State ex rel. Better-Built Home & Mortgage Company v. Davis
| Citation | 259 S.W. 80,302 Mo. 307 |
| Decision Date | 11 February 1924 |
| Docket Number | 24226 |
| Parties | THE STATE ex rel. BETTER-BUILT HOME & MORTGAGE COMPANY v. J. LIONBERGER DAVIS et al |
| Court | United States State Supreme Court of Missouri |
Preliminary rule discharged.
Conway Elder and Leahy, Saunders & Walther for relator.
(1) The Act of 1921 (Laws 1921, p. 481), is unconstitutional because (a) The act therefore includes all cities of the third and fouth classes, but only those of the second class having a population between 30,000 and 50,000. Thus cities of the second class between 50,000 and 100,000 inhabitants have different powers, with respect to zoning, than cities of that class having less than 50,000 inhabitants. Such a classification is unconstitutional. Ward v. Paving Co., 79 F. 391; Harris v. Bond Co., 244 Mo 664, 688; Owen v. Baer, 154 Mo. 434; State ex inf v. Borden, 164 Mo. 221; St. Louis v. Dorr, 145 Mo. 466; Murnane v. St. Louis, 123 Mo. 480. (b) The act is void because it contains more than one subject and the subject is not clearly expressed in the title. State ex inf. v. Borden, 164 Mo. 221. (2) The act violates the provisions of the State and Federal Constitutions, for it attempts to authorize a taking of private property without just compensation. St. Louis v. Dorr, 145 Mo. 466; St. Louis v. Hill, 116 Mo. 527; Bostick v. Sams, 95 Md. 400; Eubank v. Richmond, 226 U.S. 137; Varney v. Williams, 155 Col. 318; Com. v. Boston, 188 Mass. 348; Quintin v. Board of Aldermen, 64 Miss. 483; State v. Whitlock, 149 N.C. 542. (3) The act is also unconstitutional because it attempts to authorize the taking of private property for a private purpose. The act provides that the uses of property may be regulated "to conserve the value of buildings and enhance the value of land." Byrne v. Md. Realty Co., 129 Md. 202; Atty.-Gen. v. Williams, 174 Mass. 476; Quintin v. Aldermen, 64 Miss. 483. (4) The act is unconstitutional because it attempts to authorize the regulation of real property and to limit the use thereof for purely esthetic or artistic considerations. St. Louis Gunning Co. v. St. Louis, 235 Mo. 99. (5) Prohibition is extended to administrative officials when their duties are marked with the slightest judicial character. The respondents come within that class. State ex rel. Guaranty Co. v. Harty, 276 Mo. 583.
Clarence L. Wolff and Atkinson, Rombauer & Hill for respondents; John E. Turner, Robert A. Roessel and D. D. Holmes, of counsel.
(1) The functions, powers and duties of the City-Plan Commission in holding hearings on proposed plans and in making recommendations thereon to the board of aldermen are of an administrative and legislative character only, and rendered only in an advisory capacity to said board, and have no legal or binding effect, and for that reason the permanent writ should be denied to relator in this case. (a) In prohibition a motion filed by relator for judgment on the pleadings admits such facts in the return as are well pleaded. State ex rel. Caron v. Dearing, 291 Mo. 169. (b) This one jurisdictional and primary question is the only question legally before this court for determination. In prohibition proceedings only matters of jurisdiction will be considered, and questions which go to the merits of the case cannot be considered. State ex rel. Gavin v. Muench, 225 Mo. 227; State ex rel. Brady v. Evans, 184 Mo. 641; State ex rel. Caldwell v. Cockrell, 280 Mo. 281; State ex rel. Hofman v. Scarritt, 128 Mo. 338; State ex rel. Green v. Henderson, 164 Mo. 360; 22 R. C. L. p. 32, sec. 33. (c) All of the duties to be performed by said City Plan Commission, as provided for by said Zoning Act of 1921, and city ordinances passed by the city, are either of an administrative or legislative character. All of the duties to be performed by the zoning commission are of an advisory and recommendatory character only. No obligation rests upon the board of aldermen of said city to accept a single recommendation or idea or suggestion submitted to it by said Plan Commission. No legal obligations rest upon the board of aldermen to enact any zoning ordinances as proposed by said City-Plan Commission in the adoption of any plan or restrictions as applying to property within said city. State ex rel. McEntee v. Bright, 224 Mo. 527; State ex rel. Fabrico v. Johnson, 293 Mo. 309.
