Imágenes de páginas
PDF
EPUB

(Mo., 252 S. W. 404.)

the Constitution. The necessity and expediency of exercising the right are political or legislative in character; its enforcement, judicial. It is not pretended that this power is inherent in a municipality created by the state. It must be conferred by the state."

It is further held in this opinion, about which there is no controversy here, that the right of eminent domain is conferred on such municipalities as Kansas City by § 16 of article 9 of the state Constitution, and that it may be exercised under such charter provisions as have been made therefor, subject to the limitations of the state Constitution. One of these, clearly defined, is 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." Mo. Const. § 20, art. 2.

Moreover, whatever power of the character here under consideration has been delegated to a municipality and called into existence by its charter, within the limitations stated, must, as we have said in American Teleph. & Teleg. Co. v. St. Louis, I. M. & S. R. Co. 202 Mo. 656, 101 S. W. 576, be shown to have been bestowed in express terms or by necessary implication. Before considering whether the power thus required to be made manifest exists, it is necessary to ascertain and determine whether in the exercise of eminent domain, contended for by the city, it has been shown that the purpose sought to be effected by the ordinance was a public one. While not conclusive, the ordinance should be so framed as to leave no doubt as to its character and, as a consequence, the purpose of its enactment under the constitutional provision above quoted (§ 20, art. 2); a legislative assertion that the use is public will avail nothing if upon judicial inquiry such an use is found not to exist.

First, therefore, it is pertinent that the ordinance be permitted to speak in its own behalf; not that it may be found finally lacking from its own words, but that from these the moving impulse, which actuated the minds of its framers, may be ascertained. In § 1 the purpose defined is to "enhance and stabilize the value and utility of each and every piece of property within the benefit district herein prescribed and add to the beautification of said highway and the North Terrace park." In this delineation of character it must be admitted that a lofty purpose is defined, full worthy of a Ruskin's mind; but wherein does there appear a syllable or a word which either in express terms. or by necessary implication authorizes the conclusion that the purpose for which the property to be affected or taken is a public one. The mere declaration, therefore, without more, as to the enhancing and stabilizing of the values of property by moving back a building line and prohibiting oil-filling stations, not declared or shown to be nuisances, does not comport with what the average mind, guided by pages of precedents, would construe to be a taking of private property for public use. Instead of such use is the purpose, not clearly defined in the latter part of the section, viz.: "To add to the beautification of said highway and the North Terrace park."

If for this purpose, then the action of the legislative department of Kansas City in enacting the ordinance was ultra vires and its effect nil. Certainly it will not be gainsaid that Gladstone boulevard was established for the use of the public and the cost of its establishment was charged as a special tax on the district affected. Under no reasonable construction of the language of the ordinance can it be said that all of the owners of property in the district will share proportionate burdens if the ordinance be enforced. While the state has delegated power to the city to condemn

land for public use, this confers no power to condemn for private use. "Public," as the term is used in the Constitution, means everybody; if the use is not for everybody, it is a private use. If to an individual or any number of individuals the right is given to use property in such a manner as will practically exclude the general public therefrom, it is the giving of the property to a private use and a destruction of its public-service character. Kansas City v. Hyde, 196 Mo. 498, 7 L.R.A. (N.S.) 639, 113 Am. St. Rep. 766, 96 S. W. 201; Gaylord v. Sanitary Dist. 204 Ill. 576, 63 L.R.A. 582, 98 Am. St. Rep. 235, 68 N. E. 522.

Further proof of the correctness of the conclusion that the use to which the property to be affected is to be put is not public is found in the fact that the entire control and management of such property would remain as at present in its owners. The representatives of the public, viz., the park commissioners, are not authorized to exercise any supervision over the same. A public use, as defined by a well-recognized treatise, "implies possession, occupation, and enjoyment of the land by the public at large or by public agencies." Cooley, Const. Lim. 7th ed. p. 766. The property, therefore, although subject to a quasi control by the city, would remain private property, and the effect of the ordinance would simply be to limit in some instances the right of private enjoyment of one's own property for the benefit of other private individuals. The law does not lend countenance to this character of proceeding.

II. The ordinance is not a zoning ordinance, and the suggestion made that the affirmance of this case will obstruct zoning is irrelevant. Public benefit might accrue from a wellconceived zoning ordinance, but great detriment from an evil one. An invalid ordinance would be as subject to objection under the caption of a "zoning ordinance" as an evil one.

