Kansas City v. Liebi , 298 Mo. 569 ( 1923 )

I do not agree with the arguments adduced or the conclusion reached in the majority opinion. A review of the facts and the relevant cases since the rehearing has but confirmed my conclusion that the enactment and enforcement of ordinance No. 39946, will result in the confiscation of private property for purely aesthetic purposes. A brief statement of the facts can but aid in a clearer understanding of the matter at issue. A petition was filed in the Circuit Court of Jackson County, in the name of Kansas City (hereinafter designated as appellant), but in fact by certain property owners residing along Gladstone Boulevard in said city. Others owning property on said boulevard and in the adjacent territory defined as "the benefit district" who opposed the proceedings, were made defendants (hereinafter designated as respondents). The ordinance in question has subsequently been adopted by the legislative assembly of Kansas City. This suit, therefore, involves a discussion of the right of condemnation of private property thereunder. It is contended by the appellant that the powers of eminent domain and taxation are invoked. The first, in that it seeks to condemn private property for an alleged public use; and the second, that the damages or benefits to each of the lots within the benefit district are determined, distributed and charged against said lots and to owners within the defined district and against Kansas City ratably according to the measure of the estimated benefits or damages.

The burden of the petition is that the enforcement of the ordinance "will render it impossible to desecrate Gladstone Boulevard, the Concourse, the Colonnade, and the open Plaza, connected therewith, forming a part of the convergence of Benton Boulevard with Gladstone Boulevard and St. John Avenue by the erection thereon of gasoline filling stations, billboards and cheap commercialisms." The limitations in this plea are that none of the things sought to be prevented may be erected within two hundred feet of any residence and that such restrictions "be extended as far as may be necessary to protect the park development against all inappropriate and derogatory encroachments; and that the ordinance may contain condemnatory provisions such as may be deemed expedient." To this end is added a plea, purely precatory, addressed to the receivers of the street railway company and managers of oil companies, to co-operate with the city "in maintaining and preserving this first typical parkway development in accordance with the high standard of the civic aspirations in which it was conceived and laid out." To this is added a request that the park board "carry forward and complete the development of the Concourse in accordance with the original plan therefor and thus add more strikingly to the beauty of the particular locality now under consideration and to the joy the public will receive therefrom."

Omitting purely argumentative matters expressed in language much akin to that employed in the petition, the ordinance recites, among other things, that the (1) buildings along the boulevard are used exclusively for residential purposes and that the sentiment of the property owners is that the enactment and enforcement of the ordinance would enhance and stabilize the value and utility of the property within the benefit district and add to the beautification of said highway and North Terrace Park; (2) that for twenty years hereafter no building or part thereof shall be constructed within thirty-five feet of the nearest sideline of said boulevard, nor shall any building within the benefit district be used within that period for any other than residential purposes, and that no bill boards or gasoline tanks with a capacity of over one hundred gallons shall be placed at any one locality, nor shall any gasoline filling station be erected or maintained within the benefit district during said period; (3) that the benefit district shall comprise all lands lying within one hundred and fifty feet of the respective side lines of Gladstone Boulevard from Independence Boulevard to Wheeling Avenue, and within one hundred fifty feet of St. John Avenue from Gladstone east, approximately four hundred feet; (4) that a condemnation proceeding should be begun forthwith and prosecuted to ascertain the damages and benefits in accordance with Article 13 of the charter of Kansas City; (5) that the damages shall be paid by special assessments upon the real property within the benefit district and just compensation assessed, collected and paid as provided in said Article 13; (6) defines the limits of the property deemed to be benefited within the benefit district; (7) provides for repeal within twenty years upon a petition of a majority of the owners of private property abutting upon the boulevard between the termini stated.

