169 S.W.2d 897 (Mo. 1943), 38361, Ewing v. Kansas City

Docket Nº38361
Citation169 S.W.2d 897, 350 Mo. 1071
Opinion JudgeDALTON
Party NameKenneth E. Ewing, Respondent, v. Kansas City, Missouri, a Municipal Corporation; John B. Gage as Mayor of Kansas City, Missouri; Walter R. Scott, Russell F. Greiner, John C. Rodahaffer, Merrill K. Dubach, Edwin A. Harris, Joseph C. Fennelly, George J. Miller and Frank H. Backstrom as Councilmen of Kansas City, Missouri; L. P. Cookingham as City Man
AttorneyWilliam E. Kemp, City Counselor, and Arthur R. Wolfe, Assistant City Counselor, for appellants. Roger C. Slaughter for respondent.
Judge PanelDalton, C. Bradley and Van Osdol, CC., concur.
Case DateApril 06, 1943
CourtSupreme Court of Missouri

Page 897

169 S.W.2d 897 (Mo. 1943)

350 Mo. 1071

Kenneth E. Ewing, Respondent,

v.

Kansas City, Missouri, a Municipal Corporation; John B. Gage as Mayor of Kansas City, Missouri; Walter R. Scott, Russell F. Greiner, John C. Rodahaffer, Merrill K. Dubach, Edwin A. Harris, Joseph C. Fennelly, George J. Miller and Frank H. Backstrom as Councilmen of Kansas City, Missouri; L. P. Cookingham as City Manager of Kansas City, Missouri; Arthur C. Everham as Director of Public Works of Kansas City, Missouri; Horace R. McMorris as Director of Finance of Kansas City, Missouri; Harry G. Gorman as Treasurer of Kansas City, Missouri; and Thomas J. Patten as Auditor of Kansas City, Missouri, Appellants

No. 38361

Supreme Court of Missouri

April 6, 1943

Appeal from Jackson Circuit Court; Hon. Marion D. Waltner, Judge.

Transferred to Kansas City Court of Appeals.

William E. Kemp, City Counselor, and Arthur R. Wolfe, Assistant City Counselor, for appellants.

Roger C. Slaughter for respondent.

Dalton, C. Bradley and Van Osdol, CC., concur.

OPINION

DALTON

Action in equity by plaintiff as a taxpayer, on behalf of himself and all others similarly situated, to enjoin Kansas City, the members of the city council, the Mayor and other officers, from using or permitting the use of the "Old Convention Hall Site" lot for parking lot purposes and from carrying out the terms of an alleged illegal and void ordinance. It is alleged that the traffic plan announced in Ordinance No. 6908, and the proposed use of said lot thereunder, is a mere subterfuge; that the plan was not made in good faith to create trafficways, but for the fraudulent purpose of evading the lawful restrictions imposed upon said lot; that the [350 Mo. 1072] lot was purchased with trafficway bond issue funds; that the lot is impressed with a trust for use for

Page 898

trafficway purposes only; and that the defendants seek to use said ordinance to accomplish an illegal purpose, to wit, the use of the lot for automobile parking, and intend to illegally divert the proceeds of the bond issue and defeat and evade its terms.

The trial court found that Ordinance No. 6908 was valid and legal on its face; and that it did not show an unlawful intention to establish a parking station for hire or otherwise, or an intention to violate the restrictions, and refused to enjoin defendants from carrying out its terms and provisions, but the court found that it was in fact the intention of defendants "to strain the terms of said Bond Proposition Eight" (the bond issue for trafficway improvements) to create parking facilities on the lot. The court permanently enjoined defendants from violating said ordinance, or from modifying, changing, or otherwise altering it in any way or manner (to the end that by such changes an area for parking facilities, with or without hire, might be created), and further enjoined defendants from ever permitting other than horizontal or parallel parking along the right hand curbs of the trafficways provided by the ordinance upon said lot. Defendants have appealed.

On May 26, 1931, at a special bond election in Kansas City, a bond issue was authorized "to pay the City's share of the cost of the acquisition of the necessary lands for the opening, widening and establishing of trafficways and boulevards in the city and the improvement of the same for travel, including the necessary bridges and viaducts." From the proceeds of this bond issue, the City on June 28, 1935, acquired a tract of land, referred to as the "Old Convention Hall Site," being approximately the west 2/3 of the block immediately north of the Municipal Auditorium in Kansas City. The Municipal Auditorium is located between Thirteenth and Fourteenth streets and between Wyandotte and Central streets. The lot in question fronts on Twelfth, Thirteenth and Central streets.

Kansas City attempted to make no use of this lot until April 14, 1941. On that date, Ordinance No. 6576 was duly adopted by the City Council. By the terms of this ordinance, the Director of Public Works of said city was ordered and directed "to provide and construct driveways in and through said property, to construct a shelter house thereon, to provide parking facilities for automobiles, and appropriate markings therefor, and to plant...

