Kansas City v. McLendon
| Decision Date | 18 November 1946 |
| Docket Number | 20757 |
| Parties | KANSAS CITY v. McLENDON |
| Court | Kansas Court of Appeals |
Not to be published in State Reports.
David M. Proctor, Guy W. Rice and Henry Arthur, all of Kansas City for appellant.
Tom Gershon and Burroughs N. Mosman, both of Kansas City, for respondent.
This is an appeal by the complainant, Kansas City, from a verdict and judgment of acquittal of the defendant. The City had caused to be filed in the Municipal Court two complaints against the defendant, charging that she 'unlawfully and wilfully altered and enlarged a dwelling or building for use other than a one-family dwelling; and has unlawfully and wilfully allowed said building to be used other than for a one-family building, all in violation of Sections 55-1; 55-3.1; 55-3.4; 55-6; 55-9 and 55-18 of the Revised Ordinance 7100 of Kansas City, Mo., authenticated April 7 1942, otherwise known as Ordinance No. 45608, as amended by Ordinance #6665.' (Italics ours.) The two complaints were identical except as to date of alleged violations. The first complaint charged violation on or about the 18th of January 1945, while the second charged violation on or about the 17th of May, 1945.
The two cases were tried in the Municipal Court and defendant was found guilty and fined the sum of $ 250 in each case. Appeals were perfected to the Circuit Court of Jackson County, where the two cases were consolidated, tried before the court, and defendant was found not guilty and ordered released. Thereafter, the City perfected its appeal to this court.
The City contends that the trial court erred in not sustaining its request for directed verdict at the close of all the evidence; and further erred in finding the defendant not guilty as charged. The defendant contends that the section of the city ordinance, which the evidence tends to show she might be guilty of, if guilty at all, was not introduced in evidence at the trial in the Circuit Court and is not to be found in the transcript filed in this court and, therefore there is no violation proved, because this court cannot take judicial notice of municipal ordinances which are not introduced in evidence and preserved in the transcript of the record.
The City introduced and read in evidence Sections 55-1, 55-3.4, 55-6, 55-9 and 55-18, of Ordinance 7100, referred to as the Zoning Ordinance. It did not preserve in the transcript Sec. 55-3.1. Section 55-1 merely divides Kansas City '* * * into six classes of use districts; the residential group, termed respectively class U-1, dwellings, (class U-1 being subdivided into class U-1a, and class U-1b districts) and class U-2, apartments;' etc. Section 55-3.4 relates to Accessory Uses in the Residential Group.' This section relates to garages and other special uses with which we are not concerned, because neither the charges nor the evidence pertain to such matters. Section 55-6. Section 55-9 provides that the ordinance shall be enforced by the Commissioner of Buildings and Inspections. Section 55-18 is the penalty section for violation of the ordinance.
There is no section of an ordinance in this record prohibiting a building of this type being used 'other than for a one-family building,' as charged in the complaint. City ordinances, or sections thereof, must be introduced in evidence and preserved in the transcript, because neither appellate nor trial courts can take judicial notice of city ordinances. City of St. Louis v. Young, 248 Mo. 346, 154 S.W. 87; City of St. Louis v. Henning, 235 Mo. 64, 138 S.W. 11. In this situation, since we may not, on appeal, take judicial notice of municipal ordinances, the failure to include the section of the ordinance, if any, which prohibits a building of this type being used 'other than for a one-family building', precludes our consideration of the same or of any evidence tending to prove the violation of any such omitted section. City of St. Louis v. Pope, Mo.App., 129 S.W.2d 106, 107; City of Macon v. Rennick, 226 Mo.App. 592, 44 S.W.2d 249.
The evidence discloses that the building occupied and used by the defendant came within the 'Class A-1 District', and Section 55-6, which was introduced in evidence, prohibited a building within such a district being 'erected or altered to accommodate or make provision for more than one family for each five thousand (5,000) square feet of the net area of the lot.' This section clearly relates to the charge in the complaint that defendant 'unlawfully and wilfully altered and enlarged the dwelling or building for use other than one family; * * *'.
Our examination of the evidence will be limited to the question of whether the defendant 'altered' the building to accommodate more than one family. The question of 'erecting' such a building is not involved because this building had been erected in this district many years prior to the adoption of the ordinance under which the complaint is made.
Defendant did not testify at the trial in the circuit court but her deposition had been taken and parts of it were introduced and read in evidence as admissions. The house was three stories high and had fourteen rooms, and at the dates charged in the complaint there were more than...
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