Kansas City v. Liebi

*587 WHITE-, J. This is a proceeding to restrict the use and to condemn certain rights in property along Gladstone Boulevard in Kansas City, under Ordinance No. 39946, called a “Protective Ordinance.” Owners of certain property abutting on Gladstone Boulevard and within a benefit district were made defendants. Five defendants appeared and filed separate motions to dismiss the proceeding. The motions of two of these, Fred Liebi and T. A. Smart, with a supplemental motion of Smart,- are set out in the record. The other motions are not in the record. All the motions to dismiss were sustained December 15, 1921, the cause dismissed and the plaintiff appealed. In addition to the defendants who moved to dismiss, forty-six defendants appeared and filed their joint . answer, expressing their satisfaction with the proceeding and praying the court to carry it into effect. The proceeding affects Gladstone Boulevard from Independence Boulevard to Wheeling Avenue, a distance of about three miles. Section 1 of Ordinance No. 39946 recites that Gladstone was the first boulevard or parkway established in the city, and that all the buildings along its entire length are used exclusively for residential purposes, and that the overwhelming sentiment of the property owners immediately interested and of all citizens who desire to make Kansas City a good place to live in, is that the enactment and enforcement of the ordinance would “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 North Terrace Park.” Section Two of the ordinance is as follows: “Section 2. Prom and after the enactment of this ordinance no house or building shall be constructed in *588 whole or in part within thirty-five feet of the nearest adjacent side line of said boulevard within twenty years from the enactment of this ordinance, nor shall any house or building within the said benefit district he used within that period for any other than residential purposes or for purposes that are incidental and appurtenant to residential uses. No bill boards shall be erected, maintained or used during that period within the said benefit district. No gasoline tank, or gasoline tanks used in connection with others having a capacity of more than one hundred gallons shall be .placed at one locality within the said benefit district during said period, nor shall any gasoline filling station be erected or maintained within said district during said period.” Section 3 provides for a benefit district comprising all lands on either side of Gladstone Boulevard between Independence Boulevard and Wheeling Avenue,' lying within one hundred and fifty feet of the respective side lines of said boulevard, and provides certain methods of measurement for laying out the lines. Section 4 provides for a condemnation proceeding to determine the damage, if any, which the several property owners within the said benefit district might sustain by reason of the enactment and enforcement of the ordinance, and the manner in which the proceedings should be prosecuted. Section 5 of the ordinance provides that damage caused by the enforcement of the ordinance should be paid for by special assessment upon real property situated within the benefit district. Section 6 recites that the Common Council shall prescribe the terms and describe the limits within which property shall be benefitted by this ordinance and assessed to pay the damages. Section 7 provides that within a period of twenty years the ordinance could be repealed only upon petition of a majority-of the owners of private property abutting upon the boulevard and within the benefit district. *589 The motions to dismiss allege numerous grounds why the proceeding should not he maintained. These may be classified in general as: (1) Those which questioned the constitutionality of the ordinance and the proceeding. It is claimed that the ordinance and the proceeding are contrary to Sections 20, 21 and 30 of Article 2 of the Constitution of Missouri, and the Fourteenth Amendment to the Constitution of the United States. The briefs and arguments of the respondent upon this point mainly go to the provision of Section 20, Article 2, that no private property can be taken for private use except for certain given purposes, and the provision of Section 21, that property shall not be taken nor damaged for public use without gust compensation. (2) Those which asserted reasons why the proceeding is not authorized by the charter óf Kansas City. Several questions are presented in considering the charter power of the city, which will be noticed later in the opinion. On the hearing of the motion the movers introduced evidence to show that some of the buildings upon the boulevard were much nearer than the thirty-five feet. Section Two does not require buildings alrea'dy on the property to be moved, but prohibits any building to be constructed within less than thirty-five feet of the nearest side line, after the enactment of the ordinance. A petition signed by one hundred and seven persons interested in the development of Gladstone Boulevard urging the immediate passage of the ordinance, and suggesting certain changes in it, was offered by the defendants to show that the petition was not in accordance with the provisions of the charter. It was shown that no other petition was on file in the office of the city clerk having reference to the subject-matter of the ordinance. The city offered as witnesses a number of persons who owned property on Gladstone Boulevard, as well as *590 real estate men, to show that the erection of structures forbidden by the ordinance would injure the boulevard for residences. Several witnesses testified that the value of property on the boulevard would be greatly appreciated