The opinion
WHITE, J.
(dissenting).—The motion for rehearing has assumed as much importance as the matters considered on the original hearing, because the opinion on the overruling of the motion, written by Judge Craves, clarifies the position of the majority.
Having at the time the motion was overruled obtained leave to file an opinion, I submit my reason for dissenting from that ruling.
I. The opinion of Judge Craves, in which the majority concur, holds expressly that the zoning ordinance condemned by the opinion is within the express terms of the grant of power in the city charter, but that under the Constitution the Legislature was powerless to grant authority to the city to pass such an ordinance.
In the original opinion written by Judge Walker, the majority, excepting Judge Craves, concurred in the ruling that the ordinance was
not
within the terms, express or implied, of the grant of power contained in the charter. All who held that opinion have- now receded from that position and unqualifiedly concur in Judge Craves’s ruling that it is not the lack of charter provisions, but
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the restrictions of the Constitution which invalidate the ordinance.
Much has been said about the unreasonableness, the arbitrary and oppressive effect, of the zoning ordinance as its provisions were carried out by the planning commission. But that question was not considered. Neither was there before the court any question of the unreasonableness or oppressiveness of that feature of the ordinance which affects the relators in this case. The majority opinion holds squarely that the city of St. Louis has no constitutional power whatever to pass
any
zoning ordinance; that the ordinance here is void, not merely in some particulars, but
in toto;
the Legislature cannot authorize any city to segregate its factories and thereby prevent the transformation of districts devoted exclusively to residences into manufacturing districts, thus rendering the homes in such districts uninhabitable. That effect is to be especially noted, for there is no way of avoiding that conclusion from the opinion rendered.
II. The constitutional question presents a peculiar aspect. Section 21, Article II, of the Constitution, is pointed out, providing that property shall not be tahen or
damaged
for public use without just compensation; also Section 20 of the same article, providing that “whether the contemplated use be really public shall be a judicial question.” It is assumed that the restriction upon the use of relator’s property is a public use; that relators are" damaged by virtue of such restriction, and, therefore, under the Constitution the restriction cannot be enforced without compensation. Let it be conceded for the purpose of argument that such restriction is a public use, so judicially determined in the Liebi Case, 298 Mo. 569 , and that the relators are damaged by the restriction. Then follows the principle thoroughly established in this State: that where property •merely is damaged for public use, if the damages claimed are the same as those suffered by all others, though
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different in degree, then such damages are not included in the term “damage” as used in the Constitution. The question arose in the case of Van de Vere v. Kansas City, 107 Mo. 83 , where the plaintiff sought to enjoin the building of a fire engine house. The court said in relation to the claim of damages which the plaintiff would suffer, l. c. 89-90: “The plaintiff, if suing for consequential damages, must' show that he suffered an injury special, and peculiar to his property, and it was not enough to show a damage the same in kind as that suffered by other persons, though different in degree.” That ruling has been expressly approved in later cases (Gorman v. Railroad, 255 Mo. 483 , l. c. 495; Peters v. Buckner, 288 Mo. 618 , l. c. 637-638), where Judge Graves in a concurring opinion endorses the above language.
It cannot be claimed that the relators here suffer a restriction different in kind from that affecting every other person. It is imposed alike upon all, including those who oppose the relators’ plan.- There is nothing in the record to indicate that the relators suffer any damages peculiar to them or to their property.
It is conceivable, though extremely improbable, that some person affected by the .ordinance may suffer peculiar individual damages. If so, such person would have his remedy, but the remedy would not be the annulment of the ordinance.
Here comes in a distinction between eminent domain and police power. There are many distinguishing features in addition to the compensation in the one case and its absence in the other. Under the power of eminent domain the State, or a city duly authorized, may condemn or damage an individual piece of property, or may condemn a few properties without including others like situated, • whereas, in the exercise of police power a regulation must be applied to all alike. In the former case the individual damage is peculiar to the person affected, while a restriction in the exercise of police power is not peculiar, but is general and applies to everybody.
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In the Liebi Case tlie question did not arise as to whether the restrictions contemplated, if applied, in a classification of districts to the entire city, would have been within the police power of the city. Likewise the question did not arise as to whether the parties, the use of whose property was restricted, would suffer any damage peculiar to themselves. That question- will come before the trial court when the provisions of the ordinance are put in operation.
