Kansas City v. Brown , 286 Mo. 1 ( 1920 )

Kansas City brought this suit in the municipal court under article 7 of its charter to ascertain and assess the damages and benefits resulting from a change in the grade of Wyandotte Street between Plaza Road and Twenty-fifth Street. The appellant, who is the owner of 157 feet of land on the northwest corner of Wyandotte and Twenty-fifth Street, filed a claim for damages in this proceeding on the account of the change in the grade of Wyandotte Street opposite his property. Along 132 feet of the frontage of this lot or parcel of land on Wyandotte Street there is practically no change in the grade; along the remaining 25 feet there is a cut averaging about 2.9 feet.

There was a trial before a jury in the municipal court, which allowed the appellant no damages. Upon an appeal to the circuit court there was a retrial before a jury, which likewise refused to award the appellant any damages. He thereupon appealed to this court.

This proceeding was under the authority of Ordinance No. 28594, the material portions of which are as follows:

Section 1. The grading of Wyandotte Street from the south line of Plaza Road to the south line of Twenty-fifth Street to the width established is authorized by this section.

Section 2 is declaratory of the authority invoked by the Board of Public Works in making this improvement, and provides for compensation for damages to abutting property by reason of embankments or fills necessary to bring the street to the required grade.

Section 3 provides for compensation for damages to abutting property by reason of excavations or cuts rendered necessary in said grading; and authorizes the condemnation of adjacent property where necessary to the protection and use of said street and permits the municipal authorities to remove dirt, rock, etc., from such adjacent property.

Section 4 provides that the work herein authorized is to be performed in accordance with the plans and specifications of the Board of Public Works on file in its office.

Section 5 defines the manner in which said work shall be paid for, which shall be subject to the provisions of this section and in accordance with Section 3, Article 8, Charter of Kansas City, limiting liability to special tax bills.

Section 6 provides that damages to abutting property may be ascertained and assessed as provided in Article 7, Charter of Kansas City; and defines the limits within which private property is benefited by the proposed grading and the limits within which said property shall be assessed and charged to pay such damages as may be allowed under Sections 2 and 3 of this ordinance, to-wit: Beginning at the northwest corner of Lot 3, Waldo Tract, an Addition to Kansas City, Missouri; thence east and easterly along the south and southerly lines of Plaza Road to a point one hundred and fifty feet east of the east line of Wyandotte Street (measured at right angles thereto); thence south and parallel to the east line of Wyandotte Street to the south line of Twenty-fifth Street; thence west along the south line of Twenty-fifth Street to an intersection with the east line of Lot 80, Waldo Tract, produced south; thence north to the place of beginning.

Section 7. The damages provided for in Section 6 of this ordinance are authorized to be assessed, collected and their payment enforced against city and private property within the limits of the benefit district in accordance with Article 7, Charter of Kansas City.

Section 8 provides that proceedings herein authorized shall be first begun in the Municipal Court of Kansas City.

Section 9 provides for the repeal of all prior conflicting ordinances.

The attestation of the required municipal boards, and the officials of said city appended to said ordinance, are omitted.

The appellant filed in the municipal court a claim for damages, alleging in support of same the following:

That said property, by reason of its facing the Station Park and its close proximity to the Union Terminal Station, is of great value as business and commercial property, if Wyandotte Street, in front thereof, be maintained to a grade or be properly graded for such purposes.

That the present legally established grade on Wyandotte Street, from Plaza Road to Twenty-fifth Street, and in front of claimant's property, is approximately a nine per cent grade, which grade is one suitable for business or commercial purposes.

That the grade sought to be established in said block by these proceedings exceeds a twelve per cent grade, is prohibitive for all business or commercial purposes and is destructive of a large part of the value of claimant's property.

That a short distance north of claimant's property and at the north point of which the present proposed change of grade begins, the legally established elevation was, and now is, an elevation of 93.51 feet above the city directrix and not 81.50 feet above said city directrix, as stated in these proceedings.