by enforcement of the ordinance; that because of benefits arising from the scheme the enhanced value of the property affected would be much more than the damages to property owners. Mr. George E. Kessler, landscape architect, gave his idea of zoning in a city: “Q. What do you understand city zoning to be? A. An assembling of the uses of lands for their various purposes in given areas and an attempt to anticipate expansion; and in order to bring about a greater stability; and an ascertainment of this the uses of the property in a rational way throughout the city; placing of limiting lines, throughout the city in different areas; classifying their use into, principally, industrial areas, commercial areas, residential areas; and again subdividing those areas into further smaller units for different uses that would be applicable within its activities. This has usually been done on the broadest scale in recent years, say, only five or six years, under the usual State’s powers, or police powers of the State, but for very many years before, both on the European Continent and in the United States, there have been efforts to bring about the same results of stability of property through the right of eminent domain, establishing building lines, establishing areas of use so that invasion of contrary uses would be checked, and thereby preventing the very great losses that have occurred in most American cities by the need of shifting from one area to another, due to unnecessary or untimely invasion of contrary uses.” It was shown that Gladstone Boulevard was essentially a residence district, and values along the boulevard were based on the use of the land for dwellings; that use for any other purpose would have a tendency to destroy values. It was said that establishment there of business enterprises would immediately reduce its value for residence purposes, including a very large *591 area immediately adjoining the property on which such business might be placed. The purpose was thus expressed : “A. Primarily, the purpose, of course, is to give outdoor recreation. The good appearance and attractiveness is a very distinct value, not usually considered as the prime element, but is one of the large factors in establishing pleasant use. Attractive surroundings always give a greater consciousness of the better things in a community and finally through that very attractiveness increase and sustain the city’s growth and the comfort and welfare of the people living, regardless of those who may come.” All this evidence was introduced without objection, generally being the opinions of real estate experts and of experts upon city planning. The trend of the evidence was that 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 — afford means of recreation to people who desired to drive or walk along such streets in the same way that a public park or playground would. I. The propriety, expediency and necessity of a legislative act are purely for the determination of the legislative authority,, and are not for determination by the courts. That applies to a municipal or-dinance authorized by statute. A legal presumption. of its validity attends the ordinance under consideration and if there is doubt as to its constitutionality we must hold it to be constitutional. [County Court of St. Louis County v. Griswold, 58 Mo. 175, l. c. 192-193; State ex inf. v. Merchants Exchange, 269 Mo. 346, l. c. 356.] These fundamental principles should be stated now and then in view of the popular notion that courts go out of their way to nullify a legislative act. *592 II. It is contended here that Ordinance No. 39946 has not for its purpose a “public use” of the property a;ffecte(3> which is a matter for the determination of the courts, under Section 20, Article II of the State Constitution. No satisfactory definition of the term “public use” has ever been achieved by the courts. Two different theories are presented by the judicial attempts to describe the subjects to which the expression would apply. One theory of “public use” limits the application to ‘ ‘ employment, ” “ occupation. ’ ’ A more liberal and more flexible meaning makes its synonymous with “public advantage,” “public benefit.” [20 C. J. p. 552, sec. 39; 1 Lewis, Eminent Domain, sec. 257; 1 Nichols, Eminent Domain, sec. 40.] The first theory, advocated by respondents, is expressed in a quotation from Cooley on Constitutional Limitations, as follows: “The public use implies a possession, occupancy and enjoyment of land by the' public at large, or by the public agencies.” Nichols on Eminent Domain (Vol. 1, pp. 130-131) thus generalizes the more liberal interpretation of the term: “Anything which tends to enlarge the resources, increase the industrial energies, and promote the productive powers of any considerable number of the inhabitants of a section of the State, or which leads to the growth of towns and the creation of new resources for the employment of capital and labor, manifestly contributes. to the general welfare and the prosperity of the whole community, and, giving the Constitution a broad and comprehensive interpretation, constitutes a public use.” A little investigation will show that any definition attempted would exclude some subjects that properly should be included in, and include some subjects that' must be excluded from, the operation of the words “public use.” Naturally a definition or description of the limits of “public use”-is likely to vary with the character of case *593 in which, the term is employed. The expenditure of public money for pure ornamentation, statuary, pictures and the like; the condemnation of property for the alleged public purpose with compensation to the owner; the enforcement of a pure police