To hold that the zoning ordinance under consideration is within the terms of the grant to the city, and at the same time hold that it is without constitutional authority, is to hold that the grant of power contained in the city charter is unconstitutional in some of its prov^s:'-ons 5 what particular features of the grant are without constitutional authority has not been pointed out. That grant of power to the city simply expresses the scope of police power as usually understood by the courts. If it is unconstitutional, then the State of Missouri, on account of the inhibitions of its Constitution, is unable to exercise, or to delegate to its cities the exercise of, the general police powers which are usual attributes of the sovereign state. That is precisely the effect of the ruling.
Many times this court has used expressions which indicate that the express grant of power here is constitutional. In the case of State ex rel. v. Public Service Commission, 275 Mo. 201 , l. c. 210-211, the last utterance of the court on the subject, it quoted with approval from the Federal Supreme Court the rule, as follows:
“It is established by repeated decisions of this court that neither of these provisions of the Federal Constitution has the effect of overriding the power of the State to establish all regulations reasonably necessary to secure the health, safety, or general welfare of the community,- that this power can neither be abdicated .nor bargained away, and is inalienable even by express grant; and that all contract and property rights are held subject to its fair exercise. [Atlantic Coast Line v. Golds
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boro, 232 U. S. 548 , 558 and cases cited.] And it is also settled that the police power embraces regulations designed to promote
the public convenience or the general welfare and prosperity
as well as those in the interest of the public health, morals or safety.” (The italics are in the opinion).
No plainer language could be used to declare constitutional authority for the police powers expressed. And these are the very terms under which the city claims the right to restrict the use of property by the ordinance under consideration. It follows that the ordinance is constitutional, because conceded to be within those terms.
III. We must also consider the facts in this case. While there was no stipulation to that effect, .the case was submitted on the pleadings which consist of the return and the answer or reply of relators. [Secs. 1982-1983, R. S. 1919.] The petition for the writ merely alleges a compliance with the ordinances of the city 0f ¡§†. Louis in regard to obtaining building „ , , permits. Every statement of fact m the return must be taken as admitted, under Section 1983, unless denied in the answer to the return. The return makes certain allegations in regard to the maintenance of large stables, garages, and a number of horses, mules, ice wagons, etc., necessary in the conduct of the ice and fuel business and their contemplated constant use night and day. These allegations in that form are specifically denied, but the denial is qualified. It is not denied that there would be garages, stables, horses and mules, as contemplated by the plans of relators. It is merely denied that they would be in
large
numbers and in
constant
use. The reply also alleges that the maintenance of the plant “would not be a nuisance,
per se
or potential. ”
There are other allegations in the return, however, which are not denied by the answer, and therefore stand admitted as follows:
“. . . that with the exception of a planing mill,
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which was established many years before said zoning ordinance was enacted, the entire surrounding neighborhood to said proposed ice plant, for many blocks, is dedicated exclusively to residence purposes, and such small shops and stores as are usually located in a residence section of a large city.; that the location, erection and operation of an industry such as is proposed by relators to be built upon such property
would transform said neighborhood into a manufacturing district,
and thereby inflict great financial loss upon the owners of residences in said neighborhood, and
render said neighborhood unfit for residential purposes;
that the erection, maintenance and operation of said industry in said neighborhood would greatly decrease the property values of all residences in the immediate neighborhood of said plant, and thereby inflict upon said property owners great financial loss and damage; that the residents of said neighborhood would be greatly annoyed and
inconvenienced
by the operation of said industry in said neighborhood and would thereby be
deprived of the peaceful enjoyment of their homes and residences;
that the erection of such an industry in said neighborhood would constitute in law and
in fact a nuisance to all the residents and property owners in said
neighborhood, and thereby inflict upon them great financial loss and damage, and the
deprivation of the full use and occupation of said property for residential purposes.”
It may be said that this quotation from the return alleges conclusions and generalities instead of specific facts. No objection was taken to that form of pleading; there was no denial of it, and in the nature of the case the respondent would.be obliged to allege
what would occu>r
by reason of the allowance of the factory as shown by the tendency and purposes of other manufactures. Relators did not deny the allegations so as to put respondents to the proof, and those allegations stand admitted to be true, and as binding on the relators as if proved by evidence offered.
