State ex rel. Bruenting Realty Company v. Thomas

• Citation: 211 S.W. 667,278 Mo. 85
• Parties: THE STATE ex rel. BRUENTING REALTY COMPANY et al. v. WILLIAM O. THOMAS, Judge of Circuit Court, et al
• Decision Date: 26 April 1919
• Court: Missouri Supreme Court

211 S.W. 667

278 Mo. 85

THE STATE ex rel. BRUENTING REALTY COMPANY et al. v. WILLIAM O. THOMAS, Judge of Circuit Court, et al

Supreme Court of Missouri

April 26, 1919

Writ quashed.

Reinhardt & Schibsby for plaintiffs.

(1) The city has no express power under the charter to condemn an existing viaduct and railroad and pay therefor by special assessments. Kansas City Charter, art. 1, sec. 1, pp. 95, 96, 97; art. 13, sec. 1, pp. 398 to 443; art. 6, sec. 1, p. 252; art. 6, sec. 2, pp. 254, 255; art. 6, sec. 3, p. 260; art 6 sec. 17, pp. 279, 280; art. 8, sec. 28, pp. 351, 352; Kansas City v. Hyde, 196 Mo. 498. (2) The city does not have implied power to condemn an existing viaduct and railroad and pay therefor by special assessment. DeGeofroy v. Merchants Bridge Terminal Ry. Co., 179 Mo. 719; Kansas City Charter, art. 6, sec. 17, pp. 279-280; Kiley v. Oppenheimer, 55 Mo. 376; Leach v Cargill, 60 Mo. 316; Westport v. Mastin, 62 Mo.App. 647; West v. Porter, 89 Mo.App. 153; St Louis v. Koch, 169 Mo. 587; Dillon on Mun. Corp. (5 Ed.) secs. 237, 238, 1024, 1377, 1402; St. Louis v Laughlin, 49 Mo. 568; St. Louis v. Kaime, 180 Mo. 320. (3) The city cannot condemn property for public use already dedicated for the same purpose. St. Louis v. Moore, 190 S.W. 867. (4) The city and the viaduct company have agreed upon a price for the viaduct contrary to the express provision of the charter, that a jury must ascertain and assess the damages. (5) The city is attempting to use its power of eminent domain to acquire private property to let and lease to private parties. (6) This is not a special benefit to the property in the benefit district, but an indirect method to raise money for the acquisition of the viaduct.

John G. Park also for plaintiffs.

(1) The power to impose special assessments is purely statutory and must be strictly construed. Leach v. Cargill, 60 Mo. 316; St. Louis v. Koch, 169 Mo. 587; Westport v. Mastin, 62 Mo.App. 647. Where the law is of doubtful meaning, the doubt must be resolved in favor of the taxpayer and against the board or sovereignty attempting to levy the tax. St. Louis v. Realty Co., 259 Mo. 126. (2) The only plain, explicit provision for the special assessments for viaducts is Charter, art. 8, sec. 28, p. 351. The word "constructing" in that section is the equivalent of "purchasing" or "providing." State ex rel. Crow v. St. Louis, 169 Mo. 31; Schwabe v. Moore, 187 Mo.App. 79; City of Lincoln v. St. Ry., 67 Neb. 469; Gamble v. Water Co., 123 N.Y. 91, 9 L.R.A. 527; Thompson v. Railroad, 3 Sandf. Ch. (N. Y.) 625; Seymour v. Tacoma, 6 Wash. 138; Ostrander v. Salmon, 20 Ida. 153. (3) The special scheme or plan provided in article 8, section 28, is preclusive. St. Louis v. Kaime, 180 Mo. 317; State ex rel. v. Clifford, 228 Mo. 194; St. Louis v. Transfer Co., 256 Mo. 476; Ackerman v. Green, 201 Mo. 231.