That by an invalid ordinance, known as Ordinance No. 9701 of said Kansas City, approved August 19, 1911, illegally passed and attempted to be passed by the Common Council of said city, and illegally approved and attempted to be approved by the Mayor of said city, it was attempted at the north point where this grading begins to illegally change the elevation of Wyandotte Street, at said point, from the legally established elevation of 93.50 feet above the city directrix to an elevation of 81.50 feet above the said city directrix.

That said illegal Ordinance No. 9701 was an attempt of said City Council and Mayor, in violation of law, to grant a franchise to the Kansas City Terminal Railway Company, a corporation, without submission of the same to the qualified voters of said city as required by law, and was also an illegal attempt to change the legally established grade of Wyandotte Street, in said block, and to thereby damage the property of claimant, without the proper or any legal procedure therefor, the same being done wholly for the benefit of said Kansas City Terminal Railway Company, and not for any public use, and being the attempted illegal taking of private property for private purposes without the consent of the owners thereof, and the further attempted illegal taking of private property for pretended public uses without any compensation therefor, in violation of law and of the constitutions of the United States and of the State of Missouri.

That the present proceeding is found and based upon said illegal Ordinance No. 9701 and is an attempt to adopt and legalize the same.

That the present proceedings damage claimant's property for the further reason that the resident owners of the majority of front feet of all the lands fronting on said Wyandotte Street, between Plaza Road and Twenty-fifth Street, within thirty days after the first day of the publication of the resolution of the Common Council of said city declaring said change of grade, as proposed by this proceeding, to be necessary, filed their written remonstrance against the proposed change of grade, which said remonstrance was ignored by the Common Council, which, thereafter, illegally attempted to pass said resolution so changing said grade, upon which said action of the Common Council this proceeding is based.

Claimant avers that his property is damaged by this proceeding; that it is illegal because the benefit district fixed thereby is unreasonable, in that the property on Wyandotte Street, north of Plaza Road, and south of Twenty-fifth Street, should have been included in the benefit district, the same being the property solely benefited by this proceeding.

Claimant avers that by reason of this proceeding and the matters herein set forth his property is greatly damaged, to-wit, in the sum of $15,000, for which sum he hereby makes claim, and that this proceeding by reason of the matters herein alleged is in violation of the constitutions of the United States and of the State of Missouri, that claimant is being deprived and attempted to be deprived of his property for alleged public use without just compensation and without due process of law. (Signature of claimant omitted).

Upon the refusal of the jury in the municipal court to award appellant damages he appealed to the circuit court, where he filed what is styled an "amended motion and petition to dismiss." This motion is substantially as follows:

After stating his ownership in the property and describing it, plaintiff moves the court to declare Ordinance No. 28594, the material portions of which are above set forth, void and to dismiss this proceeding for the following reasons:

Section 1. That Ordinance No. 28594 and the proceedings thereunder are unreasonable because the benefit district as fixed by said ordinance is inequitable, unjust and altogether unreasonable in that the property on the line of Wyandotte Street, north of Plaza Road and south of Twenty-fifth Street, should have been included in the benefit district, as the same is the property solely benefited by this proceeding.

Section 2. That the said ordinance and proceedings thereunder are unreasonable because the grade sought to be established exceeds a 12 per cent grade and is impracticable, unreasonable and prohibitive for public traffic and business and commercial purposes.

Section 3. That the said ordinance and proceedings are unreasonable because the changing of the grade and grading of said Wyandotte Street for only one block as proposed by said ordinance on account of the limited extent thereof, prevents the establishment of a reasonable, practicable and usable grade in said block without regrading said Wyandotte further south to Twenty-sixth or Twenty-seventh Street, or making a cut in the continuous grade of said Wyandotte Street by a depression thereof at Twenty-fifth Street.

Section 4. That the said ordinance was illegally passed in violation of the charter of Kansas City; that the resident owners of said city owning the majority of front feet of all the lands belonging to such resident owners fronting on said Wyandotte Street between Plaza Road and Twenty-fifth Street did within 30 days after the first day of the publication of the resolution of the Common Council declaring said change of grade to be necessary, file their written remonstrance against the proposed change of grade, which remonstrance was ignored by the Common Council, which thereafter attempted to pass the resolution changing said grade, and upon that illegal action this proceeding is based; that the Mayor of said city failed to approve and sign said resolution declaring said change of grade to be necessary.

