State Ex Rel. Penrose Investment Co. v. McKelvey

256 S.W. 474, 301 Mo. 1, 1923 Mo. LEXIS 110

• Court: Supreme Court of Missouri
• Decided: October 6, 1923
• Status: Published

Opinions

WALKEE, J.

This is an original proceeding brought by the State at the relation of the corporation named and another against the respondent as Building Commissioner of the City of St. Louis to require him to issue to relators a permit under an ordinance of said city for the erection on .a lot belonging to relator of a building in which it is contemplated to install and conduct an electrically-driven ice manufactory. A compliance with the ordinances of the city other than that designated as the-Zoning Ordinance, No. 30,199, approved July 15, 1918, and the observance of other formal requirements requisite to the granting of a building permit, are alleged to have been made, despite which the respondent has refused to authorize the erection of the building.

Eespondent in his return admits all of the facts set forth in the alternative writ, except a compliance with the Zoning Ordinance, particularly, sections 2, 3, 6, 7 and 29 of same, a failure to comply with which he assigns as the sole reason for his refusal; that under said sections the erection of the proposed building at the location designated for the purpose stated is forbidden by said ordinance, and he is therefore unauthorized to issue said permit.

To this return relators reply that the Zoning Ordinance is void as in violation of Article V (5th Arndt.) and Section I, Article XIV (14th Amendment) of the Constitution of the United States, and of Sections 21 and 30, Article II, of the Constitution of this State; and that it is arbitrary, unreasonable, oppressive and not uniform in its application throughout the city of St. Louis; and hence invalid, and that the business proposed to be conducted in said building will not constitute a nuisance either per se or potential; that the city block, No. 2485, on which it is proposed to erect said building is, under said Zoning Ordinance dividing said city, partly in a residential and partly- in a commercial district, in that lots numbered 1 to 7, both inclusive, of said block, and certain other property lying to the north, south and west thereof, are classified as a part of the Second Residential District, and that lots 18 to 24, both inclusive, as well as other adjacent property, are classified as belonging to the Commercial District. That the sections of the Zoning Ordinance, No. 30,199, heretofore enumerated and relevant under their terms to the matter at issue, are as follows:

“Section Two. In order to designate, regulate and restrict the location and locations of commerce, business, trades and industries and the location of all buildings designed or occupied for specified uses, the city of St. Louis is hereby divided into five districts, which shall be known as: (a) first residence district; (b) second residence district; (c) commercial district; (d) industrial district; and (e) unrestricted district. The city of St. Louis is hereby divided into the five classes of districts aforesaid and the boundaries of the districts are shown upon the map attached hereto and made a part of this ordinance, being designated as ‘Use Zone Map,’ and said map and all the notations, references and other things shown thereon shall be as much a part of this ordinance as if the matters and things set forth by said map were all fully described herein.

“Section Three. Except as hereinafter provided, the use or uses of all buildings and premises existing at the time of the adoption of this ordinance may be continued. Except as hereinafter provided, no building now existing and no building hereafter erected shall be occupied, or altered for occupancy, for a specified use in a district restricted against such use, as shown on the map hereinabove mentioned.

‘ ‘ Section Six. All lands and buildings in the second residence districts, except as hereinafter provided, shall be erected for and used exclusively as dwellings, tenements, hotels, lodging or boarding houses, churches, private clubs, hospitals or sanitariums, public or semi-public institutions of an educational, philanthropic or eleemosynary nature, railroad passenger station and the usual accessories located on the same lot or plot with these various buildings, including the office of a physician, dentist or other person authorized by law to practice medicine, and including private garage containing space for not more than four automobiles; provided, however, that no tenement, hotel, lodging or boarding house shall hereafter be erected, maintained or conducted except as provided in section three of this ordinance in any second residence district occupied exclusively by one and two-family residences, without the unanimous consent of the Board of Public Service after public hearing, duly advertised, has been held thereon. Farming, truck gardening, nurseries or greenhouses may be erected and maintained in second residence districts.

