In re Proceeding to Restrict use of Property Along Gladstone Boulevard

• Decision Date: 22 May 1923
• Parties: In Re PROCEEDING TO RESTRICT USE OF PROPERTY ALONG GLADSTONE BOULEVARD AND TO CONDEMN CERTAIN RIGHTS THEREIN; v. FRED LIEBI et al KANSAS CITY, Appellant,
• Court: Missouri Supreme Court

252 S.W. 404

298 Mo. 569

In Re PROCEEDING TO RESTRICT USE OF PROPERTY ALONG GLADSTONE BOULEVARD AND TO CONDEMN CERTAIN RIGHTS THEREIN;

KANSAS CITY, Appellant, v. FRED LIEBI et al

Supreme Court of Missouri

May 22, 1923

Appeal from Jackson Circuit Court. -- Hon. Allen C. Southern, Judge.

Reversed and remanded.

E. M Harber and Benj. M. Powers for appellant: W. C. Scarritt of counsel.

(1) The protective ordinance has for its scope and purpose a public use as distinguished from a private use. St. Louis Gunning Co. v. St. Louis, 235 Mo. 99; State ex inf. v Merchants Exchange, 269 Mo. 346, 356; Welch v Swasey, 214 U.S. 91; Opinion of the Justices, 234 Mass 597; Welch v. Swasey, 193 Mass. 364; Commonwealth v. Alger, 7 Cush. (Mass.) 53; City of Des Moines v. Manhattan Oil Co., 184 N.W. 823; State ex rel. v. Houghton, 144 Minn. 1; Atty. Genl. v. Williams, 174 Mass. 476; Bunyan v. Commissioners, 167 A.D. 457; United States v. Gillesburg El. Ry. Co., 160 U.S. 668; St. Louis Poster Adv. Co. v. St. Louis, 249 U.S. 269; 1 Nichols on Law Eminent Domain (2 Ed.) 164, secs. 57, 58. Relativity of police power and eminent domain considered. Rideout v. Knox, 148 Mass. 368; Oneonta Light Co. v. Schwarzenbach, 150 N.Y. 76; 1 Lewis, Eminent Domain (3 Ed.) sec. 254, p. 504; 20 C. J. 558, sec. 40; Township Board v. Hackmann, 48 Mo. 243; County Court v. Griswold, 58 Mo. 176; Parker v. Commonwealth, 178 Mass. 199; Laws 1921, pp. 177, 178, 481, 510. (2) If the purpose and object be a public use as distinguished from a private use the necessity and expediency of appropriating any particular property is within the scope of the legislative department of the municipal government and is not subject to judicial inquiry or determination. Kansas City Charter, sec. 1, art. 3; 10 Am. & Eng. Ency. Law, 1052; 20 C. J. 624; Deitrich v. Murdock, 42 Mo. 283; Aldridge v. Spears, 101 Mo. 400; So. Ill. & Mo. Bridge Co. v. Stone, 174 Mo. 1; County Court v. Griswold, 58 Mo. 175. (3) The right of eminent domain is an inherent attribute of sovereignty and it is exercised by the legislative department and not by the judiciary, and that authority is limited, and not granted, by Sections 20 and 21 of Article 2 of the State Constitution, to the effect that the question whether the contemplated use be really public shall be a judicial question, and that private property shall not be taken for public use without just compensation. 20 C. J. 513; So. Ill. & Mo. Bridge Co. v. Stone, 174 Mo. 1; C. B. & Q. Ry. Co. v. McCooey, 273 Mo. 29. (4) The State's inherent power of eminent domain in respect to purely local affairs was automatically delegated to and vested in Kansas City, when that city was organized as a constitutional city in 1908, and it was so vested by Section 16 of Article 9 of the State Constitution. Sec. 16, Art. 9, Mo. Const; Enabling Act, R. S. 1919, sec. 8903-6-10; Kansas City v. Marsh Oil Co., 140 Mo. 458; Kansas City v. Voerishoeffer, 249 Mo. 1; State ex rel. Realty Co. v. Thomas, 278 Mo. 85; Brunn v. Kansas City, 216 Mo. 108; Kansas City v. Bacon, 147 Mo. 257. (5) The power of Kansas City to exercise the right of eminent domain to the full, through its legislative department, consisting of its Mayor and Common Council, to the extent invoked in the protective ordinance, is and was repeatedly declared in its charter, before and irrespective of Sections 40 and 41 of Article 13 and Section 18 of Article 6 thereof, in the most varied and unstinted terms. Sec. 1, Arts. 1, 3, 6, Charter 1908; Sec. 1, Arts. 1, 3, Charter 1889. Like powers in successive charters are continuing powers notwithstanding the adoption of the new charter. City Charter 1908, secs. 30 and 32, Art. 18; Gunning Co. v. Kansas City, 240 Mo. 659. (6) The acquisition of the rights in the nature of negative easements sought to be acquired through the protective ordinance may unquestionably be accomplished through the exercise of the power of eminent domain. State ex rel. v. Houghton, 144 Minn. 1; 1 Nichols on Eminent Domain (2 Ed.) sec. 58; St. Louis v. Hill, 116 Mo. 527; St. Louis v. Dorr, 145 Mo. 466; St. Louis v. Dreisoerner, 243 Mo. 217; Bill Posting Co. v. Atlantic City, 71 N. J. L. 72; City of Passaic v. Paterson B. P. Co., 72 N. J. L. 285; Commonwealth v. Boston Adv. Co., 188 Mass. 348; Kansas City v. Land Co., 260 Mo. 395; Kansas City v. Terminal Ry. Co., 201 S.W. 541; Atty. Genl. v. Williams, 174 Mass. 476; Williams v. Parker, 188 U.S. 491; Brunn v. Kansas City, 216 Mo. 108; Chaplin v. Kansas City, 259 Mo. 479; In Matter of Widening Bushwick Ave., 48 Barb. (N. Y.) 9; In re City of New York, 68 N.Y.S. 196. The ordinance with high reasonableness and legal precedent seeks to take only easements and those for a limited period; and these and other details of it are immune from rational criticism. State ex rel. v. Seehorn, 246 Mo. 568; United States v. Welch, 217 U.S. 333; Pacific Postal T. Co. v. Oregon Co., 163 F. 967; Hepburn v. Jersey City, 67 N. J. L. 686; Welch v. Swasey, 193 Mass. 364; Welch v. Swasey, 214 U.S. 91; State ex rel. v. Thomas, 278 Mo. 1, 97. (7) Sections 40 and 41 of Article 13 and Section 18 of Article 6 of the City Charter of 1908 are not limitations upon the city's general sovereign power of eminent domain, but the evident purpose in the enactment of them was to enlarge the city's power as to the subjects therein referred to or, at least, to indicate a procedure whereby those respective objects might one by one be accomplished. Those sections do not enumerate nor provide a method of acquiring all the rights deemed good and sought to be acquired by the protective ordinance. and so they do not provide an exclusive method of accomplishing that object, that is, the whole object sought by the ordinance, or debar Kansas City from exercising its general powers in accomplishing that full purpose. State ex rel. v. Thomas, 287 Mo. 85; St. Louis Gunning Co. v. St. Louis, 235 Mo. 99; 2 Lewis' Sutherland Stat. Const. (2 Ed.) sec. 369, sec. 370, pp. 694, 695, 705, 706; Adams v. Yazoo & Miss. Val. Railroad Co., 75 Miss. 275; Dillon Mun. Corp. (5 Ed.) p. 586.