regulation for public safety where no compensation is contemplated — each of these different circumstances naturally causes a different application of the term. As might be expected, the more limited application of the principle appears in the earlier cases, and the more liberal application has been rendered necessary by complex conditions due to recent developments of civilization and the increasing density of population. In the very nature of the-case, modem conditions and the increasing interdependence of the different human factors in the progressive complexity of a community, make it necessary for. the government to touch upon and limit individual activities at more points than formerly. In order to constitute public use it is not necessary that the whole community or any large part of it should actually use or be benefited by a contemplated improvement. Benefit to any considerable number is sufficient. [4 Words & Phrases (2 Ed.) p. 44.] Nor does the mere, fact that the advantage of a public improvement also inures to a particular individual or group of individuals deprive it of its public character. [West v. Whitehead, 238 S. W. (Tex.) l. c. 978; Henderson v. Lexington, 22 L. R, A. (N. S.), l. c. 80; 20 C. J. p. 558.] III. The taking for “public use,” when applied to land, is not limited to actual occupation by the public. Any regulation which imposes a restriction upon the use of property by the owner, and any neighboring public improvement which tends to impair the enjoyment of property by affecting some right or easement appurtenant thereto, may be, under certain circumstances, a public use within the meaning of the Constitution. [1 Nichols on Eminent Domain, sec. 101, p. 280; 10 R. C. L. p. 73.] *594 In the recent case of Peters v. Buckner, 288 Mo. 618, where the owners of property in a large addition had received deeds with building restrictions, in an action to condemn two blocks in the addition for school purposes it was held that every owner of property in the addition had an easement in the blocks taken and should be compensated in damages which might accrue to each individual lot. That is, the condemnation reached not only the blocks of ground actually used for school purposes, but it also reached the intangible easement in that property appurtenant to a lot several blocks away; the owner of each lot had a right to the maintenance of the restrictions and that right was condemned for public use. Consideration of some of the cases in various jurisdictions sustaining the constitutionality of zoning ordinance is important as throwing light on the attitude of the courts regarding the subject. The validity of a statute limiting, in the city of Boston, buildings to a certain height in one part of the city and to another height in another part of the city, was attacked in the case of Welch v. Swasey, 214 U. S. 91, and was heard on writ of error from the Supreme Court of Massachusetts (193 Mass. 364.) It was claimed that this statute was unconstitutional, and the purpose did not justify the exercise of public pow-er, because the real purpose was of an aesthetic nature, designed purely to preserve architectural symmetry and a regular sky line. It was further contended that the statute was unreasonable. The Federal Supreme Court, 214 U. S. l. c. 106, sustained the ruling of the Massachusetts Supreme Court, holding that regulations in regard to the height of buildings were made by the Legislature for the safety, comfort, and convenience of the people, or for the benefit of the property owners generally and were valid, and that the statute was not unreasonable. In Attorney-General v. Williams, 174 Mass. 476, an act of the Legislature limiting the height of buildings around Copley Square in the city of Boston, but permitting towers, domes and sculptured ornaments to ex *595 tend above the regulation height, was declared constitutional. The restriction was held to be for public use, on the theory that the grounds of the park were enjoyed by the-people that used them, and the park administered not only to the coarser senses but was in the highest sense educational. The statutes provided for compensation to persons damaged by the enforcement of the restriction. In the case of State v. Houghton, 176 N. W. 159, the Supreme Court of Minnesota had under consideration the constitutionality of an act providing for residence districts in cities of the first-class and prohibiting the erection in such residence districts of certain business structures. The court reviewed the authorities at length and held the act constitutional. The opinion quotes also from an earlier Minnesota case to the effect that the term “public use” is flexible and cannot be limited to the public use known at the time of the framing of the Constitution (1. c. 161). The court thus states the historical expansion of “public use” at page 161: “In comparatively recent times it was questioned whether a public use extended so far as to justify the condemnation of property and the expenditure of money for public parks, or for boulevards, or for pleasure drives, or for public baths, or for playgrounds, or for libraries and museums, or for numerous other purposes which contribute to the general good. Now condemnation and expenditure for these and like or similar purposes is common, and recognized as lawful. Not so very long ago there would have been a revolt against restricting a property owner in the full use of his lot to the street line. But a condemnation for the purpose of widening a street by adding a strip on each side, which is not to be used for travel, but for ornament and beauty, and with the reservation of a limited use in the owner, is held valid.” The opinion then cited many cases illustrative