233 S.W.2d 26 (Mo. 1950), 41719, Bowman v. Kansas City

Docket Nº41719
Citation233 S.W.2d 26, 361 Mo. 14
Opinion JudgeDalton, J.
Party NameJohn B. Bowman et al., Appellants, v. City of Kansas City, Missouri, et al., Respondents
AttorneyB. T. Hurwitz and Eugene Taxman for appellants. David M. Proctor, City Counselor, and Benj. M. Powers, Associate City Counselor, for respondents.
Case DateOctober 09, 1950
CourtUnited States State Supreme Court of Missouri

Page 26

233 S.W.2d 26 (Mo. 1950)

361 Mo. 14

John B. Bowman et al., Appellants,

v.

City of Kansas City, Missouri, et al., Respondents

No. 41719

Supreme Court of Missouri

October 9, 1950

Appeal from Jackson Circuit Court; Hon. Thomas R. Hunt, Judge.

Affirmed.

SYLLABUS

Action by taxpayers to enjoin the condemnation of off-street parking facilities by Kansas City pursuant to an ordinance adopted under the authority of Laws 1947. Vol. I, p. 392. A public purpose was involved, and the necessity or expediency are political questions not to be determined by the courts. The statute is constitutional and injunctive relief was properly denied.

[361 Mo. 15] B. T. Hurwitz and Eugene Taxman for appellants.

(1) The trial court erred in rejecting evidence bearing on the question of whether the contemplated use of land sought to be taken by eminent domain is a "public use." State ex rel. State Highway Commission v. Curtis, 359 Mo. 402, 222 S.W.2d 64; City of Kirkwood v. Venable, 351 Mo. 460, 173 S.W.2d 8; Mo. Constitution, Sec. 28, Art. I. (2) The trial court erred in holding that the Trafficways Improvement Bond Fund could be diverted to garage or parking station purposes. Thompson v. St. Louis, 253 S.W. 969; Stephens v. Bragg City, 224 Mo.App. 469, 27 S.W.2d 1063; Meyers v. Kansas City, 323 Mo. 200, 18 S.W.2d 900; St. Louis v. Senter Commission Co., 337 Mo. 238, 85 S.W.2d 21; Meyering v. Miller, 330 Mo. 885, 51 S.W.2d 65; Ewing v. Kansas City, 238 Mo.App. 266, 180 S.W.2d 234; Mo. Constitution, Sec. 29, Article VI. (3) The trial court erred in failing to enjoin the defendant City's proposed entry into the garage and parking station business as taxation for a private purpose contrary to Section 3, Article X of the Missouri Constitution. State ex rel. Kansas City v. Orear, 277 Mo. 303, 210 S.W. 392; Kennedy v. City of Nevada, 222 Mo.App. 459, 281 S.W. 56; Cleveland v. Ruple, 130 Ohio St. 465, 200 N.E. 507, 107 A.L.R. 853; Woodmansee v. Kansas City, 346 Mo. 919, 144 S.W.2d 137; Mo. Constitution, Sec. 3, Art. X. (4) The trial court erred in failing to hold that defendant City's proposed entry into the garage and parking station business was in violation of the Federal Constitution, Section 4 of Article IV and Section 1 of 14th Amendment and Section 10 of Article I of the Missouri Constitution. Cleveland v. Ruple, 130 Ohio St. 465, 200 N.E. 507, 107 A.L.R. 853; Constitution of the United States, Sec. 4, Art. IV, Sec. 1, 14th Amendment; Mo. Constitution, Sec. 10, Art. I. (5) The garage and parking station business is not a public utility such as contemplated by Section 27 of Article VI of the Missouri Constitution. Mo. Constitution, Sec. 27, Article VI.

[361 Mo. 16] David M. Proctor, City Counselor, and Benj. M. Powers, Associate City Counselor, for respondents.