A zoning ordinance will not make

that a nuisance which is not one in fact. And the power of eminent domain cannot be exercised to destroy the enjoyment of private property even if paid for, unless the public obtains the use of it for a public purpose. Furthermore, three things must concur to effectuate a valid condemnation: (1) The public must obtain possession. Pennsylvania Mut. L. Ins. Co. v. Philadelphia, 242 Pa. 47, 49 L.R.A. (N.S.) 1062, 88 Atl. 904; Cooley, Const. Lim. 7th ed. p. 766; Gaylord v. Sanitary Dist. supra. (2) The use must be one of utility, not esthetic, or for pleasure. Albright v. Sussex County Lake & Park Commission, 71 N. J. L. 303, 69 L.R.A. 768, 108 Am. St. Rep. 749, 57 Atl. 398, 2 Ann. Cas. 48, id. 71 N. J. L. 309. 69 L.R.A. 770, 59 Atl. 146; Farist Steel Co. v. Bridgeport, 60 Conn. 278, 292, 13 L.R.A. 590, 22 Atl. 561; and Woodstock v. Gallup, 28 Vt. 587, 590, infra. (3) Compensation must be made, but it will not supply the absence of possession and public utility.

The reasons, therefore, why the proposed uses are not public are irrefutable, and are supported by a multitude of authorities. 1 Lewis, Em. Dom. 3d ed. pp. 506–508; Pennsylvania Mut. L. Ins. Co. v. Philadelphia, supra; Albright v. Sussex County Lake & Park Commission, 71 N. J. L. 303, 69 L.R.A. 768, 108 Am. St. Rep. 749, 57 Atl. 398, 2 Ann. Cas. 48, id. 71 N. J. L. 309, 69 L.R.A. 770, 59 Atl. 146; Farist Steel Co. v. Bridgeport, 60 Conn. 278, 292, 13 L.R.A. 590, 22 Atl. 561; Woodstock v. Gallup, 28 Vt. 587, 590; Gardner v. Newburgh, 2 Johns. Ch. 162, 167, 7 Am. Dec. 526, 529; Great Falls Power Co. v. Great Falls & O. D. R. Co. 104 Va. 416, 52 S. E. 172; Re Niagara Falls & W. R. Co. 108 N. Y. 375, 15 N. E. 429; Kansas City v. Hyde, 196 Mo. 498, 7 L.R.A. (N.S.) 639, 113 Am. St. Rep. 766, 96 S. W. 201; Richmond v. Carneal, 129 Va. 388, 14 A.L.R. 1341, 106 S. E. 403; Dill. Mun. Corp. 5th ed. p. 1602; Chesapeake Stone Co. v. Moreland, 126 Ky. 656,

(Mo., 252 S. W. 404.)

16 L.R.A. (N.S.) 479, 104 S. W. 762; Alfred Phosphate Co. v. Duck River Phosphate Co. 120 Tenn. 260, 22 L.R.A. (N.S.) 701, 113 S. W. 412; Citizens' Sav. & L. Asso. v. Topeka, 20 Wall. 665, 22 L. ed. 461; Cole v. La Grange, 113 U. S. 1, 7, 8, 28 L. ed. 896, 898, 5 Sup. Ct. Rep. 416.

III. The use to which the property sought to be affected not being a public one, this should be sufficient to determine the question at issue. If it does not, however, it remains to be determined, despite appellant's concession to the contrary, whether the charter makes any provision authorizing this proceeding. Section 40 of article 13 of the charter provides, as we have seen, for the placing of restrictions upon property abutting on boulevards; but this provision is only held applicable to such as "may thereafter be established." A portion of Gladstone boulevard was established by an ordinance, numbered 4972, approved April 7, 1893, and this charter provision did not take effect until 1908, or fifteen years after the establishment of the boulevard. The fact that a part of Gladstone boulevard may have been established after the charter was adopted does not remove the foregoing objection to the validity of this proceeding, which includes and comprehends within its terms the boulevard in its entirety as now existing. If, therefore, the building line and other restrictions sought to be established by this proceeding are free from the limitations of the charter for a portion of said boulevard and subject to them for the remainder, then it is evident, requiring no argument or the citation of any rule of construction to sustain the conclusion, that the ordinance cannot stand. To hold otherwise would be to lend approval to a judicial amendment of the ordinance which would recognize the application of the limitation of the charter to a part of the boulevard and ignore it as to the remainder.

