I. I an unable to agree to the conclusion reached in the majority opinion. The effect of that conclusion, instead of protecting the citizens of St. Louis in the enjoyment of their property rights, is to render the city powerless to protect them. The person, the use of whose property is restricted,Rights of alone is considered. The great majority, the enjoymentOther of whose property requires such restriction, areCitizens. ignored. In balancing the alleged individual right against the public good the latter is given no weight.
The opinion distinctly excludes from consideration the reasonableness or unreasonableness of the zoning ordinance, or of the particular part of it affecting the relators' case. A consideration of the "legal propriety" of the classification of districts, which would involve an admission of the validity of the ordinance, is disclaimed. The right of the city to provide for future growth and development by dividing its territory into residence districts, commercial districts, industrial districts, etc., is denied. The Legislature cannot invest the city with power to segregate its factories.
II. It is said that exercise by the State of police power, an attribute of sovereignty, is limited, and in this instance prohibited, by the Fourteenth Amendment to the Federal Constitution, and by Sections 21 and 30, Article 2, of the State Constitution, on the theory that the effect ofRight to Use of the ordinance is to deprive persons of theirPrivate Property: property without due process of law.Due Process.
Section 3 of the ordinance provides that in general "the use or uses of all buildings existing at the time of the adoption of this ordinance may be continued." No exception to the operation of that general provision is claimed for relators; they are in the same position as all owners of property in the district where their property is located. The ordinance in its avowed purpose and in its effect is to provide for the future; for the orderly, *Page 25 symmetrical, healthful and prosperous growth of the city; to make it attractive to business enterprises, a healthful, secure and enjoyable place to live. These purposes, we are told, cannot be carried into effect in the exercise of police power because of the restrictions in the Federal and State Constitutions above noted.
III. The majority opinion does not cite any case which holds that a general zoning ordinance is unconstitutional. There are some cases to that effect, notably Spann v. City of Dallas, 235 S.W. 513, and Willison v. Cooke, 130 Pac. (Colo.) 828. Those cases, however, turn more upon the legislativeZoning Ordinance: grant of power to the cities than upon theConstitutional. constitutional limit upon the exercise of police power by the State.
The following authorities hold that a general zoning ordinance or an ordinance having an effect similar to the provision under consideration here, is constitutional; its operation and enforcement within the police powers of the State as delegated to cities, and not prohibited by the Fourteenth Amendment to the Federal Constitution: Ware v. City of Wichita, 214 P. 99; Palmer v. Mann, 198 N.Y.S. 548, l.c. 552; City of Utica v. Hanna, 195 N.Y.S. 225; City of Des Moines v. Manhattan Oil Co., 184 N.W. (Iowa) 823; Opinion of Justices, 234 Mass. 597, l.c. 603; Attorney-General v. Williams, 174 Mass. 476; Cliffside Park Realty Co. v. Borough, 114 Atl. (N.J.) 797; Schait v. Senior, 117 Atl. (N.J.) 517; Knack v. Scrap Iron Co., 189 N.W. (Mich.) 54; State ex rel. v. Houghton, 144 Minn. 1. And there are others.
It must be a clear infringement of the individual rights under the Constitution before a measure in the exercise of the State's police power will be held unconstitutional. It was said by the United States Supreme Court in Chicago Alton Railroad Co. v. Tranbarger, 238 U.S. 67, l.c. 77, that the provisions of the Federal Constitution did not have "the effect of overriding the power of the State to establish all regulations reasonably *Page 26 necessary to secure the health, safety or general welfare of the community."
The same court in the case of Mountain Timber Company v. Washington, 243 U.S. 219, l.c. 238, said: "The authority of the state to enact such laws as reasonably are deemed to benecessary to promote the health, safety and general welfare of their people, carries with it a wide range of judgment and discretion as to what matters are of sufficiently general importance to be subjected to state regulation and administration."
It is further declared in the same case, quoting from an earlier case: "The police power of a state is as broad and plenary as its taxing power."