(1) The acquisition of land for the public off-street parking facility was for a "public purpose." 1 Laws 1947, p. 392; McSorley v. Fitzgerald, 359 Pa. 264, 59 A.2d 142; Kansas City v. Liebi, 298 Mo. 569, 252 S.W. 405; Jennings v. St. Louis, 332 Mo. 173, 58 S.W.2d 979; Laret Inv. Co. v. Dickmann, 345 Mo. 449, 134 S.W.2d 65; Dysart v. St. Louis, 321 Mo. 514, 11 S.W.2d 1045; Halbruegger v. St. Louis, 302 Mo. 573, 262 S.W. 379; Miller v. City of Georgetown, 301 Ky. 241, 191 S.W.2d 403; City of Grand Rapids v. Barth, 248 Mich. 13, 226 N.W. 690; Wayne Village President v. Wayne Village Clerk, 327 Mich. 592, 36 N.W.2d 357, 8 A.L.R. (2d) 357; City of Whittier v. Dixon, 24 Cal.2d 664, 151 P.2d 5; Ambassador Management Corp. v. Incorporated Village of Hempstead, 269 N.Y. 666, 69 N.E.2d 819; City of Richmond v. Kervishian, 57 S.E.2d 120; Cleveland v. Ruple, 130 Ohio St. 465, 200 N.E. 507; Woodmansee v. Kansas City, 346 Mo. 919, 144 S.W.2d 137; State ex rel. Kansas City v. Orear, 277 Mo. 303, 210 S.W. 392; Kennedy v. City of Nevada, 222 Mo.App. 459, 281 S.W. 56; City Charter, sec. 128.3. (2) The proposed parking facility is an appropriate adjunct to the Municipal Auditorium. Cleveland v. Ruple, 130 Ohio St. 465, 200 N.E. 507; Blakemore v. Cincinnati Metropolitan Housing Authority, 74 Ohio App. 5, 57 N.E.2d 397. (3) The necessity or expediency of acquiring the proposed property for the public use intended is a matter of legislative discretion. City of St. Louis v. Brown, 155 Mo. 545, 56 S.W. 298; McMurry v. Kansas City, 283 Mo. 479, 223 S.W. 615; Kansas City v. Liebi, 298 Mo. 569, 252 S.W. 404; St. Louis v. Senter Commission Co., 336 Mo. 149, 84 S.W.2d 133; City of Kirkwood v. Venable, 351 Mo. 460, 173 S.W.2d 8; Board of Regents for Northeast Missouri State Teachers College v. Palmer, 356 Mo. 946, 204 S.W.2d 291; State ex rel. State Highway Comm. v. Curtis, 359 Mo. 402, 222 S.W.2d 64. (4) Respondent City has the right to use the proposed site for parking facilities. Sec. 128.2, Charter of Kansas City, Missouri; State ex rel. City of Excelsior Springs v. Smith, 336 Mo. 1104, 82 S.W.2d 37; Ewing v. Kansas City, 238 Mo.App. 266, 180 S.W.2d 234.

OPINION

[361 Mo. 17] Dalton, J.

Page 27

Action in equity by plaintiffs, as resident taxpayers of Kansas City, Missouri, on behalf of themselves and all others similarly situated, to enjoin Kansas City, the members of the city council, the mayor and other officers, from carrying out or attempting to carry out the terms of an alleged illegal and void ordinance, from appropriating or expending public funds thereunder to purchase described real estate, from expending (for the purpose of establishing parking stations and garages for hire) any bond funds authorized and obtained by said city for trafficways and boulevard improvements, from converting specific real estate to parking station purposes and for other relief. The trial court denied the relief sought and dismissed the petition. Plaintiffs have appealed.

On May 26, 1931, at a special bond election in Kansas City, a bond issue was authorized under Proposition No. 8 "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 thereon." An increase in the indebtedness of the city for said purposes in the sum of $ 8,300,000.00 was approved. Thereafter, the city adopted an ordinance declaring the result of the special city bond election, authorizing the issuance of bonds, fixing the form thereof, providing for an annual tax to be levied for interest and providing for the payment

Page 28

of principal when due. From the proceeds of this bond issue, the city on June 27, 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 and separated from the site of Municipal Auditorium by 13th street. The city also acquired other described real estate in that vicinity. It [361 Mo. 18] will not be necessary to review subsequent proceedings prior to May 2, 1949, but those interested may refer to Ewing v. Kansas City, 350 Mo. 1071, 169 S.W.2d 897; and Ewing v. Kansas City, 238 Mo.App. 266, 180 S.W.2d 234.

On or about May 2, 1949, the City Council of Kansas City, adopted an ordinance, being Ordinance No. 12627, which was entitled "An ordinance to condemn and take private property for public use as the site of an off-street public parking facility." It, in part, provided that, "Whereas, the volume of automobile traffic within the central or downtown retail district of the city, particularly in the area of the Municipal Auditorium, has increased to such an extent as to result in serious congestion of traffic, and the privately operated facilities for parking of automobiles within or adjacent to said Municipal Auditorium, are inadequate to provide for parking of automobiles during the hours when their passengers are in said retail district or attending functions, exhibitions and public gatherings in said Municipal Auditorium; and whereas, it is, therefore, necessary for the protection and convenience of the public that the city acquire, develop and operate or cause to be operated additional public parking facilities available to said area; and whereas, Kansas City is the owner of * * * (particularly described real estate) * * * directly across the street north from said Municipal Auditorium, and also * * * (other particularly described real estate) * * * and now proposes to develop said area or as much thereof as may be required to relieve traffic congestion, for an off-street public parking facility and to operate such parking facility for the parking of automobiles and make a charge therefor, or, if deemed expedient, to lease such parking facility for private operation for the parking of automobiles for a charge, and it is deemed necessary to acquire additional lands therefor, to wit: Lot 14, Block 3, Reid's Addition * * *."

The ordinance then authorized the condemnation of the last mentioned tract "for public use as the site, or a portion thereof, of an off-street public parking facility which may be developed and used for the parking of automobiles for a charge or may be leased, in whole or part, to others for private operation as a public parking facility for the parking of automobiles for a charge."

