*1 officers very well satisfied with the results of the settlement when, shown settlement, sought fact that Snyder after the buy back local corporations into two price theatre at the he plus which his stock a iiroportionate sold share the loss there- (claiming agreement buy back). after sustained an he had such very Arthur proposition refused to consider the stated that was unfair to such claim when make at a time had become situation Thereafter, so much more favorable. Arthur did sell make an offer to Snyder a interest in properties price one-sixth all the St. Louis at the quarter a million dollars. Plaintiff claim makes further improper showed other conduct of defendant loan Snyder dividing reason of defendant commission of the reorganization. However, made in connection with the Fox Theatre and, moreover, appears this was pleaded not within issues reorganized Company this loan Kealty was made Theatre plaintiff. not to building, plain- owner of One this theatre tiff’s subsidiaries was the lessee of but no interest company building was disclosed. Our conclusion which owned equities entitle plaintiff is that has not shown that the of the situation sought. the relief and the cause remanded with directions is reversed decree bill. All plaintiff’s dismiss concur. Maybelle Municipal Corporation, C. Venable, Kirkwood, Company Joseph McMahon, Moore Bros. Construction F. Maybelle Felig Defendants, Corporation, Inc., Ferrenbach, (2d) 38358. 173 W. 8. C. Venable, Appellant. No. July One,
Division 1943. July Rehearing Denied, *2 George Heege F. for appellant. Hoester, Jr., respondent.
J. C.
DALTON, by plaintiff, municipal corporation C. Action organized existing 7, Chap. 38, 1939, and Art. R. under S. to condemn park. By four described in public lots said for a city answer de Venable, lots, alleged fendant the owner the of that because of its lo property use”; cation was “not or the fit suitable that the public brought good faith; was not in the described lots sought public were “to be taken for use and for or parks squares city,” for the of the residents of destroy benefit the the but property, improvements, improve neigh demolish the the immediate com-, premises borhood oust defendant’s from and brother the and munity; that, stated, and for the reasons the court was without jurisdiction condemn the described lands. court,
After a hearing judgment the an order and before of con- entered, demnation was as granted follows: “Condemnation as prayed.” damages and, Commissioners to assess appointed were upon filing report, plaintiff paid of their the amount into' defendants, court for and defendants notified thereof. No ex- report judgment ceptions were filed to was entered “that said purposes property stand condemned for and that t}ie ’’ may possession property. Kirkwood take said Defendant appealed. Venable has concerning damages,
No raised the amount of nor plaintiff with reference to to condemn in faith for (See, public purposes or for a St. Louis County v. Court Griswold, 175), appellant 58 Mo. but contends that “the evidence contemplated affirmatively use of showed defendant Venable’s purpose “that public”; was not of the condemnation removing eye- alleged was . . . for the an ulterior brother”; sore and of defendant’s presence city
“not a such sense was authorized to con- therefor,” subterfuge demn but “a mere a private serve .purpose”; “plaintiff’s and that fail case must because there was no any attempt agree compensation evidence of on a with the owner of land.” the issue authority Since raised concerns the city, under pleadings case, and evidence in the to condemn prop described power authority and the erty court to from title de take purposes fendant Venable for'the shown the evidence and vest it in the plaintiff, directly title real estate is involved and have we jurisdiction appeal. Consolidated School Dist. No. of Clinton County O’Malley, (2d) 819; 343 Mo. 125 W. State ex rel. Highway Gordon, State Commission v. 327 Mo. 36 S. W. (2d) 105, 106; Craghead, Thomas v. 332 Mo. (2d) 58 S. W. 281; ex Elliff, State rel. Palmer 332 Mo. 58 S. W. (2d) brought
The action was pursuant of a terms ordinance of finding “necessary acquire” said and desirable to the described parks “for playgrounds” and authoriz- ing acquisition thereof purchase condemnation and em- city attorney necessary steps powering to take to condemn the the. lots. described located what is referred to as center of city.