“Section Seven. All land and buildings in commercial districts as shown upon the map hereinabove mentioned shall be erected for and used as a store or shop for the conduct of a wholesale or retail business, a place of amusement, an office or offices, police or fire department station house, post office, studios, conservatories, dancing- academies, carpenter shop, cleaning and dying works, painting, paper hanging and decorating store, dressmaker, laundry, millinery store, photograph gallery, plumbing shop-, roofing or plastering establishment, tailor, tinsmith, undertaker, upholsterer and other similar enterprises or institutions, and also any provided, however, that no building shall have more than fifty per cent of the floor area devoted to industry or storage purposes incidental to its primary use, and provided that not more than five employees shall be engaged in any trade or industry which shall be incidental or essential to the primary use. A telephone exchange, electric substation, or car barn may be established in the commerical district upon permit being issued therefor by the Board of Public Service where such a structure will not be detrimental to or tend to change the character of the neighborhood. In a commercial district a garage containing space for more than four automobiles may be established, erected or enlarged, provided that before permit for such garage is issued by the Board of Public Service there be on file with said Board of Public Service the written consent of the owners of seventy-five per cent of (a) the property within the block where it is proposed to establish, erect or enlarge such garage; or (b) any other property within two hundred feet of the proposed establishment and not separated therefrom by a street. In computing the area of consents required under this regulation so much of the property as is used as garages or stables shall be counted as consenting.

“Section Twenty-nine. The City Plan Commission may of its own initiative or upon petition duly signed and acknowledged by the owners of fifty per cent of the property in any given district or part thereof, cause to be prepared and introduced an ordinance altering the height, area or use restrictions herewith or subsequently established for such district or part thereof as may be deemed affected by such change. Appeal from the decision of the City Plan Commission on all petitions may be taken to the Board of Public Service.”

I. Statements of counsel and exhibits filed are of a nature to challenge the correctness of the action of the City Plan Commission in the classification of the district in which it is proposed to erect the building in question, as a “second- residence district” rather than a commercial one. With that contention, however, we' are not concerned in the determination of the matter at issue. The vexing question as submitted by the contesting parties is not the legal propriety of the act of the commission, which would involve an admission of its power to act, but whether or not the Zoning Ordinance conferred power on the commission to act in the manner here shown; or in other words, is the ordinance valid in that it constitutes such an exercise of the police power as will sustain th<3 limitation therein prescribed in regard to the use of private property by the owner of same? It is pertinent, although perhaps elementary, to say that the power here sought to be exercised by the city is to regulate the mode of living of the inhabitants, and thus viewed from a sociological vantage, to provide for their health, comfort and welfare. This right, so far as the matter in controversy is concerned, is primarily classified as the police power or that of eminent domain. We took occasion in the dissenting opinion in In re Kansas City Ordinance No. 39946; Kansas City v. Liebi, 298 Mo. l. c. 691, 252 S. W. l. c. 413, to define with care the distinctive differences, so far as determinable from cases and texts, between these two powers. It will suffice here,' therefore, to say that the police power may be defined as extending to the protection of the public health, morals and safety and to the promotion of the general welfare (C. B. & Q. Ry. Co. v. People, 200 U. S. 561; Beer Co. v. Mass., 97 U. S. 25; Thayer’s Legal Essays, p. 27, note 1); while that of eminent domain extends to the taking from the owner of property or an easement therein and applying it to a public use or enjoyment — compensation to the owner being a constitutional prerequisite to the exercise of this power. [Art. 2, sec. 21, Mo. Const.; Bridge Co. v. Stone, 174 Mo. 1; Meyers v. Williams, 199 Mo. App. 21; McGrew v. Pav. Co., 247 Mo. 549.] A further distinguishing feature is that the effect of the police power is to restrict a property right as .harmful, while that of eminent domain is to appropriate, a property right because it is useful. [Comm. v. Alger, 7 Cush. (Mass.) l. c. 86; Mugler v. Kansas, 123 U. S. 623.] The exercise of either of these powers is not dependent upon a constitutional delegation therefor, but may be said to underlie the same and to rest upon necessity as an essential to the effective conduct of the government. As has been tersely said (Bridge Co. v. Stone, 174 Mo. 1, and People v. Adirondack Ry. Co., 160 N. Y. 225) this power “exists as a necessary attribute of sovereignty.” While, as stated, it is not due to any declaration of the organic law, experience has demonstrated the wisdom of placing restrictions upon its use in the National and State constitutions (XIV. Arndt. Const. U. S.; Secs. 21 and 30, Art. 2, Const. Mo.), that those charged with the conduct of public affairs may not in disregard of the rights of the individual render the government despotic. It is rather to the extent of these restrictions than the inherent scope of the power that we should look in determining whether it has been properly exercised. Since the object of this ordinance is ostensibly to promote the general welfare it may be classified, if found to be authorized, as within the purview of the police power.