Section 5. That this ordinance is based upon a prior void ordinance numbered 9701, approved August 19, 1911, the purpose of which was to illegally attempt to lower the elevation of Wyandotte Street from an established elevation above the city directrix and to grant a franchise to the Kansas City Terminal Railway Company in violation of law. This is followed by an argument based upon the appellant's conclusion as to the damages to his property on account of said illegal action.

Section 6. That said ordinance and proceedings are void because not passed for a public but to subserve a private purpose. This is followed by an argument in support of the foregoing conclusion.

Section 7 charges the Board of Park Commissioners and its predecessors with a corrupt use and exercise of their official power, that their action was for a private and not a public purpose and results in the damaging and taking of appellant's property without due process of law.

This motion was overruled.

The city introduced a map or plat certified to by the Board of Public Works and its correctness attested by the Mayor and the City Engineer, delineating the proposed grading of Wyandotte Street from the south line of Plaza Road to the south line of Twenty-fifth Street. Testimony was introduced that the grade established on that street in the block between Plaza Road and Twenty-fifth Street was 12.07%. This grade, witnesses from the engineering department of the city testified, was usable for light but not for heavy traffic, and taking into consideration the location of appellant's property and that of other streets in the locality, it would not have been practicable to have made Wyandotte Street to conform to the grades of other streets already made except in accordance with the grade established.

There was testimony pro and con as to the effect upon the use and value of the property of appellant, as well as others in the same block, by reason of the improvement authorized by these proceedings. The jury gave credence to the testimony of witnesses for the respondent. There was formal documentary proof that the municipal authorities in authorizing this improvement and in making same, pursued the course prescribed by the charter and the ordinances of Kansas City. In the presence of this fact the literal incorporation in the opinion of the resolution of the Common Council and the record of the Board of Public Works is unnecessary. Objections made thereto we will discuss later.

I. The contention of the appellant is that the grade of Wyandotte Street, instead of being confined to the limits prescribed, should have been established from Plaza Road south to Twenty-sixth or Twenty-seventh Street. That in soLegislative doing, a less or lighter grade would have beenMatter. established in front of his property. No charge of fraud or corruption is made to impeach the validity of these proceedings, but the claim as to their unreasonableness and insufficiency, so far as is disclosed by the offer of any testimony in regard thereto, is confined to the contention that if the street had been graded as contended by appellant it could have been used as a highway for more general purposes than as now improved, and that his property would not have been damaged but benefited. This claim, at best, is but problematical, and while it might properly have been made before the Common Council at the time the ordinance authorizing this improvement was under consideration, it was not relevant to determine the amount of appellant's damages in this inquiry and testimony in regard thereto was properly excluded. This follows from the fact that in a proceeding of this character the issue to be tried is the amount of damages, if any, to abutting property or the benefits to be distributed over the district affected. The validity of the ordinance under which the proceedings were had may be inquired into, but before it can be held irregular, much less invalid, some competent evidence to prove that fact — always easily obtainable from the records — must be adduced. No such evidence was offered. The courts are, and should be, loath to invade and thus attempt to supervise the functions of a common council or other municipal legislative assembly in the absence of fraud or corruption or a departure to complainant's injury from the powers conferred upon such bodies in matters as at bar. [Kansas City v. Hyde, 196 Mo. 498; State ex rel. Abel v. Gates, 190 Mo. l.c. 555; Barber Asph. Co. v. French, 158 Mo. l.c. 547; Knapp-Stout v. St. Louis, 156 Mo. l.c. 353.]

