The State ex rel. Oliver Cadillac Co. v. Christopher

• Decision Date: 27 September 1927
• Docket Number: 27909
• Parties: The State ex rel. Oliver Cadillac Company v. Edward E. Christopher, Building Commissioner and John H. Brod, Jr., Director of Public Safety, of City of St. Louis, Appellants
• Court: Missouri Supreme Court

298 S.W. 720

317 Mo. 1179

The State ex rel. Oliver Cadillac Company v. Edward E. Christopher, Building Commissioner and John H. Brod, Jr., Director of Public Safety, of City of St. Louis, Appellants

No. 27909

Supreme Court of Missouri

September 27, 1927

Motion for Rehearing Denied September 27, 1927.

Appeal from Circuit Court of City of St. Louis; Hon. Anthony F Ittner, Judge.

Reversed.

Julius T. Muench and Leonard J. Holland, Jr., for appellants.

(1) Even though a garage may not be a nuisance per se it is a matter of common knowledge that it is a potential nuisance and likely to cause harm if located in certain districts. The city was therefore warranted in enacting Ordinance No. 34103, prohibiting garages on Lindell Boulevard between Grand Avenue and Kingshighway. St. Louis v Galt, 179 Mo. 8; St. Louis v. Russell, 116 Mo. 248, 255; State ex rel. v. McKelvey, 301 Mo. 48; People ex rel. Keller v. Oak Park, 266 Ill. 365; Re Russell, 158 N.Y.S. 162; Reinman v. Little Rock, 237 U.S. 171; Hadacheck v. Sebastian, 239 U.S. 394; Ex parte Quong Wo, 161 Cal. 220; In re Montgomery, 163 Cal. 457. (a) The respondent's proposed building is a garage, both as defined by ordinance and according to the commonly accepted meaning of the term. Revised Code of St. Louis 1914, sec. 2559; Webster's Dictionary. (b) Garages are modern substitutes for livery stables, and the rules applied to livery stables and similar kinds of business are applicable to them. 23 C. J. 1107; People ex rel. Keller v. Oak Park, supra. (2) Ordinance No. 35003 (the zoning ordinance), enacted in pursuance of the Enabling Act of 1925, authorizing zoning ordinances in cities, for the purpose of "promoting the health, safety, morals, or the general welfare of the community," does not violate any inhibition of the Federal or State Constitution, but is a valid exercise of the police power delegated to the city by the State of Missouri. State ex rel. Civello v. New Orleans, 154 La. 271; State ex rel. Beery v. Houghton, 204 N.W. 569; Wulfsohn v. Burden (N. Y.), 150 N.E. 120; Fourcade v. City and County of San Francisco, 238 P. 934; Spector v. Building Inspector (Mass.), 145 N.E. 265; Brett v. Building Commissioner (Mass.), 145 N.E. 269; State ex rel. Carter v. Harper, 182 Wis. 148; City of Aurora v. Burns (Ill.), 149 N.E. 784; Pritz v. Messer (Ohio), 149 N.E. 30; Pontiac Improvement Co. v. Board of Comrs., 104 Ohio St. 447, 459; Chicago Railroad Co. v. Drainage Comrs., 200 U.S. 561; Freund on Police Power, sec. 511; City of Providence v. Stephens (R. I.), 133 A. 614; Tighe v. Osborne (Md.), 133 A. 465; Morrison v. Pettigrew, 14 Fed. (N. Y.) 453; Gorieb v. Fox (Va.), 134 S.E. 914; State ex rel. Palma v. New Orleans (La.), 109 So. 916; Herring v. Stannus (Ark.), 275 S.W. 321; Little Rock v. Pfeifer (Ark.), 277 S.W. 883; Kroner v. Portland (Ore.), 240 P. 536; Deynzer v. Evanston (Ill.), 149 N.E. 790; City of Bismarck v. Hughes (N. D.), 208 N.W. 711; State ex rel. Roberts v. City of New Orleans (La.), 110 So. 201; Portnoff v. Bigelow (N. J.), 133 A. 534. (3) While Ordinance No. 35003 was not in effect when the respondent's application for a permit was made, it had been passed almost a month before and was to take effect two days after. The appellants were therefore warranted in refusing the permit, on the ground that no use could be made of it by the respondent without violating the law. Ware v. Wichita, 113 Kan. 153; In re Cherry, 193 N.Y.S. 57; Spector v. Building Inspector, 145 N.E. 265; Miller v. Board of Public Works (Cal.), 234 P. 381; Fox-Lane Corporation v. Mann, 215 N.Y.S. 334. (4) Under the circumstances shown in evidence, it was not unreasonable to designate the district in which the property in controversy is located as a multiple dwelling district, as it was in the use map forming part of Ordinance No. 35003. Authorities cited under Point 2.

