author: STORCKMAN, Judge. EAGER, Chief Justice

text:
    The SCHOOL DISTRICT OF KANSAS CITY, Missouri, Respondent, v. KANSAS CITY, Missouri, the Board of Park Commissioners of the City of Kansas City, Missouri, and Milton Avis, Treasurer of the City of Kansas City, Missouri, Appellants.
    No. 50472
    Supreme Court of Missouri, En Banc.
    Sept. 14, 1964.

    Rehearing Denied Oct. 12, 1964.

      Edward T. Matheny, Jr., Larry L. Mc-Mullen, Caldwell, Blackwell, Sanders & Matheny, Kansas City, for respondent.
    Herbert C. Hoffman, City Counselor, Benj. M. Powers, Assoc. City Counselor, Ned B. Bahr, Asst. City Counselor, Kansas City, for appellants.
   STORCKMAN, Judge.

This is a declaratory judgment action to determine questions of validity arising under a contract and agreement of cooperation for the erection of a library building by the plaintiff School District of Kansas City on public ground owned by Kansas City, Missouri, and under the control of its Board of Park Commissioners. The contract was entered into pursuant to § 70.220, RSMo 1959, V.A.M.S., between the School District and the City of Kansas City, Missouri, acting by and through the Park Board. The trial court held the contract to be valid and enforceable and the defendants have appealed. In essence the issues on appeal are whether the contract is authorized by the cooperation statute and whether it violates certain provisions of the City Charter. The essential facts are all stipulated and include the contract, plats of the land in question, and records concerning its acquisition, use and purpose.

The proposed library site is a tract occupying a substantial portion of the city block bounded by 47th Street on the north, 48th Street on the south, Main Street on the east, and Baltimore Avenue on the west, as the streets are designated on a plat identified as Exhibit I. The site is in the southern portion of an irregularly shaped strip of land called a parkway which extends generally north and south from 49th Street on the south to a little beyond Broadway and High Street on the north. The principal north and south streets included in the parkway are designated on the plat as Baltimore Avenue, Hamilton Street and Broadway. The parkway tract including the proposed building site was acquired by Kansas City by a condemnation proceeding begun in 1908. It was originally designated the Mill Creek Parkway and was later renamed the J. C. Nichols Parkway.

The ordinance passed in March 1908 entitled, “AN ORDINANCE TO OPEN & ESTABLISH A PUBLIC PARKWAY IN THE WESTPORT PARK DISTRICT IN KANSAS CITY, MISSOURI”, recited that the Board of Park Commissioners had selected and designated certain lands “to be acquired and used for the purpose of a public parkway”. The ordinance defined the boundaries of the tract to be taken by condemnation and ordained that “a public parkway be” opened and established in the tract and that “all the private property within the boundary lines above described is hereby taken and condemned for public use as a part of said parkway”. By the condemnation judgment entered on February 28, 1910, in the Circuit Court of Jackson County, it was “considered, adjudged and decreed by the Court that the title in fee to and every other interest in the aforesaid lands so condemned be and is divested out of the owners thereof and all other persons interested and vested forever in Kansas City, Missouri, to the use of the Westport Park district of Kansas City, Missouri, as and for a public parkway according to law”. The record of the proceedings of the Board of Park Commissioners of Kansas City dated December 4, 1911, discloses that the Board adopted resolutions establishing “a roadway along and upon a portion of Mill Creek Parkway” which appears to be in the parkway west of the proposed library site.

The contract and agreement of cooperation dated August 31, 1961, and entered into pursuant to § 70.220, RSMo 1959, Y.A.M.S., in general provides that the School District will erect, maintain and operate on the land in question, without cost or charge to the Park Department or to Kansas City, Missouri, a branch public library, that the building may also include an auditorium or public hall suitable for public gatherings, and that the plans and specifications for the building will be approved by the Park Department and the School District. It is further provided that tennis courts presently located on the proposed site shall be relocated and that the School District will contribute to the cost of such relocation an amount not to exceed $200,000, and that the branch library building and all other portions of the property shall be maintained as a public building and as a public facility by the School District as a public educational and recreative institution to promote the general interest and welfare of the people.

The contract and agreement of cooperation was duly approved by the School District, the Board of Park Commissioners, and by an ordinance of the City Council. Nevertheless, the City Counselor of Kansas City, advised the City Treasurer in a written opinion that he should refuse the $200,-Ü00 tendered by the School District because the contract as well as the ordinance approving it exceeded the lawful authority of the Park Department and the Council of Kansas City. The School District then instituted this action to determine the validity of the contract. The City of Kansas City, the Board of Park Commissioners and Milton Avis, the City Treasurer, were joined as defendants. The defendants will sometimes be referred to collectively as the City or Kansas City.

Since the City Treasurer refused to accept the sum of $200,000 provided by the contract for the relocation of the tennis courts, the parties contend that an amount in excess of $15,000 is in dispute, but our jurisdiction need not rest on that ground. The appeal is properly in this court because a construction of § 16 of Art. 6, Constitution of Missouri 1945, V.A.M.S., which grants municipalities and political subdivisions the right to make cooperative agreements, is involved in connection with the questions presented. Art. 5, § 3, Constitution of Missouri 1945; St. Louis Housing Authority v. City of St. Louis, 361 Mo. 1170, 239 S.W.2d 289, 293 [3].

The City contends that the contract is not authorized by § 70.220, RSMo 1959, V.A.M.S., “because it is not within the scope of the City’s power.” Section 70.220 is one of the statutes enacted to implement § 16 of Art. 6 of the Constitution which provides that: “Any municipality or political subdivision of this state may contract and cooperate with other municipalities or political subdivisions thereof, or with other states or their municipalities or political subdivisions, or with the United States, for the planning, development, construction, acquisition or operation of any public improvement or facility, or for a common service, in the manner provided by law.” The purpose of the constitutional provision is to enable municipalities and political subdivisions to effect economies and facilitate the performance of their related public functions although actual consolidation of the governmental agencies is not feasible.

