155 S.W. 779 (Mo. 1913), Kansas City v. Woerishoeffer

Citation155 S.W. 779, 249 Mo. 1
Opinion JudgeLAMM, C. J.
AttorneyJohnson & Lucas, Ball & Ryland, Rozzelle, Vineyard & Thacher, John H. Lucas and William L. Stocking for appellants. Andrew F. Evans and Hunt C. Moore for respondent; John G. Schaich and Park & Brown of counsel.
Judge PanelLAMM, C. J. Brown, Bond, Walker and Faris, JJ., concur; Woodson and Graves, JJ., dissent.
Case DateMarch 28, 1913
CourtSupreme Court of Missouri

Page 779

155 S.W. 779 (Mo. 1913)

249 Mo. 1



ANNA WOERISHOEFFER et al., Appellants.






C. H. CARSON et al., Appellants

Supreme Court of Missouri

March 28, 1913

Appeal from Jackson Circuit Court. -- Hon. Thomas J. Seehorn, Judge.


Johnson & Lucas, Ball & Ryland, Rozzelle, Vineyard & Thacher, John H. Lucas and William L. Stocking for appellants.

(1) Ordinance 8316 of Kansas City, which is the foundation of this proceeding, is void, because it attempts to substitute the judgment of the common council for that of the jury as to property values, damages and benefits, and offers to the jury an inducement to return a verdict for less than the value of the property taken and damaged. Such an ordinance deprives appellants of their right to a jury trial, as heretofore enjoyed, and guaranteed by the Constitution. (2) Ordinance 8316 is void for uncertainty and unreasonableness, because it proposes to take and damage the property of defendants, without having made any adequate provision for giving to them the alleged benefits of the improvement, or for paying the damages that may be done to their property. The benefits are purely speculative and uncertain. Kansas City v. Railroad, 230 Mo. 369; Railroad v. Slingerland, 101 Minn. 488; Ice Co. v. Chicago, 147 Ill. 327; Hutt v. Chicago, 132 Ill. 352. (3) Ordinance 8316, upon which this proceeding is based, is void for the reason that it fails to recite section 17 of article 6 of the charter. Said section is the only authority for condemnation of an easement or right of way over any land for the purpose of constructing a viaduct thereon, or for widening a street for the purpose of constructing a viaduct therein. This section provides the exclusive methods of accomplishing these things. (4) Ordinance 8316 is in violation of the charter of Kansas City, in that its provisions join together the condemnation of an easement for a viaduct with the opening, widening and regrading of certain streets. The condemnation of an easement for a viaduct cannot be joined with any other proceeding. Charter, secs. 16 and 17, art. 6. (5) Ordinance 10083 was improperly admitted in evidence, and can have no force or effect in this proceeding. It did not become an ordinance until about four months after the proceeding was instituted, and about three months after defendants were brought into court, and three days after the actual trial of this cause had begun. Shaffner v. St. Louis, 31 Mo. 272. (6) The testimony shows affirmatively that plans have not been made for the viaduct, and that the whole scheme of the Twelfth Street Trafficway, as hatched and developed, is visionary, impracticable and illegal, and seeks to charge benefits for an improvement that may never take place, and that is merely in contemplation. Kansas City v. Railroad, 230 Mo. 369; Hook v. Railroad, 133 Mo. 322; Isom v. Railroad, 36 Miss. 312; Waukegan v. Burnett, 234 Ill. 460; Chicago v. Kemp, 240 Ill. 56; Railroad v. Blackshire, 10 Kan. 488. (7) Ordinance 8316 undertook to yoke up many and different kinds of public improvements and was unauthorized and confusing to the jury. The charter provides how the cost of the several kinds of public improvements, when the same are to be paid for in special tax bills or by special assessments, shall be apportioned and assessed against private property. The attempt to unite these several separate and distinct public improvements in one proceeding was unauthorized and was so confusing that it was impossible for the jury to determine what would be the benefit and damage to any separate tract or parcel of property. (8) Section 8 of the ordinance, after reciting that the common council finds and declares that in the regrading of Twelfth street a large and unusual amount of cutting and filling will be necessary and that this will "impose too heavy a burden on the land situated in the benefit district," states: "The city shall pay $ 325,000 from the proceeds of the Twelfth Street Trafficway bonds upon the cost of the actual work of regrading Twelfth street and upon the cost of the construction of said viaduct, the remainder of said cost to be charged as a special tax on the land," etc. But it will be observed: (a) That what part of this amount shall be paid on account or in part payment of the regrading of Twelfth street and what amount on account of the viaduct construction is not stated. The effect of this provision in the ordinance, however, was to prejudice the jury by causing the jury to believe that the private property owners on Twelfth street would receive a great special advantage and be relieved of great burdens from these bonds. (b) The bonds had not been sold, the city counsellor at the time of the trial admitting that only "sixty thousand dollars of bonds have been sold." (c) There was no legal appropriation of money. The remainder of the bonds may in fact never be sold. None of this money may ever be used to "pay the costs of the actual regrading of Twelfth street." Section 14 of the ordinance provides that the cost of certain work "shall be paid by the city out of the general fund or out of the proceeds of the Twelfth Street Trafficway bonds." Here again there is no certificate of the comptroller indorsed on the ordinance as required by law. Kansas City Charter, art. 3, sec. 2; Mister v. Kansas City, 18 Mo.App. 217. The provision above quoted from the new charter is even broader than the corresponding provision of the old charter in this that the old charter read "all ordinances that contemplate the payment of any money," while the new charter inserted before the word "payment" the words "appropriation or." There can be no question that the provisions of this ordinance "contemplate the appropriation or payment of money" and as the ordinance did not contain the certificate of the comptroller as required by the charter the ordinance was passed in violation of the express charter limitation that without such certificate indorsed on the ordinance "it shall not be lawful to pass said ordinances." The ordinance attempts to yoke up in this omnibus proceeding the condemnation of "an easement or right of way for an overhead viaduct only" over private property, something which the charter does not even pretend to authorize to be united in such an omnibus proceeding. Kansas City Charter, art. 6, secs. 16 and 17. (9) This ordinance is an attempt to yoke up several proceedings not authorized by the charter. The objection is, that contrary to the charter and the general law there have been yoked together: first, a proceeding to regrade (a) Twelfth street, (b) Washington street, (c) Pennsylvania avenue, (d) Jefferson street and (e) Summit street; second, a proceeding to condemn a right of way for an overhead viaduct in Twelfth street from Summit street to Liberty street, and third, to condemn a large tract of land lying between Eleventh, Twelfth, Santa Fe and Liberty streets. Such a thing has never heretofore been done in Missouri. (10) The court erred in overruling the objection to the notice to property-owners and affidavit of publication. Proceedings of this kind are in invitum and must be pursued strictly. Tarkio v. Clark, 186 Mo. 285; Grading Bledsoe Hill, 200 Mo. 630.

