State ex rel. Penrose Investment Company v. McKelvey

• Decision Date: 06 October 1923
• Citation: 256 S.W. 474,301 Mo. 1
• Parties: THE STATE ex rel. PENROSE INVESTMENT COMPANY et al. v. JAMES N. McKELVEY
• Court: Missouri Supreme Court

256 S.W. 474

301 Mo. 1

THE STATE ex rel. PENROSE INVESTMENT COMPANY et al. v. JAMES N. McKELVEY

Supreme Court of Missouri

October 6, 1923

Reported at 301 Mo. 1 at 36.

Original Opinion of October 6, 1923, Reported at 301 Mo. 1.

Graves J. Woodson, C. J., and David E. Blair and Walker, JJ., concur in these views.

OPINION

GRAVES

ON MOTION FOR REHEARING.

Reading with care the motion for rehearing, and the many suggestions thereon, in this case, I am led to the conclusion that learned counsel have misjudged my separate concurring opinion. I have fixed views in these cases, and to the end that my position may be clear, I write again, although, in the main, it is largely a reiteration of what I have written.

I. (a) In my previous opinion, I undertook to state (and think I did state) that under our Constitution private property could not be taken or damaged for anything but a public use. In other words, that private property could not be taken for a private use. This, under our Constitution, both Federal and State, is axiomatic.

(b) I stated that in the Liebi Case (the Kansas City ordinance which in effect created a city zone) this court had reached the limit of the law in declaring that the zoning, as in such ordinance provided, was a public purpose for which private property may be taken.

(c) I held that under the broad exercise of the police power certain uses of private property might be prohibited, without compensation, as in cases of nuisances, but I further held that the lawful uses to which property could be put gave it the value which it possessed, and such lawful uses could not be restricted, and the value destroyed or partially destroyed, even for a public use or purpose, without compensation. This because the Constitution prohibits the taking or damaging of private property, even for a public use, without just compensation.

(d) I further held that there could be city zoning, as there was in Liebi's Case in Kansas City, when there was compensation for the property rights cut off and destroyed, but that the St. Louis ordinance, involved here, took private property for a public use without compensation, and for that reason was void. It will not do to say, under our Constitution, that a person can be deprived of the legitimate uses of his property, simply because so to do might preserve the value of some other property for a certain stated use.

(e) I further held that to strip property of the uses (legitimate uses) to which it might or could be put was to strip it of value, and that such act would be the damaging of private property for a public use and could not (under our Constitution) be done without compensation.

(f) I disagreed with my brothers of the majority opinion upon the question of the grant of power in the city charter. I think that, if the State could grant to the city the power to write an ordinance of the character here involved, such power has been given to the city. My position is that the State could not grant or give such power to the city under our Constitution, and if it has attempted such a grant of power it is void.

I trust that this reiteration is too plain for further misconstruction.

II. Having tried to make my position clear, supra, I pass to some reasons therefor which I did not assign in my separate concurring opinion. First, may I say that I have never been able to depart from the idea that this is a constitutional government, both in the Nation and in the State, and that these constitutions were intended to protect the citizen in his property rights. Unlike the "faddist" (either public or private, for there are both kinds of "faddists") I have been unable to endorse the view, "What is a Constitution as between friends?" In other words, the constitutional inhibitions must not be set aside or wiped out by every wave of popular clamor. There is too much disposition to set aside and ignore the organic law when there is a popular wave demanding such course. It is for the courts to steady the ship of state and hold the organic law intact.

III. As stated above we ruled, and I think properly ruled, in Liebi's Case, that city zoning was a public purpose and a public use, for which private property might be taken. But this does not authorize the taking without compensation. The Fifth Amendment of the Federal Constitution closes with this language: "Nor shall private property be taken for public use without just compensation." The ordinance before us violates this provision in that it takes private property for a public use without compensation.

