The foregoing opinion of BOND, C., is adopted as the opinion of the court. All of the judges concur."
The present opinion extends the police power to the destruction of private property and private rights. Under its definition of police power, there is no limit to the taking of property. Under its broad doctrine of police power the city authorities could take the whole of a person's property, if it so desired, and that too without a cent of compensation. If the police power authorizes the taking of a part of the property for public use, by the same token, title as well as use of the property, could be taken.
We adhere to just what we said in the McKelvey case (301 Mo. l.c. 39) thus:
"Our State Constitution is a little broader, in that Section 21 of Article II provides: `That private property shall not be takenor *Page 1198 damaged for public use without just compensation.' Note the words `or damaged' in our constitutional provision.Damage to The property does not have to be actually taken forPrivate the public use, but it suffices (for the purpose ofProperty. compensation) that it be merely damaged in the furtherance of the public use. It is the uses to which property may be put which gives it value. Strip it of all its uses and the property is as worthless as the most barren spot of the Great Desert. Strip it of a part of its legitimate uses and you have damaged it to the extent of the uses cut off. The restrictions upon the legitimate use of property inflicted by this ordinance is a destruction of the property pro tanto; and there being no provision for compensation, the ordinance is void. [St. Louis v. Hill, 116 Mo. 527; St. Louis v. Dorr, 145 Mo. l.c. 485 et seq., including the dissenting opinion of SHERWOOD and BURGESS, JJ.; St. Louis v. Dreisoerner, 243 Mo. 217.] These three cases condemn the ordinance here involved. They were well considered. They have never been overruled and stand as the law of the State today. In the language of SHERWOOD, J., in the Hill case, supra, 116 Mo. l.c. 533:
"`Property, then, in a determinate object, is composed of certain consistuent elements, to-wit: The unrestricted right of use, enjoyment and disposal, of that object. It follows from this premise that anything which destroys or subverts any of the essential elements aforesaid is a taking or destruction protanto of property, though the possession and power of disposal of the land remain undisturbed, and though there be no actual or physical invasion of the locus in quo. [Cooley's Constitutional Limitations (6 Ed.) 670; Wynehamer v. People, 15 N.Y. l.c. 433, per SELDEN, J.: People v. Otis, 90 N.Y. l.c. 53, per ANDREWS, C.J.]
"`The use of a given object is the most essential and beneficial quality or attribute of property; without it all other elements which go to make up property would be of no effect. If the city were allowed to deprive the defendant of the use of his entire lot, it would leave in his hands but a barren and barmecidal title; and what is true of property rights as an integer is true of each fractional portion.
"`If plaintiff's theory be correct, then the city could pass and enforce an ordinance, which would deprive defendant of the use of his entire lot, and still there would be no taking within the terms of Section 21, Article 2, of the Constitution, and consequently, no right to compensation. The statement of such a position is sufficient to accomplish its utter repudiation. The day before the ordinance went into operation, defendant had the unquestionable right to build at will on his lot; the day afterwards he was effectually prevented from building on the forty-foot strip, except under peril of punishment, as if the city had built a wall around it, and this too without *Page 1199 form of notice, any species of judicial inquiry, or any tender of compensation. If this is not a "taking" by mere arbitrary edict, it is difficult to express in words the meaning which should characterize the act of the city.'
"The case was dealing with a restriction upon the use of property upon boulevards, but it is equally applicable to the restrictions upon the use of property involved in this ordinance. In the matter of restricting the lawful use of property there can be no difference between the boulevard and a stated district.
"In the Dorr case, supra, on the strength of the Hill case, supra, it was ruled that an ordinance which prevented a confectionary store on Washington Boulevard in St. Louis was void because violative of the constitutional provision we have above outlined.
"Even the bill-board opinions recognized the rule in the Hill case, but distinguished it in St. Louis Gunning Co. v. St. Louis, 235 Mo. l.c. 151.
"The ordinance before us provides for the taking of private property for public use without compensation and without a judicial hearing. It is not regulation which would fall within the reasonable exercise of the police power. It is a confiscation, pure and simple. The motion for rehearing should be overruled. Woodson, C.J., and David E. Blair and Walker,JJ., concur in these views."