The Supreme Court of Iowa in the case of Des Moines v. Oil Company, supra, 184 N.W. l.c. 826-827, held that:
"With the changing conditions necessarily attendant upon the growth and density of population and the ceaseless changes taking place in method and manner of carrying on the multiplying lines of human industry, the greater becomes the demand upon that reserve element of sovereignty which we call the police power for such reasonable supervision and regulation as the State may impose, to insure observance of the individual citizen of the duty to use his property and exercise his rights and privileges with due regard to the personal and property rights and privileges of others."
The great weight of authority, both Federal and State, is to the effect that a reasonable zoning ordinance is constitutional, and the determination of what is reasonable varies with the changing conditions incident to modern development and civilization. The effect of the ruling in the majority opinion is that before an occupation or a building can be prohibited in a given territory it must be proven as a fact to be a nuisance, as nuisances have been defined and determined heretofore. What may be a nuisance now is a very different thing from what may have been a nuisance in time gone by; what affects the public health and safety now is very different *Page 27 from what was considered as affecting the public health and safety heretofore. This matter will be considered in the next paragraph (IV) in discussing the general grant of the State to the city of Saint Louis.
A complete answer to the pronouncement that the classification provided in the ordinance is in violation of the Fourteenth Amendment to the United States Constitution appears in the ruling of the United States Supreme Court. It was held by that court in Welch v. Swasey, 214 U.S. l.c. 105-106, that a statute of Massachusetts regulating different heights of buildings in different sections of the city of Boston was not in violation of the Constitution.
The United States Supreme Court in case of St. Louis Poster Adv. Co. v. St. Louis, 249 U.S. 269, held constitutional the ordinance regulating the size, position and construction of bill-boards on private grounds, although Mr. Early urged upon the court that the regulation was in violation of the Fourteenth Amendment and bore no relation to the health, safety or morals. The opinion there refers to the bill-board cases decided by this court, St. Louis Gunning Co. v. St. Louis, 235 Mo. 99, and Kansas City Gunning Co. v. Kansas City, 240 Mo. 659, where the ordinance was held constitutional. Judge WOODSON very aptly quoted in the first Gunning Case, 235 Mo. l.c. 167:
"The Constitution of this State, in the Bill of Rights, provides that all persons have a natural right to life, liberty and the enjoyment of the gains of their own industry. . . . This, of course, does not confer upon anyone the absolute right to use his property as he pleases. No such right exists in a state of civil society; but on the contrary, the right of one to use his own must always be exercised in subordination to the right of others. . . . The same instrument provides that no persons shall be deprived of life, liberty or property without due process of law. Clearly this provision was not intended to withdraw the rights of private property from the reasonable exercise of the police power by the *Page 28 legislative branch of the government. `All rights are heldsubject to the police power of the State.'"
If the bill-board ordinances are constitutional, as this court held, then the zoning ordinance is constitutional, as a valid exercise of police power. In other words, the State, in the exercise of that power, as an attribute of sovereignty, is not in violation of the Fourteenth Amendment, nor of its own similar constitutional provision, when by statute or by authority delegated to cities, it seeks to protect its citizens in the enjoyment of their property by restricting the use of other property. The Constitution is the instrument by which the State protects itself and secures to its citizens the enjoyment of their possessions. If the Constitution is so inflexible in its terms, so rigid in its specific restrictions, as to defeat its own ends; if its general principles cannot apply to changing conditions due to increased population, congested areas, new methods of transportation, new developments of sanitary science, new inventions to meet multiplying needs, the multitude and variety of new and powerful mechanical appliances — all presenting problems affecting health and safety, which the framers of the Constitution could not possibly have foreseen — then it is necessary to "alter or abolish" it.
IV. The grant of powers to the city of St. Louis by the State is contained in the charter in the following sections of Article I of the city charter:
"(25) To define and prohibit, abate, suppress and prevent or license and regulate all acts, practices, conduct, business, occupations, callings, trades, uses of property, and all other things whatsoever detrimental or liable to beAmple Charter detrimental to the health, morals, comfort,Authority. safety, convenience or welfare of the inhabitants of the city and all nuisances and causes thereof.
