In re Kansas City Ordinance No.39946

• Citation: 252 S.W. 404,298 Mo. 569
• Decision Date: 28 April 1923
• Docket Number: No. 23371.,23371.
• Parties: In re KANSAS CITY ORDINANCE NO. 39946. KANSAS CITY v. LIEBI et al
• Court: United States State Supreme Court of Missouri

252 S.W. 404

298 Mo. 569

In re KANSAS CITY ORDINANCE NO. 39946 KANSAS CITY v. LIEBI et al

No. 23371.

Supreme Court of Missouri, in Banc.

April 28, 1923.

Motion for Rehearing Overruled May 22, 1923.

Appeal from Circuit Court, Jackson County; Allen C. Southern, Judge.

Proceeding in behalf of property owners of Kansas City against Fred Liebi and others to restrict the purposes for which certain property along a boulevard may be used and to condemn certain rights in such property. From a judgment of dismissal, the city appeals. Reversed and remanded.

E. M. Harber, City Counselor, of Excelsior Springs, and Benj. M. Powers, Asst. City Counselor, and W. C. Scarritt, Sp. Counsel, both of Kansas City, for appellant.

A. N. Gossett, of Kansas City, for respondent Small.

John G. Park, of Kansas City, for respondent Liebi.

Smart & Strother, of Kansas City, for respondent, Smart.

WHITE, J.

This is a proceeding to restrict the use and to condemn certain rights in property along Gladstone boulevard, in Kansas City, under Ordinance No. 39946, called a "protective ordinance." Owners of certain property abutting on Gladstone boulevard and within a benefit district were made defendants. Five defendants appeared and filed separate motions to dismiss the proceeding. The motions of two of these, Fred Liebi and T. A. Smart, with a supplemental motion of Smart, are set out in the record. The other motions are not in the record. All the motions to dismiss were sustained December 15, 1921, and the cause dismissed, and the plaintiff appealed.

In addition to the defendants who moved to dismiss, 46 defendants appeared and filed their joint answer, expressing their satisfaction with the proceeding and praying the court to carry it into effect.

The proceeding affects Gladstone boulevard from Independence boulevard to Wheeling avenue, a distance of about three miles. Section 1 of Ordinance No. 39946 recites that Gladstone was the first boulevard or parkway established in the city, and that all the buildings along its entire length ate used exclusively for residential purposes, and that the overwhelming sentiment of the property owners immediately interested, and all citizens who desired to make Kansas City a good place to live in, is that the enactment and enforcement of the ordinance would—

"enhance and stabilize the value and utility of each and every piece of property within the benefit district herein prescribed and add to the beautification of said highway and North Terrace Park."

Section 2 of the ordinance is as follows:

"Sec. 2. From and after the enactment of this ordinance no house or building shall be constructed in whole or in part within thirty-five feet of the nearest adjacent side line of said boulevard within twenty years from the enactment of this ordinance, nor shall any house or building within the said benefit district be used within that period for any other than residential purposes or for purposes that are incidental and appurtenant to residential uses. No bill boards shall be erected, maintained or used during that period within the said benefit district. No gasoline tank, or gasoline tanks used in connection with others having a capacity of more than one hundred gallons shall be placed at one locality within the said benefit district during said period, nor shall any gasoline filling station be erected or maintained within said district during said period."

Section 3 provides for a benefit district comprising all lands on either side of Gladstone boulevard, between Independence boulevard and Wheeling avenue, lying within 150 feet of the respective side lines of said boulevard, and provides certain methods of measurement for laying out the lines.

Section 4 provides for a condemnation proceeding to determine the damage, if any, which the several property owners within the said benefit district might sustain by reason of the enactment and enforcement of the ordinance, and the manner in which the proceedings should be prosecuted.

Section 5 of the ordinance provides that damage caused by the enforcement of the ordinance should be paid for by special assessment upon real property situated within the benefit district.

Section 6 recites that the common council shall prescribe the terms and describe the limits within which property shall be benefited by this ordinance and assessed to pay the damages.

