Kansas City v. Brown

• Decision Date: 30 December 1920
• Citation: Kansas City v. Brown, 286 Mo. 1, 227 S.W. 89 (Mo. 1920)
• Parties: KANSAS CITY v. MARCY K. BROWN, Appellent
• Court: Missouri Supreme Court

227 S.W. 89

286 Mo. 1

KANSAS CITY v. MARCY K. BROWN, Appellent

Supreme Court of Missouri, Second Division

December 30, 1920

Appeal from Jackson Circuit Court.-- Hon. Thomas B. Buckner, Judge.

Affirmed.

Marcy K. Brown and Marcy K. Brown, Jr., for appellant.

(1)Appellant's petition to dismiss these proceedings specially charged its purposes were illegal.The ordinance was charged to be illegal because its purposes were not for the general public good, but to subserve private and illegal purposes.Appellant's claim for damages alleges its purposes were to benefit the Terminal Railway Company.Appellant's claim for damages alleged its purposes were to benefit owners of private property on the same street south of 25th Street, and alleged its purposes were to consummate private and unlawful purposes of the Park Board as therein specially set forth, and alleged unreasonable grades were being thereby established unlawfully, the purposes of which were to accomplish the private ends aforesaid.Appellant invokes the rulings of this court in, Kansas City v. Hyde,196 Mo. 498, and earnestly insists that the doctrines declared in that case are pointedly and on all-fours with case at bar and that the trial court committed gravest errors in excluding and refusing to admit or consider evidence clearly competent under the doctrines laid down in that case.(2) Evidence of any and all acts of the Park Board was relevant and material which tended to show alleged unlawful purposes, regardless of whether its attempts and acts become enacted into laws or not.Its motives were not being made the subject of judicial inquiry, but its purposes alleged to have been illegal.In this connection appellant offered to show that the Park Board in pursuance of said alleged purposes had opposed the efforts of adjacent property owners to secure a reasonable and usable grading of Wyandotte Street, such as the former grade of 9 per cent, by its written communications and formal resolutions of protest which defeated such efforts; that in pursuance of said purposes, alleged to be unlawful, in order to prevent all improvement of adjacent streets, it had, by formal resolutions sent to the City Council, endeavored to induce said council in whom alone the law placed the control of such streets to unlawfully turn over to its tender mercies, the exclusive control of all such streets, and had perseveringly followed up its said resolution by causing to be introduced into the council a formal ordinance for the purpose of securing the same illegal ends; that in pursuance of the same illegal purposes to prevent all opening of streets through the adjacent property which it was alleged to be seeking to unlawfully blanket and hamper it had for six years prevented the progress through the courts of a legally enacted ordinance opening 25th Street by appellant's property and through the blanketed district.All this evidence and much more evidence equally cogent and competent under this court's ruling in the Hyde casethe trial court exclued often with comments and insinuations therein, which shows to this reviewing court that the trial court, gave no proper, if any, consideration to said evidence when overruling appellant's motion to dismiss the proceeding.(3) Ordinance 9701 was illegal and void: (a) Its purpose was illegal, being for the private purpose and advantage of the Terminal Railway Company, in embellishment and improvement of its abutting ground not used for railway purposes, but owned by its privately-owned corporation.(b) It was illegal because no proceedings, as shown by appellant's evidence were ever had to assess benefits or damages caused by such change of grade.(c) It was illegal, because being an amendatory ordiance creating a franchise for 200 years, it should have, as was Ordinance 2336 which it amended, been also submitted to popular vote, which was not done.Chartersec. 3, art. 16.(4) Mr. Donnelly, assistant city engineer for seventeen years, thorough familiar with the grades of Kansas City, testified: That the grade proposed to be established by these proceedings was a 12.07 per cent grade."That, from an engineering standpoint, is not a commercial grade; that it is a very oppressive grade; that it would greatly damage property by reason of establishing such a grade in front of it; and, if possible, a different grade should be established.It is a very objectionable grade. a very oppressive grade, and a very unusual grade in Kansas City."The same witness, admittedly the best expert on real estate values in that locality, stated that creating a 12 per cent grade instead of the old 9 per cent grade would cause a damage to appellant's property of one-third of its value by the establishment of such grade in front of it, which would amount to over thirty-one thousand dollars damages.The city made no showing whatever against these facts, yet the court, in the presence of the jury, presumably sitting as chancellor, exclaimed: "It don't make any difference how burdensome it is.People that own property in there will have to stand for it."