No other conclusion can be reached under our Constitution. Right here let me add a word as to the additional restrictions placed in the Constitution of 1875.
My learned Brother says this: "In view of the foregoing it is clear that the addition of the word `damaged' to that of `taken' in the eminent domain clause of our Constitution didNew not broaden its limitation. The amendment operatedLimitation. to correct an error of construction, and nothing more."
Opposite to this view of my learned Brother is the view of FARIS, J., in St. Louis v. Railroad, 272 Mo. l.c. 93, whereat he says: "That the change in the wording of our Constitution has broadened the field of consequential damages arising in cases wholly disassociated with an actual physical taking by the exercise of the right of eminent domain, there is no question."
Opposite to this view, expressed in the opinion before us, is the view of this court in McGrew v. Paving Co., 247 Mo. l.c. 563, whereat we said:
"By what we have said above we do not mean that consequential damages to property abutting a street occasioned by a change of grade are not damages which fall within the constitutional provisions of Section 21 of Article 2, supra, but what we do mean is that they are not required to be assessed and paid in advance by reason of *Page 1200 such constitutional provision. As said in Hickman v. City of Kansas City, 120 Mo. l.c. 116.
"`Prior to the adoption of the Constitution of 1875 (although the doctrine was vigorously attacked in Thurston v. City of St. Joseph, 51 Mo. 510, in the opinion by Judge ADAMS), it was uniformly held that any damage resulting to an abutting property-owner from a change of grade was damnum absque injuria for which the municipality was not liable, unless the injury could be shown to have resulted from the negligent or improper manner in which the work was done. [St. Louis v. Gurno,12 Mo. 415; Taylor v. St. Louis, 14 Mo. 23; Hoffman v. St. Louis,15 Mo. 656; Schattner v. City of Kansas, 53 Mo. 162; Imler v. Springfield, 55 Mo. 119; Wegmann v. City of Jefferson, 61 Mo. 55; Swensom v. Lexington, 69 Mo. 157; Stewart v. Clinton,79 Mo. 603.]
"`To uproot this doctrine, and provide for compensation when property is damaged, as well as when it is taken for public use, the eminent-domain clause in the Constitution of 1865 was amended, by the Constitution of 1875, to read as quoted, and since it has been considered the settled law in this State, that when property is damaged by establishing the grade of a street, or by raising or lowering the grade of a street previously established, it is damaged for public use within the meaning of the Constitution. [Werth v. Springfield, 78 Mo. 107; State ex rel. v. City of Kansas, 89 Mo. 34; Householder v. City of Kansas,83 Mo. 488; Sheehy v. Railway, 94 Mo. 574; Gibson v. Owens,115 Mo. 258.]
"`It is also well-settled law that this article of the Constitution gives an absolute right and is self-enforcing, and although the Legislature may have enacted no law providing a mode for the ascertainment and payment of the compensation provided for, resort may be had by the party entitled to the right to any common-law action which will afford him adequate and appropriate means of redress.'"
We here clearly rule that the Constitution of 1875 gave a right to recover consequential damages to property, where no such right existed before. In other words there was an additional limitation on the right to use property for a public purpose, i.e. if the property be not actually taken, but is actually damaged in its use to the owner, compensation must be paid.