Other than 40, art. 13, of the charter, no power is found therein

for the placing of restrictions upon boulevards. Unless such power expressly appears or may be necessarily implied, as we have said in more than one instance, there is no authority for its exercise. Chicago, B. & Q. R. Co. v. McCooey, 273 Mo. 29, 200 S. W. 59; American & W. Teleph. & Teleg. Co. v. St. Louis, I. M. & S. R. Co. 202 Mo. 656, 101 S. W. 576. In St. Louis v. Dorr, 145 Mo. loc. cit. 472, 42 L.R.A. 686, 68 Am. St. Rep. 575, 46 S. W. 977, we said: "It is not pretended that there is any other specific authority by which the city of St. Louis is empowered to exclude such a business avocation as that of the defendants from property fronting on, or adjacent to, any public street. Without a clear grant of such power no municipal ordinance (of the sort invoked in this case) could possibly be sustained."

This

To a like effect was our ruling in St. Louis v. J. E. Kaime & Bro. Real Estate Co. 180 Mo. loc. cit. 318, 79 S. W. 142: "When there are both special and general provisions, the power to pass by-laws under the special or express grant can only be exercised in the cases and to the extent, as respects those matters, allowed by the charter or incorporating act; and the power to pass by-laws under the general clause does not enlarge or annul the power conferred by the special provisions in relation to their various subject-matters.' 1 Dill. Mun. Corp. 4th ed. pp. 392, 393. court, in Ruschenberg v. Southern Electric R. Co. 161 Mo. 70, 61 S. W. 626, in treating of special and general provisions contained in an act or charter, through Gantt, J., said: 'When there are two acts or charter provisions or ordinances, one of which is special and particular and certainly includes the matter in question, and the other general, and such that, if standing alone, it would include the same matter and thus conflict with the special act, the special act must be taken as intended to constitute an exception to the general act, and especially is this

the law, when such general and special acts are contemporaneous.'

A

In addition, it is required by said § 40, art. 13, that an ordinance of the character of 39,946 be approved by the board of park commissioners. Not only was this not done, but so far as the record discloses it was never submitted to the board; nor is there a finding by the board that a majority of the abutting owners had filed the petition for the ordinance; nor was such a finding made by the common council; nor was there a resolution by the park board establishing the restrictions. compliance with these requirements of the charter constituted conditions precedent to the validity of the proceeding. That they were not complied with the record affords ample evidence, which is supplemented by the affirmative admission of counsel for the appellant that no effort was made to comply with them. However, as stated, appellant disclaims reliance upon § 40, art. 13, and § 41, which follows and emphasizes the limitations of the former, and seeks authority for same upon the general power of the city to condemn private property for public use. There is no such general power conferred upon the city by charter or otherwise which would authorize the common council to exercise the power here sought to be invoked. While it is true that the power of eminent domain is inherent in the state, it exists in subordinate sovereignties only as the same has (as in § 16, or article 9, of our Constitution) been delegated by the state; and to determine the extent to which the power thus delegated has been exercised we look to the charters of such sovereignties. Aside from § 40 and a further § 18 of article 6 of the charter of Kansas City concerning billboards, to which Ordinance 39,946 does not conform, we find no general organic provision in the laws of said city authorizing the proceeding here sought to be inaugurated and conducted. In addition, if, as we have indicated in the foregoing discussion, the power of emi

nent domain inheres in the state, and can only be exercised by a municipality therein as delegated to it by the state, such power is purely derivative, and as such finds no resting place to sustain its exercise in the common law, but must seek its origin in the Constitution of the state; and the extent to which it may be exercised must be set forth in the charter adopted by the municipality in conformity with the Constitution. Absent therefrom, such power does not exist.

IV. Although relying upon the doctrine of eminent domain to sustain its action herein, it is somewhat vaguely contended that the ordinance in question may be upheld under the exercise of the police power. This power, like the mantle of the Persian monarch, may, upon a cursory consideration of same, be held to be capable of indefinite extension; but an analysis of the facts in a given case illustrative of its exercise will demonstrate that, to be upheld, cogent reasons must be found for the invoking of same.

