Morse v. City of Westport

• Citation: 37 S.W. 932,136 Mo. 276
• Parties: Morse et al. v. Westport et al., Appellants
• Decision Date: 01 December 1896
• Court: United States State Supreme Court of Missouri

37 S.W. 932

136 Mo. 276

Morse et al. v. Westport et al., Appellants

Supreme Court of Missouri

December 1, 1896

Appeal from Jackson Circuit Court. -- Robert E. Ball, Esq., Special Judge.

The following statement is taken from one prepared by Judge Macfarlane during the progress of the cause in the supreme court. It sufficiently presents the principal facts on which the judgment is based, all others deemed material being mentioned in the opinion of the majority of the court:

The suit is to restrain the defendants, the city of Westport, its engineer and board of public improvements, from letting contracts under two ordinances, to macadamize and curb two blocks of McGee street, from 38th to 40th streets in said city. A temporary injunction was granted, which after a hearing upon the merits was made perpetual. From the judgment defendants appealed.

As ground for relief plaintiffs, who were the owners of property on said street between 39th and 40th streets, charged that the amount of the expense of such work, that would be apportioned to and charged against the property owned by them, fronting on said street, would be oppressive and out of all just and reasonable proportion to the value of said property, and that the ordinances requiring said work were utterly unreasonable, and that the doing of said work would be of no public utility or public benefit whatever, and that the same would be a great, unreasonable and unnecessary burden upon their property.

The case was tried by the chancellor and in a finding and opinion made on rendering judgment, the main facts bearing upon the issue were stated as follows:

"The ordinances provide for the curbing and macadamizing of McGee street from 38th to 40th streets. McGee street is located in the eastern part of the city and extends from the alley, just north of 35th street, four blocks south of the northern city limits, south to a tract known as 'Southmoreland,' and ends a short distance south of 44th street. It is the third street east of Main street which is the thoroughfare from Westport into Kansas City. It is one block east of Warwick Boulevard, a thoroughfare paved with asphalt from 35th street to some distance south of 40th street; 35th 36th, 37th, 38th and 40th streets running east and west are paved between McGee and the Boulevard on Main street. McGee is paved and curbed from 38th street to 35th street, and from 40th south these improvements are about to be made. From 40th north to 37th there are no buildings. From 37th north to the end of the street there are four residences. South of 40th on McGee and on Oak street, the next street east, are some fifty or more residences. Practically the entire travel to and from that section is between Westport and Kansas City; and the most ample and convenient facilities for that purpose are afforded by way of 40th street and the Boulevard or Main street. Those facilities would not be appreciably increased by the improvements proposed. So far from the necessities of that travel demanding this improvement, McGee street, between the points in question, would be only casually and to a slight extent used at all. The grading which is about completed between those points will be for aught that appears abundantly sufficient for the present and for some time to come. All of the abutting property is vacant and unproductive, and there is little or no demand for it. It will not be enhanced in available value, if enhanced at all to anything like the cost of the improvement. Some of it has already been abandoned by the owner by reason of assessments for improving 38th street, and on account of the estimated additional cost of grading McGee street. The total assessed value of all the property along the line of the proposed improvement is $ 7,040; while the cost of the improvement including grading, will be over $ 7,600. A part of the newly graded street has a fill of considerable depth, and the evidence shows that it would not be safe to curb and pave it within a year at least after the fill has been made."

Between fifty and sixty witnesses were examined on the trial, their printed evidence making about seven hundred pages of the record. The evidence bearing upon the public utility of the improvement, the value of the property affected and the benefits to the property to be charged therewith, was, as is usual, conflicting. The chancellor was familiar with the surroundings and had the witnesses before him; he was therefore, much better prepared to draw conclusions of fact from the evidence than we can be. In such case, when the evidence, as in this case, is so evenly balanced as to require careful weighing, in order to draw correct conclusions therefrom, this court should defer to the finding of the chancellor. Johnson v. Duer, 115 Mo. 375.

We will therefore accept and adopt the finding of the chancellor that "so far from the necessities of that travel demanding this improvement, McGee street, between the points in question, would be only casually and to a slight extent used at all. All the abutting property is vacant and unproductive and there is little or no demand for it. It will not be enhanced in available value, if enhanced at all, to anything like the cost of the improvement. The total assessed value of all the property along the line of the proposed improvement is $ 7,040."

Reversed and remanded.