My learned Brother emphasizes this sentence: "The amendment operated to correct an error of construction and nothing more." (There was no amendment; the people just adopted a new Constitution). In other words, he says that the courts had erred in the construction of the word "taken" used in the organic law prior to the new Constitution of 1875. The doctrine wiped out by the Constitution of 1875 by using the word "damaged" had its origin long before there was a Missouri or a Missouri Constitution. It bears no relation whatever to the word "taken" as used in any Constitution *Page 1201 that Missouri ever had. The doctrine is of English origin in the times of George III. — in the 32nd year of George III. [The Governor and Company of the British Cast Plate Manufacturersagainst Meredith and others, 4 Term Reports, p. 794.] By Parliamentary Act there was authority given to grade and pave a street in a place in Surrey. The commissioners authorized to do the work lowered the grade of the street, so that the ingress and egress to the warehouses of plaintiff were not as they had been, and plaintiff sought to recover these consequential damages. So in a common-law action, it was ruled that there was no action for such damages, i.e., that the private must yield to the public convenience. This is the effect of the ruling. Here is the doctrine that the Constitution of 1875 knocked out, as it is well put in Thurston v. City of St. Joseph, 51 Mo. l.c. 513:
"So if in grading a street it be raised so high as to throw the surface water back upon the lot, or prevent a free access to the street; or if the street be excavated so low as to render the easement of no use to the lot, the lot holder is thereby damaged to the extent of the loss of such easement. The question here is whether the lot holder has any remedy at all for such injuries. The case under consideration is a sewer which the city no doubt had the power to construct. But the gravamen of the complaint is that through negligence in the construction of this sewer, water was thrown on the lot of the plaintiff and thereby injured her property. If we are still to follow the rule as laid down in the City of St. Louis v. Gurno, 12 Mo. 414, and the subsequent cases of Taylor v. St. Louis, 14 Mo. 20, and Hoffman v. St. Louis,15 Mo. 651, we must deny all remedy for such injuries. In the cases referred to, this court followed the lead of the King's Bench in the Governor, etc., v. Meredith and others, 4 T.R. (D. E.) 794. The doctrines laid down in that case by Lord KENYON and other judges, in my judgment are not applicable to America. The improvements which caused the injury were made under an act of Parliament which authorized the commissioners to allow damages, but the court seemed to place their decision on the ground thatParliament was omnipotent, and on this ground alone denied any remedy to the injured party. The court held that as the improvement was for public convenience, the maxim `saluspopuli suprema lex esto applied, and that private rights mustyield to public convenience. The same line of reasoning wasmaintained by the learned judge who determined the opinion in theleading case of St. Louis v. Gurno."
In the City of St. Louis v. Peter Gurno, 12 Mo. l.c. 424, it is said:
"In the case of the Governor, etc. v. Meredith and others, 4 D. E. 794, it was held, that where an act of Parliament authorized commissioners to pave, by reason of which an individual was injured in his property, and there was no excess of jurisdiction on the part *Page 1202 of the commissioners, neither they nor their servants were liable for such acts. The same point was determined in Sutton v. Clark, 6 Taunt, 42, and Harman v. Tappenden, 1 East, 555."
At page 418 of the 12 Mo., Judge NAPTON thus states Gurno's case:
"The only question presented by this record, is whether the city of St. Louis is liable to an action for damages consequential upon the grading and paving of a street, directed by the city authorities in pursuance of an ordinance authorized by the city charter. The declaration in this case charged that the work was done so negligently that the water, which before the improvement of the street passed off by a natural channel, was thrown upon the plaintiff's premises, and overflowed his cellar, and otherwise greatly impaired the value of his building; but upon the trial, the court instructed the jury that the corporation was liable for the injury complained of, whether the grading of the street and the culvert constructed to carry off the water were properly made or not. So that the naked question is presented, whether the corporation is answerable in a civil action for consequential injuries of this character, however skilfully her agents may have executed the powers entrusted to them."
The court ruled that there was no liability under this old English doctrine. So also the case of Taylor et al. v. City of St. Louis, 14 Mo. l.c. 23 and 24, rests upon the same English doctrine and cites the same case. In this Taylor case it is stated with clearness just what doctrine the court had in mind. That the constitutional provision on eminent domain was not in this line of cases is made clear by Judge NAPTON in this Taylor case, in this language:
"In the present action, the street or alley in question was laid out by the plaintiffs themselves or their ancestor, and the probability of its being graded, when the public interest required it, must have been calculated on when the buildings were erected. To grade a street or alley, already dedicated to public use, is not an exercise of the eminent domain, so as to require compensation. It is not appropriating private property to public use, but simply an exercise of power over what is already public property. The damage resulting, by causing the plaintiffs to rebuild or prop up their falling walls, is consequential and as it is a consequence of the exercise of a power granted by the State to municipal corporations, for public purposes, and the power has not been abused, but skillfuly and discrectly exercised, the city authorities are not responsible."