The charter provisions (Article I, City Charter 1914, p. 540') having their origin in the police power delegated by the State to the city (State ex rel. v. Mer. Ex., 269 Mo. 346) and which are applicable to the matter at issue, are as follows:

“Sec. 25. To define and prohibit, abate, suppress, and prevent or license and regulate all acts, practices, conduct, business, occupations, callings, trades, uses of property, and all other things whatsoever detrimental or liable to be determintal to the health,.morals, comfort, safety, convenience, or welfare of the inhabitants of the city and all nuisances and causes thereof.

“Sec. 26. To prescribe limits within which business, occupations and practices liable to be nuisances or detrimental to the health, morals, security, or general welfare of the people may lawfully be established, conducted, or maintained.

“Sec. 35. To exercise all powers granted or not prohibited to it by law which it would be competent for this'charter to enumerate.”

That a municipal corporation possesses and can exercise only such powers as are declared in express words, or which may fairly or necessarily be implied in or are incident to those expressly granted, or are essential to the objects and purposes of its existence and are indispensable, not simply convenient or desirable, are canons of construction in the interpretation of municipal powers too well established by numerous decisions to require- citations in their support. It follows that where a corporation is empowered by its charter, as in this instance, to enact an ordinance for a specific purpose its power is limited to the object specified. [St. Louis v. Transfer Co., 256 Mo. 476.]

It may be admitted that such a construction should not be given as to defeat the evident purpose of the enactment, but that the intent of the framers should be determined, not from a strict or strained interpretation, but from a reasonable one in view of the terms employed and the object sought to be attained. [State ex rel. v. Allen, 183 Mo. 283; State v. Herthel, 88 Mo. 128; Union Depot Railway Co. v. Railway, 105 Mo. 562.]

Guided by these general rules the meaning of the charter provisions, above quoted, and the extent to which they may he applied in the enactment of the ordinance should not be difficult of determination.

It is scarcely necessary to add in this connection, that these provisions, constituting as they do, a part of the organic law of the city, define the limits within which the power delegated to the latter by the State may be exercised. Section 25, as is evident from its terms, authorizes legislation to prohibit, suppress or regulate objectionable businesses or vocations; and Section 26 confers power to enact ordinances defining the territory within which certain occupations may be conducted. If, as we hold, these sections embody the city’s grant of power in this behalf, we need not consider Section 35. The dominant factors of these permissive provisions are the material welfare or the health and safety of the people. These accomplished and the limit of the restrictions upon the exercise of the police power, not only as contemplated by the National and State constitutions, but by these charter provisions, has been reached.

It may be admitted that we are living in an age of the rapid development of the‘police power which, as expressed by some authors, is no longer static, but has become progressive and moves, so far as concerns our civic and social relations, with the movement of public opinion. Justice Holmes of the United States Supreme Court, in Noble State Bank v. Haskell, 219 U. S. 104, gives definite expression to- this thought in saying that “It may be said in a general way that the police power extends to all the great public needs. ... It may be put fourth in aid of what is sanctioned by usage, or held by the prevailing morality or strong and preponderant opinion to be greatly and immediately necessary to the public welfare.”

In a later case in which the United States Supreme Court upheld a regulation upon the rental of buildings, Justice Holmes, in further intimation of the extension of the police power, said: “Circumstances might so change in time as to clothe with a public interest what at other times would be a matter of purely private concern. ’ ’

In a learned and interesting article by Mr. Henry W. Chandler, of the Chicago bar, in a recent number of the American Bar Association Journal on the Attitude of the Law toward Beauty, it is said: “The recognition of beauty as an element to justify the exercise of the police power, which regulates without direct compensation to the person limited, has lagged after its recognition in the field of eminent domain where damages are paid. The police power is always drastic; whatever burden it entails the individual has to bear alone, and the courts therefore are cautious about imposing it. . . . They have not been willing to acknowledge beauty as a justification, but without admitting it they are more and more giving weight to the consideration of fitness and propriety in a man’s use of his own. They may profess to put their decisions on other grounds, but in their hearts this is the directing motive.”