Section 70.220 provides that any municipality or political subdivision of this state “may contract and cooperate with any other municipality or political subdivision * * * for the planning, development, construction, acquisition or operation of any public improvement or facility, or for a common service; provided, that the subject and purposes of any such contract or cooperative action made and entered into by such municipality or political subdivision shall be within the scope of the powers of such municipality or political subdivision.” Section 70.220 follows the language of the constitutional provision, § 16 of Art. 6, but further spells out the requirement implicit in the Constitution that the subject and purposes of the cooperative contract or action shall be within the scope of the powers of the municipality or subdivision. By the contract in issue, the City agrees to exercise its powers to the end that a branch of the public library will be operated and maintained on a site in the parkway. The narrow question is whether such use of the land is proper under applicable state laws and the City Charter.

The Charter of Kansas City was adopted pursuant to constitutional provisions which are now §§ 19 and 20 of Art. 6 of the 1945 Constitution. Section 19 requires that the Charter be “consistent with and subject to the constitution and laws of the state”. In case of conflicting or inconsistent provisions, the Charter must give way .to the Constitution and state laws in regard to governmental functions or general policies of statewide concern. State ex rel. Rothrum v. Darby, 345 Mo. 1002, 137 S.W.2d 532, 537[6] ; State ex rel. Spink v. Kemp, 365 Mo. 368, 283 S.W.2d 502, 514[4-6] ; City of Joplin v. Industrial Commission of Missouri, Mo., 329 S.W.2d 687, 693[7].

In support of its claim that the contract is not authorized, the City cites Schmoll v. Housing Authority of St. Louis County, Mo., 321 S.W.2d 494. This was a declaratory judgment action to test the legality of a cooperation agreement between St. Louis County and the Housing Authority of St. Louis County. As stated by the court, the principal issue in that case was: “The difficult and essentially meritorious problem upon this appeal is the fact that the county entered into this cooperation agreement by order and resolution of the county council and not by ordinance.” 321 S.W.2d 497. The agreement was held to be invalid be■cause the charter of St. Louis County required it to be entered into by the enactment of an ordinance even though the statute permitted approval of the agreement by an order of the county court or by a resolution. Thus, it is apparent that the Schmoll case did not involve the authorization or grant of power but rather •the means or mechanics by which the power could be exercised. In the present case, the contract was approved by Kansas City acting by and through its Board of Park Commissioners and by a duly enacted ordinance of its City Council, as well as by the School District. The procedure by -which the contract was consummated is not ■claimed to be insufficient or defective.

Under the condemnation proceedings in 1908, the City sought and obtained a fee simple title to all lands included in the description of the parkway; thereby all private interests therein by way of reversion or otherwise were extinguished. Chaplin v. Kansas City, 259 Mo. 479, 168 S.W. 763, 766[3]; Daly v. Kansas City, Mo., 317 S.W.2d 360, 364[5], The Chaplin case involved the same parkway and the court held the rights of an owner adjoining an alley in the parkway had been taken in the condemnation action. The City cites Price v. Thompson, 48 Mo. 361, on the proposition that lands dedicated to park purposes cannot be diverted. In that case, the original owner of the land on which the town of Brookfield was located recorded a plat by which he dedicated four acres as a park. The title was vested in the town in trust for the free use of all of the inhabitants of the town as a common or public ground and for no other purpose whatever. The court enjoined the construction of a public street through the park on the ground it was a diversion of the property from the use and purpose specified in the act of dedication. Since Kansas City owns the land in question in fee simple, the Price case and others like it are not applicable to the instant case.

This court has generally held that where land has been dedicated by a private grant to public use as a park with specific and definite limitations, the conditions must be complied with; but where land is purchased or condemned by a municipality for public use as a park, the uses to which the land may be put are much broader. Kirkwood v. City of St. Louis, Mo., 351 S.W.2d 781, 784[2]; Aquamsi Land Co. v. City of Cape Girardeau, 346 Mo. 524, 142 S.W.2d 332, 335 [2]; 39 Am.Jur., Parks, Squares, and Playgrounds, § 21, p. 816.

One of the City’s objections to the contract is that the proposed site of the branch library is part of a public highway which cannot be obstructed or diverted to the purposes contemplated by the contract. This is on the theory that the parkway including the library site is a form of highway. The initial question presented by this contention is whether the proposed site is a street or highway. The City relies chiefly upon Chaplin v. Kansas City, 259 Mo. 479, 168 S.W. 763, Municipal Securities Corp. v. Kansas City, 265 Mo. 252, 177 S.W. 856, and Village of Grosse Pointe Shores v. Ayres, 254 Mich. 58, 235 N.W. 829. The language relied upon in each case is in substance that a parkway is a street or highway of a certain kind and not a park. The plaintiff, on the other hand, cites cases which liken a parkway to a park. Each line of cases may be correct depending on the circumstances; the name or designation “parkway” alone is not determinative. The term may refer to a thoroughfare or roadway which is landscaped or located in a park from which trucks and other heavy vehicles are excluded, or it may be used to designate the landscaped strip of land paralleling or in the center of a thoroughfare. Webster’s Third New International Dictionary. It is properly stated in McQuillin, Municipal Corporations, 3d Ed., Vol. 10, § 30.05, that: “A parkway, as ordinarily understood, is neither exclusively a street nor exclusively a park but partakes of the character of both.”