"(26) To prescribe limits within which business, occupations and practices liable to be nuisances or detrimental to thehealth, morals, security or general welfare *Page 29 of the people may lawfully be established, conducted or maintained.
"(35) To exercise all powers granted or not prohibited to it by law or which it would be competent for this charter to enumerate."
This is the usual comprehensive and general statement of police powers. While specific authority to pass a zoning ordinance would be more explicit, I think the power to do so is embraced in the general terms of the charter. It will be interesting to note what some of the authorities say in relation to the particular problem which we have under consideration.
The Supreme Court of Kansas in the Ware Case, 214 P. 99, had under consideration an ordinance prohibiting a business building in certain residential districts, and, holding the ordinance valid and constitutional said, l.c. 101: "With the march of the times, however, the scope of the legitimate exercise of the police power is not so narrowly restricted by judicial interpretation as it used to be." And further: "Such legislation is merely a liberalized application of the general welfare purposes of State and Federal Constitutions." The Court then distinguished the Texas case, Spann v. City, supra.
The Supreme Court of New Jersey, in regard to an ordinance prohibiting the erection of a garage in a certain residence locality, 117 A. 517, said l.c. 518: "The provision of the ordinance prohibiting the granting of the permit in such circumstances is a reasonable regulation touching public health,safety and general welfare, and is within the scope of the police power of the town, and is consequently valid."
Likewise, the Supreme Court of New Jersey, in Cliffside Park Realty Co. v. Borough, 114 A. 797, in considering a zoning ordinance which prohibited a certain kind of business building in a residential district, said: "I do not think the act itself is unconstitutional in toto, as it is, in fact at least, plainly passed as an exercise of the legitimate police power, for it says the regulations *Page 30 authorized `shall be designed to promote the public health,safety, and general welfare.'"
The Supreme Court of Massachusetts, in an opinion requested by the Legislature regarding building regulations and the classification of building districts, gave this statement,234 Mass. 603: "The public health, the public safety, the publicmorals, and, when defined with some strictness so as not to include mere expediency, the public welfare, each repeatedly has been held sound ground for the exercise of the police power."
In the Minnesota Case, supra, the Supreme Court of that State, 144 Minn. l.c. 19, held that the building of a large flat building in a restricted residential district was properly prohibited by ordinance, and uses this language: "In the large cities, where the lots for residences must necessarily be of the minimum size, especially where the man of small means must dwell, it is readily seen that if a home is built on such lot and thereafter three-story apartments extending to the lot line are constructed on both sides of the home it becomes almost unlivable and its value utterly destroyed."
The Supreme Court of Michigan, in the case of Knack v. Scrap Iron Co., 189 N.W. l.c. 55, said in relation to the erection of a junk yard in a residential section: "In the absence of any information on the subject, we may assume that the city authorities had some reasonable purpose in closing certain districts to the junk business," and quotes from Dillon on Municipal Corporations to the effect that under all the circumstances the authorities of the city were better judges of the necessity of such ordinance.
The Supreme Court of New York, in City of Utica v. Hanna,195 N.Y.S. 225, in holding valid a zoning ordinance, said this, l.c. 226-227: "Within reasonable limits the common council of the city of Utica in this case was empowered to determine whether the regulative and restrictive provisions of a general plan would promote the public health, safety, or general welfare, with reasonable consideration to the character of the district, the peculiar *Page 31 suitability for particular uses, the conservation of propertyvalues, and the direction of city improvement."
In Palmer v. Mann, 198 N.Y.S. 548, the New York Supreme Court, construing a zoning regulation, had this to say, l.c. 552: "Since the amendment was within the power of the body which passed it, the presumption is that it is reasonable and just, and the judicial power to declare it void can be exercised only when, from the inherent character of the amendment, or fromevidence showing its operation and effect, it is demonstrated to be otherwise."