GRAVES
Original proceeding in prohibition. Relator has made a very full statement of the case, which is one made purely by the pleadings and a motion for judgment thereon. Counsel concedes the fairness of this statement. We think that a somewhat shorter statement will suffice. The pleadings consist of the petition for our writ of prohibition, and the return of respondents thereto, and a closing of all issues by a motion for judgment as aforesaid. Relator charges that it was the owner of fifteen acres of ground in Clayton, Missouri, and fifteen acres in city of St. Louis adjoining: that it duly and legally platted said fifteen acres in Clayton so that it could be used for the erection of flats and apartment buildings, and had obtained permits from the city of Clayton for the erection of such buildings upon portions thereof. We omitted, in the regular order, to say that when the plat was presented to the board of aldermen of said city for approval, owners of property in two adjoining additions objected to the plat being approved, for the reason that it contained no restrictions as to the character of buildings which might be erected; that said property owners induced the board of aldermen to refuse to approve the plat by agreeing to pay the costs of litigating the matter, and thus compelled the relator to seek a mandamus in the St. Louis Court of Appeals, which it did, and which writ was issued by said court, and it is not denied that these property owners, whose ends had been defeated by the granting of a mandamus against the board of aldermen compelling such board to approve relator's plat, then sought to have the said city pass an ordinance providing for a city-plan commission, and a zoning ordinance, the costs and expenses all being guaranteed and paid by the opposing property owners aforesaid, and who had guaranteed and paid the costs of the mandamus proceeding aforesaid.
Relator had bought its property at a cost of $ 165,000 and had gotten it without restrictions of any character. Upon the guaranty of costs and expenses by the objecting property owners, the city passed an ordinance creating a city-plan commission, and this plan commission, after an engineer had been employed for the purpose, prepared a tentative zoning ordinance, and an accompanying plat, by which the property of relator was placed in what was denominated Class A Residence district, and thus proposed to restrict the use of relators' property to single residence dwellings, and some other limited uses, the details of which are immaterial.
Under the City-Plan Commission ordinance, the respondents, who constituted the City-Plan Commission, were about to begin a series of hearings upon this tentative zoning ordinance before making a final report, and final draft thereof for adoption by the board of aldermen. The fact that opposing real estate interests were back of these ordinances, and paying the city expenses therein is immaterial upon the real questions involved, but is another demonstration that the so-called public spirit back of zoning ordinances is usually the private interest of certain property owners. The zoning was being attempted under and by virtue of an act approved April 1, 1921, Laws 1921, page 481. Relator challenges the validity of this law, as well as the city ordinance creating the City Plan Commission, mentioned above. Respondents decline to go into the merits of either the ordinance or the law, resting their defense upon the ground that prohibition will not lie against the City-Plan Commission. The validity of their proposed zoning plan and ordinance, or the validity of the law under which the ordinance will have to be enacted, they are opposed to having determined in this proceeding. Both would be invalid under the late ruling in State ex rel. v. McKelvey, recently decided, on the ground of taking private property for public use without compensation, if not upon other grounds. That is to say, the law would be invalid if it undertook to grant authority to a city board of aldermen to pass an ordinance which would restrict legitimate uses of private property without just compensation to the owners thereof. As ruled in McKelvey's Case, supra, the State cannot authorize the passing of a zoning ordinance, which would restrict the use of private property for legitimate purposes. This outlines the case.
I. The relator contends that, under the City-Plan Commission ordinance, the defendants, the City-Plan Commission, are exercising judicial functions, in the holding of these hearings upon the tentative or proposed zoning ordinance. The powers of the City-Plan Commission are thus stated in section five of the ordinance, which created the commission:
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