business district of said It fronts 200 feet the north on side of Madison Avenue lies between Madison Avenue and the Missouri right way. Clay Pacific Railroad It Avenue, is east located a street car line viaduct over railroad tracks. The within 200 upon feet of which is located *4 hall, $75,000. new city recently completed Although at a cost of adjoins property yards, higher it the yards switch than the switch way. and there is a drive between and the railroad only improvement story on property The two frame house and “there was a when places time it was show of Kirk- painted thirty wood.” The is now house old and has not been in thirty-five years. to For ten more than there have no years been repairs dilapidated caught and the in a house is condition. It fire on damage October, again March, in and in and the has not repaired. yard T been An old Model stands in the front and Ford been The radiator has removed. years. has there six or seven been There baskets are also automobile bodies and some and crates two fire, books, property. caught and the house lumber on When things they newspapers yard, and in where put out other they .to awaiting repairs have remained the house. In the meantime newspapers. have been covered over with tin old The have and lots many years. grass not been been The weeds and have mowed trees, mulberry permitted grow, except plum to under some and wild scythe. trees fall they there When and branches and were cut with is much rub- yard, are remain there. There they in to permitted and. bottles, cans, around, wit, leaves,-trash, to brickbats lying bish has continu- many property For the condition of the junk. years unsightly. disreputable Because ally gotten and worse and it looks tracks, a fire proximity its close railroad junk, prop- and On account the collection of rubbish hazard. community. safety The erty the health and of the is a menace unseemly hall. appears in new contrast vacant, has but March, fire been the last in Since brother, who was interested previously occupied defendant’s transfers, bottles, automobile collecting newspapers, street car in old furniture, things him. Much old other interest to plates license old property, remains belonging former owners of the to the house. complaints have premises, repeated of the of the condition Because remedy pressed to they have been made to the officers and
been organi- public generally complained, different The has situation. has taken. petitions and other action been zations have circulated nuisance other Defendant have been charges. and for Venable’s brother [11] It.appears not arrested, connecting that at lectured, has been arrested with one time an the sewer threatened, system. He also claims insanity proceeding and harassed maintaining a on n complaints of the instituted, is little but there through to a conclusion. were carried city ordinance, authorizing of the condemnation cognizance the property the condition of park purposes, takes City Kirkwood, Missouri, in “And Council of
as follows: described, im- properties, above have been the fact that the view of partially has been burned an old frame structure proved with creating fire, health destroyed thus menace down an.emergency exists within hazard, hereby a fire does declare that, State the immediate purview of the Statutes of this health, safety, this peace or ordinance shall preservation immediately final passage after its and take effect in full force be approval.” appellant vigorously foregoing evidence that It is the basis faith for a public insists eye-sore an rather to remove park, but proposed public create purpose. a private serve tending used to show could be There was evidence *5 “acceptable standpoint avail- from the its a park; as that play- a for a place “it would be ability park”; that a small for playground for tennis courts and needed it was that ground”; “good a for tennis courts and place” ideal was “an that it purposes; 465 place for a playground”; that parks there were “no other there”; near put that the intended to courts, four building tennis a locker property; benches on the that the would “not discriminate against ages courts”; of those who play on the the con- that a demnation was subterfuge; appeared only way and that it “the get at a by reasonable cost” was Plain- condemnation. brother, however, 'tiff’s premises “very dirty, testified that especially now there is on the railroad”; as much traffic that there trains”; great “a noise persons coming deal of from play tennis tracks, would have bridge to- cross the railroad over the railroad or tracks the street car tracks. There was no' evidence tending to show that the did not intend use the playground purposes, as exactly plaintiff’s testified witnesses, there nor was the property evidence was not for park weight needed purposes. of the evidence indicates also park purposes. suitable 6998, 1939, Section S. provides: may R. “Private property be taken the third cities of class for use for the widening, establishing, opening, extending any street, or altering . public square, . . . . . and for any other nec- essary 6999-7010, public purposes.” 1939, Sections R. S. govern also, mode procedure See, 6975, in such cases. Sec. 1939. R. S. 2 20, Missouri, among
Section Art. Constitution of other things, attempt private provides “that whenever an is made to take alleged public, for a use to be whether really judicial contemplated question, be a use be shall regard judicially determined, any legislative as such without to' as compliance provision, sertion public.” In with this use this repeatedly prop court has held that whether the use for which erty question. City private judicial is taken is a Hancock, 54, 215; City Cape 3 57, Savannah v. 91 Mo. S. W. Houck, 618, 933; City 31 607, Girardeau v. 129 S. W. of Ca Mo. 912, Ferguson (Mo. Sup.), 226 S. W. 914. rutkersville v.