The majority opinion cites the case of People v. Chicago,261 Ill. 16, where it was held the erection of a business building in a residence district, in the absence of any showing of its objectionable character, was not within the police powers of the city. But that same Illinois Supreme Court in a later case, People ex rel. v. Village of Oak Park, 266 Ill. 365, held that it was within the police power of the village to prohibit the erection and operation of a public garage in a residence district. The court said, l.c. 370: "Whether an ordinance is unreasonable and void is a question of law for the court." And quoting from an earlier case: "The rule is, that it requires a clear and strong case to justify a court in annulling the action of a municipal corporation acting within the apparent scope of its authority."
This court said in the St. Louis Gunning Case, 235 Mo. 201: "The courts, as a rule are not as good judges of the necessity for or reasonableness of laws as are the lawmakers, who are elected by the people themselves."
In the case of St. Louis v. Theatre Co., 202 Mo. l.c. 699-700, this court made this important observation: "What the urgent necessities of the public are in a crowded city, we are unable to judge, without more than the legislative act in the shape of an ordinance. `Municipal corporations are prima facie the solejudges of the necessity of their ordinances, and courts wild not, ordinarily, review their reasonableness, when passed in strict pursuance of an express grant.'" *Page 32
The weight of authority sustains the right of a city, under a grant of power, such as here, to pass a general zoning ordinance like the one under consideration. I have italicized some portions of the above quotions, which are significant.
The relators seek to establish a plant for the manufacture of ice, which it is said will be electrically-driven and operated, and in furnishing the power will be free from the smoke and dust incident to coal burning. It is admitted that before classifying the city into districts in pursuance of the zoning ordinance, the commission had many public hearings at which any one and every one affected had a right to present his views. The ordinance also provides for an appeal from the City Plan Commission's order; the relators in this case had a hearing before that commission and the erection of the plant was opposed by the owners of a large amount of the surrounding property. The City Plan Commission, after the hearing, refused to permit a change in the plan so as to allow the location of the relator's plant.
While it is said that the proposed plant is free from the objections incident to coal-burning in the operation of its machinery, it is nevertheless, a manufacturing plant. It necessarily involves the operation of machinery, perhaps heavy machinery, which is not said to be noiseless. Doubtless chemicals will be used in the production of artificial cold with a possible incidental odor arising from their use. It certainly will involve the passage in and out and along the street of heavy trucks loaded with ice, if the relators expect to do any business. It must have the usual incidents of a manufacturing establishment.
The owner of property in the neighborhood naturally object. To hold that the relators may do what they please with their own property is to ignore the rights of other property owners and the effect upon its value, and is in violation of the well-established rule that a man may use his own property in any manner he pleases, provided he does not, by doing so, injure some other person. We *Page 33 said in the case of Kansas City v. Liebi, 298 Mo. l.c. 593; "In the very nature of the case, modern 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."
Standards of living are much higher than they used to be and are growing higher and more exacting with the material improvement of the people's condition. It has not been so very long since people lived over their stables, allowed chickens to roost in the rafters of their dwelling, and pigs to make themselves comfortable under the floor. Such was not known to be unsanitary.
Consider the case of owners of property in this locality. They have made their homes there, not only on the theory that the zoning ordinance had been in operation for several years, but upon the general confidence that that would be a residence district. If one manufacturing plant is allowed to be established there, another could not be denied. If an ice plant, then another plant electrically driven, and another, until it would render homes there uninhabitable and according to present standards reduce their value to a point where they could not be sold. It would doubtless affect the market value of their property so that the damages to each one would be much greater than the damage which would accrue to the relators if prohibited from proceeding with their purpose.
It is true that aesthetic considerations alone will not authorize the employment of police power, and impairing the aesthetic quality of one's property by the use of neighboring property would not of itself justify the interference, but, if through the destruction of its aesthetic properties the homes of an entire community are rendered uninhabitable and their pecuniary value is destroyed, another question arises. If unsightly surroundings, disagreeable odors and obstructive traffic destroy the convenience and the value of a person's property, the injury is as definite and complete as if a chasm had been digged across his front yard. But it is not necessary to *Page 34 depend upon aesthetic conditions for the validity of the ordinance.