The configuration of the tract of land condemned as a parkway is aptly described by the language used in State ex rel. Porter v. Hudson, 226 Mo. 239, 126 S.W. 733, 734, as follows: “The Paseo is a public parkway or park scheme in charge of defendants as a board of park commissioners. It extends a great ways, and at the point in hand runs nearly north and south. We infer that the name ‘Paseo’ covers not only a boulevard proper, but at certain places includes ground on one or the other side devoted to public park purposes, thereby swelling out to the limit of a park, anon dwindling to a boulevard.” Italics supplied. The parkway in question is approximately 100 feet wide at its northern extremity, according to the scale on the plat, Exhibit I. Proceeding south, the parkway widens, sometimes irregularly, until it reaches the area with which we are chiefly concerned, which is between 47th and 48th Streets. At the northern boundary of the proposed site, the parkway expands sharply and is approximately 700 feet wide from east to west; at the southern limit of the site, the parkway is about 900 feet wide. South of the proposed site, the tract again narrows to about 250 feet. The library site is said to consist of 2.8 acres. It appears to be about one-fifth of the expanded area of the parkway between 47th Street on the north and approximately 48th Street on the south. Since 1928 tlje library site has been occupied by public tennis court facilities and a stone maintenance building. The tennis court facilities are apparently quite extensive since it is estimated that the cost of relocating them will be $200,000 which sum is to be paid by the School District. The cooperation contract provides, that the maintenance building may be removed by the Park Department within three-months and if it is not so removed the building may be removed or used by the School District.

There is no claim that the proposed library site is presently or ever has been actually used as a street or highway. Furthermore, there is no showing that any portion of the proposed site will be needed as a street or highway in the foreseeable future. The park-like area remaining east of the site and the narrower width of the parkway north and south of the site renders it extremely unlikely that any of the library site will ever be required as a street or highway.

Under the City Charter, the Park Board is empowered to select routes and streets for boulevards. Section 54. It is. the duty of the City Council, upon recommendation of the Board, to pass ordinances, for the regulation and orderly government of parks, parkways, boulevards and public grounds, and to regulate traffic on all boulevards, parkways and highways under the-Board’s control, and the Council, upon recommendation of the Board, may regulate the kind and character of all vehicles used on or passing over all boulevards, parkways. and highways under its control. Section 55. The agencies of the City upon whom these and similar duties rest have each approved the cooperation agreement which embodies, the concept that the site is not and will not be needed for street or highway purposes.. Bearing on this issue also is the fact that the City has a fee simple title to the land constituting the parkway including the streets unencumbered by any reversionary interest or condition. In these circumstances, we hold that the proposed site for the branch library is not an integral part of a street or highway and the City’s objection to the contract on that score is without merit.

Another point made by the City is that the contract in question is a conveyance in perpetuity which constitutes a diversion and alienation of parkway property in direct violation of § 58 of the Charter which provides that: “The lands which have heretofore and which hereafter may be selected and obtained under the provisions of this charter for park, parkway or boulevard purposes shall remain forever parks, parkways and boulevards for the use of all the inhabitants of the city.” Section 66 of the City Charter prohibits the erection and ■maintenance of any structure within any ■park, parkway or public ground under the •control of the Board except such as may be erected by the Board for park uses and '“except such public memorials, museums, art •galleries and other public buildings as are .authorized by this charter.” Section 1(39) empowers the City to acquire, operate and maintain educational, recreative and other institutions, facilities, conveniences, and services of any and every kind and character for any public or municipal use cur purpose. A branch public library is an educational and recreative institution and facility within the purview of § 1(39) of the Charter. State ex rel. Carpenter v. City of St. Louis, 318 Mo. 870, 2 S.W.2d 713, 722 [13, 14].

A modern-day public library is in the category of public buildings which may be erected and maintained in a park, parkway or on public grounds under the control of the Park Board pursuant to § 66 of the City Charter. 39 Am.Jur., Parks, Squares, and Playgrounds, § 29, p. 826; 38 Am.Jur., Municipal Corporations, § 562, p. 251, n. 7; Aquamsi Land Co. v. City of Cape Girar-deau, 346 Mo. 524, 142 S.W.2d 332, 335 [4]; Kirkwood v. City of St. Louis, Mo., 351 S.W.2d 781, 784-785[6]; State ex rel. City of Excelsior Springs v. Smith, 336 Mo. 1104, 82 S.W.2d 37, 41-42[8]; Spires v. City of Los Angeles, 150 Cal. 64, 87 P. 1026.

In Kirkwood v. City of St. Louis, supra, this court approved the use of approximately six acres of Forest Park in St. Louis for the construction of a four-lane highway. The park land had been obtained by condemnation and the provisions of the charter authorizing the City of St. Louis to acquire and dispose of real property and to alter parks were held to be sufficient to justify diverting a part of the park for use as a public highway. 351 S.W.2d 784— 785. Sections 1(8) and 1(16) of the Kansas City Charter have the same legal effect. In the Aquamsi Land Company case, supra, the park- land was also acquired by condemnation and this court approved the use of a large portion of it for a rather elaborate recreational and community center and fair grounds. The stipulation of facts discloses that Kansas City has three community centers operated by its Department of Welfare on park property. Among other improvements located on the City’s parkways are a stable and storage barn, a casting pool and utility building, a fire alarm signal station and large stone and masonry fountains. The contract in question is not a conveyance or an alienation of the land constituting the proposed library site since the City continues to own it as a part of the City’s park system. The construction and operation of a public library thereon is not an improper park usage. The assignment of error is denied.

The City further asserts that regardless of whether the area in question is park or parkway property its control is vested in the Board of Park Commissioners by § 55 of the Charter and the Board’s authority cannot be delegated to any other governmental agency. Section 55, insofar as pertinent, provides that; “The board of park commissioners shall superintend, control and manage any and all parks, parkways, boulevards and highways and public grounds belonging to or under the control of the city which at the time this charter becomes effective are under the control and management of the board of park commissioners, and such others as the council may, upon recommendation of the said board, place under its control and management; and may construct, improve, adorn, regulate and maintain the same in such manner as it may deem best; * * The contract provides that the erection, maintenance and operation of the branch library and the care and maintenance of the property described in the contract shall be the duty and obligation of the School District without cost to the City or the Park Board. It further provides that all portions of the property shall be maintained by the School District as a public educational and recreative institution to promote the general interest and welfare of the people, and that it shall be under the sole control and management of the School District. The City depends chiefly on the principle that a municipality cannot contract away any of its legislative powers so as to preclude it from meeting future emergencies in a proper way, and in support thereof it cites such cases as Thompson v. City of St. Louis, Mo., 253 S.W. 969, 972[2]; Stewart v. City of Springfield, 350 Mo. 234, 165 S.W.2d 626, 629[5]; and City of St. Louis v. Cavanaugh, 357 Mo. 204, 207 S.W. 2d 449, 455 [6]. The rule exemplified by these cases is not controlling here. We need not discuss the amount' of control or dominion surrendered or retained by the City and the Park Board’because we deem that which was done to have express authority derived from the state Constitution and carried into the state statutes and City Charter.

