State v. Thomas

• Decision Date: 07 April 1919
• Docket Number: No. 21362.,21362.
• Citation: 211 S.W. 667,278 Mo. 85
• Parties: STATE ex rel. BRUENING REALTY CO. et al. v. THOMAS, Circuit Judge, et al.
• Court: Missouri Supreme Court

211 S.W. 667

278 Mo. 85

STATE ex rel. BRUENING REALTY CO. et al. v. THOMAS, Circuit Judge, et al.

No. 21362.

Supreme Court of Missouri, in Banc.

April 7, 1919.

Rehearing Denied April 26, 1919.

Petition for prohibition by the State, on relation of the Bruening Realty Company and others, against William O. Thomas, Judge of the Circuit Court, and another. Prohibition denied, and preliminary writ quashed.

Reinhardt & Schibsby, of Kansas City, for plaintiffs.

E. M. Barber, City Counselor, and M. A. Fyke and J. C. Petherbridge, Asst. City Counselor, all of Kansas City, for defendants.

John G. Park, of Kansas City, for Ridenour-Baker Grocery Co. and others.

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, Kan., to and connecting with Bluff street at the intersection of Sixth street, in Kansas City, Mo., known as the intercity viaduct. The total length of the main structure is 1½ miles, and the length of the approach is 1,858 feet.

Provision has been made in Kansas City Kan., 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, Mo., 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 $3,000,000. It could not be duplicated to-day for less than about $4,000,000. 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, 56 per cent. of which was to be paid by Kansas City, Mo., and 44 per cent. to be paid by Kansas City, Kan. 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, Mo., and filed as the basis of that proceeding in division No. 4 of the circuit court of Jackson county, Mo. The machinery of that court being thus set in motion (Kansas City v. Smith, 238 Mo. loc. cit. 330, 141 S. W. 1103), certain persons owning property in the benefit district fixed by the ordinance moved to dismiss the proceeding, upon the overruling of which the present application was filed by them to prohibit the said court from further proceedings for alleged lack of jurisdiction.

Owing to the importance of the matters involved, the circuit judge before whom the case was pending in Kansas City, Mo., and the city of Kansas City and its counsel filed an answer, entering their appearance, waiving the issuance of a preliminary writ, consenting that the petition might be treated as an alternative writ, and praying a special hearing of the matter on the merits, and alleging, in said answer, among other things, the proper institution of proceedings to condemn, the issuance of an order of publication, notifying all persons concerned that the cause was returnable January 25, 1919, for the purpose of impaneling a jury as provided in the charter of said city.

The answer further alleges that the property sought to be condemned is owned by a viaduct company under a franchise running for 30 years; that said company filed in the circuit court its answer and waiver of right to remove the viaduct and improvements located on the lands sought to be condemned for a public street and trafficway by the ordinance filed in that court, and consenting that the property might be condemned by Kansas City, Mo., as prescribed in its ordinance upon payment of just compensation. The answer further avers:

"(5) That the power of eminent domain possessed by Kansas City and the various provisions of its charter relating to such matters, and the laws of Missouri, give to said city full and complete power to condemn the property in question as and for a public street and highway. That division No. 4 of the circuit court of Jackson county, Mo., at Kansas City, has jurisdiction of the parties and the subject-matter in said proceedings, and has full power, authority, and jurisdiction, under the charter of Kansas City, and the laws of this state, to proceed to try and determine the matters and things in said cause, and that said court has full power, authority, and jurisdiction to impanel a jury of six disinterested freeholders of Kansas City as it did on the 25th day of January, 1919, in said proceeding for the purpose of ascertaining and determining the damages and benefits, and has full power and jurisdiction to hear evidence in said cause and proceed to award damages and assess benefits as proposed and contemplated therein against the property defined in said proceeding. That the city not only possesses the power to condemn and appropriate for public use a private viaduct already constructed, but that it has power, in said proceedings, to levy and assess the cost thereof upon the various tracts and parcels of land in the benefit district described and set forth in said ordinance No. 33965. That said structure as it now stands is not a public highway, but a private highway owned and operated by private parties, for which they charge a toll to whomever uses it. That said structure is suitable and usable as a public highway, connecting, as it does, with a public street in Kansas City, Mo., and with public streets in Kansas City, Kan., and if acquired by the two cities, as contemplated, it will be the main public thoroughfare and highway between said cities which can and will be used by the public as a public street and thoroughfare by pedestrians and all kinds of vehicles between the two cities.

"The rentals from the use of said viaduct by the street car company will not go into the general funds of the city, but that the same will go into a special trust fund for the purpose of repairing, keeping in repair and the reconstructing of the viaduct whenever needed, as shown by copy of ordinance No. 35267 of Kansas City, Mo., authorizing such contract. A copy of said ordinance is hereto attached and marked Exhibit No. 2 and made a part hereof. A copy of said contract is hereto attached and marked Exhibit No. 3 and made a part hereof.

"Defendants deny that Kansas City, Mo., has entered into a contract with the owners of the viaduct for the purchase thereof at a stipulated figure which in any way could possibly bind the court or jury in determining the true value of said property and the just compensation to be paid therefor, and that all that Exhibit D, attached to plaintiff's application, amounts to is a mere proposal only on behalf of the owners of the property to take so much for it, if paid within a certain time and upon certain terms. The amount so fixed in said written option or proposal amount merely to an offer to sell the property for that amount, and does not necessarily, and cannot under the Kansas City Charter and the law, bind the court or jury in...