City of St. Louis v. Hill

• Decision Date: 13 June 1893
• Parties: City of St. Louis v. Hill, Appellant
• Court: Missouri Supreme Court

22 S.W. 861

116 Mo. 527

City of St. Louis v. Hill, Appellant

Supreme Court of Missouri, Second Division

June 13, 1893

Appeal from St. Louis Court of Criminal Correction. -- Hon. J. R Claiborne, Judge.

The defendant was arrested upon an information lodged against him in the first district police court of St. Louis, for violating ordinance 16450 of the plaintiff city, relating to "Forest Park boulevard," the sections of which ordinance material to the consideration of this case are as follows:

"Section 1. That certain public highway, known as 'Forest Park boulevard,' and extending from Grand avenue to King's highway, is established as a boulevard."

"Sec 4. All houses or buildings hereafter to be erected on said Forest Park boulevard shall conform to uniform building lines, which building lines shall be forty feet distant from and parallel with the north and south lines of said Forest Park boulevard, respectively."

"Sec 4a. Any person violating the provisions of the foregoing section by not conforming to said building lines, or any mechanic or builder erecting houses or buildings not in conformity with said lines, shall be deemed guilty of a misdemeanor, and on conviction thereof, shall be fined not less than five dollars, nor more than twenty-five dollars for each and every day that such house or building in course of erection is permitted to remain, until removed, and each and every day shall constitute a separate offense."

The record discloses that on the eleventh day of November, 1892 the defendant on premises on the north side of Forest Park boulevard, between Cabanne street and Vandeventer avenue, of which the defendant was then and there the owner in fee, which premises were within the district covered by said ordinance number 16450, in the city of St. Louis, did erect a certain dwelling house within the distance of forty feet, to-wit: within fifteen feet from the north line of said Forest Park boulevard, said house not conforming to the uniform building line of said Forest Park boulevard, as prescribed by said ordinance number 16450.

The defendant filed a written motion for discharge upon the ground that the said ordinance No. 16,450 is unconstitutional and void, in that it is contrary to and in violation of sections 20, 21 and 30 of article 2 of the constitution of the state of Missouri.

The St. Louis court of criminal correction, to which court the case had previously been appealed from said first district police court, overruled said motion, found the defendant guilty, and fined him $ 500 and costs. Hence this appeal.

The ordinance heretofore quoted is bottomed on an enactment of the general assembly of this state, the first section of which is the following:

"Section 1. All cities in Missouri having a population of three hundred thousand inhabitants or more, or which shall hereafter reach said population, are hereby authorized and empowered to establish by ordinance boulevards and provide for maintaining the same; and may regulate the traffic thereon, and may exclude heavy driving thereon, or any kind of vehicle therefrom, and may exclude the institution and maintenance of any business avocation on the property fronting on such boulevard and may establish a building line to which all buildings and structures thereon shall conform, and may convert existing streets into boulevards, and may levy a special tax on property fronting on said boulevards, to light, sweep and maintain the same, and the grass and trees thereon, or any part of said expenditures, and for the above purposes, or any of them, may lay out a district or districts in which said special tax shall be levied, and provide for the assessment of said special tax by assessing the same in favor of the city on the adjoining property fronting or bordering on the boulevards where such lighting, sweeping and maintenance is to be had, in the proportion that the linear feet of each lot fronting or bordering on the boulevard bears to the total number of linear feet of all property chargeable with the special tax aforesaid in the district so established, and may accept dedications of boulevards with conditions thereto attached which shall be binding and conclusive: Provided, however, that no ordinance on the above subjects, or any of them, shall be valid unless recommended by the board of public improvements of the city enacting the same." Laws 1891, p. 47.

Judgment reversed.

Collins & Jamison and Rowell & Ferris for appellant.