Article 6, § 16, of the Constitution, in essence provides that municipalities or political subdivisions may contract and cooperate for the construction and operation of any public improvement or - facility. This constitutional provision and the statutes implementing it expressly authorize a cooperative effort which in its very nature denotes a division or sharing of that which is necessary to achieve the common end. In discussing a statute similar to our constitutional provision, the Supreme Court of California in City of Oakland v. Williams, 15-Cal.2d 542, 549, 103 P.2d 168, 171-172, stated: “The statute means nothing if it does not mean that cities may contract in effect to delegate to one of their number the exercise of a power or the performance of an act in behalf of all of them, and which each, independently could have exercised or performed.” See also City and County of San Francisco v. Boyle, 191 Cal. 172, 215 P.. 549, 556 [10, 11], and Smith v. Robertson, 210 S.C. 99, 41 S.E.2d 631, 639[8], In Vrooman v. City of St. Louis, 337 Mo. 933,, 88 S.W.2d 189, 193-194[2], it was held that the contribution of the City of St. Louis to the United States for the acquisition and' construction of a national public park within the city was for a public and corporate purpose within the constitutional limitation,, notwithstanding the fact that • Congress, would have control of the property and that non-residents might receive occasional benefits from use of the park. In State ex rel. Kansas City Ins. Agents’ Assn. v. Kansas City, 319 Mo. 386, 4 S.W.2d 427, 430[1, 2], it was held that the authority of Kansas City to maintain a fire patrol included authority to contract for its maintenance.

Section 16 of Art. 6 of the Constitution is a specific grant or recognition of authority which in case of conflict would be controlling over the provisions of the Kansas City Charter. But it appears that the Charter provisions can be so construed as to avoid a lack of harmony. In apparent conformity with the constitutional provision and § 70.220, the Charter of Kansas City in § 1(65) empowers the City to cooperate or join by contract or otherwise with other cities, states, or the United States or other governmental bodies for the construction or operation of any property or structures convenient or necessary for carrying out the purposes or objects authorized by the Charter. This is in pari materia with § 55 relating to the control and management of sparks and parkways. Thus, it appears that •cooperative agreements are authorized by the City Charter as well as the Constitution and statutes. The contract is not invalid by reason of its vesting the School District with control of the library and the premises.

The City further contends that the ■contract violates § 67 of the Charter which restricts leases of concession agreements to a period of three years. The section provides that no part of any park under the supervision or control of the Park Board shall he leased to any “person, firm or corporation for any purpose” and that any lease ■of a building or parts thereof in any park for park purposes and any concession in any park for the sale of refreshments to the public using such park or for other park purposes shall not be for a longer term than three years. No shows or exhibitions of any kind shall be allowed in any park, parkway or public ground for profit, but educational entertainments and other exhibits approved by the Board may be provided or given for the use, enjoyment and welfare of the public. The obvious purpose of § 67 is to prevent exploitation of the parks and parkways by commercial and profit organizations or persons. The School District is a political subdivision devoted to public education and is not a “person, firm or corporation” as that term is used in § 67. State ex rel. Zoological Board of Control v. City of St. Louis, 318 Mo. 910, 1 S.W.2d 1021, 1027[6]; Vrooman v. City of St. Louis, 337 Mo. 933, 88 S.W.2d 189, 194[3]; McQuillin, Municipal Corporations, Vol. 15, § 39.26, pp. 79-80.

The contract is obviously not a concession agreement and does not have the elements of a lease. It is as we have held a cooperative agreement within the scope of the powers of the parties for the proper use ■of park property. It does not violate the provisions of § 67.

The City’s final contention is that the contract confers powers which discriminate in the use of the library against a part of the inhabitants of the City in that the boundaries of the School District do not include all the territory within the City limits and a charge will be made for a library card upon inhabitants of the City who do not reside, own real estate, or have employment within the School District. The card entitles the holder to take from the library books which are subj ect to withdrawal. Bestowing the benefits and burdens of park facilities upon citizens equally is hardly possible. Whether it be playing tennis, browsing in a library or just sitting on a park bench, the enjoyment of the park facilities varies with the individual or may be entirely lacking. It is not unusual for a fee to be charged for the use of some special park facility or service. The fee for a borrower’s card is designed to achieve some equality with respect to the support of the library system. In Vrooman v. City of St. Louis, 337 Mo. 933, 88 S.W.2d 189, 193 [2], the court held that the contribution of funds by the city to the National Park within the city’s limits was not invalidated by reason of the fact that non-residents of the city might use the park occasionally and receive benefits from it. In State ex rel. Zoological Board of Control v. City of St. Louis, 318 Mo. 910, 1 S.W.2d 1021, 1025-1026[3, 4], the establishment of a zoological park was held to be in the public interest and welfare and not stricty for a local purpose. The situation is similar with respect to public libraries including the proposed library in Kansas City. We hold that the charge complained of is not an invidious distinction or discrimination that would render the contract invalid. In the Matter of Proceedings to Grade North Elmwood Avenue in Kansas City, North, Clay County, Missouri, Mo., 270 S.W.2d 863, 868[3]; In re Kansas City Ordinance No. 39946, 298 Mo. 569, 252 S.W. 404, 408[3],

