City of St. Louis v. Hill

• Decision Date: 13 June 1893
• Citation: 22 S.W. 861,116 Mo. 527
• Parties: CITY OF ST. LOUIS v. HILL.
• Court: Missouri Supreme Court

22 S.W. 861

116 Mo. 527

CITY OF ST. LOUIS v. HILL.

Supreme Court of Missouri, Division No. 2.

June 13, 1893.

CONSTITUTIONAL LAW — BUILDING RESTRICTIONS — CONDEMNATION PROCEEDINGS.

1. Laws 1891, p. 47, § 1, known as the "Boulevard Law," which provides that a city may establish a building line on a boulevard to which all structures thereon must conform, there being no provision therein for proceedings to condemn the land affected, violates Const. art. 2, § 30, which declares that no person shall be deprived of property without due process of law.

2. As the act fails to provide for compensation for such land, it also violates Const. art. 2, § 21, which declares that private property shall not be taken for public use without just compensation.

3. Rev. St. 1889, § 1821, providing that where a city changes the line or grade of any street or alley without the consent of the owner, or where the compensation cannot be agreed upon, and proceedings to condemn the land were not instituted before the commencement of the work, the owner shall be entitled to an action at law against the city to recover the damages caused by the improvement, violates Const. art. 2, § 21, which provides that private property shall not be taken for public use until compensation therefor is paid.

Appeal from St. Louis court of criminal correction; James R. Claiborne, Judge.

John Hill was convicted of violating a city ordinance, and appeals. Reversed.

The other facts fully appear in the following statement by SHERWOOD, J.:

The defendant was arrested upon an information lodged against him in the first district police court of St. Louis for violating Ordinance 16,450 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 11th 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 No. 16,450, in the city of St. Louis, did erect a certain dwelling house within the distance of 40 feet, to wit within 15 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 No. 16,450. 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 boulevard 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.

Collins & Jamison and Rowell & Ferris, for appellant. W. C. Marshall, for respondent.

SHERWOOD, J., (after stating the facts.)

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...