II. It is urged that no recommendation of the Board of Public Works was indorsed upon the resolution of the Common Council for the change of the grade as required by Section 1, Article 7, of the Charter of Kansas City of 1909, and that theResolution. ordinance passed in pursuance of that resolution was therefore void. If the purpose of the appellant in introducing this resolution was to assert its invalidity, the attention of the trial court should have been called thereto and an opportunity afforded for a ruling thereon. The alleged insufficiency was a matter of exception and could not otherwise be passed on so as to preserve it for our consideration. The unusual course pursued in the introduction of this resolution, or rather the manner in which its alleged defect was held in abeyance, is not unworthy of reference in the consideration of this contention. Appellant made no specific mention during the trial of the existence of the defect now pressed upon our attention, nor is it preserved in the bill of exceptions or referred to in the motion for a new trial. Its initial appearance is in the appellant's brief. Thus presented it is not subject to review. To rule otherwise would be to afford an appellant an opportunity to introduce evidence, especially of a documentary character, without any intimation of its nature or purpose at the time or afterwards, and withhold any objections to same until the case is presented to this court. The oral argument renders more apparent the correctness of this conclusion. Appellant contended in same, as in his brief, that the ordinance was void on account of the omission of the recommendation referred to. The truth as to his statement in regard to the absence of the recommendation was challenged by counsel for respondent, who insisted that the original resolution had indorsed thereon the required recommendation; and that its omission from the appellant's abstract, whether inadvertent or otherwise, had resulted in the incorporation of an incorrect copy of the resolution therein. For our own information we directed the transmission to this court of the original resolution. This, it is true, is not the formal manner in which a diminution of the record or the correction of a transcript is usually effected, but under the facts of this particular case it became necessary in order that a formal and full transcript of the proceedings might be presented for review. Upon an inspection of the original resolution before us, the recommendation of the Board of Public Works is found regularly indorsed thereon as required by the charter. If, therefore, this contention had been so presented as to entitle it to our consideration it could only be sustained on the ground that the resolution was sufficiently defective to invalidate the proceedings simply because it had not been correctly copied into the bill of exceptions, despite the fact that it was the appellant's duty, if fairly exercised in a presentation of his case to this court, to see that it was so inserted.

The procedure of the courts is regulated, and properly so by formal rules, which should be complied with except where the observance of same will result in a manifest denial of justice. When it does, the letter should give way to the spirit, especially so in this case, where the non-observance of a rule deprives the appellant of no substantial right and enables the true facts to be submitted for the court's consideration.

If it were necessary, we might content ourselves, in the absence of any proof of the defect other than that presented by the incorporation of the resolution in appellant's abstract, with the well settled and universally recognized rule of law that every intendment is to be made in favor of the acts and proceedings of a municipality; and, as we said in Delmar Inv. Co. v. Lewis, 271 Mo. l.c. 323: "Where records are kept of municipal acts and proceedings, the law is clearly defined that the same are receivable in evidence of the truth of the facts recited; and it would seem to be a rule that when so produced they establish themselves; because they are made by accredited agents, are of a public nature and notoriety, and are usually made under the sanction of an oath of office."

III. The conduct of the judge during the progress of the trial is assigned as error. Appellant occupied the delicate and sometimes embarrassing position of counsel pro se. This relation not unnaturally tends to cause counsel toFair Trial. regard adverse rulings in a different light than if made under other circumstances. We have carefully reviewed this record to enable it to be determined whether the conduct of the trial judge was such as to prejudice the rights of the appellant. After a careful reading of same we do not consider his conduct as manifesting "animus towards the appellant throughout the case." On the contrary, the court's rulings, impartially considered, do not sustain this conclusion. Notwithstanding the judge's statement that the introduction of testimony would not be permitted showing differences in grade of streets in the locality of Wyandotte Street, testimony of different witnesses was permitted to be introduced in regard thereto and as to other phases of the case deemed by the appellant of probative force in determining the unreasonableness of the ordinance. There is, therefore, no substantial ground upon which to base the contention that appellant was precluded from the introduction of testimony either as to the unreasonableness of the ordinance or as to any other relevant matter.