We find that it is within the scope of the City’s power to allow the land in question to be used as a site for a public library; the cooperation agreement and contract is not invalid in any of the respects alleged. Section 55 of the City Charter authorizes the Park Board to construct, improve, adorn and maintain the parks and parkways “in such manner as it may deem best”. Its action in this instance has been approved by an ordinance duly enacted by the City Council. The courts are concerned only with the power of the City acting through its Park Board and City Council to enter into the compact and not with the wisdom or expediency of the transaction since it is for the legislative body and not the judiciary to determine the policy of the law. Kroger Grocery & Baking Co. v. City of St. Louis, 341 Mo. 62, 106 S.W.2d 435, 438[4], 111 A.L.R. 589; Downing v. City of Joplin, Mo., 312 S.W.2d 81, 84[5]; In re Kansas City Ordinance No. 39946, 298 Mo. 569, 252 S.W. 404, 407[1],

The judgment is affirmed.

LEEDY, HYDE, HOLMAN and HENLEY, JJ., concur.

EAGER, C. J., dissents in separate opinion filed.

DALTON, J., dissents and concurs in separate dissenting opinion of EAGER, C. J.

EAGER, Chief Justice

(dissenting).

I hesitate to dissent in a case of this character, but I am impelled to do so. Basically, it is my opinion that neither the Constitution, the statutes, nor the Kansas City Charter authorize the City to cooperate with the School District in the use of parkway land for the erection and maintenance of a public library, which is strictly a school district function in that municipality. The School District has, for many, many years, built and operated all libraries in the City at its own expense by regular levies of school district taxes; the City has never attempted to acquire, erect or operate any library anywhere. The School District has recently built and is operating a new main downtown library at an enormous cost. The functions of the City and the School District in this regard have been and are entirely separated. It simply is not the function of Kansas City to operate a library;. possibly, it could do so under its general authority to “provide, operate and maintain. * * * educational * * * institutions”' [§ 1 (39) Kansas City Charter] if it acquired property for that purpose or even if it used property otherwise acquired for its-general purposes, but I do not believe that this section of the Charter, as limited by the specific provisions governing park and parkway properties, or § 66 (referred to-in the principal opinion) authorize a diversion of parkway property to a joint library enterprise; nor do I believe that the Charter would authorize the diversion of parkway property even to a library project operated by the City solely its own. Section 66 of the Charter is as follows: "Sec. 66. Structures within parks. Neither the council nor the board of park commissioners shall have authority, except as in this charter otherwise provided, to permit any person, association, firm or corporation to build or maintain any structure within any park, parkway or public ground under the control of the said board. No structure shall be erected or maintained in any such place except such as may be erected by the board for park uses, and such statues, monuments and works of art as may be approved by the art commission and erected by or under authority of the board, and except such public memorials, museums, art galleries and other public buildings as are authorized by this charter.” Considering that section as a whole, I do not construe it to authorize the erection or maintenance of any buildings on park or parkway property except for uses directly or indirectly associated with parks or parkways. The “public buildings” reference, under the rule of ejusdem generis, is limited by the presence of the preceding words, namely, “public memorials, museums, art galleries * * *.” Hence, the “public building” should be of that same character and type. In ordinary common sense, a library is not a park project, nor even a recreational project. It is an educational project, and in .Kansas City the School District is charged ■solely with providing and operating libraries.

This discussion, so far, has principally involved park property. This tract is a parkway. I shall not indulge in any fine ■distinctions but a parkway, as all seem to ■concede, partakes at least of the character of a street or roadway, even though it be beautified here and there; and there are •other distinctions in the Charter itself, as, for instance, the differing modes of acquisition and payment. This land was thus acquired for the purpose, in whole or in part, of the movement of traffic, and this particular tract is located in a position where such ■considerations have become most vital. Having been thus acquired, the City’s power to divert it is, in my opinion, much more restricted than if it had been acquired as a park. The City proposes now to put the tract to a use which would completely remove it from its original purpose and function and, for all practical purposes, to do so permanently, since there is no repossession provision. There is no time limit in this contract, and the erection of a very costly and permanent library on the site would naturally remove the tract forever from any possible use for street or traffic purposes. And, while this suggestion is not determinative in view of the Council’s discretion in such matters, the location is such that no one may, with any assurance, foretell how soon the area may be vitally needed for traffic or freeway connections, ramps, or other traffic devices; it lies at the very gateway to the highly commercialized Plaza District from the east and south.

Section 58 of the Charter provides that lands acquired for “park, parkway or boulevard purposes shall remain forever parks, parkways and boulevards for the use of all of the inhabitants of the city.” I do not rely, in any large part, on the somewhat sentimental argument of the City about “whittling away” the interests of posterity in Kansas City’s extensive park and parkway property, although this anticipated move may well alert the people to that danger. I simply would deny the City the right to contract for this use because of a total lack of authority to do so; and, to my mind, this contract for the right to use the property, in essence forever, is simply an attempted evasion of the City’s lack of power to deed the property outright to the School District.

The principal opinion is founded largely on § 16 of Art. 6 of the Constitution, which it construes most broadly. I note that the statute implementing that provision (§ 70.-220) expressly limits all such cooperative agreements to those subjects and purposes which are “within the scope of the powers of such municipality or political subdivision,” which I construe to mean the powers of each subdivision so entering into such a contract. I do not construe the constitutional provision itself to mean anything more. It certainly was not the intent of the framers of the Constitution to give to any municipality any power or authority by way of “cooperation” which it did not have initially. I, therefore, see no possible conflict between the Constitution and those charter provisions which restrict the usages of property to the function or sphere for which it was acquired. The principal opinion thus suggests a possible conflict where none exists. The Constitution does not require, nor do I think it authorizes, a diversion of property by a scheme of cooperation to uses for which it was never acquired or intended. The case of City of Oakland v. Williams, 15 Cal.2d 542, 549, 103 P.2d 168, cited in the principal opinion and decided under a statutory provision similar to § 16 of Art. 6, upheld a delegation of power, provided, however, that “each (city) independently could have exercised or performed” that function. It is my view here that the city of Kansas City could not legally have used parkway property for library purposes, directly or indirectly.