The motion filed by respondents in the circuit court to dismiss the proceeding is based upon the general ground that the charter of Kansas City does not provide for this proceeding or for the enactment of such an ordinance. The grounds of this motion are that (1) Gladstone Boulevard was established by an ordinance numbered 4972, which became effective April 7, 1893, long prior to the taking effect of the present charter of Kansas City in 1909; (2) that ordinance numbered 39946 was not recommended by the Board of Park Commissioners of Kansas City; (3) that the owners of a majority in front feet of land abutting on Gladstone Boulevard had not petitioned for the restrictions defined by said ordinance; (4) that the Board of Park Commissioners had failed to find that a majority in front feet of the lands fronting on said boulevard had petitioned for said restrictions as required by Article 13 of the charter; (5) that the Common Council had not found that the majority in front feet of the owners had petitioned for such restrictions as required by said article; (6) that the Board of Park Commissioners had not adopted a resolution establishing said restrictions, and that the ordinance failed to recite that such a resolution had been adopted by said board; (7) that upon the property affected by the ordinance there were many substantial and elegant residences which had been built for more than twenty years within twenty-five feet of the nearest line of said boulevard, mostly within twenty feet thereof; that said ordinance applied only to buildings thereafter to be erected and was therefore unreasonable, oppressive and lacking in uniformity and violative of the charter of Kansas City, the Fourteenth Amendment of the Constitution of the United States, and Sections 4 and 20 of Article 2 and Clause 26 of Section 53 of Article 4 of the Constitution of Missouri; (8) that Kansas City has no lawful right to establish a building line upon the property of the respondents without their consent; (9) that there was no power under Article 13 of the charter authorizing the framing of restrictions for the exclusion of billboards, the sole authority therefor being under Article 6, Section 18, of the charter; (10) that much of the land in said benefit district did not abut upon any boulevard, parkway, road or avenue under the control or management of the park commissioners; (11) that no provision of the law of Missouri or of the charter of Kansas City conferred power upon the legislative assembly of said city to prevent the carrying on of a business over fifty feet from a boulevard of said city; that said ordinance undertook to exclude business within one hundred and fifty feet thereof; (12) that said ordinance was class legislation; (13) that it undertook to withdraw from the respondents valuable rights, and that no property in the so-called benefit district was unaffected by the proposed restrictions; that all of it suffered the same injury, was subjected to the same burden and was, therefore, damaged, but that all of the compensation therefor must come from the property thus injured and damaged; that no provision was made for the assessment of benefits against the city or against property not bearing such burden or suffering such loss; that thereby valuable property rights of respondents were confiscated and their property taken and damaged without due process of law, in violation of the Constitution of the United States and the State of Missouri (citing the sections and articles); (14) that said ordinance created no genuine benefit district and did not provide for the assessment of benefits against the city at large; (15) that the proceeding was not to condemn property for parkway or boulevard purposes as authorized by Article 13 of the charter, and is not a permanent appropriation for public use; (16) that the benefit district was unreasonably small; (17) that the ordinance was beyond the city's power and contrary to the Constitution and laws of the State of Missouri in that it seeks to condemn valuable property rights, not for the use and possession of the public, but exclusively for aesthetic purposes, and is confiscatory in its nature, thereby violating the Constitution of the United States and of the State of Missouri (citing articles and sections); (18) that said ordinance constitutes an effort to take private property for private use without the consent of the owners; (19) that while in the form of proceedings in the exercise of eminent domain, it is an unlawful attempt to exercise the police power of the city to exclude from the benefit district all public buildings without compensation and in violation of the laws of the State; (20) that no assessment of benefits in said proceeding could have legal effect for the reasons aforesaid; (21) that the defendants, owners of property in said district to be charged with special benefits, object and protest against the imposition of such benefits for the reasons aforesaid. Wherefore, respondents prayed that the ordinance be declared void and the cause dismissed.

Respondent's motion to dismiss was sustained by the circuit court, from which ruling this appeal is perfected.

Article 13, Section 40, of the charter of Kansas City, cited in the foregoing motion, provides that upon a recommendation of the Board of Park Commissioners building restrictions may be established and fixed on any boulevard, parkway, road or avenue under the control and management of the park commissioners and may prohibit the carrying on of business vocations within fifty feet of such boulevard, or to establish building lines, provided that no restrictions should be fixed unless the owners of a majority of front feet of the lands abutting on such boulevard or part thereof should petition therefor, stating clearly the restrictions desired, and the Board of Park Commissioners and the council should in their resolutions and ordinances find and declare that such majority had petitioned therefor, but such provisions should not apply to any boulevard, parkway or avenue established prior to the taking effect of "this charter" but only to such boulevards, parkways, roads or avenues thereafter established.

Section 41 of said Article 13 prescribes the manner in which restrictions established by ordinance may be removed upon the recommendation of the Board of Park Commissioners, which proceedings, so far as practicable, shall be the same as those required to establish such restrictions, but the manner provided shall apply only to the area covered by the original proceeding.

Section 18 of Article 6 of the charter defines the power of the Board of Park Commissioners in the prohibition of the erection of bill boards and other matters connected therewith.

While it is conceded by the city that the power to enact and enforce the ordinance numbered 39946 is not based upon or derived from either Section 18 of Article 6 or Sections 40 and 41 of Article 13 of the charter, a consideration of certain provisions of said sections becomes pertinent in the discussion of this case, which explain the setting forth of the material portions of same, notwithstanding the disclaimer of the appellants or reliance upon them for the enactment of ordinance 39946.