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24 practice notes
  • 229 S.W.2d 691 (Mo. 1950), 41549, Lemonds v. Holmes
    • United States
    • Missouri Supreme Court of Missouri
    • May 8, 1950
    ...Ashbrook v. Willis, 338 Mo. 226, 89 S.W. 2d 659, 660[6]; Buddon Realty Co. v. Wallace (Mo.), 188 S.W. 2d 28, 29[2]; Ewing v. Kansas City, 350 Mo. 1071, 169 S.W. 2d 897, 900[3-5, 7]; Kingshighway Presbyterian Church v. Sun Realty Co., 324 Mo. 510, 24 S.W. 2d 108, 109[3]. See 21 C.J.S. 668, §......
  • 292 S.W.2d 627 (Mo.App. 1956), 7468, Collier v. Smith
    • United States
    • Missouri Court of Appeals of Missouri
    • July 23, 1956
    ...437, 438(2); Edwards v. Sittner, Mo.App., 206 S.W.2d 578, 580(2). [8] Mack v. Mack, Mo., 281 S.W.2d 872, 873(1); Ewing v. Kansas City, 350 Mo. 1071, 169 S.W.2d 897, 900(3); Higgins v. Smith, 346 Mo. 1044, 144 S.W.2d 149, 151(4); Drew v. Platt, 329 Mo. 442, 44 S.W.2d 623, 624; State v. Egan,......
  • 197 S.W.2d 299 (Mo. 1946), 39803, Hunter v. Hunter
    • United States
    • Missouri Supreme Court of Missouri
    • November 11, 1946
    ...324 Mo. 510, 513, 24 S.W. 2d 108, 109; West St. Louis W. & Lt. Co. v. Public Serv. Comm. (Mo.), 197 S.W. 340. Ewing v. Kansas City, 350 Mo. 1071, 1076, 169 S.W. 2d 897, 900, states: ". . . our jurisdiction depends upon live issues presented on matters within our jurisdiction."......
  • 214 S.W.2d 713 (Mo.App. 1948), Royal Meat Products Co. v. Kansas City, Mo.
    • United States
    • Missouri Court of Appeals of Missouri
    • November 8, 1948
    ...of this appeal, since the record does not show that the amount in dispute exceeds the amount of $ 7,500.00. Ewing v. Kansas City, 350 Mo. 1071, 169 S.W. 2d 897; Wagner v. Mederacke, 354 Mo. 977, 192 S.W. 2d 865; State ex rel. Lamm v. Mid-State Serum Co., 264 S.W. 878. (5) The court erred in......
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24 cases
  • 229 S.W.2d 691 (Mo. 1950), 41549, Lemonds v. Holmes
    • United States
    • Missouri Supreme Court of Missouri
    • May 8, 1950
    ...Ashbrook v. Willis, 338 Mo. 226, 89 S.W. 2d 659, 660[6]; Buddon Realty Co. v. Wallace (Mo.), 188 S.W. 2d 28, 29[2]; Ewing v. Kansas City, 350 Mo. 1071, 169 S.W. 2d 897, 900[3-5, 7]; Kingshighway Presbyterian Church v. Sun Realty Co., 324 Mo. 510, 24 S.W. 2d 108, 109[3]. See 21 C.J.S. 668, §......
  • 292 S.W.2d 627 (Mo.App. 1956), 7468, Collier v. Smith
    • United States
    • Missouri Court of Appeals of Missouri
    • July 23, 1956
    ...437, 438(2); Edwards v. Sittner, Mo.App., 206 S.W.2d 578, 580(2). [8] Mack v. Mack, Mo., 281 S.W.2d 872, 873(1); Ewing v. Kansas City, 350 Mo. 1071, 169 S.W.2d 897, 900(3); Higgins v. Smith, 346 Mo. 1044, 144 S.W.2d 149, 151(4); Drew v. Platt, 329 Mo. 442, 44 S.W.2d 623, 624; State v. Egan,......
  • 197 S.W.2d 299 (Mo. 1946), 39803, Hunter v. Hunter
    • United States
    • Missouri Supreme Court of Missouri
    • November 11, 1946
    ...324 Mo. 510, 513, 24 S.W. 2d 108, 109; West St. Louis W. & Lt. Co. v. Public Serv. Comm. (Mo.), 197 S.W. 340. Ewing v. Kansas City, 350 Mo. 1071, 1076, 169 S.W. 2d 897, 900, states: ". . . our jurisdiction depends upon live issues presented on matters within our jurisdiction."......
  • 214 S.W.2d 713 (Mo.App. 1948), Royal Meat Products Co. v. Kansas City, Mo.
    • United States
    • Missouri Court of Appeals of Missouri
    • November 8, 1948
    ...of this appeal, since the record does not show that the amount in dispute exceeds the amount of $ 7,500.00. Ewing v. Kansas City, 350 Mo. 1071, 169 S.W. 2d 897; Wagner v. Mederacke, 354 Mo. 977, 192 S.W. 2d 865; State ex rel. Lamm v. Mid-State Serum Co., 264 S.W. 878. (5) The court erred in......
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