Section 7 provides that within a period of 20 years the ordinance could be repealed only upon petition of a majority of the owners of private property abutting upon the boulevard and within the benefit district.

The motions to dismiss allege numerous grounds why the proceeding should not be maintained. These may be classified in general as:

(1) Those which questioned the constitutionality of the ordinance and the proceeding.

It is claimed that the ordinance and the proceeding are contrary to article 2, § 20, 21, and 30 of the Constitution of Missouri, and the Fourteenth Amendment to the Constitution of the United States. The briefs and arguments of the respondent upon this point mainly go to the provision of section 20, article 2, that no private property can be taken for private use, except for certain given purposes, and the provision of section 21, that property shall not be taken nor damaged for public use without just compensation.

(2) Those which asserted reasons why the proceeding is not authorized by the charter of Kansas City. Several questions are presented in considering the charter power of the city, which will be noticed later in the opinion.

On the hearing of the motion the movers introduced evidence to show that some of the buildings upon the boulevard were much nearer than the 35 feet. Section 2 does not require buildings already on the property to be moved, but prohibits any building to be constructed within less than 35 feet of the nearest side line, after the enactment of the ordinance. A petition signed by 107 persons interested in the development of Gladstone boulevard, urging the immediate passage of the ordinance, and suggesting certain changes in it, was offered by the defendants, to show that the petition was not in accordance with the provisions of the charter. It was shown that no other petition was an file in the office of the city clerk having reference to the subject-matter of the ordinance.

The city offered as witnesses a number of persons who owned property on Gladstone boulevard, as well as real estate men, to show that the erection of structures forbidden by the ordinance would injure the boulevard for residences. Several witnesses testified that the value of property on the bouleyard would be greatly appreciated by enforcement of the ordinance; that because of benefits arising from the scheme the enhanced value of the property affected would be much more than the damages to property owners. Mr. George E. Kessler, landscape architect, gave his idea of zoning in a city:

"Q. What do you understand city zoning to be? A. An assembling of the uses of lands for their various purposes in given areas and an attempt to anticipate expansion, and in order to bring about a greater stability, and an ascertainment of this the uses of the property in a rational way throughout the city; placing of limiting lines throughout the city in different areas; classifying their use into, principally, industrial areas, commercial areas, and residential areas; and again subdividing those areas into further smaller units for different uses that would be applicable within its activities. This has usually been done on the broadest scale in recent years, say, only five or six years, under the usual state's powers, or police powers of the state, but for very many years before, both on the European continent and in the United States, there have been efforts to bring about the same results of stability of property through the right of eminent domain, establishing building lines, establishing areas of use so that invasion of contrary uses would be checked, and thereby preventing the very great losses that have occurred in most American cities by the need of shifting from one area to another, due to unnecessary or untimely invasion of contrary uses."

It was shown that Gladstone boulevard was essentially a residence district, and values along the boulevard were based on the use of the land for dwellings; that use for any other purpose would have a tendency to destroy values. It was said that establishment there of business enterprises would immediately reduce its values for residence purposes, including a very large area immediately adjoining the property on which such business might be placed. The purpose was thus expressed:

"A. Primarily, the purpose, of course, is to give outdoor recreation. The good appearance and attractiveness is a very distinct value, not usually considered as the prime element, but is one of the large factors in establishing pleasant use. Attractive surroundings always give a greater consciousness of the better things in a community and finally through that very attractiveness increase and sustain the city's growth and the comfort and welfare of the people living, regardless of those who may come."

All this evidence was introduced without objection, generally being the opinions of real estate experts and of experts upon city planning. The trend of the evidence was that the planning of the city in relation to the use of different parts would tend to prevent overcrowded and congested districts, thereby promoting health and the general welfare of the city, would make the city more attractive and thereby promote its growth and general prosperity, and afford means of recreation to people who desired to drive or walk along such streets in the same way that a public park or playground would.

I. The propriety, expediency, and necessity of a legislative act are purely for the determination of the legislative authority, and are not for determination by the courts. That applies to a...