180 S.W.2d 234 (Mo.App. 1944), Ewing v. Kansas City

Citation180 S.W.2d 234, 238 Mo.App. 266
Opinion JudgeBLAND
Party NameKenneth E. Ewing, Respondent, v. Kansas City, Missouri et al., Appellant
AttorneyWilliam E. Kemp and Arthur R. Wolfe for appellants. Roger C. Slaughter for respondent.
Judge PanelBland, J. Cave, J., concurs. Cave, J., concurs.
Case DateApril 03, 1944
CourtCourt of Appeals of Missouri

Page 234

180 S.W.2d 234 (Mo.App. 1944)

238 Mo.App. 266

Kenneth E. Ewing, Respondent,

v.

Kansas City, Missouri et al., Appellant

Court of Appeals of Missouri, Kansas City

April 3, 1944

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

Reversed.

William E. Kemp and Arthur R. Wolfe for appellants.

(1) The decree does not conform to either the pleadings, the evidence or the findings, and is void. Friedel v. Bailey, 329 Mo. 22, 44 S.W.2d 9, 15; Sinclair Refin. Co. v. Wyatt, 347 Mo. 862, 149 S.W.2d 353, 355; Commission Row Club v. Lambert, 161 S.W.2d 732, 737. (2) The trial court by its decree erred and exceeded its authority in interfering with the legislative and discretionary powers of the council and in substituting the court's judgment for that of the governing body of the city as to the character of this public improvement. Kansas City v. Terminal Ry. Co., 324 Mo. 882, 25 S.W.2d 1055; 28 Am. Jur., pp. 365, 366, secs. 176 and 177; Commission Row Club v. Lambert et al., As Members of the Board of Police Commissioners of the City of St. Louis, 161 S.W.2d 732; Brown v. Phillips, 300 Mo. 603, 254 S.W. 700; New York, New Haven & Hartford R. R. Co. v. Interstate Commerce Commission, 200 U.S. 361, 404, 26 S.Ct. 272, 50 L.Ed. 515; Mo. Electric Power Co. v. Smith, 155 S.W.2d 113; Palmer v. City of Liberal, 334 Mo. 266, 64 S.W.2d 265; City of St. Louis v. Senter Comm. Co., 84 S.W.2d 133; City of St. Louis v. Senter Comm. Co., 337 Mo. 238, 85 S.W. 21; People v. Rubin, 284 N.Y. 392, 31 N.E.2d 501. (3) The trial court erroneously granted injunctive relief to allay the fears and apprehensions of the plaintiff and without any substantial evidence to support the decree. Lester Real Estate Co. v. City of St. Louis, 169 Mo. 227, 69 S.W. 300; Commission Row Club v. Lambert, 161 S.W.2d 732.

Roger C. Slaughter for respondent.

(1) The decree conforms to the pleadings, and to the prayer of the bill. The decree likewise conforms to the evidence. 19 R. C. L. 1165, par. 438, n. 15; 10 R. C. L. 555, par. 338, n. 15, 556, par. 338, n. 1, 423, par. 182, n. 14. (2) The trial court was not bound by the Council's declaration of finding in Ordinance 6908, that "there was a necessity for opening trafficways through said property." The evidence unmistakably showed that the real intention of the defendants was to create a parking lot. The trial court did not substitute its judgment for that of the governing body of the city, but merely restrained the defendants from "modifying, changing or otherwise altering said ordinance in any way or manner, to the end that by such changes or alterations said Convention Hall parking lot area might be converted into an area for parking facilities, either with or without hire." Kansas City v. Terminal Railway Co., 324 Mo. 882, 25 S.W.2d 1055; 28 Am. Jur., pp. 366, 367, par. 177, n. 9, 10, 11; Commission Row Club v. Lambert et al. (Mo. App.), 161 S.W.2d 732; Lester Real Estate Co. v. City of St. L., 169 Mo. 227, 69 S.W. 300; Danforth v. Foster, 158 Mo.App. 94, 139 S.W. 520; City of St. Louis v. Senter Comm. Co., 84 S.W.2d 133. (3) The decree is fully justified under the law and the evidence, and the trial court was fully justified in its conclusion that it has been and is the intention of these defendants, if not restrained, to strain the terms of Bond Proposition Eight to the end that the Convention Hall lot might be converted into a parking area. St. Louis v. Senter Comm. Co., 337 Mo. 238, 85 S.W.2d 21; Pickett & Mudgett v. Mercer, 106 Mo.App. 689; Lester Real Estate Co. v. City of St. Louis, 169 Mo. 227, 69 S.W. 300; 16 Am. & Eng. Enc. Law (2 Ed.), p. 361; Comm. Row Club v. Lambert (Mo. App.), 161 S.W.2d 732.