Section 20 of Article II of the Missouri Constitution prohibits the taking of private property for private use "except for private ways of necessity, and except for drains and ditches across the lands of others for agricultural and sanitary purposes." These are the only exceptions to the otherwise absolute prohibition. There is another very vital portion of this Section 20 which reads: "That whenever an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use be really public shall be a judicial question, and as such judicially determined, without regard to any legislative assertion that the use is public." It thus appears that the much-flaunted edict of the city legislature has but little to do in the determination of the matter. If private property is to be taken for the general welfare (as an alleged public use) it is for the courts to determine whether or not it is a public use, irrespective of legislative declaration that it is such; and if declared to be a public use by the courts, then the private property may be taken, but not without compensation. So says the Federal Constitution, supra.

Our State Constitution is a little broader, in that Section 21 of Article II provides: "That private property shall not be taken or damaged for public use without just compensation." Note the words "or damaged" in our constitutional provision. The property does not have to be actually taken for the public use, but it suffices (for the purpose of compensation) that it be merely damaged in the furtherance of the public use. It is the uses to which property may be put which gives it value. Strip it of all its uses and the property is as worthless as the most barren spot of the Great Desert. Strip it of a part of its legitimate uses and you have damaged it to the extent of the uses cut off. The restrictions upon the legitimate use of property inflicted by this ordinance is a destruction of the property pro tanto; and there being no provision for compensation, the ordinance is void. [St. Louis v. Hill, 116 Mo. 527; St. Louis v. Dorr, 145 Mo. l. c. 485 et seq., including the dissenting opinion of Sherwood and Burgess, JJ.; St. Louis v. Dreisoerner, 243 Mo. 217.] These three cases condemn the ordinance here involved. They were well considered. They have never been overruled and stand as the law of the State today. In the language of Sherwood, J., in the Hill Case, supra, 116 Mo. l. c. 533:

"Property, then, in a determinate object, is composed of certain constituent elements, to-wit: The unrestricted right of use, enjoyment and disposal, of that object. It follows from this premise that anything which destroys or subverts any of the essential elements aforesaid is a taking or destruction pro tanto of property, though the possession and power of disposal of the land remain undisturbed, and though there be no actual or physical invasion of the locus in quo. [Cooley's Constitutional Limitations (6 Ed.) 670; Wynehamer v. People, 15 N. Y. l. c. 433, per Selden, J.; People v. Otis, 90 N. Y. l. c. 52, per Andrews, C. J.]

"The use of a given object is the most essential and beneficial quality or attribute of property; without it all other elements which go to make up property would be of no effect. If the city were allowed to deprive the defendant of the use of his entire lot, it would leave in his hands but a barren and barmecidal title; and what is true of property rights as an integer is true of each fractional portion.

"If plaintiff's theory be correct, then the city could pass and enforce an ordinance, which would deprive defendant of the use of his entire lot, and still there would be no taking within the terms of Section 21, Article 2, of the Constitution, and consequently, no right to compensation. The statement of such a position is sufficient to accomplish its utter repudiation.

"The day before the ordinance went in to operation, defendant had the unquestionable right to build at will on his lot; the day afterwards he was effectually prevented from building on the forty-foot strip, except under peril of punishment, as if the city had built a wall around it, and this too without any form of notice, any species of judicial inquiry, or any tender of compensation. If this is not a 'taking' by mere arbitrary edict, it is difficult to express in words the meaning which should characterize the act of the city."

The case was dealing with a restriction upon the use of property upon boulevards, but it is equally applicable to the restrictions upon the use of property involved in this ordinance. In the matter of restricting the lawful use of property there can be no difference between the boulevard and a stated district.

In the Dorr Case, supra, on the strength of the Hill Case, supra, it was ruled that an ordinance which prevented a confectionary store on Washington Boulevard in St. Louis was void because violative of the constitutional provision we have above outlined.

Even the bill-board opinions recognized the rule in the Hill Case, but distinguished it in St. Louis Gunning Co. v. St. Louis, 235 Mo. l. c. 151.

The ordinance before us provides for the taking of private...