The attitude of the appellant in this regard in its own language is that: "This is an action in the nature of a condemnation proceeding founded upon an ordinance (No. 39946) which calls into play the sovereign powers both of eminent domain and of taxation. Eminent domain, in that Kansas City seeks to acquire, take over and pay for certain property rights for public use, and the power of taxation, in that it seeks to have the amount of the damages allowed for the rights so acquired determined, distributed and charged against the several tracts of land, and the owners thereof within a defined benefit district and against Kansas City, ratably according to the measure that the benefits therefrom are enjoyed by each. The proceeding is novel only because of the character and scope of the proposed improvement, that is, of the nature of the rights sought to be acquired; otherwise than in the respect noted, well trodden and familiar paths of procedure are followed."

I. Omitting the conclusion in said statement, the correctness of which we challenge, we will confine ourselves to the powers relied upon to sustain the enactment andPrivate Use. enforcement of the ordinance and the results which of necessity must flow therefrom.

It is material, therefore, that we determine in the beginning exactly what is meant by the exercise of the power of eminent domain. A well-considered English case tells us that this phrase was not known to the common law, nor was the doctrine itself or any other application of it to be found except in the exercise of the sovereign of the perogative right to enter upon lands for the defense of the realm. [Attorney-General v. Tomline, 12 Ch. Div. 214.] The phrase is said to have been originated by Grotius in 1625, who says that "the property of subjects is under the eminent domain of the State; so that the State, or he who acts for it, may use, and even alienate and destroy such property; not only in case of extreme necessity, but for ends of public utility, to which ends those who founded civil society must be supposed to have intended that private ends should give way." [De Jure Belli et Pacis, Lib. 3, c. 20.]

Couched in terms more applicable to present conditions, eminent domain may be defined as the right of the State or Nation, or those to whom the power has been delegated, to condemn private property for public use and to appropriate the ownership and possession of same for such use upon the payment to the owner of due compensation to be determined according to law. Such is the nature of the power, evident from its very terms, that it is designated as eminent domain because it is superior to all private rights and is the exercise of the sovereign authority which of necessity resides in all governments for the common benefit and welfare of their citizens. [Twelfth Street Market Co. v. Philadelphia Ry. Co.,142 Pa. 580, 21 A. 989.]

It embraces, says the Civil Court of Appeals of Texas, "All cases whereby authority of the sovereign power and for the public good the property of the individual is taken without his consent." [Byrd Irr. Co. v. Smythe, 146 S.W. (Tex.) 1064.]

Our own court, following the trend of the foregoing and numerous decisions of like tenor in other jurisdictions, has more than once said that the right of eminent domain is a sovereign power to be used by the sovereign or by one on whom the sovereign has conferred it for a particular use; and when conferred, it is to be treated as an invasion of the rights of the individual whose property is to be taken and, therefore, strictly construed. [Chicago Ry. Co. v. McCooey, 273 Mo. 29, 200 S.W. 59; Light Co. v. Scheurich, 174 Mo. 241, 73 S.W. 496; Kansas City v. Marsh Oil Co., 140 Mo. 458, 41 S.W. 943.]

In Kansas City v. Oil Co., supra, GANTT, J., speaking for the court, in his usual terse style, says: "The right of eminent domain is inherent in every government. In this State it is not conferred, but is limited by 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 Section 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." [Sec. 20, art. 2, Mo. Const.]

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 Telephone Telegraph Co. v. Railroad 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 provisions above quoted (Sec. 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 Section 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; Gaylord v. Sanitary Dist., 204 Ill. 576.]