The averment in relators ’ answer to the return that
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the contemplated factory would
not
he a nuisance
per se,
may be taken as true, because not denied by respondent. [Secs. 1983-1984, R. S. 1919.] Though promissory and conjectural, it may be conceded for the purpose of the argument, that it sufficiently denies the allegations relating to that matter in the return. The ruling of the majority, as shown by the trend of the argument and the condition of the pleadings, is that the city may prevent a factory which is itself a nuisance, but cannot prevent an accumulation of factories which would be a nuisance; the city may deal with nuisances in a small way, but cannot do so in a large way; it may suppress an individual nuisance, but not a collective one; if ten factories in the district would “render said neighborhood unfit for residential purposes” and deprive the residents “of the peaceful enjoyment of their homes” and constitute “in fact a nuisance,” as alleged and not denied, the city cannot prevent that result without a showing that each individual factory is itself, independent of the others, a nuisance. I cannot agree that the Constitution so restricts the legislative authority.
IV. Section 20, Article 2, of the Constitution provides that where private property is taken for-public use the question whether the use is public, shall be a judicial question and judicially determined without regard to any legislative assertion that the use is public. The provision relates to the
taking
of property, not to the damaging of it. The following section, Section 21, provides for compensation when the property is taken or
damaged.
However, that is unimportant. Suppose it may be fully conceded that the restrictions upon the use of indivual property under consideration is a public use. It'does not follow that every other question arising in relation to the matter is a judicial question to be judicially determined.
We said in the Liebi Case, 298 Mo. l. c. 591, that while
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the courts must determine whether a use is public, “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 ordinance authorized by statute. ’ ’
Of course, such determination by legislative authority must be reasonable and must not be oppressive. As shown above, the reasonableness of the ordinance is not in question here. Likewise this legislative determination must be within the constitutional limits of authority — ■ must be in harmony with the Constitution.
How are we to determine the question whether a specific act or ordinance is within the State’s police-power?
A typical case is that of the City of St. Louis v. Galt, 179 Mo. 8 , where this court had under consideration an ordinance requiring* owners or occupants to keep lots free from weeds. A lot owner, arrested for violation of the ordinance, claimed that he was raising sunflowers. This court heartlessly classified sunflowers as weeds and held that,
as a matter of common Knowledge,
decaying vegetable matter produced disease, and weeds would produce decaying vegetable matter. In that case no specific evidence was offered as to the effect of the weeds grown on the defendant’s premises, but this court held the ordinance valid and within the police power of the city, because the effect of the use, which the ordinance was designed to restrict, was a matter of “common knowledge.’’ In that case the defendant claimed that the restriction upon the use of his property was unconstitutional.-
In this case wé learn, not only as a matter of common knowledge, that the inroad of factories in a residence district would render the residence there uninhabitable, but we have the undenied allegations of the return which conclusively show that. The opinion in the Galt Case states a general rule, where common experience shows .that certain uses of property are detrimental to the health and welfare of people in the community. The courts, without resort to evidence, hold that under the police
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power certain uses may be restricted, such as livery stables, storage of explosives, incineration plants, slaughterhouses, and the like. Aside from that, if we adhere to the doctrine that we shall not interfere with the legislative determination of the property, .expediency or necessity of a legislative act, can we strip the Legislature of all discretion in the matter?
As a matter of “common knowledge” of the harmful effect of certain uses, the courts hold laws for that suppression constitutional. As a matter of common knowledge a multitude of agencies of recent growth threaten the health, safety, welfare, and convenience of the people in a crowded city, just as clearly and imminently as the growth of weeds on a vacant lot, or the maintenance of a slaughterhouse in a busy district.
The city authorities, under legislative grant, have a right to determine the expediency and propriety of measures to protect the people against such dangers, and have in this case ordained a general regulation which, in part, separates factories from residences. The burden is on those who assert it, to prove the regulation would not have that effect, or is unreasonable or oppressive upon those affected by it.
Y. The distinction between a general regulation and a specific one cannot be too strongly emphasized. Every general rule of law restricting the liberty of people is necessary, not because every one affected would do harm without such law, but because the general rule prevents violations of the ~ , , „„ . . . , peace. Such are trame rules which restrict individual liberty and the free use of personal property. Here the city makes a general plan which in a general way would promote the welfare, health and safety of the inhabitants of the city. Some persons affected by the restriction might not work any harm to the community if allowed to violate the restriction, but it is a general law which must apply to everybody if the harm incident to its violation is to be prevented.
For these reasons I dissent from the conclusions reached by the majority.