Smart & Strother for respondent Thomas A. Smart.

(1) Ordinance 39946, the ordinance in question (called by appellant the "protective ordinance" but more properly named the "prohibitive ordinance") has the earmarks of being founded upon Section 40, Article 13, of the Charter of Kansas City of 1908, which is the only section in the entire charter which authorizes the establishing of a building line and the establishing of building restrictions these being the first two restrictive or prohibitive provisions of the ordinance, but said Section 40 expressly provides that said section applies to boulevards established after the taking effect of said charter, and not to those established prior thereto. That part of Gladstone Boulevard from Independence Boulevard to a point near Monroe Avenue (and upon which respondent's property abuts) was established in 1893, whereas said charter took effect September 4, 1908. For these reasons said ordinance is unauthorized and invalid. (2) While that part of Gladstone Boulevard from Elmwood Avenue to Belmont Avenue, a distance of about a mile (toward the east end of said boulevard), which is within the provision of said Ordinance 39946, was established in 1912 long after the charter of 1908 took effect, and while said Section 40 of Article 13 of said charter (and said section only) was applicable to said part of said boulevard in so far as it authorized a building line and building restrictions to be established along the same, yet said ordinance is void because it joins said part of said boulevard which was established after said charter took effect with that part (at the west or south end) from Independence Boulevard to a point near Monroe Avenue, a distance of about a mile (and upon which this respondent's property abuts), which was established long before said charter took effect, and to which said Section 40 is not applicable, nor is any other provision of said charter applicable thereto. Charter of Kansas City 1908, sec. 40, art. 13, pp. 437, 438, 439. (3) While said Section 40, Article 13 of the Charter of Kansas City of 1908, is applicable to that part of said boulevard that was established after said charter took effect, yet said ordinance is void for the further reasons: (a) That the owners of a majority in front feet of the lands fronting on said Gladstone Boulevard did not petition for the establishing of the building line and the building restrictions provided for by said Ordinance 39946. (b) That the Board of Park Commissioners did not, in its resolution, nor did the Common Council in said ordinance, find and declare that the owners of a majority in front feet of all lands fronting on said Gladstone Boulevard, on which said restrictions were established by said ordinance, petitioned for the establishment of said building line and said building restrictions, provided for in said ordinance, as expressly required, as a condition precedent, by said Section 40, Article 13. Charter of Kansas City 1908, sec. 40, art. 13, pp. 437, 438; St. Louis v. Gleason, 93 Mo. 37; Pash v. St. Joseph, 257 Mo. 332, 341; Kansas City v. Bacon, 147 Mo. 259, 283. (4) While Ordinance 39946, the ordinance in question, by establishing a building line and building restrictions, which are only authorized by said Section 40, Article 13, of the charter, indicate that it was upon this section that the law-making body of the city looked, while in the act of passing said ordinance, yet the city admits that said ordinance cannot stand upon said Section 40, for the reason that said Section 40 applies to boulevards, established after said charter took effect, and for the further reason that said section was not complied with by the city in the...