So far as the public is concerned, the exercise of the police power or eminent domain usually has the same foundation; viz., a consideration of the public good. To illustrate, under the doctrine of eminent domain the state may take and acquire property deemed necessary for the public good; under the police power it may prohibit the use of such property as is not for the public good. It will be seen, therefore, as stated by the respondents, that when the taking assumes the form of a prohibitory easement, as at bar, the field of operation of the two powers becomes coincident. short, if a certain use of property may not be prohibited for the public good by the exercise of the police power, it may not be prohibited for the public good by the exercise of the power of eminent domain. A learned treatise on this subject, which derives its inspiration from many sources, thus discusses these two powers: "From one point of

In

view there is a considerable resem

(Mo., 252 S. W. 404.)

blance between the police power and the power of eminent domain in that each power recognizes the superior right of the community community against the selfishness of individuals. . . . In the exercise of eminent domain property or an easement therein is taken from the owner and applied to public use because the use or enjoyment of such property or easement therein is beneficial to the public; in the exercise of the police power the owner is denied the unrestricted use or enjoyment of his property, or his property is taken from him, because his use or enjoyment of such property is injurious to the public welfare." 1 Nichols, Em. Dom. 2d ed. pp. 53, 54.

In an illuminative opinion by this court in St. Louis v. Dreisoerner, 243 Mo. loc. cit. 223, 41 L.R.A. (N.S.) 177, 147 S. W. 1000, the exercise of the police power by a city was thus defined: "The police power is a necessary and wholesome faculty of municipal government, but it only extends to the regulation of employments prejudicial to the public safety, health, morals, and good government of the citizenry, and it 'ends where those public interests are not beneficially served thereby.' St. Louis Gunning Adv. Co. v. St. Louis, 235 Mo. loc. cit. 200, 137 S. W. 929. It cannot sanction the confiscation of private property for esthetic purposes."

In that case, as in the one at bar, it was not shown that the power sought to be exercised was for the public good, in that the requirements sought to be imposed or the restrictions attempted to be created were prejudicial to the public safety, health, or morals of the citizens. The court held, therefore, as we held here, that the ordinance was bad and could not be upheld.

V. An analysis of the cases cited in the majority opinion does not sustain the conclusion reached therein. A synopsis of same demonstrates the correctness of this statement as follows:

We are not here dealing with an

admittedly valuable and subsisting easement, as presented in State ex rel. Meadow Park Land Co. v. Buckner, 288 Mo. 618, 17 A.L.R. 543, 232 S. W. 1024; nor solely with billboards, which may be considered nuisances per se, as in St. Louis Gunning Adv. Co. v. St. Louis, 235 Mo. 99, 137 S. W. 929, and St. Louis Poster Adv. Co. v. St. Louis, 249 U. S. 269, 63 L. ed. 599, 39 Sup. Ct. Rep. 274; nor with the fact that in some instances and for the public good private rights may become subservient to the public welfare, as announced in State ex rel. Barker v. Merchants' Exch. 269 Mo. 346, 356, 190 S. W. 903, Ann. Cas. 1917E, 871; nor with housing acts rendered necessary by war conditions to enable the Federal government to function, as in Block v. Hirsh, 256 U. S. 135, 65 L. ed. 865, 16 A.L.R. 165, 41 Sup. Ct. Rep. 458; nor with the limitations of the height of buildings in order to increase public safety, as in Welch v. Swasey, 214 U. S. 91, 53 L. ed. 923, 29 Sup. Ct. Rep. 567, and Atty. Gen. v. Williams (Knowlton v. Williams) 174 Mass. 476, 47 L.R.A. 314, 55 N. E. 77; nor with a general zoning scheme authorized by special constitutional provisions, as in Opinion of Justices, 234 Mass. 597, 127 N. E. 525; nor with the mere exclusion of a gasolene filling station from a dangerous location, as in Des Moines v. Manhattan Oil Co. 193Iowa, 1096, 23 A.L.R. 1322, 184 N. W. 823, 188 N. W. 921; nor with a Constitution which did not make a public use vel non an exclusively judicial question, as in State ex rel. Twin City Bldg. & Invest. Co. v. Houghton, 144 Minn. 1, 8 A.L.R. 585, 174 N. W. 885, 176 N. W. 159; nor with the condemnation of land, as in Bunyan v. Palisades Interstate Park Comrs. 167 App. Div. 457, 153 N. Y. Supp. 622, and United States v. Gettysburg Electric R. Co. 160 U. S. 668, 40 L. ed. 576, 16 Sup. Ct. Rep. 427. But we are dealing with an attempt, under the guise of the public welfare and ostensibly for the public use, to prohibit landown

« AnteriorContinuar »