S. L. Swarts, Louis Kawin and Caulfield & Bartlett for respondent.

(1) The new zoning ordinance is the same in purpose and effect as the former zoning ordinance of St. Louis. It undertakes to restrict the legitimate uses of private property throughout the city. It undertakes to deprive owners of proprietary rights in their propety without compensation and without due process of law. It is, therefore, unconstitutional and void. State ex rel. Better Built H. & M. Co. v. McKelvey, 301 Mo. 130, 256 S.W. 495; State ex rel. Penrose Inv. Co. v. McKelvey, 301 Mo. l. c. 256 S.W. 474; St. Louis v. Evraiff, 301 Mo. 231, 256 S.W. 489; St. Louis v. Hill, 116 Mo. 527; St. Louis v. Dreisoerner, 243 Mo. 217, 147 S.W. 1000; State ex rel. Better Built H. & M. Co. v. Davis, 302 Mo. 307, 259 S.W. 80; Laws 1921, p. 481; C. B. & Q. Railroad v. Chicago, 166 U.S. 226, 236; State ex rel. Knese v. Kinsey, 282 S.W. 439; Calvo v. New Orleans, 136 La. 480; Willison v. Cooke, 54 Colo. 320; Spann v. Dallas, 111 Tex. 350, 235 S.W. 513; Hill v. Storrie (Tex.), 236 S.W. 234; Dallas v. Mitchell (Tex.), 245 S.W. 944; Dallas v. Burns (Tex.), 250 S.W. 717; Marshall v. Dallas (Tex.), 253 S.W. 887; Fitzhugh v. Jackson (Miss.), 132 Miss. 585; State ex rel. v. Edgecomb, 108 Neb. 859; Lucas v. State, 21 Ohio Law Rep. 363; Ignaciunas v. Risley (N. J. L.), 121 A. 783; Plaza Apartment Hotel Corp. v. Hague (N. J.), 126 A. 421; Cooper Lumber Co. v. Dammers (N. J.), 125 A. 325; Pinck v. Jelleme, 126 A. 926; Falco v. Kaltenbach, 128 A. 394; Union County Dev. Co. v. Kaltenbach, 128 A. 396; Nelson Bldg. Co. v. Binda, 128 A. 618; Ingersoll v. South Orange, 128 A. 393; Plymouth Co. v. Bigelow, 129 A. 203; Goldman v. Crowther (Md.), 128 A. 50; Rudensey v. Board of Adjustment, 131 A. 906; Tighe v. Osborne (Md.), 149 Md. 349; Byrne v. Maryland Realty Co., 129 Md. 202, 210; Bostock v. Sams, 95 Md. 400; Stubbs v. Scott, 127 Md. 86. (a) The restrictions in the new zoning ordinance, excluding commercial establishments, including the one proposed to be erected and maintained by relator on the corner of Sarah Street and Lindell Boulevard, when applied to the relator's premises, are unreasonable, oppressive and void. Such restrictions have no reasonable relation to the purposes of the police power. They take relator's property without due process and without compensation. They are unconstitutional and void. Cases cited above; Euclid v. Ambler Realty Co., 47 U.S. Ct. 114, 120, 71 L.Ed. Adv. Op. 171; City v. Hill, 116 Mo. 527; Const. Mo. sec. 21, art. 2; St. Louis v. Dreisoerner, 243 Mo. 223; Laws 1925, p. 309, secs. 1, 3; City of Little Rock v. Pfeifer (Ark.), 277 S.W. 884; Wilmington v. Turk (Del.), 129 A. 522. (b) The restrictions in the zoning ordinance excluding, as they do, an automobile salesroom which relator proposes to establish, and at the same time permitting in the same vicinity storage garages on the ground floor or in the basement of hotels, apartments, or tenements are discriminatory. They deny to relator the equal protection of the laws. Likewise, the restrictions barring relator from establishing its business on Sarah Street at its intersection with Lindell, but permitting such business on Sarah Street across an alley from relator's property, less than thirty feet away, and elsewhere in the city, without regard to the density of population, the narrowness of the streets, the proximity of dwelling houses, are arbitrary and discriminatory, denying to relator the equal protection of the laws. 14th Amendment U.S. Constitution; Barbier v. Connolly, 113 U.S. 31. (c) The zoning ordinance is a local and special law in violation of the Missouri Constitution. Sec. 53, Cl. 32, Art. IV, Constitution of Missouri; Ex parte Lerner, 281 Mo. 18, 218 S.W. 331. (2) Relator's proposed building and its intended use will not constitute "an oil filling station, a garage or other business, occupation or practice liable to be a nuisance or detrimental to the public health, morals, security or general welfare," and hence will not violate the "Lindell" Ordinance. (3) The new zoning ordinance was not in force or effect when relator applied for the permit and could not bar relator's right thereto. St. Louis Charter, art. 4, sec. 19; Keane v. Cushing, 15 Mo.App. 96; Singer Mfg. Co. v. Shull, 74 Mo.App. 486; Rehmann v. Des Moines, 204 N.W. 267; Dobbins v. Los Angeles, 195 U.S. 223, 49 L.Ed. 169; Paffendorf v. Lyndhurst Township, 129 A. (N. J. L.) 389.

Ragland, J. White, Atwood and Gantt, JJ., concur; Graves, J., dissents in a separate opinion; Blair, J., dissents and concurs in conclusions reached in the dissenting opinion of Graves, J.; Walker, C. J., dissents.

OPINION

RAGLAND

For a concise statement of the general nature of this action, its objective and the parties thereto, we quote from appellants' brief:

"This is a proceeding in mandamus, brought by the State at the relation of the Oliver Cadillac Company, a corporation against the appellants, as Building Commissioner and Director of Public Safety, respectively, of the city of St. Louis, to require them to issue the Oliver Cadillac Company a permit for the erection on a lot at the southwest corner of Lindell Boulevard and Sarah Street, in St. Louis, of a two-story, reinforced-concrete, brick-and-stone building, with a basement, to be occupied and used as a place of business for the display, sale and adjustment of automobiles, and for the sale and installation of automobile parts and accessories.

"The lot in question has a front of 258 feet on Lindell Boulevard, and runs back 213 feet along Sarah Street to an alley. The proposed building was to occupy the eastern 170 feet of the lot, and was to be set back thirty feet from the property line on Lindell.

"The petition charged, and the evidence showed, that the relator, the respondent here, had on May 24 1926, applied to the appellants, the respondents below, for a building permit, and had at that...