State ex rel. Penrose Investment Co. v. McKelvey. depend upon aesthetic conditions for the validity of the ordinance. There is the matter of health. The State's interference in an individual's liberty is not limited, as formerly, to vaccination and quarantine against contagion. The recent discoveries of medical science show that a thousand perils, unsuspected a generation ago, swarm in the atmosphere of a busy street. For instance, the poisonous gas from the exhaust of a gasoline engine is dangerous to health, even in the open spaces of city thoroughfares. Healthful surroundings mean not only freedom from contagion and poisonous gases, but freedom from disturbing noises and the confusion of traffic and other` incidents which disturb the quiet and peace of one's home. The City Planners are better judges of those matters than the courts. It is fundamental in our institutions that a man's "house is his castle." It is the one sacred spot where his liberty, his rights, and his comfort shall not be interfered with or impaired by the action of another. The multiplying agencies to keep in operation the complex modern civilization tend more and more to encroach upon those rights and the enjoyment of one's home, and demand more and more restriction to prevent such encroachment. In districts where costly dwellings are erected, protectionagainst damaging structures is obtained by building restrictions. But it is not practical so to protect the poor man's home. V. The city must be considered as a whole, in interpreting the grant of power. No general rule of law can be enforced without incurring complaints of hardship in some instances. The "general welfare" of a large city like St. Louis involves a comprehensive view of the community needs. The experts on planning, the intelligent and informed citizens who carefully studied the welfare of the city, its present and future needs, its prospective growth and prosperity, determined upon the plan at General Welfare, State ex rel. Penrose Investment Co. v. McKelvey. tacked. We said of such matters in the Kansas City Case, 298 Mo. 1. c. 591: "The planning of the city in relation to the use of different parts would tend to prevent overcrowded and congested districts, thereby promoting health and the general welfare of the city, would make the city more attractive and thereby promote its growth and general prosperity." To that statement a majority of this court agreed. The "general welfare" is promoted, the "health," "safety" and "convenience" of the people as a whole conserved, and their property rights protected, by measures which will tend to prevent congestion of population, secure quiet residence districts, reduce the danger of traffic accidents, simplify sanitary regulations, make the city a more attractive, enjoyable place to live, promote its prosperity, and secure to property a stability of values. If it is necessary to inquire in each case whether a forbidden building or occupation is in fact a nuisance, not only would endless suits ensue, but the same incidents which constitute a nuisance by the holding of one court or jury would be held harmless by another. It is only by a comprehensive view of the entire community and a grasp of its needs, considering all the people, by trained, informed minds, and sympathetic understanding, that practical and satisfactory results can be achieved. The Utica Case, 195 N. Y. Supp. 225, held an ordinance prohibiting a gasoline station invalid, solely because it was not passed pursuant to a definite "general plan,' but held a general zoning ordinance within the city's power. One of the astonishing, unforeseen incidents of modern traffic is the multiplying numbers of motor-driven vehicles. It is a matter of common knowledge that all streets are too narrow and all open spaces too limited-a condition which affects the "convenience'' and the "safety" of everybody who travels the streets. At the same time, the general use of rapid private transit makes convenient access to a distant part of the city for people to State ex rel. Penrose Investment Co. v. McKelvey. whom it was formerly almost inaccessible, thus rendering the close proximity of residences and factories wholly unnecessary. We must assume that the city authorities have studied the problems arising from congested traffic, overcrowded areas, multiplying casualties from street collisions, and the demands of sanitary science, before classifying the city into districts. If the danger and inconvenience of congested traffic will be abated or even limited by the classification under consideration, then the ordinance is authorized in the interest of the general welfare, and the city authorities, prima-face, are the best judges of whether that classification will produce that effect. There is nothing in the record to indicate that the city authorities in passing the ordinance, or the planning commission in classifying the districts, have acted arbitrarily, oppressively, or in unfair discrimination against anyone, particularly the relators. I think the peremptory writ should be denied. James T. Blair and Ragland, JJ., concur in these views. ON MOTION FOR REHEARING. GRAVES, J.-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 Former Opinion: use. This, under our Constitution, both Federal and State, is axiomatic. Elucidation. (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. State ex rel. Penrose Investment Co. v. McKelvey. (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 State ex rel. Penrose Investment Co. v. McKelvey. 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 Constitutional 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 lan Zoning Ordinance: Damage for Public Use. guage: "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 |