited to end? If, whole, on the by measure, those affected are if the benefited right light advancing can longer, surrendered opinion, present be retained in if the sacri- possessor, fullness slight great, that com- fice him is or if number so affected pensation impracticable—in compensation pro- all is not such eases for; history, decision, In vided otherwise the law demands it. custom, opinion, play surrounding well circumstances their as as ” p. part.’ City Planning Zoning, the Law of [Williams opinion” “advancing public a man’s When did determine rights? pi’operty If the property hold and his and his other 1o use “advancing opin- piece man owned valuable thought purpose, city ought aesthetic ion” to have it some earnings. goes of the away the man’s Take it under life fia-t city. The power. Opinion” says beautify the “Advancing Public the man shall determining whether text is a indicates this factor “history, did compensation. when lose his Since without custom, play their surrounding circumstances opinion, as well determining not have or should part” should whether the citizen constitu- of this new pay property? doctrine for his Yet such is the ? Who is Williams found. lawyer my Brother has tional learned ? questions deep constitutional Who versed ever heard him as one Michigan Univer- professor His had book to be endorsed Design,” Landscape sity—this one said be “Professor Economics,” “Land another to talk about individual who seems *23 Supreme Missouri, oe Court Arou. 317. [April Term, styled is “Director, Institute Research Land Economies.” Michigan This institute seems to have been founded 1920. The professor Ely. Aubrey is Tealdi and T. Prof. the director is Richard Planning Tealdi details what Mr. has on and Williams done Zoning, belongs which all com- shows that Williams to kinds of mittees, endorsing zoning, and and was on the societies a lecturer Landscape city planning “Department Design” law of in the University. Michigan undoubtedly did know The Professor Williams, whether Mr. all the to which with Committees Societies zoning, belonged planning with had been he connection study law not and blessed with time to constitutional hence Ely says: question. speaks is on with vehemence. he silent that He praise to purpose preface present “The of this editorial is not by If, believe, pace-setting Mr. Frank Williams. as I it is work B. assign path-breaMng, proper words of it its it needs no mine My purpose bush.’ to ex- place. needs no is rather ‘Good wine occupies respect book with related plain position that published, auspices of the published, or books to be under the also in Land Economics.” Institute for Research That Brother Williams a “Pace-setter” and a “Path-breaker” page speaking from his book. 45 he is of the constitu- evident On Federal Governments. He then duplications tional of the State and adds: ‘‘ is, reason to doubt wheth- Time-honored as there nevertheless duplication, of this there continuance er is sufficient cause na- enabling litigant appeal first State and then to often passed delay. by Supreme As tional relief and courts States, provisions more it is true these Court the United by social than when construed most favorable to modern reforms deny every Few, however, will essential State courts. courts; protected States of the-individual the United guaranties in rights similar the State abolition of the bills of delay procedure and lessen certainly simplify Constitutions would expense.” and run Govern- wipe Rights, all He state Bills would out things. Yet, we such Washington. do not endorse We ment the life-blood of Tories, even when that we had must recollect presume that during Revolution. We was at stake Colonies advocates, in the always have its will even Government Centralized United States. quote. be- we from which classify
His the little volume friends Economics, Politics and Sociol- longs Library to “The Citizen’s Ely, Economics Richard T. Professor ogy,” edited said Ely University who wrote He is same of Wisconsin. quoted, we book from Williams’s Editorial to Mr. Preface Co. v. Christohher. 1927] ex eel. Cadillao *24 supra. along He lists the book with “The League,” Non-Partisan by A. Bruce, Andrew and one written, Single to be by “The Tax” F. B. This Library Garver. Citizen’s has no law writer except Mr. if Williams, he can be called one. surroundings
The new author’s are such that I do not feel like in- corporating vagaries upon liis eminent domain and the power I incorpoi'ate into our law. not shall vote to so them. My
