Bowman v. Kansas City, 41719

Citation361 Mo. 14,233 S.W.2d 26
Decision Date09 October 1950
Docket NumberNo. 41719,41719
PartiesBOWMAN et al. v. KANSAS CITY et al.
CourtUnited States State Supreme Court of Missouri

B. T. Hurwitz and Eugene Taxman, Kansas City, for appellants.

David M. Proctor, City Counselor, Benj. M. Powers, Associate City Counselor, Kansas City, for respondents.

DALTON, Judge.

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 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 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 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 offstreet 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 opinion.

Plaintiffs charged that any funds derived from the sale of bonds under Proposition No. 8 were in effect trust funds and could not be legally expended for purposes other and different from those submitted to the voters under the terms of Proposition No. 8; that in and by Ordinance No. 12627 the city council had announced its intention to, and unless restrained would, unlawfully and illegally expend the said bond funds for the purpose of establishing and creating a parking station or garage for hire; that 'the said Ordinance No. 12627 permits taxation for a private purpose instead of a public purpose, and, with the proceeds of such taxes, permits the defendant City to engage in a business non-public in its nature, in competition with the well-established business of the plaintiffs * * *'; that the parking station business is not a public utility function; that the ordinance, supra, authorizing said business, was an unlawful attempted exercise of police power; that the enforcement of said ordinance would deprive plaintiffs of their property without due process of law; that there was no valid provision of the charter authorizing the city to condemn land for parking station purposes; that, unless defendants were restrained, 'plaintiffs and others similarly situated * * * will be unlawfully taxed for the purpose of providing funds for the interest payments and sinking fund requirements of and for the bonds authorized under Proposition No. 8 as aforesaid, which bonds, and the proceeds therefrom, will be illegally and unlawfully used * * * and further, plaintiffs and others similarly situated will be unlawfully taxed if the defendants and any of them are permitted to condemn property for a wholly private and non-public use, and further, these plaintiffs and others similarly situated will be compelled to pay taxes * * * for the purpose of permitting the said defendant City to engage in private business in direct, immediate and open competition with plaintiffs and others similarly situated.' Injunctive relief was prayed, as above stated, and there was a prayer for general relief. The constitutional provisions cited and relied upon include Sec. 3, Art. X; Sec. 27, Art. VI; Sec. 10, Art. I, Constitution of Missouri 1945, Mo.R.S.A. Sec. 1 of the 14th Amendment of the Constitution of the United States.

The parties signed a stipulation of facts (containing 23 paragraphs and certain exhibits) subject to the privilege of either party objecting thereto on the ground of immateriality, irrelevancy or incompetency. Only the facts stated in paragraphs 14, 15, 16, 22 of the stipulation were admitted in evidence.

Appellants first contend that '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." The evidence referred to is pointed out in argument as paragraphs 1 to 6 inclusive, and 8 to 11 inclusive, of the stipulation of facts. Appellants say: 'The matter contained in these paragraphs demonstrated factually and in detail the amount of parking space available in the downtown area of Kansas City, Missouri, and, more particularly, the amount of parking space available in the vicinity of the Municipal Auditorium. The matter contained in these paragraphs also deals with the question of whether there is a need for parking space in the downtown area, and, more particularly, in the vicinity of the Auditorium. * * * The only evidence tendered by either side concerning the availability of parking spaces and the need, if any, for additional spaces was excluded.'

In an equity case, which we try de novo, this court is not required to reverse a judgment because of the chancellor's incorrect rulings on evidence, but this court on appeal usually 'considers such evidence in the record as it deems admissible, excludes from consideration evidence improperly admitted, and reaches its judgment on the competent evidence offered without regard to the trial court's rulings.' Snow v. Funck, Mo.Sup., 41 S.W.2d 2, 5; Lanphere v. Affeld, Mo.Sup., 99 S.W.2d 36, 39. The facts stated in the mentioned paragraphs had little tendency to show non-public purposes. As is indicated by appellants' statement, the matters contained in the paragraphs were primarily for the consideration of the agency proposing to condemn the described property, but such facts as are considered material will be considered in determining the issues presented.

The necessity and expediency of the proposed taking were legislative and political, not judicial questions and the evidence offered and excluded in so far as it related to such questions, was properly excluded. 'In such a case, it is well settled that the utility of the proposed improvement, the extent of the public necessity for its construction, the expediency of constructing it, the suitableness of...

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