If the City has heretofore improperly permitted the erection of one or more small and inconsiderable structures (such as the fire alarm station) on parkway property,— there are two answers: (1) one or more past wrongs do not make a “right”; and (2), solely as a practical matter, none of the buildings suggested are of such substance as to interfere permanently with future traffic problems, nor are any of them in such a vital location as the present site is. Some are in actual use by the Park Department itself, for parkway and park purposes. The community centers mentioned are on park property, and these are, in my opinion, in a wholly different category from that of a library; moreover, they are operated by the City itself. Here, the City does not pretend that it would participate in any way in the operation of the proposed library.

I am compelled to the view that the discretion vested in the legislative bodies of the City (the Park Board and the Council) cannot be stretched so far as to furnish an immunity to the actual illegality of this action ; I am convinced that the contract is a violation of the wording and intent of the City Charter, that the Charter is not in conflict with the Constitution or the statute, and that the contract illegally proposes to divert (in essence forever) land acquired for parkway purposes to a use which would make it permanently unavailable for an essential part of the purpose for which it was originally acquired.

In the case of Kirkwood v. City of St. Louis, Mo., 351 S.W.2d 781, where park land was condemned for a trafficway (partially the reverse of our situation), the use to which the land was diverted was one admittedly within the scope of the City’s powers and functions, and there was no reliance upon any authority created through a “cooperation.” There the land was condemned; here we have a voluntary contract. There the traffic needs were stressed; here they are ignored.

In prior diversions of park or parkway land, the city of Kansas City has submitted the question to a vote of the electorate by proposed charter amendments. We see no legitimate reason why this proposal has not been, and should not be, handled in the same manner. It is highly significant that the School District owns in fee the site of the abandoned E. C. White School, of considerably greater area, just to the southeast across the intersection of Brookside Boulevard and Main Street; that tract comprises 4.11 acres as compared to 2.8 acres in the controverted tract. (We have referred, as invited by stipulation of the parties, to our files in the prior- mandamus proceeding filed by the School District against the City, No. 49 541, as well as to exhibits in the present case.) The present record contains no intimation as to what the School District proposes to do with that tract, nor is there anything to explain why it is not suitable for library purposes. While such decisions; as the present one are generally within the discretion of the respective legislative bodies, provided the result is legally permissible, it is usually preferable that the record should contain some factual basis for the exercise of the discretion, if for no-other reason than to justify a finding that the discretion has not been abused. The selection insisted upon here was apparently made upon the individual recommendation of Dr. Joseph L. Wheeler, an outside library expert, which, in turn, was based upon his; personal survey of the area in 1947.

I am mindful of the fact that liberal constructions of constitutions, statutes and' charters are often required in the interest of progress, and in order to avoid frustrations; of the real intent of the authors. But I am doubly conscious of the fact that we may not disregard or evade the real principles, announced in those documents, even though a particular result may seem, at the moment, to be highly desirable. In order to maintain a measure of stability in our governmental functions and structures, we should exercise care to the end that we are not led in the name of progress into decisions which may, in the future, eradicate those guidelines and restrictions which have been created by an earlier, and perhaps a wiser, generation.


source: Caselaw Access Project

author: STORCKMAN, Presiding Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Jimmie Lee PERKINS, Appellant.
    No. 50090.
    Supreme Court of Missouri, Division No. 2.
    July 13, 1964.
    Motion for Rehearing or for Transfer to Court En Banc Denied Oct. 12, 1964.

      Thomas F. Eagleton, Atty. Gen., James J. Murphy, Asst. Atty. Gen., Jefferson City, fo respondent.
    Robert G. Duncan, Simon & Pierce, .Kansas City, for appellant.
   STORCKMAN, Presiding Judge.

This appeal is from a conviction of murder in the second degree. Since the defendant was found to have been previously convicted of two felonies, his punishment was ■assessed by the court and fixed at twenty years’ imprisonment. The questions presented relate to the sufficiency of the evidence to sustain the conviction, the admissibility of photographic evidence, the propriety of the state’s jury argument, and the refusal •of an instruction offered by the defendant.

At about 3:30 a. m. on September 1, 1961, the defendant went to the home of his brother who lived on a farm in Howard •County near Higbee where he obtained a British .303 rifle and several shells. The •defendant told his brother he wanted to practice shooting in preparation for deer hunting and that he was going to Fayette. At about 7 a. m. on the same day the •defendant was observed knocking on and trying to open a screen door at a side entrance of the house where the victim of the '.homicide, William Wallace Yeakey, was living at 307 Buchanan Street in Moberly. ’The house was a small one, all on one floor, apparently consisting of a bedroom, kitchen and bathroom. When no one answered the defendant went to the home of a next-door neighbor, Mrs. Iva Leona Young, and inquired who lived in the house where he had been knocking. Mrs. Young answered “neighbor folks” or “some friends”. The defendant then returned to the Yeakey home, knocked again and Mr. Yeakey came to the door. At this time the defendant had something in his hand which he did not have when he was at Mrs. Young’s door.

While the defendant and Yeakey were talking at the side door of the Yeakey house, Mrs. Young heard a voice she thought was Yeakey’s say he did not want any part of it and that he did not want any trouble with either one of them. Yeakey then tried to pull the screen door shut but the defendant grabbed it and Yeakey fastened the inside door, whereupon the defendant broke the glass in the door and with a blanket over his hands reached in and unlocked the door. Mrs. Young heard a shot fired when the defendant was outside the house and observed the defendant side-step or “zig-zag”. She then went across the street to the home of Mrs. Kitchen who had a telephone, but who was too nervous to use it to call the police.