IV. The resolution of the Common Council to change and reestablish the grade of Wyandotte Street is assailed as being "so indefinite and uncertain as to invalidate the ordinance based thereon." Waiving any question as to theIndefiniteness. correctness of appellant's conclusion as to the invalidity of the ordinance on this account, it will be sufficient to say that this resolution was in the ordinary form which has been in use in Kansas City for many years as evidenced by a comparison of same with like resolutions which have heretofore been under review by this court in similar cases. The fact that the street has been graded in conformity with this resolution and ordinance without, as is disclosed by the record, a complaint of any character being made as to the nature or sufficiency of the improvement, is of itself ample evidence of a lack of merit in this contention.

V. The Common Council is alleged to have erred in proceeding with this improvement in the face of the protest of a majority of the resident owners of property abutting on Wyandotte Street. The record does not sustain this contention. There wasRemonstrance. no legal protest or remonstrance filed against the resolution by a majority of the owners of the property fronting on the street. This was necessary to render it effective. There are 1076.33 feet fronting on the street. Only the owners of 412 feet remonstrated, which it is evident did not constitute a majority. A portion of those who remonstrated are claimed by respondent to have improperly attempted to exercise this right; in the presence of the facts as to the lack of a majority, this need not be taken into consideration. The remonstrance, not conforming to the requirements of the Kansas City charter, was therefore without legal effect and did not interpose a sufficient obstacle to prevent the street from being graded in conformity with the resolution and the ordinance based thereon.

VI. Appellant complains that because the grade of Plaza Road was changed by lowering it about twelve feet at the intersection of Wyandotte, he was damaged, although his property does not abut on Plaza Road, but is located one block south ofChanges in that point. The owner of property not abutting orOther Blocks. fronting on a street where the change of grade takes place is not entitled to any damages therefor. Appellant, therefore, was not entitled to any damages on account of the change of grade of Plaza Road. [Gardner v. St. Joseph, 96 Mo. App. 657, l.c. 661; Burde v. St. Joseph,130 Mo. App. 453; Rude v. St. Louis, 93 Mo. 408; Wallace v. Ry. Co.,47 Mo. App. 491; Stephenson v. Railway, 68 Mo. App. 642; Clemens v. Conn. Mut. Life Ins. Co., 184 Mo. 46; Knapp, Stout Co. v. St. Louis, 153 Mo. 560.]

Gardner v. St. Joseph, supra, was a case where there had been a change in the grade of a street. A suit was brought by property owners not abutting on the part of the street where the change of grade occurred, claiming damages by reason of such change. The Court of Appeals held that the property owner was not entitled to recover because his property did not abut upon the street graded. The court in the course of its opinion, among other things, said:

"It has been several times ruled in this State that before a lotowner can recover damages for an obstruction in a street, he must show that such obstruction is in that part of the street upon which his lot abuts. [Rude v. St. Louis, 93 Mo. 408; Wallace v. Railway, 47 Mo. App. 491; Stephenson v. Railway,68 Mo. App. 642.] And this rule, we think, is equally applicable to a case like this where it is claimed by the lot-owner that his lot has been rendered inaccessible by reason of an excavation in the street. His lot must abut on that part of the street excavated, otherwise he cannot complain."

VII. Appellant further contends that this proceeding is based upon an alleged illegal ordinance 9701, the purpose of which was to provide a method whereby the Circuit Court of Jackson County might be authorized to appoint a special commissionFor Benefit to ascertain and report to the Mayor of Kansas Cityof Railroad. upon the damages, less special benefits, if any, to property, except that owned by Kansas City and the Terminal Railway Company, arising from changes in certain public highways. After defining matters of procedure the ordinance provides that said Terminal Company shall, under the conditions stated, pay the awards made by the said commission as damages to property owners affected by changes in the grades referred to. Other matters are set forth in the ordinance not necessary to be set out. Claims for damages by property owners awarded by said commission have been paid by the Terminal Company. Appellant's land was a block distant from any property affected by this ordinance, and was, as we have stated in discussing the rights of non-abutting property owners, entitled to no damages by reason of anything done under the authority of same.

