In re Proceedings to Open and Widen Oak Street

• Citation: 273 S.W. 105,308 Mo. 494
• Decision Date: 23 May 1925
• Docket Number: 25106
• Parties: IN RE PROCEEDINGS TO OPEN AND WIDEN OAK STREET, Under Kansas City Ordinance No. 41446; KANSAS CITY v. MICHAEL McTERNAN, FRANK M. OGLEBAY, JENNIE OGLEBAY and ELLA B. ADAMS, Appellants
• Court: Missouri Supreme Court

273 S.W. 105

308 Mo. 494

IN RE PROCEEDINGS TO OPEN AND WIDEN OAK STREET, Under Kansas City Ordinance No. 41446; KANSAS CITY v. MICHAEL McTERNAN, FRANK M. OGLEBAY, JENNIE OGLEBAY and ELLA B. ADAMS, Appellants

No. 25106

Supreme Court of Missouri

May 23, 1925

Appeal from Jackson Circuit Court; Hon. Nelson E. Johnson Judge.

Affirmed.

Wash Adams, John W. Adams, Francis C. Downey and Gerson B. Silverman for appellants; John B. Quigley and Harry Howard of counsel.

(1) The benefit district designated in the Oak Street Ordinance is unreasonably and unconstitutionally restricted. The court erred in overruling appellants' motion to dismiss. Lewis on Eminent Domain (2 Ed.) 476; City of Detroit v Daly, 68 Mich. 503. (2) Section 3, Article VI of the City Charter, providing for the method of awarding damages for property taken and damaged, and assessing benefits, is unconstitutional and void. Gast Realty & Inv. Co. v Snyder Granite Co., 240 U.S. 54, 60 L.Ed. 525; St. Louis v. Brown, 155 Mo. 562; Martin v. Dist. Columbia, 250 U.S. 135, 51 L.Ed. 743; Hannibal Bridge Co. v. Schaubacher, 57 Mo. 582; Chicago Ry. Co. v. McGrew, 104 Mo. 282; Isam v. Miss. Cent. Ry. Co., 30 Miss. 300. (3) The verdict discloses on its face that it is the result of either passion, prejudice and undue influence, or of mistake on the part of the jury. It is confiscatory of the property of appellants and shows an utter disregard of the rights of the citizen, as an individual. It discloses that its results have been reached and could be reached only by an utter disregard of the instructions of the court and the evidence introduced. (4) The court should have dismissed the entire proceeding. The viaduct constituted an essential, indispensable link in the complete scheme and the only provision made for its construction was the attempted enforcement of a contract liability in a tribunal without jurisdiction to decree specific performance. Kansas City v. Frisco Railroad Co., 230 Mo. 369. (5) There was no evidence introduced by the city as to special benefits to any tract within the benefit district. Such benefits must be shown before assessment therefor will be susstained, as the burden of showing the benefit is on the city. Bennett v. Moody, 137 Mo. 384; Newby v. Platte City, 25 Mo. 258; Kansas City v. Bacon, 157 Mo. 450; K. C. Gas Co. v. Holden, 107 Mo. 305; Lockwood v. St. Louis, 24 Mo. 20. (6) The council has the power, as much as the freeholders jury, of determining whether or not property owners are benefited by the improvement. Corrigan v. Kansas City, 211 Mo. 608. From which it follows that the city has the power to determine whether it will be benefited. The jury is bound by the legislative finding. Albright v. Fisher, 164 Mo. 56; Jacks v. Merrill, 201 Mo. 91. (7) The city has the power to determine the necessity and has legislatively declared that the entire community will be benefited by the scheme of improvement. Simpson v. Kansas City, 111 Mo. 237; Kansas City v. Bacon, 157 Mo. 465. This benefit the city at large must pay for. Kansas City v. Morton, 117 Mo. 457. (8) The city has the power to fix the boundaries of the benefit district (City Charter Art. XI, Sec. 2). In such case it may not so restrict the area declared benefited as virtually to make those whose property was taken pay for their own property. Lewis, Em. Dom. (2 Ed.) 476; Detroit v. Daily, 68 Mich. 503; Rhoades v. Toledo, 6 Ohio 9. (9) The benefits for which the property owners are compelled to pay through assessment of their property, must be present, actual, instant benefits. Not speculative or expected to arise in future. Mills, Eminent Domain, sec. 174; Met. West Side Ry. Co. v. Stickney, 150 Ill. 363; Detroit v. Daily, 68 Mich. 503; Newby v. Platte City, 25 Mo. 258; Kansas City v. Bowen, 157 Mo. 450; Shoemaker v. United States, 147 U.S. 282, 37 L.Ed. 170. Speculation about the assessment of benefits is just as wrong as speculation as to assessment of damages. Both are condemned by the law. Hutt v. Chicago, 132 Ill. 352; Ice Co. v. City, 147 Ill. 327; Hook v. Railroad, 133 Mo. 322; Isom v. Railroad, 36 Miss. 312; Railroad v. Blackshire, 10 Kan. 488; Railroad v. County, 1 Allen, 331; Brown v. Railroad, 5 Gray, 35; Wreckler v. City, 61 Ill. 149; Mantorville v. Stenglerland, 161 Minn. 488; McCusick v. City, 46 N.W. 769; Markhartz v. Railroad, 64 Wis. 403; Pittsburg Co. v. Rose, 74 Pa. 369; Pinkham v. Chelmsford, 109 Mass. 225; Chicago v. Donegan, 196 Ill. 522. (10) The right of the city to condemn has for its foundation public necessity, Guest v. Brooklyn, 69 N.Y. 506, and the exercise of the right must be strictly construed against the city. Light Co. v. Scheurich, 174 Mo. 235; Thurston v. St. Joseph, 51 Mo. 510; Clemens v. Ins. Co., 184 Mo. 46. (11) Private property cannot lawfully be specially assessed to pay for improvements beneficial to the public, to the extent of the public benefit. Norwood v. Baker, 172 U.S. 269; Tidewater Co. v. Coster, 18 N.J.Eq. 519; Van Norden v. Norton, 99 U.S. 378; City of Norfolk v. Chamberlain, 89 Va. 196; Weeks v. Milwaukee, 10 Wis. 258; McCormack v. Patchin, 53 Mo. 36; City of Detroit v. Daily, 68 Mich. 503; Scott v. Toledo, 36 F. 385. (12) In this Oak Street proceeding, the city is condemning the land on each side of the block between Nineteenth and Twentieth Streets, for the sole purpose of turning the same over to the Terminal Railway, with expense to it, to enable that corporation to fulfill a private contract. This may not be done. Kansas City v. Hyde, 119 Mo. 507; Lockwood v. Railroad, 122 Mo. 86; Ligare v. Chicago, 139 Ill. 46. (13) The Oak Street ordinance is void; it fails to fix the method of paying for the property taken or damaged.