The defendant’s wife, Grace Perkins, had been living with Yeakey as his wife for some time and was known in the neighborhood as Mrs. Yeakey. Some time after the trouble started, she left the Yeakey house and went to the Kitchen home where she called the police and waited for them to arrive. The police found Mr. Yeakey severely wounded and unconscious on an end table or vanity bench in the bedroom. There was blood on the bed which had been slept in. Blood was also on the floor directly under Yeakey’s head and some was on two walls. There was a bullet hole in the wall just below the ceiling and there were fragments of bullets in a chest of drawers. A shotgun with a broken stock was laying on the bed, part of the stock was on the bed and the other part was on the floor. The magazine of the shotgun had been struck by a bullet from a rifle. A shell in the shotgun’s magazine had been pierced by the bullet and shot from the ruptured shell were on the bed and elsewhere. The shotgun had been rendered inoperable by the bullet that hit the magazine.

Mr. Yeakey was taken to a hospital where he died shortly after arrival. At a funeral home pictures were taken of the body and an autopsy was performed. There were two curved lacerations on the left side of the head within the hairline. One was in front of and the other was directly above the left ear, both in the region where the bones of the skull are the thinnest. Beneath these lacerations the skull was shattered and there was a fracture across the base of the skull. Lacerations of the brain and hemorrhages were the immediate cause of death. Yeakey’s left ear was almost severed. The side of the left jaw was fractured. There were multiple abrasions on the left cheek, slash wounds on the left side of the neck, the left upper arm, the right forearm, the left hand between the thumb and first finger, the palm of the right hand and above and below the left eye. His left shoulder was peppered with fragments of metal and the knuckles of his left hand were fractured and crushed. A pathologist testified that the fatal head wounds were caused by a heavy, curved, blunt object and considerable momentum was behind the blows. The wounds could have been caused by the butt of the Enfield rifle which was state’s exhibit 9.

On September 5, 1961, four days after Yeakey’s death, the defendant’s wife delivered to the Moberly police a British .303 Enfield rifle. While the rifle was not positively identified as the same one obtained by the defendant from his brother shortly before Yeakey was killed, it was the same make and model and had a hole in the butt identical in size to a hole which was in the butt of the rifle borrowed by the defendant. After talking to Mrs. Perkins on September 5, the police went to a motel at Centralia and arrested the defendant. While transporting him from Centralia to Moberly, Mr. Omar Winn, chief of the Moberly Police Department, asked the defendant about the events on September 1 and “if he had used a knife on the man.” The defendant stated that he had not used a knife, that he only used the rifle. The defendant also told Mr. Winn that when he arrived at the house, he “asked Yeakey to see his wife and he was told that she wasn’t there and he said he knew better because he had saw her through the window. So, he broke the glass in the door and when he did that he said that he saw Yeakey with a shotgun and thought he was going to shoot him, so he fired the rifle, three or four times.” Mr. Winn also mentioned two parallel cuts about one inch apart on Yeakey’s forearm about ten inches long and similar cuts on the left side of his face. The defendant said these cuts were apparently made by the sights on the rifle because he did not use a knife. When the defendant was arrested, there was no wound, bruise or abrasion on him except a slight scratch on one finger. The rifle and shotgun were examined in the State Highway Patrol Laboratory and a technician testified that the sight ramp of the shotgun, or one like it made impressions found on the forestock of the rifle. There was evidence that Yeakey had a bad reputation for turbulence and violence. The defendant and his wife did not testify, and there was no-evidence offered on his behalf..

The defendant asserts that the verdict is against the weight of the credible-evidence and that the court erred in failing to sustain his motion for judgment of acquittal. An appellate court does not weigh the-evidence in a criminal case and that part of the assignment preserves nothing for review on appeal. State v. Ramsey, Mo., 368 S.W.2d 413, 418[10]; State v. Goacher,. Mo., 376 S.W.2d 97, 103[3].

In determining the sufficiency of the evidence on a motion for judgment of acquittal in a criminal case, the reviewing-court must consider as true the evidence favorable to the state together with favorable inferences that can reasonably be drawn therefrom and must disregard evidence and inferences to the contrary. State v. Sykes, Mo., 372 S.W.2d 24, 26[3]; State v. Strong, Mo., 339 S.W.2d 759, 764[3].

“Murder in the second degree includes all common-law murder not made murder in the first degree by Section 559.010 RSMo 1949, V.A.M.S. State v. Curtis, 70 Mo. 594. Therefore, generally speaking, murder in the second degree is the killing of a human being wilfully, premeditatedly, and with malice aforethought, but without deliberation. * * * Premeditation means thought of beforehand for any length of time, however short.” State v. Baber, Mo., 297 S.W.2d 439, 441 [1-4]. The evidence in the case and the reasonable inferences therefrom tend to prove a vicious and brutal assault upon Yeakey by the defendant and the delivery of the coup de grace by the defendant with the butt of the rifle after his victim had been disarmed and disabled. There is substantial evidence to support the verdict of murder in the second degree and the trial court did not err in overruling the defendant’s motion for a judgment of acquittal. State v. Clark, Mo., 111 S.W.2d 101, 102[2]; State v. Battles, 357 Mo. 1223, 212 S.W.2d 753, 756[4]; State v. Bayless, 362 Mo. 109, 240 S.W.2d 114, 120[6]; State v. Thomas, Mo., 309 S.W.2d 607, 608[2] ; State v. Tisdale, Mo., 353 S.W.2d 719, 721 [1]; State v. Goacher, Mo., 376 S.W.2d 97, 102-103[1, 5].

The defendant contends the state committed prejudicial error in admitting over his objection state’s exhibits 10 and 12. These exhibits are photographs of portions of the body of the victim taken at the mortuary within two hours after the death. Exhibit 10 shows the bare body from the waist up. Exhibit 12 is a picture of the left side of the head. The assignment is that the pictures were “gruesome and inflammatory and did not tend to prove or disprove any material issue.” The cases cited by the defendant as well as the state recognize the rule that photographs are admissible if they tend to establish or clarify any material matter at issue even though the exhibits are gruesome and tend to agitate the feelings of the jurors. State v. Floyd, Mo., 360 S.W.2d 630,632[l-3]; State v. Moore, Mo., 303 S.W.2d 60, 66[3].

