Kansas City v. Missouri Pac. Ry. Co.

• Decision Date: 05 March 1921
• Docket Number: No. 21479.,21479.
• Parties: KANSAS CITY v. MISSOURI PAC. RY. CO. et al.
• Court: Missouri Supreme Court

229 S.W. 771

KANSAS CITY v. MISSOURI PAC. RY. CO. et al.

No. 21479.

Supreme Court of Missouri, Division No. 1.

March 5, 1921.

Rehearing Denied April 9, 1921.

Appeal from Circuit Court, Jackson County; Daniel E. Bird, Judge.

Condemnation proceedings by Kansas City, opposed by the Missouri Pacific, Railway Company and another. From judgment of dismissal, the City appeals. Affirmed.

This is a proceeding by Kansas City to extend Roberts street, already extending east and west through that part of the city known as Sheffield, crossing numerous streets, and terminating at the east end against the west line of the right of way of the St. Louis & San Francisco Railway Company, which we shall, for short, call the Frisco. Throughout its length it is 50 feet wide, permanently paved, with concrete gutters and sidewalks. It was dedicated as a street of Sheffield many years ago.

This proceeding was begun by the passage of ordinance No. 28246, entitled "An ordinance to open and establish Roberts street from the east line of Sheffield to the east line of the right of way of the Missouri Pacific Railway Company." a established the boundaries of a street 50 feet wide, coinciding with Roberts street in position, direction, and width, crossing the right of way, 100 feet wide, of the Frisco, then crossing a tract of land of one Simonds platted as Sheffield Annex about 50 feet wide at that place, from which it extended east across the right of way of the Missouri Pacific Railway Company 66 feet wide, where the east end abutted against a considerable tract of land owned by the Kansas City Bolt & Nut Company, upon which was situated its extensive factory and office. Tracks of each of the two railway companies are laid and operated upon this right of way. The strip was shown without lettering across the plat of Sheffield Annex, and had been used as a roadway for 30 years, the crossings of the railway tracks having been planked for that purpose.

The Bolt & Nut Company desired to rearrange its plant by moving its office to a point near the east line of the Missouri Pacific right of way opposite this crossing, and made application to the city to have it paved, but upon investigation it was discovered that this strip had never been appropriated and established as a public street, and this proceeding was instituted for that purpose. The ordinance was passed, the benefit district fixed, the ordinance was filed in the circuit court, notice was given as provided by the charter, and both these respondent railway companies duly appeared.

Before trial the Frisco Company filed its motion to dismiss the proceedings on the ground that the court had no jurisdiction because the purpose of the proceeding was the construction of a grade crossing of its railroad tracks without first having secured the permission of the Public Service Commission.

The Missouri Pacific Company also filed its motion to dismiss the proceeding upon the ground that the ordinance was invalid because—

"It institutes a proceeding to take said company's property not for a public use, but for a private use, in violation of section 20 of article 2 of the Constitution of the state of Missouri and for the further reason that said ordinance is void and unreasonable because there are no benefits corresponding to the assessments, and that said company is deprived of its property without due process of law in violation of the Fourteenth and Fifth Amendments of the Constitution of the United States."

The cause was taken up, the evidence heard, and the motion of the Frisco Company was thereupon overruled, to which the company excepted. The motion of the Missouri Pacific was then sustained, and the proceeding dismissed, to which the city excepted.

In due time the city filed its motions for a new trial and in arrest of judgment, which were overruled, and the city excepted and brings the case here by appeal.

It is conceded that no proceeding had been taken in the matter by or before the Public Service Commission. Nor is any question Made as to the facts as we have stated them.

E. M. Harber, City Counselor, J. C. Petherbridge, Asst. City Counselor, and Francis M. Hayward, all of Kansas City, for appellant.

Edw. J. White, of St. Louis, and Thos. Hackney and R. H. Beeson, both of Kansas City, for respondent Missouri Pac. Ry. Co.

BROWN, C. (after stating the facts as above).

Two questions only are raised by this record: (1) Upon the facts we have stated is the use designated in the ordinance a public use? (2) If so, did the city have power to establish this extension of Roberts street as a public highway without the permission of the Public Service Commission? We will consider them in the order stated.