(1) The right of exclusive enjoyment of real estate by the owner in whatever manner he sees fit, provided he does not so use it as to injure the equal enjoyment by others of their property, or so as to endanger the lives or health of others, must be considered as axiomatic truth. (2) Section 21 of article 2 of the constitution provides that private property shall not be taken or damaged for public use without just compensation. No compensation is afforded by the ordinance which proposes to deprive this defendant of the legitimate use of his property. Walter v. Warner, 25 Mo. 277; Mills on Eminent Domain, section 22; Provolt v. Railroad, 57 Mo. 261; St. Louis County v. Griswold, 58 Mo. 199. (3) Section 30 of article 2 of the constitution provides that no person shall be deprived of life, liberty or property without due process of law. Lowery v. Rainwater, 70 Mo. 152; Tiedeman on Real Property, section 752; River Rendering Co. v. Behr, 77 Mo. 91; Leslie v. City, 47 Mo. 475; Wynehamer v. People, 13 N.Y. 378; 1 Blackstone Commentaries, 139; People v. Otis, 90 N.Y. 48; Janesville v. Carpenter, 46 Northwestern Reporter, 138; Forster v. Scott, 32 Northeastern Reporter, 976; Steel Co. v. Bridgeport, 60 Conn. 278; Grand Rapids v. Powers, 89 Mich. 94. (4) To prevent the owner from building upon any portion of his land he may desire, is a taking and a deprivation of property within the true intent and meaning of the Bill of Rights. 4 American and English Encyclopedia of Law, p. 544; Pumpelly v. Green Bay Co., 80 U.S. 166; Mills on Eminent Domain, section 30; Janesville v. Carpenter, 46 Northwestern Reporter, 128-132; Eaton v. Railroad, 51 N.W. 504 and cases cited; Lewis on Eminent Domain, sections 56 and 58; Forster v. Scott, 32 Northeastern Reporter 976; Cooley's Constitutional Limitations [6 Ed.], page 670; Grand Rapids v. Powers, 89 Mich. 94; In re Chestnut Street, 118 Pa. 593; City v. Linneed, 97 Pa. 242; Kuhn v. Commonwealth, 70 Mich. 537; Commonwealth v. Bacon, 13 Ky. 210; Crockner v. N. Y. 15 Reporter, 135. (5) The ordinance establishing Forest Park boulevard cannot be sustained by the right of the city or state to exercise police regulations. Mills on Eminent Domain, section 7; Forster v. Scott, 32 Northeastern Reporter, 976; Cooley on Constitutional Limitations, p. 704. (6) While the courts should sustain an act of the legislature as valid, if it can be sustained, it is the plain duty of the courts to declare the same invalid where they are in conflict with a constitutional provision. Lowry v. Rainwater, 70 Mo. 152. (7) Private property cannot be taken for merely ornamental purposes, even though compensation be made therefor. Steel Co. v. Bridgeport, 60 Conn. 278; 2 Dillon Municipal Corporation [4 Ed.], 599. (8) Whether the restriction imposed by the ordinance be considered as a "taking" of the defendant's property or merely a damaging thereof, in either event it is in violation of the constitution, because the compensation required must precede the taking or damaging thereof. McElroy v. Kansas City, 21 Federal Reporter, 257.

W. C. Marshall for respondent.

(1) There is no taking of private property under the law of 1891, and the city ordinance. The title to the property and the right to use it is still in the defendant. Neither the city nor the public have any right to use any portion thereof. Any person attempting to enter upon or use any portion of the forty feet embraced in the building line would be a trespasser. The title and the use and the possession and the enjoyment of possession being still in the defendant, it cannot be said that there has been "a taking" within the meaning of section 21 of our constitution. Dillon on Municipal Corporations, secs. 487, 587a. (2) Consequential damages do not constitute a taking of property, and are, therefore, to be compensated in special proceedings. Ib. sec. 995. See also Werth v. Springfield, 78 Mo. 110; Becker v. City, 94 Mo. 379. (3) Boulevards are not only a necessity in modern times and in our progressive age, but are beneficial to owners of property abutting thereon. (4) If what has already been said is true, then section 30 of article 2 has no bearing on this proposition, for whatever beneficial enjoyment the owner is deprived of by reason of the boulevard and its building line will be compensated in a proper and legal manner by due process of law. The only contention that could be made under this head is as to the time when the compensation should be allowed, and as to when the party damaged should be entitled to process of law.

OPINION

Sherwood, J.

-- As already disclosed by the record, the constitutionality of what is commonly known as the "Boulevard Law," is called in question by this appeal.

The provisions of the organic law cited by defendant as pertinent to this controversy are these:

"Sec. 21. That private property shall not be taken or damaged for public use without just compensation. Such compensation shall be ascertained by a jury or board of commissioners of not less than three freeholders, in such manner as may be prescribed by law; and until the same shall be paid to the owner or into court for the owner, the property shall not be disturbed or the proprietary rights of the owner therein divested."

"Sec. 30. That no person shall be deprived of life,...