It is admitted that the plaintiffs have been for many years and are now engaged in the business of parking automobiles for hire in what is commonly known as the parking station and garage business in the immediate vicinity of the Municipal Auditorium in Kansas City; that they have large investments, as specified, in said businesses; and that they have spent additional sums of money and time in developing good will, custom and trade at their respective locations. Other facts will be stated in the course of the...

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63 practice notes
  • __ Cal.App.2d __, Civ. 16105, City & County of San Francisco v. Ross
    • United States
    • California California Court of Appeals
    • May 20, 1954
    ...City of New Haven, 140 Conn. 8, 98 A.2d 523; Denihan Enterprises v. O'Dwyer, 302 N.Y. 451, 99 N.E.2d 235; Bowman v. Kansas City, Mo.Sup., 233 S.W.2d 26; Brodhead v. City & County of Denver, 126 Colo. 119, 247 P.2d 140; City of Richmond v. Dervishian, 190 Va. 398, 57 S.E.2d 120; Clevelan......
  • 270 P.2d 270 (Kan. 1954), 39241, State ex rel. Hawks v. City of Topeka
    • United States
    • Kansas United States State Supreme Court of Kansas
    • May 8, 1954
    ...most courts have accepted such provisions as indicative that a public use is involved. In the case of Bowman v. City of Kansas City, 361 Mo. 14, 25, 233 S.W.2d 26, 33, which involved the validity of off-street parking facilities, the question of public use was ably discussed. The Missouri c......
  • 238 S.W.2d 346 (Mo. 1951), 42059, Cowherd Development Co. v. Littick
    • United States
    • Missouri United States State Supreme Court of Missouri
    • March 12, 1951
    ...288 Mo. 618, 232 S.W. 1024; Mathews Real Estate Co. v. National Printing & E. Co., 330 Mo. 190, 48 S.W.2d 911; Bowman v. Kansas City, 233 S.W.2d 26; Authorities (2), supra. (4) If the front-foot ownership represented in one extension agreement could not be withdrawn by the execution of ......
  • 282 S.W.2d 30 (Mo. 1955), 44505, Everett v. County of Clinton
    • United States
    • Missouri United States State Supreme Court of Missouri
    • September 12, 1955
    ...eminent domain, was for the county court and was a political and not a judicial matter. See Page 37 Bowman v. Kansas City, __ Mo.Sup. __, 233 S.W.2d 26, 35; State ex rel. Lane v. Pankey, 359 Mo. 118, 221 S.W.2d 195, 196 (5-7); City of Kirkwood v. Venable, 351 Mo. 460, 173 S.W.2d 8, 11. The ......
  • Request a trial to view additional results
63 cases
  • __ Cal.App.2d __, Civ. 16105, City & County of San Francisco v. Ross
    • United States
    • California California Court of Appeals
    • May 20, 1954
    ...City of New Haven, 140 Conn. 8, 98 A.2d 523; Denihan Enterprises v. O'Dwyer, 302 N.Y. 451, 99 N.E.2d 235; Bowman v. Kansas City, Mo.Sup., 233 S.W.2d 26; Brodhead v. City & County of Denver, 126 Colo. 119, 247 P.2d 140; City of Richmond v. Dervishian, 190 Va. 398, 57 S.E.2d 120; Clevelan......
  • 270 P.2d 270 (Kan. 1954), 39241, State ex rel. Hawks v. City of Topeka
    • United States
    • Kansas Supreme Court of Kansas
    • May 8, 1954
    ...most courts have accepted such provisions as indicative that a public use is involved. In the case of Bowman v. City of Kansas City, 361 Mo. 14, 25, 233 S.W.2d 26, 33, which involved the validity of off-street parking facilities, the question of public use was ably discussed. The Missouri c......
  • 238 S.W.2d 346 (Mo. 1951), 42059, Cowherd Development Co. v. Littick
    • United States
    • Missouri Supreme Court of Missouri
    • March 12, 1951
    ...288 Mo. 618, 232 S.W. 1024; Mathews Real Estate Co. v. National Printing & E. Co., 330 Mo. 190, 48 S.W.2d 911; Bowman v. Kansas City, 233 S.W.2d 26; Authorities (2), supra. (4) If the front-foot ownership represented in one extension agreement could not be withdrawn by the execution of ......
  • 282 S.W.2d 30 (Mo. 1955), 44505, Everett v. County of Clinton
    • United States
    • Missouri Supreme Court of Missouri
    • September 12, 1955
    ...eminent domain, was for the county court and was a political and not a judicial matter. See Page 37 Bowman v. Kansas City, __ Mo.Sup. __, 233 S.W.2d 26, 35; State ex rel. Lane v. Pankey, 359 Mo. 118, 221 S.W.2d 195, 196 (5-7); City of Kirkwood v. Venable, 351 Mo. 460, 173 S.W.2d 8, 11. The ......
  • Request a trial to view additional results