Appellant right had the that the hear the to' demand court proceeding determine whether or not the qr private City was to use use. St. condemn 545, 555, 298; Hyde, Brown, City Louis v. 155 Mo. 56 W. Kansas v. W. 201. 196 Mo. 96 S. If the evidence discloses that Ap then is no’ there to condemn. proposed private pellant, of her here was to support contention Hyde, supra; St. City v. Louis private cites Kansas purpose, serve 118;W. Aldridge Mo. supra; Spears, v. 14 S. Brown, Co., 94 & R. Joseph R. Co. v. Hannibal St. Joseph St. Terminal 691; Hines, Mr. 535, 542, 6 S. of Kirksville W. contention, support These cases do not her 225 S. W. *6 466 necessity, exercising right expediency propriety
The and of the domain, by by corporate of eminent either the state or the bodies right delegated, questions essentially po to which the has been are litical in their nature and not judicial. [12] The grant by the legis a city right property to take for use as private lature to the of the necessity public power determine park carried with it also the the to exercise, corporate proper for when action has been the its and taken body case, contemplated public tribunal in the use is a City, one, Simpson upon See, is conclusive the courts. v. Kansas 38; City Ferguson, 20 111 Caruthersville v. Mo. S. W. of Liebi, Kansas Mo. supra, (226 912, 914;) City W. 298 S. Stone, 1, 22, Bridge 73 404; 252 W. So. & Mo. Co. v. Ill. 105; Eminent 453; Jur., Domain, sec. on 18 Am. Eminent Lewis S. W. Domain, Edition, I, p. Third Vol. see. 255. a the “In Liebi, supra,
In of said: the case Kansas court having pro- that the proceeding condemnation the court determined ‘public expediency propriety and enact- is a the the posed use use/ legislative body are ment is for the and under which authorized subject judicial municipal In inquiry. a ... the case a use, the charter proposing property ordinance to take for where the the the municipality proceeding, passage of the authorized of it. necessity and reasonableness as to ordinance conclusive under . courts in such cases is whether . . for the right municipality a to condemn powers its charter has contemplated, is a use.” purposes for the whether use 569, 598.) (298 Mo. right respondent has to appellant
While concedes acquire faith lands for good condemn for here sham public park, she “a mere contends concealing be subterfuge for the ulterior motive says alleged Appellant hind matter.” “the the whole bearing The evidence on proof private.” showed it was but the faith, however, is sufficient to show that the described issue of for such park purposes; that it was suitable was needed for city expects and use it respondent intends to purposes; that the tends only show purposes. Appellant’s for such council passage of the of the ordinance motive back appellant’s city park, the condemnation creation of unhealthy remedy unsightly, purpose, for that words, existing premises. on said In other disreputable conditions for a created a demand premises appears that the condition generally apply and caused the on the park force as to remedy the situation pressure such on officials particu at creation passage ordinance expediency wisdom, is directed The evidence lar location. to condemn necessity exercise of for the purposes. wholly Suck evidence is insufficient establish that the property being private condemned than a public rather purpose. In Domain, Lewis Eminent Edition, I, Third p. Vol. sec. 370, it said: inquire “The courts cannot into the motives which *7 actuate the or authorities enter into propriety making par of the the McQuillin improvements.” ticular See, also, Municipal Corpora tions, Edition, sec. Second ‘‘ 38, In C. J. 20 see. is it said: The motives of members the city a open judicial of to inquiry, council are not except in a case of ” private fraud and collusion with interests.
In Indianapolis, the case of Kessler v. 157 Ind. N. E. 53 A. it7, however, L. R. is said: “In this case, inquiry the does not relate to the municipal which caused the act, motives officers but to purpose to the of the taking. the While words motive purpose terms, are synonymous sometimes as in yet used their application here, there is a clear between them. ‘Motive’ is that which distinction prompts will, the choice or thereby inciting moves the inducing or action, ‘purpose’ is while that which sets before himself as end, aim, object kept effect or result to in or be view attained. be purpose private for which very is condemned is the right basis of condemn.” Ligare
In v. Chicago, 139 Ill. 32 Am. Rep. 179, St. 28 N. E. 934, it is said: “We do not has deny power to widen streets, generally, and that has when it undertaken to do so the may motives have those in subject that actuated are authority not judicial investigation; of thing which but for a is done very may is different from by the motives which have actuated those done, is, present whom it -instance, legitimate subject is in the a of judicial investigation, for [13] right to exercise the power domain is in all by eminent cases limited private exercised, property may shall thus, be be condemned for —as use, may be shown in but See, that the use fact is not public, but. private.” Hyde, (196 supra, Kansas City 510). Mo. Brown, supra,
In the case of St. Louis v. this court said: proposed private to take use, “When for public challenge has a in individual affected court the character of' proposed, the use will court determine whether it or be be not say, a is to not the proposed use. That whether is in use, question, a is a judicial its nature but' whether or not authority particular expedient politic exercise of the case is legislative departments question and executive Dom., good sec. A government. on Em. deal of testi- [Lewis 158.] designed part exceptors mony on the show that the widen- policy, street was a mere aesthetic idea and doubtful ing of the subject 545, 555.) nothing (155 we have to do.” with that but contemplated use does convince us the the The evidence sought will be of the condemned be indicate public purpose, other than said does the evidence used for nor We city park. good part on the to create a a lack faith proposed satisfactorily the evidence establishes hold public one and that sought condemned is a use of the to be taking respondent faith is Ferguson, supra. City of purposes. Caruthersville only concerning of the the failure There remains agree with the the amount attempt to show owner on to no statute re compensation. Appellant directs our attention to the showing precedent to made condition quiring, such a as be by statutes requirement made power. No such exercise agree brought. attempt No with under which this objection on that account pleaded plaintiff no owner was showing requiring defendant’s answer. Cases such raised making specific requirement. special upon statutes are based *8 evidence, however, necessary to There Bridge & See, Ill. Mo. So. “at reasonable cost.” obtain assignment is Stone, The overruled. supra, 187). Co. v. (194 judgment affirmed. no in the record us. error before We find Bradley Osdol, CC., concur. and Van C., opinion adopted foregoing Dalton, CURIAM: The
PER. All the concur. judges court. opinion as the Paisley Company, G. Public Service v. Kansas Charles (2d)W. 33. 38471. 173 Appellant. No. July One, 1943. Division July Denied, Rehearing