Glueck Realty Co. v. City of St. Louis

• Decision Date: 10 November 1958
• Docket Number: No. 1,No. 46663,46663,1
• Citation: 318 S.W.2d 206
• Parties: GLUECK REALTY COMPANY, a Corporation, Appellant, v. The CITY OF ST. LOUIS, Missouri, a Municipal Corporation, Raymond R. Tucker, as Mayor of the City of St. Louis, James V. Frank, as City Counselor of the City of St. Louis, and John J. Dwyer, as Treasurer of the City of St. Louis, Respondents
• Court: Missouri Supreme Court

Page 206

318 S.W.2d 206

GLUECK REALTY COMPANY, a Corporation, Appellant, v. The CITY OF ST. LOUIS, Missouri, a Municipal Corporation Raymond R. Tucker, as Mayor of the City of St. Louis, James V. Frank, as City Counselor of the City of St. Louis, and John J. Dwyer, as Treasurer of the City of St. Louis, Respondents.

No. 46663.

Supreme Court of Missouri, Division No. 1.

Nov. 10, 1958.

Rehearing Denied Dec. 8, 1958.

Morris J. Levin, St. Louis, for appellant.

Charles J. Dolan, Acting City Counselor, John J. Shanahan, Associate City Counselor, St. Louis, for respondents.

WESTHUES, Judge.

The defendants, respondents on this appeal, have accepted the statement of facts contained in appellant's brief. Even though it is quite lengthy, we are adopting it as the statement of the court. It reads as follows:

'This is an appeal from the order of the St. Louis Circuit Court sustaining the defendants' Motion to Dismiss made and entered in a suit filed October 2, 1956, for an injunction to restrain and enjoin the City of St. Louis and its officers from carrying out or attempting to carry out the terms and provisions of Ordinances No. 48,005 and No. 48,014 of the City of St. Louis, and from appropriating or expending any funds or money of the City of St. Louis for the purpose of purchasing any of the land or property described and referred to in said named ordinances for the purposes of using said lands for parking facilities or garage purposes, from issuing any revenue bonds or other bonds or securities, the proceeds of which would be used for any of said purposes, and from advertising the sale of or requesting bond buyers to submit bids for said bonds, and to refrain from doing anything or taking any action under or pursuant to any right or authority conferred under the said Ordinances No. 48,005 and No. 48,014. Plaintiff also sought a declaratory judgment, and in its petition therefor requested and adopted all the allegations of alleged invalidity of the ordinances as pleaded in its petition for injunction and equitable relief; alleged, in addition, that the plaintiff and all others similarly situated were adversely affected by the acts, conduct and things threatened to be done and performed by the defendants pursuant to and under the authority of Ordinances No. 48,005 and No. 48,014; that a serious doubt exists concerning the validity, legality and constitutionality of said ordinances; that plaintiff and others are uncertain of and cannot know their status, rights and legal relationships under said ordinances nor the effect upon them of the acts and things done and performed by the defendants under the authority of the ordinances, and plaintiff prayed for a declaratory judgment declaring the rights, status and legal relationships of plaintiff and all others similarly situated and declaring that Ordinances No. 48,005 and No. 48,014 are invalid, unconstitutional and unenforceable and in violation of the Fourteenth Amendment to the Constitution of the United States, in conflict with and in violation of Sections 10 and 28 of Article I and Section 3 of Article X of the Constitution of Missouri [V.A.M.S.] and of the Charter of the City of St. Louis.

'On July 23, 1956, the Board of Aldermen of the City of St. Louis adopted Ordinance No. 48,005 and on July 26, 1956, Ordinance No. 48,014 was approved. The first of said ordinances recited that it was being enacted under the authority granted in Section 82.475 [82.470], Revised Statutes of Missouri 1949 [V.A.M.S.], which provides that any constitutional city of more than 700,000 population may acquire property by gift, purchase, exchange or by exercise of the right of eminent domain, and construct, install or equip facilities thereon for parking motor vehicles. The ordinance purported to establish in City Block 169 in the City of St. Louis a public area for a building and facilities for parking motor vehicles consisting of all of the rectangular block of real estate in said City Block 169, which was bounded on the north by Delmar Boulevard, on the south by Lucas Avenue, on the west by Ninth Street and on the east by Eighth Street, excepting from said condemnation only a rectangular section in said City Block 169 at the northwest corner of the intersections of Eighth Street and Lucas Avenue, fronting 105 feet on Eighth Street and 66' 1"' on the north line of Lucas Avenue. The City Counselor was authorized and directed to acquire said area by exercise of the power of eminent domain in the manner provided by law for the condemnation of land for street purposes.