Further proof of the correctness of the conclusion that the use to which the property to be affected 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, Con. Lim. (7 Ed.) p. 766.] The property, therefore, although subjected 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 wellZoning conceived zoning ordinance, but great detriment fromRegulation. 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 (Pa. Mut. Ins. Co. v. Philadelphia, 242 Pa. 47, 88 A. 904, 49 L.R.A. (N.S.) 1062; Cooley on Const. Lim. (7 Ed.) p. 766; Gaylord v. Sanitary Dist., 204 Ill. 576, 63 L.R.A. 582, 98 Am. St. 235); (2) the use must be one of utility, not aesthetic, or for pleasure (Albright v. Park Coms., supra; Farist Steel Co. v. Bridgeport, supra; Woodstock v. Gallup, supra); (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. [Lewis on Em. Dom. (3 Ed.) pp. 506, 507, 508; Penn. Ins. Co. v. Philadelphia, 242 Pa. 47, 88 A. 904, 49 L.R.A. (N.S.) 1062; Albright v. Park Comr., 71 N.J.L. 303, 57 A. 398, 108 Am. St. 749, 69 L.R.A. 768; Farist Steel Co. v. Bridgeport, 60 Conn. 278, 292; Woodstock v. Gallup, 28 Vt. 587, 590; Gardner v. Newburgh, 2 Johns Ch. 162, 167, 7 Am. Dec. 526, 529; Gt. Falls Power Co. v. Railroad, 104 Va. 416, 52 S.E. 172; In re Niagara Falls Ry. Co.,108 N.Y. 375, 15 N.E. 429; Hyde v. Kansas City, 196 Mo. 498; City of Richmond v. Carneal, 106 S.E. 403; Dillon on Mun. Corp. (5 Ed.) p. 1602; Ches. Stone Co. v. Moreland, 126 Ky. 656; Alfred Phosphate Co. v. Phosphate Co., 120 Tenn. 260, 113 S.W. 410, 412; Loan Assn. v. Topeka, 20 Wall. 665; Cole v. La Grange,113 U.S. 1, 7, 8.]

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, itCharter remains to be determined despite appellants'Authority. 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 Section 40, Article 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 Ry. Co. v. McCooey,273 Mo. 29; Telephone Telegraph Co. v. Railroad, 202 Mo. 656.]

In St. Louis v. Dorr, 145 Mo. l.c. 472, 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."

To a like effect was our ruling in St. Louis v. Kaime, 180 Mo. l.c. 318: "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. (4 Ed.) pp. 392, 393.]

"This court in Ruschenberg v. Railroad, 161 Mo. 70, 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.'"

In addition, it is required by said Section 40, Article 13, that an ordinance of the charter of 39946 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. A 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 Section 40, Article 13, and Section 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 Sec. 16 of Article 9 of our Constitution) been delegated by the State; and to determine the extent to which the powers thus delegated has been exercised we look to the charters of such sovereignties. Aside from Section 40 and a further Section 18 of Article 6 of the charter of Kansas City concerning bill boards, to which ordinance 39946 does not conform, we find no general organic provision in the laws of said city authorizing the proceedings here sought to be inaugurated and conducted. In addition if, as we have indicated in the foregoing discussion, the power of eminent 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 thePolice Persian monarch, may, upon a cursory considerationRegulation. 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 of 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. In 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 view there is a considerable resemblance between the police power and the power of eminent domain in that each power recognizes the superior right of the 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. (2 Ed.) pp. 53, 54.]

In an illuminative opinion by this court in St. Louis v. Dreisoerner, 243 Mo. l.c. 223, 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.' [Gunning v. St. Louis, 235 Mo. l.c. 147.] It cannot sanction the confiscation of private property for aesthetic 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 hold 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. AUnreasonable synopsis of same demonstrates the correctness ofRestriction. 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; nor solely with bill boards, which may be considered nuisances perse, as in St. Louis Gunning Co. v. St. Louis, 235 Mo. 99, and St. Louis Poster Adv. Co. v. St. Louis, 249 U.S. 269; 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 inf. v. Merchants Exchange, 269 Mo. 346, 356; nor with Housing acts rendered necessary by war conditions to enable the Federal Government to function, as in Block v. Hirsch,256 U.S. 135; nor with the limitations of the height of buildings in order to increase public safety, as in Welch v. Swasey,214 U.S. 91, and Attorney-General v. Williams, 174 Mass. 476; nor with a general zoning scheme authorized by special constitutional provisions, as in Opinion of the Justices, 234 Mass. 597; nor with the mere exclusion of a gasoline filling station from a dangerous location, as in Des Moines v. Manhattan Oil Co., 184 N.W. (Iowa) 823; nor with a constitution which did not make a public use vel non an exclusively judicial question, as in State ex rel. v. Houghton, 144 Minn. 1; nor with the condemnation of land, as in Bunyon v. Commissioners, 167 A.D. (N.Y.) 457, and United States v. Gettysburg Ry., 160 U.S. 668. But we are dealing with an attempt under the guise of the public welfare and ostensibly for the public use to prohibit landowners from building any kind of structure within thirty-five feet of Gladstone Boulevard, or building, leasing or using any structure within one hundred and fifty feet of said boulevard for other than residential purposes, regardless of size, beauty, utility or desirability. "This," as succinctly said by counsel for respondents, "is unreasonable, excessive and an unwarrantable interference with the rights of private property and a deprivation of the gains of one's industry."

In consideration of all of which, the judgment of the trial court should be affirmed. David E. Blair, J., concurs.