Andrew F. Evans and Hunt C. Moore for respondent; John G. Schaich and Park & Brown of counsel.

(1) The court properly overruled the objection to the notice to property-owners and order of publication. (a) These provisions of the charter do not require a certified copy of the order to be published, only a copy which is correct in point of fact. The certificate was surplusage. Where such publication is had as is required by law, that is all that is necessary. State ex rel. v. Gordon, 217 Mo. 103. That which the law does not require to be published, need not be published. State v. Hutton, 39 Mo.App. 410; State v. Foreman, 121 Mo.App. 502; Webb v. Strobach, 143 Mo.App. 469; Gabbert v. Railroad, 171 Mo. 95. Surplusage in an order of publication will not vitiate it, if it be otherwise sufficient. Cruzen v. Stephens, 123 Mo. 344; Burnes v. Burnes, 61 Mo.App. 612; Winningham v. Trueblood, 149 Mo. 572. (b) The order of publication (notice to property-owners) shows on its face that it was made on May 17, 1911. The order of court, entered of record, certainly prevails over the voluntary non-official certificate by the clerk. Fleming v. Tatum, 232 Mo. 690. (2) There was no demand made for a common law jury by a corporation having property taken. State Constitution, art. 12, sec. 4. In the cases of Kansas City v. Vineyard, 128 Mo. 75, and Kansas City v. Smart, 128 Mo. 272, this court held that a city is not an "incorporated company" within the meaning of this provision. The assessment of benefits under the provisions of the charter or Constitution of Missouri is not an exercise of the right of eminent domain, but an exercise of the taxing power of the city. Meier v. St. Louis, 180 Mo. 408; Corrigan v. Kansas City, 211 Mo. 608; Construction Co. v. Shovel Co., 211 Mo. 524; Construction Co. v. Railroad, 206 Mo. 172; Garrett v. St. Louis, 25 Mo. 505. The change of grade of Twelfth street was not an exercise of the right of eminent domain. Without such provision as that in article 2, section 21, Constitution of 1875, there can be no recovery for damages to abutting property resulting from the mere change of grade, there being no physical injury to the property itself and the change being authorized by law. St. Louis v. Gurno, 12 Mo. 414; Taylor v. St. Louis, 14 Mo. 20; Hoffman v. St. Louis, 15 Mo. 651; Schattner v. Kansas City, 53 Mo. 162. "To grade a street or alley already dedicated to public use is not an exercise of eminent domain so as to require compensation, if it is done skilfully and discreetly." Taylor v. St....

To continue reading

Request your trial