If it be true, as contended, that the old grade of Plaza Road at the point where it intersects Wyandotte Street was made for the benefit of the Kansas City Terminal Railway Company under said Ordinance 9701, and the appellant was damaged by any changes thus made, such damages should have been adjusted and allowed as provided in said ordinance. Their consideration is foreign to the matters at issue.

This contention involves, in its last analysis, the motive of the Common Council in adopting the resolution underMotive. which the proceedings at bar were had.

The general rule is that courts will not inquire into the motives of legislatures where they possess the power to act and it has been exercised as prescribed by law. This rule is especially applicable to purely legislative acts of municipal corporations. [K.C. Gunning Co. v. Kansas City, 240 Mo. l.c. 670; Taylor v. Carondelet, 22 Mo. 105; People v. Cregier,138 Ill. 401; Knoxville v. Bird, 12 Lea, (Tenn.) 121.] Testimony as to the motives that prompted the enactment of an ordinance cannot be considered by a court in determining whether the ordinance is reasonable or oppressive. [Bennett v. Pulaski, 52 S.W. (Tenn. Ch. App.) 913, 47 L.R.A. 278; Paine v. Boston, 124 Mass. 490; Soon Hing v. Crowley, 113 U.S. 703, 28 L. Ed. 1145; 2 McQuillin, Munic. Corp. sec. 703, p. 1527.]

VIII. Whether the appellant was entitled to damages was a question of fact for the jury, who, it appears, not only heard the evidence but personally examined the property before returning their verdict, as authorized by Section 7,Question Article 7, Charter of Kansas City, 1909. Thusfor Jury. panoplied with all of the facts necessary to an intelligent determination of the case, they found that the appellant had not been damaged and so returned in their verdict.

In the case of Kansas City v. Baird, 98 Mo. l.c. 218, this court, in a similar case upon this point, said:

"By the charter of the City of Kansas, the jury in these cases must consist of six householders of the city, and are to be selected by the judge of the circuit court. Parties interested may submit proof to the jury, and the latter shall examine personally the property to be taken and assessed. [Art. 7, secs. 3, 6, Laws 1875, pp. 245, 247.] These charter provisions show clearly enough that in making up their verdict the jurors are to be guided by their own judgment as to damages and benefits, as well as by such information as they get from witnesses. For this reason freeholders of the city are selected. The law seeks to get persons to perform this jury duty who are familiar with values. Why send them to examine the property unless it be that they are to make use of the information thus acquired? The jury should not be told that they may disregard the evidence before them. [City of Kansas v. Hill,80 Mo. 523.] But they may give to the evidence such weight as they believe it entitled to receive; and in fixing the damages and benefits they may also act upon their own knowledge and judgment. The instruction is in accord with what has been said, and with the ruling in the recent case of City of Kansas v. Butterfield, 89 Mo. 646."

This court, in Kansas City v. Bacon, 147 Mo. l.c. 279, in further discussing this question, said:

"It has been established by a long line of decisions, so numerous as not to require citation, that in law cases, aside from those where mistake, fraud, prejudice or passion manifest themselves . . . this court will not interfere by weighing the evidence on which the verdict is founded. . . . Besides, in cases of this sort now under consideration, it is to be observed that the judgment of the commissioners is not formed exclusively upon evidence submitted to them; they are required to view the premises and they have the advantage of an actual personal inspection and they are to be guided to some extent by that. . . . And unless the court is clearly satisfied that they have erred in the principles upon which they have made their appraisal there is nothing for review and their report should not be disturbed. [Kansas City v. Butterfield, 89 Mo. 646; Kansas City v. Baird,98 Mo. 215.]"

IX. There was no irregularity in the procedure in this case. Not only in the municipal court, where the proceedings were commenced in the first instance, but in the circuit court, to which it was appealed and tried de novo, were the requirements of Article 7, Sections 1-8, Charter of Kansas City, 1909, conformed to, which prescribe the course to be pursued in cases of this character.

We find, upon a review of this entire record, no error authorizing a reversal, and the judgment of the trial court is therefore affirmed. All concur; Williams, P.J., in the result.