# State Ex Rel. Penrose Investment Co. v. McKelvey

> Supreme Court of Missouri · October 6, 1923 · 301 Mo. 1

URL: https://www.frixlaw.com/law-library/cases/3532309

## Case

- **Full name:** The STATE Ex Rel. PENROSE INVESTMENT COMPANY Et Al. v. JAMES N. McKELVEY
- **Court:** Supreme Court of Missouri
- **Decided:** October 6, 1923
- **Citations:** 301 Mo. 1; 256 S.W. 474; 1923 Mo. LEXIS 110
- **Precedential status:** Published
- **Opinion:** Concurrence by Graves
- **Judges:** Walkee, Woodson, Blair, Graves, White, Ragland, Blcdr, Walker
- **Cited by:** 22 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3532309

## Opinion text

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GRAVES, J.
(concurring). — This is one of the several cases pending in this court growing out of zoning ordinances. The questions really involved are perplexing ones, and upon them are diverse opinions from the courts. These opinions are always shaded more or less hy the peculiar constitutional provisions of the State. The opinion by our learned associate, Judge Walker, would preclude any zoning ordinance in St. Louis, and for this reason, among others, I concur in the result only of his opinion. My personal views follow.
I. Among the first zoning cases to reach this court was the case of In re Kansas City Ordinance No. 39946, or otherwise styled, Kansas City v. Liebi, 298 Mo. 569 . In that opinion, I concurred, and Judge Walker dissented. His dissenting opinion in that case is made one of the corner stones of the present opinion. It suffices to say that the views of his dissent never became the views of the court. In a broad sense no property or property right can be taken from the individual except through the police power of the State. This power may be exercised to abate a nuisance, to restrict the uses of property"to lawful and non-deleterious purposes, or to take private property, or rights growing out of property, for public use upon payment therefor. In other words, eminent domain is but a limited use of the police power of the State. I know that cases and text-writers distinguish between the police power and eminent domain, but in ultimate analyses the basic principle of eminent domain is the inherent police power of the sovereign State. So that, in my judgment, eminent domain is but the limited exercise of the police power. So that in some cases rights in property may be limited, through the police power, without compensation, whilst other cases require compensation.
The value of property is dependent upon the uses to which it may be put. To limit the use is a restriction upon the right of property, and should not be made without compensation, unless the right restricted would, if exercised, rise to the plane of a public nuisance. The ordinance here goes much further. It restricts the use
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of property (a vested property right) without reference to the deleteriousness or harmfulness of the uses eliminated by the terms of the ordinance, and this without compensation, or even inquiry as to the damages that might be done. The foregoing would suffice to justify my concurrence in the result of the opinion.
II. The first vital question in all these cases is whether or not the use for which the property or some interest or right in the property is taken, is a pnblic use. If not a public use, then the private property cannot be taken. We ruled in Kansas City v. Liebi et al., supra, that the use was a public use, and that private property could be taken for such use. That ruling was a step forward, but I agreed to it-then, and agree to it now. In that case the property was not bodily siezed and taken under the broader meaning of the police power, but it was taken under the limited exercise of the police power, as found in the recognized doctrine of eminent'domain. The effect of that case is that the taking of property ( restricting the use is the taking or damaging of property and property rights) for the purpose covered by the ordinance, was a taking for a public use, and was justified when provision for the payment of damages was contained in the ordinance. In other, words, we ruled in that case (1) that the use was a public use, and (2) that private property could be taken for that use if the owner be compensated therefor. This is as far as I understand that case goes. It could not go further without containing
obiter,
because such were the only issues involved. I am of the opinion that zones within cities can be legally established as in Liebi’s Case, but I am not willing to go further. The St. Louis ordinance (involved here) goes much further, as we have indicated. There is no thought of compensation for restricting the legal use of property. It provides for the bald taking of property rights under the very broadest exercise of the police power. It is not a situation which calls for such exercise of the broad power. With these views I concur in the result only of my learned brother’s opinion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3532309. Public record. Not legal advice.