E. M. Harber, City Counselor, M. A. Fyke and J. C. Petherbridge, Assistant City Counselors, for defendants.

(1) The Legislature has expressly conferred upon Kansas City the power of eminent domain. Secs. 9754, 9762, R. S. 1909. The charter expressly provides for the condemnation of property, real, personal or mixed, for public purposes, and to pay for such property by special assessments. Sec. 1, art. 1, Charter 1908; Pars. 2 and 3, sec. 1, art. 3, Charter 1908; Art. 6, Charter 1908. (2) A municipality, like Kansas City, operating under a special charter, has all the necessary implied powers to fully carry out and effectuate its express powers. Water Co. v. City of Aurora, 129 Mo. 575; State ex rel. v. Walbridge, 119 Mo. 383; Chambers v. St. Louis, 29 Mo. 543; Hafner v. St. Louis, 161 Mo. 34; Haeussler v. St. Louis, 205 Mo. 656; 4 McQuillin, Munic. Corp. pp. 3080, 3084; Cunningham v. Ponca, 27 Okla. 858. (3) The property sought to be condemned is not dedicated for public use in law or in fact; it is a private enterprise owned, operated and maintained as such by private parties for hire, over which the municipality has no jurisdiction and in which the public has no interest and cannot use and enjoy except on payment of the sum exacted by the private owners thereof. Although the property may be devoted to a public or semi-public use for hire by private parties, as in this case, yet it may be condemned by the city for the same or another public use, if it is in the interest of the public to do so. The private right must yield to the public interest in such matters. 4 McQuillin, Munc. Corp. pp. 3131, 3136; Tacoma v. Nisqually Power Co., 57 Wash. 420; West River Bridge Co. v. Dix, 6 How. (47 U.S.) 507; Re Brooklyn, 143 N.Y. 596; Long Island Water Supply Co. v. Brooklyn, 166 U.S. 685. (4) The ordinance on which the proceeding is based is not indefinite and uncertain; nothing could be more specific and definite, as to just what the city is trying to do. Under the ordinance, the city is seeking to acquire by condemnation proceedings, for public use, only such property, real, personal and mixed, franchises, easements, contracts and leasehold interests, which are authorized by its charter and the law. Sec. 1, art. 1, Charter 1908; 4 McQuillin, Munc. Corp. pp. 3125, 3126; Christy's Adm'r. v. St. Louis, 20 Mo. 143; Cooley's Const. Lim. (3 Ed.) sec. 526; Pittsburg C. C. & St. L. Ry. Co. v. Wolcott, 162 Ind. 399; Lewis Em. Dom. (3 Ed.) sec. 412; Stein v. Chesapeake & Ohio Ry. Co., 132 Ky. 330; Pac. P. Telegraph & Cable Co. v. Oregon Ry. Co., 163 F. 969; State v. Sheffield & Thompsonville Bridge Co., 81 Conn. 56; Re Brooklyn, 143 N.Y. 596; Red River Bridge Co. v. Clarksville, 33 Tenn. (1 Sneed) 176; Long Island Water Supply Co. v. Brooklyn, 166 U.S. 685; Cooley's Const. Lim. (5 Ed.) sec. 341. (5) Use by street cars is not illegal or improper. Haeussler v. St. Louis, 205 Mo. 684. (6) Special benefits are questions of fact for the jury. Par. 4, sec. 3, art. 6, p. 260, Charter 1908. (7) If the city has the power to construct a viaduct, then it has the power to acquire one already constructed, if suitable for public use by the municipality. Schwabe v. Moore, 187 Mo.App. 74; State ex rel. v. St. Louis, 169 Mo. 31; Akers v. Kolkmeyer, 97 Mo.App. 520; Thompson v. Railroad, 3 Sandford Ch. (N. Y.) 656; Gamble v. Water Co., 123 N.Y. 91; City of Lincoln v. Lincoln Ry. Co., 67 Neb. 480; West River Bridge Co. v. Dix, 6 How. (47 U.S.) 507; Long Island Water Co. v. Brooklyn, 166 U.S. 685; Re Brooklyn, 143 N.Y. 596; Brady v. Atlantic City, 53 N.J.Eq. 440; Dick v. Scarborough, 73 S.C. 150. (8) Improvements on lands condemned are a part of the realty and must be paid for as such and in the same manner as the lands. Kansas City v. Morse, 105 Mo. 519; Mississippi River Bridge Co. v. Ring, 58 Mo. 491; Finn v. Gas & Water Co., 99 Pa. St. 631; Mills on Em. Dom. 223. (9) The necessity, expediency or propriety of acquiring private property for public use through the exercise of the power of eminent domain, by a municipality, is a legislative function for its legislative body to determine and perform and is not a judicial question for the courts to decide, unless the legislative body has acted fraudulently or corruptly. Kansas City v. Bird, 98 Mo. 215; Kansas City v. Mastin, 169 Mo. 80; St. Louis v. Brown, 155 Mo. 545; Aldrich v. Spears, 101 Mo. 400; City of Hannibal v. Railway Co., 49 Mo. 480; Cape Girardeau v. Houck, 129 Mo. 607; Field v. Barber Asphalt Co., 194 U.S. 618; De Witt v. Duncan, 46 Cal. 342; Lent v. Tillson, 72 Mo. 404; Wolzen v. San Francisco, 101 Cal. 15; Ill. Cr. Co. v. Chicago, 141 Ill. 586; Ellison v. Allen, 62 N.Y.S. 274; Durham v. Rigsbee, 141 N.C. 128; Chicago & N.W. Ry. Co. v. Cicero, 154 Ill. 656; Chicago & A. R. Co. v. Pontiac, 169 Ill. 155; Chicago & N.W. Ry. Co. v. Morrison, 195 Ill. 271; Dunlap v. Mt. Sterling, 14 Ill. 251.

BOND, C. J. Woodson, J., not sitting.

OPINION

In Banc

Prohibition.

BOND C. J.

On December 12, 1918, the city of Kansas City passed an ordinance to condemn certain lands, rights-of-way, and a steel, iron and concrete viaduct constructed thereon, extending from Minnesota Avenue in Kansas City, Kansas, to and connecting Bluff Street at the intersection of Sixth Street, in Kansas City, Missouri, known as the Inter-City Viaduct. The total length of the main structure is one mile and a half, and the length of the approach is eighteen hundred and fifty-eight feet.

Provision has been made in Kansas City, Kansas, to acquire that portion of the land, rights-of-way and viaduct thereon lying in the State of Kansas for use as a public street and trafficway.

In the present proceeding Kansas City, Missouri, is seeking to acquire that portion of the viaduct and property on which it is located, which lies in the State of Missouri, for use as a public street and trafficway, so that by the two proceedings in the two states a free public highway shall exist between the two cities.

The property and structure sought to be appropriated cost about three millions of dollars. It could not be duplicated to-day for less than about four millions. The two cities and the property owners have carried on negotiations for converting it into a public trafficway, which culminated in October 1918, in a proposal by the owners of the property to sell it to the two cities for $ 1,775,000, fifty-six per cent of which was to be paid by Kansas City, Missouri, and forty-four per cent to be paid by Kansas City, Kansas. Thereafter to achieve public intercommunication between the two cities by the appropriation of this viaduct, an ordinance authorizing its condemnation was enacted by Kansas City, Missouri, and filed as the basis of that proceeding in Division Number Four of the Circuit Court of Jackson County, Missouri. The machinery of that court being thus set in motion (Kansas City v. Smith, 238 Mo. 323), certain persons owning...