1. The facts before us are that Roberts street was an improved public highway in that portion of the city called Sheffield, connecting at its western end with the street system of the city, and extending east, intersecting many streets and alleys, and abutting against the west line of the right of way, 100 feet wide, of the St. Louis & San Francisco Railway, carrying tracks of that company. East of this right of way was a tract of platted ground called "Sheffield Annex," extending south between the two railroads from Independence road, on which it fronted about 187 feet, crossing Washington Park boulevard and the street car tracks thereon about 400 feet south, with a width of about 150 feet, still extending south to and across the extension of Roberts street now in question a distance of about 450 feet; thence extending south, and, as described in the record, coming to a "feather edge" about 400 feet south, and before reaching Independence Boulevard, the nearest street in that direction. This narrow strip a quarter of a mile in length, and practically unvexed by streets and alleys, was lying in the embrace of these two railways patiently awaiting its destiny in the development of their trackage. Although the proposed street passes through it and onto and across the right of way of the Missouri Pacific to the east, its owner is taking no part in this proceeding, which was instigated by the Bolt & Nut Company, whose works it is designed to' reach. The public, represented by Kansas City, has by the exercise of its legislative power come to its assistance, and the objection is interposed that, while acting within the terms of its legislative authority to extend a street within its limits, the authority fails, because it is expressly withheld from the Legislature by the provision of the Constitution of the state which forbids the taking of private property for private use.

We do not understand either of the objectors to say that this street, as now opened improved, traveled, and otherwise used b: the public, is not now a public highway be cause it stops suddenly against the right o way of the Frisco. They only say that i would not be a public street over the contemplated 200 and odd feet which would take it to an equally sudden stopping place against the lands of the Bolt & Nut Company. White they find no fault with the present terminus they characterize the contemplated terminus, as a "cul-de-sac"—the bottom of a bag into which no street should be permitted to thrust its head.

That the establishment, opening, improving, widening, and extending of public streets, and the exercise of the power of eminent domain for that purpose, are purely legislative functions, has long been unquestioned, as this court has often had occasion to say in connection with the constitutional provision just quoted.

In City of Hannibal v. Hannibal & St. J R. Co., 49 Mo. 482, we dismissed the question with the remark:

"Of the propriety of the action of the city council we can know nothing; they alone have jurisdiction in the premises."

In State v. Engelmann, 106 Mo. 628, loc cit. 632, 17 S. W. 759, 760, this court had be fore it this same constitutional question, it the discussion of which it said:

"It may be suggested here that the'necessity, expediency, or propriety of exercising eminent domain, and the extent and manner of its exercise, are questions of general public policy, and belong to the legislative department.' Lewis on Eminent Dom. § 162; Dickey v. Tennison, 27 Mo. 373; County Court v. Griswold, 58 Mo. 189. The exercise of the power, in the matter of opening and extending streets, and the right to determine their necessity, have been delegated to the mayor and council of the city, and over them the recorder has no control."

In City of Kansas v. Baird, 98 Mo. loc. cit. 219, 11 S. W. 244, the court said:

"Whether a given public street shall be opened or not is a matter confided to the common council."

In St. Louis v. Brown, 155 Mo. loc. cit. 555, 56 S. W. 299, having the same question before us, we stated the same conclusion as follows:

"When it is proposed to take private property for public use, the individual affected has a right to challenge in court the character of the use proposed, and the court will determine whether it be or be not a public use; that is to say, whether or not the use proposed is in its nature a public use is a judicial question, but whether or not the exercise of the authority in the particular case is expedient or politic is a question for the legislative and executive departments of the city government. Lewis on Em. Dom. § 158."

In Railroad v. McCooey, 273 Mo. 29, 200 S. W. 59, this court had before it for determination the same constitutional question in a proceeding for the condemnation of lands'for railway purposes, under the power delegated by its charter and the general laws of the state. Quoting from Telephone Co. v. Railroad, 202 Mo. 656, loc. cit. 677, 101 S. W. 576, 582, it said:

"Who is to determine the necessity, expediency and propriety of exercising this delegated right of eminent domain? Is it the courts, or the donee of this power?"

The court answered it as follows:

"The legislative discretion in this respect is limited, to be sure, by that...