Bland, J. Cave, J., concurs.

OPINION

BLAND

[238 Mo.App. 268] This is a suit in equity brought by the plaintiff, as a taxpayer, on behalf of himself and all others similarly situated, to enjoin The City of Kansas the members of the City Council, the Mayor and other officials, from using, or permitting the use, of a plot of ground, in said City, known as the "Old Convention Hall Site" for parking lot purposes, and from carrying out the terms of an alleged illegal and void ordinance.

The Chancellor granted to the plaintiff certain relief, hereinafter described, and the defendants appealed to the Supreme Court on the theory that that court had jurisdiction, but that Court held otherwise and transferred the cause here. [See Ewing v. Kansas City et al., 169 S.W.2d 897.]

The facts show that on May 26, 1931, by 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

Page 235

land referred to as the "Old Convention Hall Site", being approximately the west two-thirds of the block immediately north of the Municipal Auditorium in Kansas City, said tract of land and the site of the Municipal Auditorium being separated by 13th Street. The tract remained unused and there were many suggestions and plans, by city officials, as to what improvement and use should be made thereof, among which, were a public park, a public parking station or lot and improvements that would afford a landscaping project, sidewalks and space for the parking of a large number of automobiles.

Finally, on April 14, 1941, the City Council passed Ordinance #6576, by the terms of which the Director of Public Works 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 shrubs and trees along the margin and borders of said area, all in accordance with" the plan attached, which plan provided a parking area for 192 to 233 automobiles, depending upon the method of parking, and providing for three north and south driveways and places of ingress and egress thereto.

Prior to the passage of this ordinance the City Counselor, and his assistants, rendered three opinions to the Mayor advising that the [238 Mo.App. 269] tract of ground could not be used as a parking lot in view of the fact that it had been purchased out of funds from the sale of trafficway bonds and its use must be confined to trafficway purposes.

On May 26, 1941, plaintiff filed this suit. Plaintiff testified that he was a taxpayer in Kansas City and brought this suit in equity because he believed that if the defendants herein were not restrained from proceeding with the improvement called for in Ordinance #6908 (hereinafter more fully described), a parking station would be provided on the site; that he was associated with a real estate company which represented a number of owners and operators of parking stations in the vicinity of the Municipal Auditorium; that his purpose in bringing the suit was that he did not want the site in question to be used in a way that would be in competition to the commercial parking stations in that area; that so long as the property is used in a way other than as a commercial parking station he had no interest in the matter.

When plaintiff filed suit, the council, after receiving legal advice from the City Counselor's office to the effect that a court might interpret said ordinance as indicating an intention to establish a commercial parking lot, on October 20, 1941, repealed Ordinance #6576 and enacted Ordinance #6908. By the new ordinance the Council found that there was "a necessity for the opening and establishing of trafficways in and through said property for the use, convenience and safety of the public when approaching and leaving the Municipal Auditorium . . . and for expediting traffic to, from, and through said vicinity." The amended petition, upon which the cause was tried, was filed after the first ordinance had been repealed and the...

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