In Hoffman v. City of St. Louis, 15 Mo. 651, the doctrine of the Gurno and Taylor cases is approved, and extended to a case where there was an established grade, and property improved according to the grade, but the city later changed the grade and improved the street, by filling it up in front of the two houses theretofore erected on the fixed grade. Free ingress and egress was hampered and the *Page 1203 property damaged. Held, that there was no liability, and so the cases continued to hold until the Constitution of 1875. [Hickman v. Kansas City, 120 Mo. l.c. 116.] In this case Judge BRACE uses the word "amendment," but this is an oversight because there was no amendment of the Constitution of 1865. There was simply the new Constitution of 1875, and it provided for the payment of consequential damages to property, if damaged for a public use. None of these old cases, beginning with Gurno's case and running clear down the line, say a word about what is meant by the word "taken" as used in the Constitution of 1865, Article I, Section XVI, General Statutes of 1865, page 23. In fact these cases nowhere construe any constitutional provision relative to the taking of private property for public use. There had been no "error of construction" because there had been no construction of a constitutional provision relative to taking private property. What those old cases did was to confirm and adopt an old English doctrine with reference to consequential damages. What the Constitution of 1875 did was to give a cause of action for consequential damages when none existed before, by reason of our court adopting the English rule as to consequential damages. Then how can it be said:
"In view of the foregoing it is clear that the addition of the word `damaged' to that of `taken' in the eminent domain clause of our Constitution did not broaden its limitation. The amendment operated to correct an error of construction, and nothing more."
First, there was no error of construction, because there had been no construction of any Missouri Constitution in these old cases as to the word "taken" or any other provision relating to the taking of private property for a public use. Secondly, the new Constitution by the use of the word "damaged" created a right of action where under the English rule none existed before. By destroying this English rule the new Constitution broadened the restrictions upon the taking of private property for public use. Theretofore there was no liability for consequential damages, but thereafter there was. If this is not a further restriction upon the taking of private property, what is it? Nor did these old cases misconstrue the English rule; they just followed it. So there was no error of construction of any kind to be corrected.
By no method of fair reasoning can it be said that the use of the word "damaged" in the Constitution of 1875 added nothing to the previous Constitution of 1865. Section 16, Article I, of the Constitution of 1865 reads: "That no private property ought to be taken or applied to public use, without just compensation."
Did the Constitution of 1875 add nothing to that provision? We rather think it did! So that, when attempt is made to show there are no additional restrictions in Missouri's Constitution, as compared with other constitutions where the word "damaged" is not used, it *Page 1204 falls of its own weight. The opinion of my learned Brother cannot stand upon this ground. Missouri's Constitution does differ from others, and this difference is just what makes the trouble with zoning ordinances or laws in this State. Let the people change the organic law, rather than ask a court to ignore it. We shall not discuss this so-called Enabling Act of 1925. [Laws 1925, p. 307.] Such an act would be just as much a violation of the Constitution as would be an ordinance passed in pursuance of such act. The Legislature cannot wipe out the Constitution.
Consequential damages allowed by the Constitution of 1875 are damages to the use of the property. Zoning strikes at the use of property. It limits the use just as much as cutting down an established grade in a street would do. Yes, more, because cutting the grade does not always fully destroy the use. So we earnestly insist that the ruling in Missouri cannot be guided by rulings in States whose Constitutions do not have the word "damaged." The word "damaged" in our Constitution put an additional restriction upon the interferences with private property in pursuance of a public purpose. This additional restriction goes to the use of the property, and the destruction of the use is the foundation of zoning. My learned Brother seems to fully realize this, and hence the effort to show that the additional word "damaged" added nothing to our Constitution. I hope we have demonstrated that it did.
II. After quoting a part of what I say as to eminent domain being but a limited exercise of the police power, and that under the police power and eminent domain in some cases rights in property may be limited, without compensation,Other whilst other cases require compensation —Constitutional McKelvey's case, 301 Mo. l.c. 22 — my learnedProvisions. Brother asks: "But what are the cases in which rights in property may be limited through the police power, without compensation? and what those which require compensation? What principle of constitutional law determines the classification?"