R. J. Ingraham and C. O. Tichenor for appellants.

(1) We admit that courts can declare ordinances void because unreasonable. But courts exercise this power reluctantly and with great care, and only when the plaintiff makes out his case clearly and beyond doubt. If this were not so no legislative action of a city could be relied on. If an ordinance is held void because witnesses say it, in their judgment, is unreasonable, then all legislation of cities ought to come from courts in the first instance, in order to save trouble, for this amounts to judicial management of towns and cities. Butler v. Passaic, 44 N. J. L. 171; Com. v. Robertson, 5 Cush. 438; State v. Newton, 20 A. 1078; Haynes v. Cape May, 52 N. J. Law, 180; A CoalFloat v. City, 112 Ind. 18; City v. Braden, 130 Ind. 158; Ex parte Smith, 38 Cal. 709; Van Boalen v. People, 40 Mich. 258; 2 Beach on Pub. Corp., secs. 514, 994; 2 Dillon, Mun. Corp. [3 Ed.], secs. 420, 686; Kansas City Grading Co. v. Holden, 107 Mo. 305; Cape Girardeau v. Riley, 72 Mo. 220; McCormack v. Patchin, 53 Mo. 33; St. Louis v. Green, 70 Mo. 562; Philadelphia v. Evans, 139 Pa. St. 483. (2) It is a matter of general notoriety that there are miles of macadamized road in Jackson county and that the county is still building them. It appears from the evidence that a road in the territory now within Westport, was macadamized by the county and the land owners before it was taken in by the city. Does it not seem absurd to say that an ordinance is unreasonable and void passed by a city, to pave a street with this cheapest pavement, when the county is doing the same kind of work on its roads? (3) An attempt was made below to show, by what was said, that the motives of the aldermen in passing the ordinances were not right, and that therefore in some way the ordinances were void. A city council is a little legislature, and their ordinances within the power intrusted, have all the force of acts of the legislature. State v. Debar, 58 Mo. 395; Long v. Taxing Dist., 7 Lea, 134; Quinette v. St. Louis, 76 Mo. 402; Des Moines Gas Co. v. Des Moines, 44 Iowa 505. And courts will not consider the motives which lead to the passage of an act. Soon Hing v. Crowley, 113 U.S. 710. (4) The ordinances were objected to because they were not sufficiently definite. On this point we refer to Gilmore v. Utica, 131 N.Y. 26; Sheehan v. Gleeson, 46 Mo. 100; Cole v. Skrainka, 105 Mo. 303; State ex rel. v. Francis, 95 Mo. 50.

Hugh C. Ward, Wash Adams, and Karnes, Holmes, & Krauthoff for respondents.

(1) There is no bill of exceptions in this case. The time allowed for the filing of the bill of exceptions expired September 20, 1893, and the bill of exceptions is out of time. Dorman v. Coon, 119 Mo. 68; Danforth v Railroad, 123 Mo. 196; Fulkerson v. Murdock, 123 Mo. 292; 2 Am. and Eng. Ency. of Law, p. 222; Morris v. Brannen, 15 S. Rep. (Ala.) 865; Bank v. Smith, 35 P. 35 (Okl.) P. 955; S. C., 37 P. 828; United States v. Carr, 61 F. 802; Brush, etc., Power Co. v. Grosch, 40 P. 933; McReynolds v. Jones, 30 Ala. 101; State v. Duckworth, 68 Mo. 156. (2) Speaking in general terms, the authorities of a city may be said to have a large discretion as to the necessity or expediency of the ordinances which they adopt. But their powers in this regard are by no means omnipotent; otherwise the citizen would be without remedy or redress. These powers must be exercised within the bounds of reason and apparent necessity; they must not impose a burden without a benefit and the reasonableness of their exercise is a fit subject of inquiry. Corrigan v. Gage, 68 Mo. 541; White v. Railroad, 44 Mo.App. 540; Beach, Pub. Corp., sec. 90, 512 g; Soon Hing v. Crowley, 113 U.S. 703. Judge Dillon gives it as his opinion that where the motives of the board of aldermen are material and relevant, they may be inquired into. 1 Dillon, Mun. Corp. [4 Ed.], sec. 311 note; Glasgow v. St. Louis, 107 Mo. 198, 203. (3) It is worthy of note in this connection that neither the mayor who approved the ordinance, nor the alderman who voted for it, although their motives were impugned, appeared as witnesses in the case. This raises a presumption against them. Ins. Co. v. Smith, 117 Mo. 261. In equity suits the court may discard such parts of the evidence as may have been erroneously admitted in the trial court. Barrett v. Davis, 104 Mo. 549. Conversely the court may consider such evidence as was...