There is the matter of health. The State's interference in an individual's liberty is not limited, as formerly, to vaccination and quarantine against contagion. The recent discoveries of medical science show that a thousand perils, unsuspected a generation ago, swarm in the atmosphere of a busy street. For instance, the poisonous gas from the exhaust of a gasoline engine is dangerous to health, even in the open spaces of city thoroughfares. Healthful surroundings mean not only freedom from contagion and poisonous gases, but freedom from disturbing noises and the confusion of traffic and other incidents which disturb the quiet and peace of one's home. The City Planners are better judges of those matters than the courts.
It is fundamental in our institutions that a man's "house is his castle." It is the one sacred spot where his liberty, his rights, and his comfort shall not be interfered with or impaired by the action of another. The multiplying agencies to keep in operation the complex modern civilization tend more and more to encroach upon those rights and the enjoyment of one's home, and demand more and more restriction to prevent such encroachment. In districts where costly dwellings are erected, protection against damaging structures is obtained by building restrictions. But it is not practical so to protect the poor man's home.
V. The city must be considered as a whole, in interpreting the grant of power. No general rule of law can be enforced without incurring complaints of hardship in some instances. The "general welfare" of a large city like St. LouisGeneral Welfare, involves a comprehensive view of theHealth and Safety. community needs. The experts on planning, the intelligent and informed citizens who carefully studied the welfare of the city, its present and future needs, its prospective growth and prosperity, determined upon the plan attacked. *Page 35 We said of such matters in the Kansas City Case, 298 Mo. l.c. 591: "The planning of the city in relation to the use of different parts would tend to prevent overcrowded and congested districts, thereby promoting health and the general welfare ofthe city, would make the city more attractive and thereby promote its growth and general prosperity."
To that statement a majority of this court agreed. The "general welfare" is promoted, the "health," "safety" and "convenience" of the people as a whole conserved, and their property rights protected, by measures which will tend to prevent congestion of population, secure quiet residence districts, reduce the danger of traffic accidents, simplify sanitary regulations, make the city a more attractive, enjoyable place to live, promote its prosperity, and secure to property a stability of values.
If it is necessary to inquire in each case whether a forbidden building or occupation is in fact a nuisance, not only would endless suits ensue, but the same incidents which constitute a nuisance by the holding of one court or jury would be held harmless by another. It is only by a comprehensive view of the entire community and a grasp of its needs, considering all the people, by trained, informed minds, and sympathetic understanding, that practical and satisfactory results can be achieved.
The Utica Case, 195 N.Y.S. 225, held an ordinance prohibiting a gasoline station invalid, solely because it wasnot passed pursuant to a definite "general plan," but held a general zoning ordinance within the city's power.
One of the astonishing, unforeseen incidents of modern traffic is the multiplying numbers of motor-driven vehicles. It is a matter of common knowledge that all streets are too narrow and all open spaces too limited — a condition which affects the"convenience" and the "safety" of everybody who travels the streets. At the same time, the general use of rapid private transit makes convenient access to a distant part of the city for people to *Page 36 whom it was formerly almost inaccessible, thus rendering the close proximity of residences and factories wholly unnecessary. We must assume that the city authorities have studied the problems arising from congested traffic, overcrowded areas, multiplying casualties from street collisions, and the demands of sanitary science, before classifying the city into districts. If the danger and inconvenience of congested traffic will be abated or even limited by the classification under consideration, then the ordinance is authorized in the interest of the general welfare, and the city authorities, prima-face, are the best judges of whether that classification will produce that effect. There is nothing in the record to indicate that the city authorities in passing the ordinance, or the planning commission in classifying the districts, have acted arbitrarily, oppressively, or in unfair discrimination against anyone, particularly the relators.
I think the peremptory writ should be denied. James T. Blair and Ragland, JJ., concur in these views.