of the more liberal doctrine interpreting public use. *596 Tbe Supreme Court of Massachusetts on a request of the House of Representatives of that State, gave their opinion on the constitutionality of a contemplated zoning-act, and held the act would be constitutional, using this language (234 Mass. 603-604): “Intelligent municipal planning to the end of furnishing access to pleasant natural scenery was recognized and held by this court many years ago to warrant the exercise of the power of eminent domain and the expenditure of public moneys. [Higginson v. Nahant, 11 Allen, 530-536.] Legitimate expenditures of public money and exercise of eminent domain cover a broader field than does the public power in its limitations upon the rights of use of private property. ” That statement of the extent of the State’s exercise of eminent domain is generally recognized by the authorities. [20 C. J. 519.] Other pertinent cases are Zircle v. Southern Railway Co., 102 Am. St. l. c. 813; Cochran v. Preston, 108 Md. 220; Eubank v. City of Richmond, 226 U. S. 137. An examination of cases in this State will show this court is inclined to a more liberal application of the term “public use.” As early as 1874, in considering the' act establishing Forest Park entirely outside the city limits of Saint Louis, this court held that act to be constitutional. [St. Louis County v. Griswold, 58 Mo. l. c. 192-193.] In the case of the City of St. Louis v. Hill, 116 Mo. 527, l. c. 535, this court had under consideration the constitutionality of a boulevard law, and an ordinance in pursuance of it which provided that houses to be erected on Forest Park Boulevard should conform to certain building lines forty feet distant from the line of the street. This court held the act unconstitutional, because it made no provision for compensation for those whose property was restricted and no such provision was contained in the ordinance (1. c. 536). No other objection to the validity or constitutionality of the ordinance was mentioned. *597 In the case of St. Louis v. Dorr, 145 Mo. 466, l. c. 485, this court had under consideration an ordinance providing that houses fronting certain streets should be u.sed for residence only. The court held that the Scheme and Charter of the city of St. Louis did not authorize the ordinance, but citing the Hill Case, 116 Mo. 527, it was indicated that if the ordinance were authorized by the charter and provided for a compensation to owners on account of the restrictions imposed, it would be constitutional. In the case of St. Louis Cunning Company v. St. Louis, 235 Mo. 99, this court held that under its police power the city had a right to regulate without compensation the size and position of bill boards along the streets, for the reason that the regulation of bill boards would tend to prevent crimes and disorders and promote the safety, welfare and enjoyment of the people. The validity of the bill board ordinance arose in the case of the Kansas City Cunning Co. v. Kansas City, 240 Mo. 659, and it was held that the regulation of. bill boards was within the power of the city, excepting one section which was conceded to be invalid. That case, as well as the St. Louis Cunning Company Case, got before the Federal Supreme Court, 249 U. S. 269. In quoting the St. Louis Cunning Case, 249 U. S. l. c. 274, the court approved the doctrine announced where the ordinance prohibited bill boards in residence districts of the city, “in the interest of the safety, morality, health and decency of the community.” In that case it was held also that the city might discourage bill boards by a high tax “even apart from the right to prohibit them altogether asserted in the Cusack Company Case.” There is not a single argument or reason advanced in favor of the constitutionality of an act or an ordinance providing for a public park, or for a parkway along the street between the sidewalk and the driveway, over which the public cannot travel, which does not apply to the ordinance in this case. The parkway along *598 the street is not traveled, it is not taken in possession by the public in the sense that the public occupies it; it is merely ornamental, but tends to enhance the attractiveness of a street and the value of property upon a street. It has an educational value and promotes the physical enjoyment of people who travel the street: All of which applies to Gladstone Boulevard with the proposed restrictions. Section 2 of the ordinance provides for a building line thirty-five feet from the street for buildings thereafter constructed; prohibits buildings other than for residential purposes, including gasoline tanks of capacity more than one hundred gallons, filling stations, and billboards. Any person damaged by such restrictions is to be compensated in the manner provided. Each and all of those restrictions, and restrictions of like character, have been held legitimate exercise of the sovereign power of the State in the interest of health, safety, morality, general enjoyment and education of the community. We hold, therefore, that the ordinance is constitutional. IY. Another point against Section Two is urged with great pertinacity by respondents — that it is unreasonable. And they point to the g*eneral doctrine that a court will nullify an ordinance because ^s unreasonableness in its operation upon the persons affected. Usually an ordinance will not be declared unreasonable if it is within the express power of the municipal authorities which ordain it. The question usually arises regarding a regulatory ordinance claimed to be within the merely implied powers of a municipal corporation. [Dillon on Mun. Corp. (4 Ed.) 405; Coal-Float v. Jeffersonville, 112 Ind. 15; 28 Cyc. pp. 369-870.] In a