Solon T. Gilmore and J. C. Petherbridge for respondent; Henry S. Conrad, Elliott Jones and A. L. Cooper of counsel.

(1) Alderman Sandler, who voted for the ordinance, was an officer de facto, and his act is binding. Perkins v. Fielding, 119 Mo. 158; Simpson v. McGonegle, 52 Mo.App. 540; City of Westport v. Kansas City, 103 Mo. 141; Buis v. Cooper, 63 Mo.App. 202; Abington v. Steinberg, 86 Mo.App. 639; Hilgert v. Paving Co., 107 Mo.App. 385. (2) Section 2 of Article VI of the Kansas City Charter authorizes the common council to fix and define in the ordinance the limits of the benefit district; the benefit district as fixed in the ordinance under consideration is not unreasonable or unconstitutional. Kansas City v. Smart, 128 Mo. 294; Kansas City v. Baird, 98 Mo. 215. (3) The trial court committed no error in overruling appellants' motion for a continuance. The matter of granting a continuance is wholly within the sound discretion of the trial court. Riggs v. Fenton, 3 Mo. 28; St. Louis Ry. Co. v. Holladay, 131 Mo. 440; Peterson v. Railway Co., 211 Mo. 498; Turnbow v. Railway Co., 277 Mo. 644; Roy v. Kansas City, 204 Mo.App. 332; Shirk v. Shirk, 75 Mo.App. 573; Trimble v. Light Co., 115 Mo.App. 605; Ellis v. Wahl, 180 Mo.App. 517; Laun v. Ponath, 105 Mo.App. 203. (4) The amount which should be assessed against the city as benefits, or against any particular tract of land within the benefit district, under the Kansas City Charter, was entirely within the power of the jury to determine and fix, and their determination will not be disturbed on review. Kansas City v. Smart, 128 Mo. 272; Kansas City v. Bacon, 147 Mo. 259; Kansas City v. Bacon, 157 Mo. 450; Kansas City v. Baird, 98 Mo. 215; Shoemaker v. United States, 147 U.S. 282. (5) Section 3 of Article VI of the Kansas City Charter, providing for the method of awarding damages and assessing benefits in condemnation proceedings, is not unconstitutional or void. Kansas City v. Marsh Oil Co., 140 Mo. 472; Kansas City v. Armour, 198 S.W. 821; St. Louis v. Brown, 155 Mo. 545. (6) There is nothing on the face of the record or in the verdict which discloses passion, prejudice, undue influence or mistake. The verdict is fully sustained by the evidence and was the result of a most painstaking and careful trial lasting six weeks, and a further consideration of the matters by the jury for three months longer. St. Louis v. Brown, 155 Mo. 545. (7) The trial court did not commit error in refusing appellants' motion to dismiss this proceeding. This proceeding was in no way dependent upon the outcome of the construction of a viaduct over the Kansas City Terminal Railway tracks south of Twentieth Street. That was another proceeding entirely separate and independent of this proceeding. (8) There was an abundance of evidence sustaining the assessment of benefits. Whether private property within the benefit district was specially benefited, or not, and the amount of such benefits, were questions of fact for the jury to determine. Kansas City v. Baird, 98 Mo. 221; Kansas City v. Bacon, 157 Mo. 450; St. Louis v. Brown, 155 Mo. 567; Shoemaker v. United States, 147 U.S. 282. (9) There is nothing in the record showing that private property was specially assessed with a public benefit. This specific point was not raised by appellants in their motion for a new trial. It cannot be raised here now. St. Louis v. Brown, 155 Mo. 568; Wilson v. Taylor, 119 Mo. 631. (10) The verdict is conclusive here as to both damages and benefits in the absence of fraud or gross abuse and none is shown. Kansas City v. Smart, 128 Mo. 296; St. Louis v. Abeln, 170 Mo. 318; Kansas City v. Baird, 98 Mo. 218; Kansas City v. Bacon, 147 Mo. 259; Kansas City v. Morton, 117 Mo. 446; Corrigan v. Kansas City, 211 Mo. 608; Kansas City v. Railroad Co., 84 Mo. 410.

OPINION

Ragland, J.

This controversy grows out of a proceeding to widen and extend a street under the provisions of the Charter of Kansas City. The street sought to be widened and extended is Oak, a north-and-south street. As now established it extends from Eighth on the north to Twentieth...