IV. approval learned my Brother seizes Van DeVere City, v. Kansas 107 Mo. in the case of Peters v. Buckner, 288 Mo. l. c. as an endorsement of the doctrine announced in the opinion instant to the effect that word “dam Approval of aged” nothing to added Missouri’s Constitution, s0*e was to “correct errors con PurP0Se Van DeVere Kansas City. previous in struction” cases. opinion Our in the just Peters shows mind, ease what in we had defending when the Van page Missouri, DeVere case. At 637 of 288 in speaking of the Van case, DeVere Ave said: opinion “This included directly an easement connected with the
property as within the constitutional provision, and all the line of folloAA'ing eases thing. it do the same my This the doctrine that brother overrules. It is a fair construction of the Constitution 1875, and one that has been followed in than cases, more a score of and we do (much not feel this longer line of cases than our cites) brother They should be overruled. have been consistent throughout, (1) and announce that under the Constitution an ease- ment appurtenant to a property damaged cannot be taken or with- compensation being (2) out paid, damag’es that if the claimed by others, although the same as those suffered all different in de- gree, damages ‘damaged’ then such were not included in the term in used in sundry Constitution. This has been the rule from cases the Van 107 DeVere case Mo. to the Gorman case in Mo., supra. wrong, they I do not feel that these cases are but do not the instant determine case.” just opposed
This shows Avhatwe had in mind when Ave our late attempt Brother to overrule the Van DeVere and WoodsoN thought purpose using other cases. We never of the vieAvthat the “damaged” interpretations correct wrong by the Avord AA'asto placed upon previous court the word organic “taken” as used endorsing law. We had no idea of that doctrine. Unfortunately, Judge supra, Judge like in the Van Brace Black supra, mistakenly case, spoke DeVere the use of the word we “damaged” as an amendment to the It too plain Constitution. argument that there was amendment serious to the Constitu existing only tion of 1865 to 1875. In 1875 one AAe op Term, [April Missouri, Yol. 317. SUPREME Court of our old one. had a and not an amendment Constitution, new Among many granted many rights none existed before. where damages where consequential right to sue for and recover was the And pursuance public use. damages occasioned were of a had been a construction may repeat again there never we pub property for constitutional relative case. Judge Yan by DeYere’s lic in the old cited use, cases Black be corrected Having' there none been no construction said, supra, have we But as Constitutional Convention English as to conse destroy rule did the Constitution quential gave right, where none theretofore a new damages, and constitution, law. existed, or common either statute upon police Missouri cases all time to collate We have *25 extended power. have never it that we Certain it simply because private property damaging of given district to have citizens of a majority a help would these contrary for all just held confiscation made. ¥c have good ways it may be (and in some years. they If want them take allow organic law so as to thing), amend let them purpose. Let the for that compensation, private property, without evi- Williams as Mr. strong in the mind of Opinion,” so “Public Zoning,” so Planning and City “The Law of his book on denced organic law necessary changes in our procure operate as ignore court ask this or other Don’t people of Missouri. respectfully, but most We the Constitution. plain provisions of Blair, in this J., reached conclusions in the vigorously dissent. concurs opinion. City Judges H. Trimble ex rel. Kansas v. Fra al., ncis et City Appeals. Kansas Court of S. W. 833. Banc, September 27,
Court en 1927. Opinion: Competitive 1. CERTIORARI: Conflict in Class: Removal Remedy. City Appeals holding Restoration: a to Kansas Court employee general competitive entitled service of Kansas was position restored he had did not neces- he which been removed sarily It Charter of 1908. hold that there was a restoration under the might right. holding grounded was well be that common-law though remedy wrong, provides does Even not follow that the charter no person wronged to that of which cannot be restored unlawfully deprived, he method of but such case the common-law impliedly given; is of the held that the redress these reasons it cannot be City, opinion Gregory Appeals Kansas conflicts with Court of 1908 contains it was held that the Charter c. employees.” discharged “for the reinstatement of