State v. McKelvey, No. 23812.

CourtUnited States State Supreme Court of Missouri
Writing for the CourtWalker
Citation256 S.W. 474,301 Mo. 1
Decision Date03 October 1923
Docket NumberNo. 23812.
PartiesSTATE ex rel. PENROSE INV. CO. et al v. McKELVEY
256 S.W. 474
301 Mo. 1
STATE ex rel. PENROSE INV. CO. et al
v.
McKELVEY
No. 23812.
Supreme Court of Missouri, in Banc.
October 3, 1923.
Motion for Rehearing Denied November 20, 1923.
Dissenting Opinion, November 30, 1923.

Original proceeding in mandamus by the State on the relation of the Penrose Investment Company and others against James N. McKelvey. Peremptory writ issued.

Foristel & Eagleton and Frank K. Hiemenz, all of St. Louis, for relators.

George F. Raid and Oliver Send., both of St. Louis, for respondent.

Glendy B. Arnold, of St. Louis, amicus curiæ.

WALKER, J.


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:

"Section 2. In order to designate, regulate and restrict the location and locations of commerce, business, trades and industries and the location of all buildings designed or occupied for specified uses, the city of St. Louis is hereby divided into five districts, which shall be known as (a) first residence district; (b) second residence district; (c) commercial district; (d) industrial district; and (e) unrestricted district. The city of St. Louis is hereby divided into the five classes of districts aforesaid and the boundaries of the districts are

256 S.W. 475

shown upon the map attached hereto and made a part of this ordinance, being designated as `Use Zone Map,' and said map and all the notations, references and other things shown thereon shall be as much a part of this ordinance as if the matters and things set forth by said map were all fully described herein.

"Section 3. Except as hereinafter provided, the use or uses of all buildings and premises existing at the time of the adoption of this ordinance may be continued. Except as hereinafter provided, no building now existing and no building hereafter erected shall be occupied, or altered for occupancy, for a specified use in a district restricted against such use, as shown on the map hereinabove mentioned."

"Section 6. All land and buildings in the second residence districts except as hereinafter provided shall be erected for and used exclusively as dwellings, tenements, hotels, lodging or boarding houses, churches, private clubs, hospitals or sanitariums, public or semi-public institutions of an educational, philanthropic or eleemosynary nature, railroad passenger station and the usual accessories located on the same lot or plot with these various buildings including the office of a physician, dentist or other person authorized by law to practice medicine and including private garage containing space for not more than four automobiles: Provided, however, that no tenement, hotel, lodging or boarding house shall hereafter be erected, maintained or conducted except as provided in section 3 of this ordinance in any second residence district occupied exclusively by one and two family residences, without the unanimous consent of the board of public service after public hearing, duly advertised, has been held thereon. Farming, truck gardening, nurseries or greenhouses may be erected and maintained in second residence districts.

"Section 7. All land and buildings in commercial districts as shown upon the map hereinabove mentioned shall be erected for and used as a store or shop for the conduct of a wholesale or retail business, a place of amusement, an office or offices, police or fire department, station house, post office, studios, conservatories, dancing academies, carpenter shop, cleaning and dyeing works, painting, paper hanging and decorating store, dressmaker, laundry, millinery store, photograph gallery, plumbing shop, roofing or plastering establishment, tailor, tinsmith, undertaker, upholsterer and other similar enterprises or institutions, and also any use permitted in the first and second residence districts: Provided, however, that no building shall have more than fifty per cent. of the floor area devoted to industry or storage purposes incidental to its primary use, and provided that not more than five employés shall be engaged in any trade or industry which shall be incidental or essential to the primary use. A telephone exchange, electric substation, or car barn may be established in the commercial district upon permit being issued therefor by the board of public service where such a structure will not be detrimental to or tend to change the character of the neighborhood. In a commercial district a garage containing space for more than four automobiles may be established, erected or enlarged, provided that before permit for such garage is issued by the board of public service there be on file with said board of public service the written consent of the owners of seventy-five per cent. of (a) the property within the block where it is proposed to establish, erect or enlarge such garage; or (b) any other property within two hundred feet of the proposed establishment and not separated therefrom by a street. In computing the area of consents required under this regulation so much of the property as is used as garages or stables shall be counted as consenting."

"Section 29. The city plan commission may of its own initiative or upon petition duly signed and acknowledged by the owners of 50 per cent. of the property in any given district or part thereof, cause to be prepared and introduced an ordinance altering the height, area or use restrictions herewith or subsequently established for such district or part thereof as may be deemed affected by such change. Appeal from the decision of the city plan commission on all petitions may be taken to the Board of Public Service."