condemnation proceeding the court having determined that the proposed use is a “public use,” the expediency and propriety of the enactment under which it is authorized are for the legislative body and not a *599 subject of judicial inquiry. [So. Ill. & Mo. Bridge Co. v. Stone, 174 Mo. 1; Aldridge v. Spears, 101 Mo. 400.] In the case of a municipal ordinance proposing to take property for public use, where the charter of the municipality authorized the proceeding, the passage of the ordinance is conclusive as to the necessity and reasonableness of it. [Cape Girardeau v. Houck, 129 Mo. 607; State ex rel. v. Engleman, 106 Mo. 628; Kansas City v. Mo. Pac. Ry. Co., 229 S. W. l. c. 773.] In cases cited by the respondents in support of their position, such as St. Louis v. Handlan, 242 Mo. 88, the ordinances were held invalid because not within the charter power of the municipality which ordained them. In cases where municipalities proceed by ordinance to condemn property for public use, the question of the reasonableness or unreasonableness of an ordinance does not arise. The question for the courts in such cases is whether under its charter powers the municipality has a right to condemn property for the purposes contemplated, and whether the use is a public use. V. Respondents urge that the proceeding in this case is not within the charter powers of Kansas City. They point to Sections 40 and 41, Article 13, of the charter, as providing a method by which the purpose contemplated here may be carried through. These sections provide for bulding restic tions and for the establishment of building lines through the instrumentality of the Board of Park Commissioners. The proceeding in this case does not conform to the method provided for in those sections of the 'charter. A further objection to the proceeding is that this charter was adopted in 1908, and Sections 40 and 41 provide they shall not apply to any boulevard, etc., established prior to the taking effect of the charter. Gladstone Boulevard was established long before that. Neither by the terms nor by intendment can it be said that the subjects to which those sections of the charter do not apply are governed by them. If the chartej of *600 Kansas City and the general laws of the State authorize the city to proceed by ordinance in the manner in which it is proceeding here, then the adoption of Sections 40 and 41 and the restriction of their operation to future thoroughfares would not prohibit the proceeding. Those sections simply provide what the municipal authorities suppose to be a practical method by which the property along future thoroughfares may be regulated. It did not prohibit nor restrict the powers of the city with regard to property along thoroughfares already established. VI. It remains .to inquire whether Kansas City under its charter and the general laws had authority to condemn property for the purpose mentioned. Section 16, Article 9, of the Constitution of Missouri, authorizes a city of more'than one hundred thousand inhabitants to frame a charter for its “own government consistent with and subject to the Constitution and the laws of this State.” In pursuance of that authority Kansas City adopted its charter. Section 1, Article 1, of .the Charter adopted in 1908 provides that the city may “acquire by gift '. . . condemnation proceeding or otherwise . . . lands or other property” for certain public purposes. The section then provides that the city might acquire in the manner aforesaid: “any property real, personal or mixed for art gallarles, museums, educational, benevolent, charitable or other public purposes, whatsoever.” It is not claimed that the provision is unconstitutional. It is certainly comprehensive enough to cover any purposes for which the city authorities might deem it. necessary to condemn property, provided the use for which it was taken was a public use, and of the same general character as those specifically mentioned. Section 8906, Revised Statutes 1919, relating to cities of more than one hundred thousand inhabitants, provides that such cities may acquire and hold by gift, etc., *601 “by tbe exercise of tbe power of eminent domain by condemnation proceedings, lands for public use” for certain public purposes mentioned, including parks,.“or for any other public purpose and to provide for managing, controlling and policing tbe same.” Other sections of tbe charter also bear upon'tbe subject and have been held by this court to invest Kansas City “with tbe power of eminent domain for tbe condemnation of property for public purposes.” [State ex rel. Realty Co. v. Thomas, 278 Mo. l. c. 95; Kansas City v. Oil Co., 140 Mo. 458; Brunn v. Kansas City, 216 Mo. l. c. 117; Kansas City v. Woerishoeffer, 249 Mo. l. c. 46, and cases there cited.] Those provisions in tbe charter, and Section 8906, Revised Statutes 1919, are comprehensive' enough to cover the ordinance and the proceeding here. The purpose is educational, means of recreation, enhancement of property values, and all those elements which promote civic pride and consequent growth and prosperity of the city. VI. The rulings of the Federal Supreme Court in the case mentioned under Paragraph III above sufficiently answer the contention of the respondents that the proceeding here is contrary to the Fourteenth Amendment to the Federal Constitution. We have not been pointed to any reason why the pro ceeding in this case is contrary to the Constitution, nor to any reason why it is not within the powers granted to Kansas City. The order sustaining the motions to dismiss was therefore erroneous. The judgment is reversed and the cause remanded. All concur, except Walker, J., who dissents in separate opinion, in which David E. Blair, J., concurs.