Had my learned Brother read my two opinions in McKelvey's case, he would have found at least partial answer to his questions. I refer the interested to 301 Mo. l.c. 22 and l.c. 37. Of course the Constitution does not define the limits of the police power, but in no republican form of government can it be said to go to the extent of taking private property except in limited cases. The legitimate use of private property is protected by more than one constitutional provision. In our sacred instrument it is said: "That all persons have a natural right to life, liberty andthe enjoyment of the gains of their own industry:" this does not mean that if a citizen has a property gained by his own industry, which property could be put to a legitimate *Page 1205 use and a non-deleterious use, giving it great value, then such value can be swept away by limiting the use. Yet such is the doctrine of this zoning ordinance. Other constitutional provisions have been cited in McKelvey's case, and still others could be cited.
The Constitution has a provision as to "the police power" of the State. It likewise has a provision as to the "taking and damaging" of private property for public use. The instrument must be so construed as to allow both to stand, if it be possible so to do. The extension of the police power made by the opinion of my Brother wipes out the latter provision of the Constitution relating to the "taking and damaging" of private property for public use.
III. Then again, I dissent, because my learned brother indorses some utterances from a text-writer that I cannot indorse nor do I think this court wants to indorse it. The opinion before us says:
"The author of a recent text-book on zoning law attempts to answer the question thus: `The analysis of the cases seems to show that it (the line of difference between the police power and the power of eminent domain) is largely one of degree. Is it reasonable and proper, under all the circumstances,Advancing that the public good sought should be attained withoutPublic compensation to those whose rights are to be limitedOpinion. to this end? If, on the whole, those affected are benefited by the measure, if the right surrendered can no longer, in the light of advancing public opinion, be retained in fullness by its present possessor, if the sacrifice to him is slight or if the number affected is great, so that compensation is impracticable — in all such cases compensation is not provided for; otherwise the law demands it. In the decision,history, custom, opinion, as well as surroundingcircumstances play their part.' [Williams on the Law of City Planning and Zoning, p. 25.]"
When did "advancing public opinion" determine a man's right to hold and use his property and his other property rights? If the man owned a valuable piece of property and "advancing public opinion" thought the city ought to have it for some aesthetic purpose, away goes the man's life earnings. Take it under thefiat of the police power. "Advancing Public Opinion" says beautify the city. The text indicates this is a factor in determining whether the man shall lose his property without compensation. Since when did "history, custom, opinion, as well as surrounding circumstances play their part" in determining whether the citizen should or should not have pay for his property? Yet such is the doctrine of this new constitutional lawyer that my learned Brother has found. Who is Williams? Who ever heard of him as one versed in deep constitutional questions? His book had to be endorsed by a professor of the Michigan University — this one said to be "Professor of Landscape Design," and another individual who seems to talk about "Land Economics," and *Page 1206 is styled "Director, Institute for Research in Land Economics." This institute seems to have been founded in 1920. The Michigan professor is Aubrey Tealdi and the director is Richard T. Ely. Prof. Tealdi details what Mr. Williams has done on City Planning and Zoning, which shows that Williams belongs to all kinds of committees, and societies endorsing zoning, and was a lecturer on the law of city planning in the "Department of Landscape Design" in Michigan University. The Professor undoubtedly did not know whether Mr. Williams, with all the Committees and Societies to which he belonged in connection with city planning and zoning, had been blessed with any time to study constitutional law or not and hence he is silent on that question. Ely speaks with vehemence. He says:
"The purpose of this editorial preface is not to praise the present work by Mr. Frank B. Williams. If, as I believe, it ispace-setting and path-breaking, it needs no words of mine to assign it its proper place. `Good wine needs no bush.' My purpose is rather to explain the position that this book occupies with respect to related books also published, or to be published, under the auspices of the Institute for Research in Land Economics."
That Brother Williams is a "Pace-setter" and a "Path-breaker" is evident from his book. On page 45 he is speaking of the constitutional duplications of the State and Federal Governments. He then adds:
"Time-honored as it is, there is nevertheless reason to doubt whether there is sufficient cause for the continuance of this duplication, often enabling the litigant to appeal first to State and then to national courts for relief and delay. As passed on by the Supreme Court of the United States, it is true that these provisions are more favorable to modern social reforms than when construed by most of the State courts. Few, however, will deny that every essential right of the individual is protected by the United States courts; and the abolition of the bills of rights and similar guaranties in the State Constitutions would certainly simplify procedure and lessen delay and expense."