This conclusion' clearly defines the prevailing attitude of the courts. While their reasoning recognizes the aesthetic, their rulings, following the principles which had their origin in the common law concerning individual and property rights, are definitely utilitarian. Not only is this manifested in the adjudicated cases, but it finds frequent expression in the organic and statutory laws of the State and the charter and ordinances of its municipalities.

The terms of the charter provisions here under review are indicative of this purpose on the part of their framers. Certainly no more can be meant from the terms employed in the prohibition and suppression of certain callings than those which detrimentally affect the material welfare of the people; and the limiting of certain occupations and callings to a- prescribed territory must in reason be subjected to a like interpretation. If this be true and these charter provisions lend no other reasonable coloring to the conclusion as to their meaning, then this ordinance, the avowed purpose of which is simply an arbitrary exclusion of a definite business from a prescribed district, is in excess of the power with which the city saw fit to invest itself when it framed its organic law.

We are not without warrant for this conclusion. While the language of the charter is, in our opinion, sufficient to sustain..the conclusion we have reached as to its object and purpose, the Supreme Court of Illinois, in People v. Chicago, 261 Ill. 16, denied the right of that city under its police power to prohibit the establishment of retail stores in a residential district^ on the ground that they were detrimental to the public health morals, comfort and the general welfare — in almost the exact terms employed in the instant case — and held that there was nothing inherently dangerous to the health or safety of the public in a retail store and that the objections to same arose from a purely aesthetic consideration and could not be sustained.

In an earlier case, Sign Works v. Training School, 249 Ill. 436, that court held that matters of taste could not be regulated by statute when unconnected with the safety, comfort, health, morals and material welfare of the people. Unless therefore, a different meaning be given to the words employed, the charter itself constitutes a sufficient restriction upon the enforcement of the ordinance. An ice manufactory, electrically conducted, in the absence of any objectionable features connected with its operation, is certainly no more subject to prohibition or restriction than a retail store.

Our rulings in this State concerning the exercise of the police power are in harmony with the conclusion reached in this case. In St. Louis v. Dreisoerner, 243 Mo. l. c. 223, the limitations of the police powers were 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 Co. v. St. Louis, 235 Mo. l. c. 200.] It cannot sanction the confiscation of. private property for aesthetic purposes.”

In St. Louis v. Liessing, 190 Mo. l. c. 480, which construed an ordinance subjecting milk and cream to inspection and regulating the sale of same, this court speaking through G-antt, J., in upholding the validity of the ordinance, said, in effect, that the inspection of the food product there in question was authorized by the charter and that the purpose of its adoption was to secure the general health of the inhabitants, which constituted a sufficient ground for the upholding of the police power delegated by the State to the city.

In an opinion by Higbee, J. (City of St. Louis v. Evraiff, 301 Mo. 231), this court held, upon like grounds to those stated herein, that .the ordinance under review was invalid in that it imposed restrictions upon the use of private property having no relation to the health, safety, comfort or welfare of the inhabitants, and constituted a deprivation of the use of same in violation of the Constitution. We have found no reason for differing from the conclusion there reached.

In conclusion it is deemed pertinent to add in a general way that the necessity for the existence of civil government lies in the protection it affords to the rights of the individual. Laws enacted for this purpose, by which the government manifests its power, are necessarily more or less restrictive in their nature. They should therefore embody in their terms evidence that they will at least not lessen if they do not add to inalienable rights. That enactments in the exercise of the police power are restrictive in character does not admit of argument. Unless, therefore, it can be shown that they add to or tend to make an addition to fundamental rights they are not justified.

It therefore follows that our peremptory writ herein should issue and it is so ordered.

Woodson, G. J., and David E. Blair, J., concur; Graves, J., concurs in result in separate opinion; White, J., dissents in separate opinion in which Ragland, and James T. Blair, JJ., concur.