'Ordinance No. 48,014, adopted on July 26, 1956, makes the same recitals as Ordinance No. 48,005 about the necessity to construct and maintain off-street parking facilities under the authority of Section 82.470, Revised Statutes of Missouri, 1949 [V.A.M.S.], and states that preliminary estimates and studies show the cost of planning, designing, acquiring, constructing and equipping the property in City Block 169 and another parcel of land situated in City Block 115 as being $4,500,000, and recites the opinion of the Board of Aldermen that the funds required for these purposes should be provided through the issuance of negotiable interest bearing revenue bonds as authorized by Section 82.480, Revised Statutes of Missouri, 1949 [V.A.M.S.]. Then follow in said Ordinance No. 48,014 descriptions of the real estate and improvements to be acquired under condemnation in City Blocks 169 and 115, and detailed descriptions of two series of Parking Facilities Revenue Bonds to be issued to finance such acquisition and construction. These bonds are denominated as 'Series A,' which shall bear date of June 1, 1956, be in the aggregate principal amount of $3,500,000, bear interest at a rate or rates to be determined pursuant to sale of the bonds, but not to exceed 4% per annum, and 'Series B' bonds, which shall bear date of June 1, 1956, be in the aggregate principal amount of $1,000,000, and bear interest at a rate or rates to be determined pursuant to sale of the bonds, but not to exceed 4% per annum. Then follow detailed descriptions of the bonds, the maturity, sinking fund requirements, and disposition of the proceeds of the sale of the said bonds.

'Plaintiff's petition, which was filed on October 2, 1956, alleges that plaintiff is a Missouri corporation, with its principal place of business in the City of St. Louis; that it is a taxpayer and brings the suit in equity as a taxpayer for itself and on behalf of other taxpayers and persons similarly situated; that the City of St. Louis adopted Ordinances Nos. 48,005 and 48,014 described above; that the real estate described in Ordinance No. 48,005 and to be acquired by exercise of eminent domain thereunder includes six parcels in City Block 169 owned by plaintiff; that plaintiff owns the fee and has for many years been engaged in the business of operating parking lots for public hire on all those parcels; that plaintiff owns other similar facilities that would directly compete with defendants' parking structures if they were carried through to completion; that the proposed taking of plaintiff's property and other parcels in City Block 169 by exercise of eminent domain was intended to have the purpose of serving special and private interests and private uses and purposes; that selection of the parcels in City Block 169 to be taken by exercise of the power of eminent domain was made by the City of St. Louis in reliance upon recommendations made by the Off-Street Parking Commission, whose members were appointed by the Mayor of the City of St. Louis and whose expenses and costs of operation were paid under an appropriation of public funds made by the Board of Aldermen of the City of St. Louis; that in making recommendations of the sites to be taken by condemnation under Ordinances Nos. 48,005 and 48,014, members of the Off-Street Parking Commission were serving private interests rather than the public interest and selected the sites to be condemned in City Block 169 in support of and in furtherance of their purpose to serve their private interests and businesses and to make the parking facilities to be provided by the City of St. Louis under Ordinances Nos. 48,005 and 48,014 available primarily for private rather than for public use. Plaintiffs allege that there was a conflict of interest in members of the Off-Street Parking Commission, and that the recommendations made for the sites to be taken in City Block 169 were not for the public welfare but to benefit, reward and give advantage to their own private interests by creating an allegedly public facility designed and intended to serve their special private interests. Plaintiff also alleged that some of the private interests to be benefited were customers of plaintiff and that one of the principal purposes of the site selection by the Off-Street Parking Commission was to permit those customers who were then dealing with plaintiff to stop doing business with plaintiff and make more advantageous arrangements for themselves with the city-built parking garage. Plaintiff also alleged that consultants and experts hired by the City of St. Louis and the Off-Street Parking Commission and paid with public funds to make studies and recommendations, were not disinterested parties, did not exercise...