State v. McKelvey
Citation | 256 S.W. 474,301 Mo. 1 |
Decision Date | 03 October 1923 |
Docket Number | No. 23812.,23812. |
Parties | STATE ex rel. PENROSE INV. CO. et al v. McKELVEY |
Court | United States State Supreme Court of Missouri |
George F. Raid and Oliver Send., both of St. Louis, for respondent.
Glendy B. Arnold, of St. Louis, amicus curiæ.
This is an original proceeding brought by the state, at the relation of the corporation named and another, against the respondent, as building commissioner of the city of St. Louis, to require him to issue to relators a permit under an ordinance of said city for the erection, on a lot belonging to relator, of a building in which it is contemplated to install and conduct an electrically driven ice manufactory. A"compliance with the ordinances of the city other than that designated as the Zoning Ordinance No. 30199, approved July 15, 1918, and the observance of other formal requirements requisite to the granting of a building permit are alleged to have been made despite which the respondent has refused to authorize the erection of the building.
Respondent in his return admits all of the facts set forth in the alternative writ, except a compliance with the zoning ordinance, particularly sections 2, 3, 6, 7, and 29 of same, a failure to comply with which he assigns as the sole reason for his refusal; that under said sections the erection of the proposed building, at the location designated, for the purpose stated, is forbidden by said ordinance, and he is therefore unauthorized to issue said permit.
To this return relators reply that the zoning ordinance is void as in violation of article 5 (Fifth Amendment) and section 1, art. 14 (Fourteenth Amendment) of the Constitution of the United States and of sections 21 and 30, art. 2, of the Constitution of this state; that it is arbitrary, unreasonable, oppressive, and not uniform in its application throughout the city of St. Louis, and hence invalid, and that the business proposed to be conducted in said building will not constitute a nuisance either per se or potential; that the city block, No. 2485, on which it is proposed to erect said building is, under said zoning ordinance dividing said city, partly in a residential and partly in a commercial district in that lots numbered 1 to 7, both inclusive, of said block and certain other property lying to the north, south and west thereof are classified as a part of the second residential district and that lots 18 to 24, both inclusive, as well as other adjacent property, are classified as belonging to the commercial district; that the sections of the Zoning Ordinance No. 30199, heretofore enumerated and relevant under their terms to the matter at issue. are as follows:
I. Statements of counsel and exhibits filed are of a nature to challenge the correctness of the action of the city plan commission in the classification of the district in which it is proposed to erect the building in question, as a "second residence district" rather than a commercial one. With that contention, however, we are not concerned in the determination of the matter at issue. The vexing question as submitted by the contesting parties is not the legal propriety of the act of the commission which would involve an admission of its power to act, but whether or not the zoning ordinance conferred power on the commission to act in the manner here shown, or, in other words: Is the ordinance valid in that it constitutes such an exercise of the police power as will sustain the limitation therein prescribed in regard to the use of private property by the owner of same? It is pertinent, although perhaps elementary, to say that the power here sought to be exercised by the city is to regulate the mode of living of the inhabitants, and, thus viewed from a sociological vantage, to provide for their health, comfort, and welfare. This right, so far as the matter in controversy is concerned, is primarily classified as the police power or that of eminent domain. We took occasion in the dissenting opinion in Re Kansas City Ordinance No. 39946 (Mo. Sup.) 252 S. W. loc. cit. 413, to define with care the distinctive differences, so far as determinable from cases and texts, between these two powers. It will suffice here, therefore, to say that the police power may be defined as extending to the protection of the public health, morals, and safety and to the promotion of the general welfare (C., B. & Q. Ry. Co. v. People, 200 U. S. 561, 26 Sup. Ct. 341, 50 L. Ed. 596, 4 Ann. Cas. 1175; Beer Co. v. Mass., 97 U. S. 25, 24 L. Ed. 989; Thayer's Legal Essays, p. 27, note 1); while that of eminent domain extends to the taking from the owner of property, or an easement therein and applying it to a public use or enjoyment—compensation to the owner being a constitutional...
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