(5) At the very outset of the case relating to appellant's motion to dismiss, and before presentation of evidence thereon, the court announced that its mind was made up, that the court intended to decide against the motion, that any evidence thereon would be a waste of time; and the court announced its view of the law to be that the court had no legal or moral right to go into the question of the reasonableness of the ordinance, which should be left solely to the lawmaking authorities of the city, and refused to allow appellant to present and argue the law, showing to the contrary.The court, however, announced it would allow evidence to be introduced thereon solely to enable appellant to perfect his record thereon to Supreme Court.(6)Article 1, Section 7, of the Charter, makes the preliminary resolution to change the grade the vital thing upon which the ordinance must be based.If the resolution is void and illegal, or if the ordinance does not conform to the resolution, then the ordinance is illegal and void.The resolution upon which the ordinance was based, is illegal and void for the following reasons: (a) Its descriptions of the proposed changes are indefinite, uncertain, misleading, contradictory and absolutely impossible of ascertainment, and for that reason it fails to inform property owners of what was to be, or might be, done to their property thereunder, in this, that after fixing the two grade points of elevation, where it might begin, and end, it contains this unique, humorous and idiotic provision, to-wit, "adjacent grade points to be connected by true planes or vertical curves."The same vice appears in the published notice of the resolution.In all such matters this court condemns all uncertainty of every kind and character, and has always held proceedings based thereon null and void.Delmar Inv. Co. v. Lewis,271 Mo. 317.(b) The resolution to regrade is illegal and void because no recommendation of the Board of Public Works was indorsed thereon.This requirement is a vital one under Section 1, Article 7, City Charter.(c) The resolution to regrade is illegal and void because "the resident owners of the city who owned the majority in front feet of all the lands belonging to such resident owners fronting on the street to be improved within thirty days after the first day of the publication of such resolution filed with the city clerk their written remonstrance against the same."Appellant insists that "resident owners" means natural persons, and that the Park Board are not such in contemplation of the city charter.(7) The ordinance to grade is illegal and void: (a) As said ordinance can only be based upon the resolution to change grade, which was illegal and void, then it must necessarily follow that the ordinance is also, itself, illegal and void.(b) The ordinance is void because it is indefinite and uncertain, in that it does not, within itself, show upon what grade the street is to be graded, but merely recites, "to be graded to the legally established grade thereof."The "legally established grade,"appellant contends, is still the old 9 per cent grade, which has never been legally changed, because, as heretofore shown, the resolution attempting to change it was illegal and void.(c) But, even if said resolution to grade were legal, this ordinance to grade would still be illegal because it does not conform to said resolution, in this: Said resolution fixes the south line of the grade points as "at the north line of Twenty-fifth Street . . . 143 feet," whereas the ordinance, both in its title and in Section 1, fixes the south line of the points to be graded as "the south line of Twenty-fifth Street," which is an entirely different point, being, as shown by the evidence and the map filed in this proceeding, to be a distance of thirty feet further south than provided in the resolution, with an elevation higher by several feet, as shown by said map and other evidence which would materially alter the grade provided for and authorized in the resolution.Delmar Inv. Co. v. Lewis, 271 Mo. 317.

E. M. Harber, City Counselor, and J. C. Petherbridge, Assistant City Counselor, for respondent.

(1) There was no error in excluding certain evidence offered by appellant, because it was not within the issues being tried and therefore immaterial.(2) The grade of 12 per cent on Wyandotte Street, which is located in a semi-resident park district, is not a prohibitive grade; indeed, such a grade in Kansas City is quite common, even in the downtown congested business districts.(3)Appellant was his own counsel.The alleged misconduct of the trial judge toward him is imaginary and not real.The bill of exceptions does not...