He would wipe out all state Bills of Rights, and run the Government from Washington. We do not endorse such things. Yet, we must recollect that we had Tories, even when the life-blood of the Colonies was at stake during the Revolution. We presume that Centralized Government will always have its advocates, even in the United States.
His friends classify the little volume from which we quote. It belongs to "The Citizen's Library of Economics, Politics and Sociology," said to be edited by Richard T. Ely. Professor of Economics in the University of Wisconsin. He is the same Ely who wrote the Editorial Preface to Mr. Williams's book from which we quoted. *Page 1207 supra. He lists the book along with "The Non-Partisan League," by Andrew A. Bruce, and one to be written, "The Single Tax" by F.B. Garver. This Citizen's Library has no law writer except Mr. Williams, if he can be called one.
The new author's surroundings are such that I do not feel like incorporating his vagaries upon eminent domain and the police power into our law. I shall not vote to so incorporate them.
IV. My learned Brother seizes upon my approval of Van DeVere v. Kansas City, 107 Mo. 83, in the case of Peters v. Buckner, 288 Mo. l.c. 636, as an endorsement of the doctrine announced in the instant opinion to the effect that the wordApproval of "damaged" added nothing to Missouri'sVan DeVere Constitution, and that its sole purpose was tov. Kansas City. "correct errors of construction" in previous cases.
Our opinion in the Peters case shows just what we had in mind, when defending the Van DeVere case. At page 637 of 288 Missouri, in speaking of the Van DeVere case, we said:
"This opinion included an easement directly connected with the property as within the constitutional provision, and all the line of cases following it do the same thing. This is the doctrine that my brother overrules. It is a fair construction of the Constitution of 1875, and one that has been followed in more than a score of cases, and we do not feel that this line of cases (much longer than our brother cites) should be overruled. They have been consistent throughout, and announce (1) that under the Constitution an easement appurtenant to a property cannot be taken or damaged without compensation being paid, and (2) that if the damages claimed are the same as those suffered by all others, although different in degree, then such damages were not included in the term `damaged' as used in the Constitution. This has been the rule in the sundry cases from the Van DeVere case in 107 Mo. to the Gorman case in 255 Mo., supra. I do not feel that these cases are wrong, but they do not determine the instant case."
This shows just what we had in mind when we opposed our late Brother WOODSON in an attempt to overrule the Van DeVere and other cases. We never thought of the view that the purpose of using the word "damaged" was to correct wrong interpretations by this court placed upon the word "taken" as used in the previous organic law. We had no idea of endorsing that doctrine. Unfortunately, like Judge BRACE in the 120 Mo. supra, and Judge BLACK in the Van DeVere case, supra, we mistakenly spoke of the use of the word "damaged" as an amendment to the Constitution. It is too plain for serious argument that there was no amendment to the Constitution of 1865, the only one existing from 1865 to 1875. In 1875 we *Page 1208 had a new Constitution, and not an amendment of our old one. It granted many rights where none existed before. Among the many was the right to sue for and recover consequential damages where the damages were occasioned in pursuance of a public use. And may we repeat again that there never had been a construction of a constitutional provision relative to taking private property for public use, in the old cases cited by Judge BLACK in Van DeVere's case. Having been no construction there was none to be corrected by the Constitutional Convention of 1875. But as we have said, supra the Constitution of 1875 did destroy the English rule as to consequential damages, and gave a new right, where none theretofore existed, either by constitution, statute or common law.
We have not the time to collate all the Missouri cases upon police power. Certain it is that we have never extended the police power to the taking or damaging of private property simply because it would help a majority of the citizens of a given district to have this confiscation made. We have held just the contrary for all these years. If they want zoning (and in some ways it may be a good thing), let them amend the organic law so as to allow them to take private property, without compensation, for that purpose. Let the "Public Opinion," so strong in the mind of Mr. Williams as evidenced by his book on "The Law of City Planning and Zoning," so operate as to procure the necessary changes in our organic law by the people of Missouri. Don't ask this or any other court to ignore the plain provisions of the Constitution. We most respectfully, but vigorously dissent.Blair, J., concurs in the conclusions reached in this opinion.