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,

256 S.W. 476

and applying it to a public use or enjoyment—compensation to the...

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39 practice notes
  • Texas-Empire Pipe Line Co. v. Stewart, No. 31432.
    • United States
    • United States State Supreme Court of Missouri
    • November 3, 1932
    ...damaged within the meaning of the constitution. Art. 2, sec. 21, Const. of Mo.; St. Louis v. Hill, 116 Mo. 527; State ex rel. v. McKelvey, 301 Mo. 1, 256 S.W. 474; State ex rel. v. Christopher, 298 S.W. 7720; Van De Vere v. Kansas City, 107 Mo. 83; Clemens v. Insurance Co., 184 Mo. 46; Prai......
  • City of Clayton v. Nemours, No. 26134.
    • United States
    • Court of Appeal of Missouri (US)
    • October 6, 1942
    ...of law. City v. Hill, 116 Mo. 527; Ex parte Smith, 135 Mo. 223; Rendering Company v. Behr, 77 Mo. 91. (12) State ex rel. v. McKelvey, 256 S.W. 474; City v. Hill, 116 Mo. 527. (13) City v. Hill, 116 Mo. 527; City v. Liebi, 252 S.W. 404. (14) The term "street" has a definite and well-recogniz......
  • State v. Christopher, No. 27909.
    • United States
    • United States State Supreme Court of Missouri
    • July 11, 1927
    ...sustained the validity of such laws. City of Aurora v. Burns, 319 Ill. 84, 149 N. E. 784. In State v. McKelvey, 301 Mo. loc. cit. 38, 256 S. W. 474, it was held by a majority of this court as then constituted that city zoning is a public use for which private property may be taken. In Kansa......
  • State ex Inf. Attorney-General v. Curtis, No. 28264.
    • United States
    • United States State Supreme Court of Missouri
    • March 17, 1928
    ...of the United States. McFarland v. American Co., 241 U.S. 79; Backus v. Fort Co., 169 U.S. 557; State ex rel. Penrose Inv. Co. v. McKelvey, 301 Mo. 1; Lansdown v. Kierns, 303 Mo. 75; Gast Realty Co. v. Granite Co., 240 U.S. 55. (6) The act denies to citizens and owners of property within th......
  • Request a trial to view additional results
38 cases
  • Texas-Empire Pipe Line Co. v. Stewart, No. 31432.
    • United States
    • United States State Supreme Court of Missouri
    • November 3, 1932
    ...damaged within the meaning of the constitution. Art. 2, sec. 21, Const. of Mo.; St. Louis v. Hill, 116 Mo. 527; State ex rel. v. McKelvey, 301 Mo. 1, 256 S.W. 474; State ex rel. v. Christopher, 298 S.W. 7720; Van De Vere v. Kansas City, 107 Mo. 83; Clemens v. Insurance Co., 184 Mo. 46; Prai......
  • City of Clayton v. Nemours, No. 26134.
    • United States
    • Court of Appeal of Missouri (US)
    • October 6, 1942
    ...of law. City v. Hill, 116 Mo. 527; Ex parte Smith, 135 Mo. 223; Rendering Company v. Behr, 77 Mo. 91. (12) State ex rel. v. McKelvey, 256 S.W. 474; City v. Hill, 116 Mo. 527. (13) City v. Hill, 116 Mo. 527; City v. Liebi, 252 S.W. 404. (14) The term "street" has a definite and well-recogniz......
  • State v. Christopher, No. 27909.
    • United States
    • United States State Supreme Court of Missouri
    • July 11, 1927
    ...sustained the validity of such laws. City of Aurora v. Burns, 319 Ill. 84, 149 N. E. 784. In State v. McKelvey, 301 Mo. loc. cit. 38, 256 S. W. 474, it was held by a majority of this court as then constituted that city zoning is a public use for which private property may be taken. In Kansa......
  • State ex Inf. Attorney-General v. Curtis, No. 28264.
    • United States
    • United States State Supreme Court of Missouri
    • March 17, 1928
    ...of the United States. McFarland v. American Co., 241 U.S. 79; Backus v. Fort Co., 169 U.S. 557; State ex rel. Penrose Inv. Co. v. McKelvey, 301 Mo. 1; Lansdown v. Kierns, 303 Mo. 75; Gast Realty Co. v. Granite Co., 240 U.S. 55. (6) The act denies to citizens and owners of property within th......
  • Request a trial to view additional results

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