During a discussion in support of an objection, the defendant admitted that Yea-lcey’s death was caused by a compound com-minuted fracture of the skull, but the issues went beyond that. The court did exclude two photographs of the interior of the skull taken during the autopsy which showed the fragmentation of the skull in the area of the left temple. This condition was described by the medical witness. The doctor who performed the autopsy testified in regard to his findings and stated that the exhibits, 10 and 12, did not show anything in addition to the matters about which he had testified. Such a statement is not conclusive since it is for the trial court and not the witnesses to determine the competency and materiality of the evidence offered.

Among other things, photographs are admissible to show the nature and location of wounds, to refute self-defense, and to corroborate and clarify the testimony of witnesses. The parallel slash marks on the victim’s arm and face and the wounds in the area of the left temple are better understood when viewed on the exhibits than when described orally or in the written record. The extent and location of other wounds on his hands and face are more vividly portrayed and bear on the ability of Yeakey to be an aggressor at the time he was mortally wounded. In his statement to the police the defendant said he saw Yeakey with a shotgun and he thought Yeakey was going to shoot him. An instruction on self-defense was given and the issue was argued to the jury. In oral argument defendant’s counsel also suggested that Mrs. Perkins might have quarreled with Yeakey and inflicted the wounds. The force and violence of the beating vividly shown by the exhibits throws light on whether the wounds and consequent death were inflicted by an outraged husband or the faithless wife who had been living with her paramour for some time in apparent harmony. For these and other reasons the photographs constituted material evidence, and the facts that they were gruesome was an unavoidable incident of a proper purpose. The trial court did not err in admitting them. State v. Moore, Mo., 303 S.W.2d 60, 66 [5] ; State v. Laspy, Mo., 298 S.W.2d 357, 361[7]; State v. Tyson, 363 Mo. 1242, 258 S.W.2d 651, 654[4]; State v. Morris, Mo., 248 S.W.2d 847, 849[2],

Next the defendant charges that the trial court committed prejudicial error in overruling defendant’s objections to the jury argument made by the prosecuting attorney “which was an indirect reference to the appellant-defendant’s failure to testify” and in refusing to grant a mistrial. Two incidents complained of occurred during the state’s opening argument and are quite similar. The first instance is in this context with the part complained of italicized: “It is the State’s theory of this case that there was no fight, because I don’t know of any evidence of a fight. And the only evidence in the case is the evidence that the State produced. We tried hard to find evidence of a fight.” The defendant did not object to this statement when it was made.

The second incident occurred in this fashion, also during the opening argument: “You have the duty to find out through your deliberation based on the evidence, the only evidence produced was the State’s evidence, whether or not he is guilty—

MR. CARMODY: (interrupting) I am going to object to that and ask the Court to declare a mistrial. He has no business commenting whatsoever on the matter of the accused not being on the stand.

“THE COURT: The objection will be overruled.”

Continuing his argument, the prosecuting attorney stated in substance that he had brought in a lot of evidence, a lot of work has been done and it was his job to present the evidence; that the state had the burden of proof in the case, that it had to prove the defendant guilty beyond a reasonable doubt, that the law so provided as the jurors would find in the court’s instruction, and that the proof showed the defendant guilty beyond a reasonable doubt.

The third incident occurred near the beginning of the state’s rebuttal argument. The prosecuting attorney started by telling the jury that he thought that he had been misquoted by defendant’s counsel during their oral argument. One of defendant’s counsel interrupted with the statement that he was confident that the prosecuting attorney did say the things attributed to him, but there was no objection and the court directed the prosecuting attorney to proceed. The following then occurred: “MR. BLAEUER: (continuing argument) I represent the people of this County and if you think my duty is any less than theirs, then you would have to be mistaken. If you were accused of murder, you were accused of murder in the first degree and you were innocent of that crime and could prove that you were innocent of that crime, wouldn’t you do it?

“MR. CHAMIER: If the Court please, that is a direct violation of the Court’s instruction, that this man is to be considered and presumed innocent until he is proved guilty.

“MR. CARMODY: I ask that he be reprimanded and the jury discharged.

“Mr.BLAEUER: If the Court please, I ask to tie it in with the balance of my statement?

“THE COURT: Objection will be overruled. Proceed.”

The prosecuting attorney’s argument immediately following was to the effect that if a defendant was innocent because he had a legal defense, such defense in the wisdom of his lawyer would be brought to the attention of the jury; that the purpose of the ■second stage of his argument was to rebut the defendant’s argument which he was trying to do, but he did not know from the argument of defendant’s counsel whether the defense was self-defense, or that the defendant killed Yeakey in the heat of passion, or that the defendant’s wife or some other person killed him.

Section 546.270, RSMo 1959, V.A.M.S., provides that the failure of the defendant or his wife to testify “shall not he construed to affect the innocence or guilt of the accused, nor shall the same raise any presumption of guilt, nor be referred to by any attorney in the case * * See also S.Ct. Rule 26.08, V.A.M.R. “Any argument by a state’s attorney urging the cogency and compelling force of the state’s evidence and a conviction, especially in a case in which there are no witnesses and no evidence on behalf of the accused, may cause the jury to exercise their function of reasoning upon the evidence and finally to observe the apparent fact that the accused not only has no witnesses and no evidence but that he did not testify. But the arguments of state’s attorneys under those circumstances do not constitute an infringement of the prohibition of the statute.” State v. Hayzlett, Mo., 265 S.W.2d 321, 324[5, 6].

We have no difficulty disposing of the first two incidents complained of. Treating both of them as having been properly objected to, the argument is the practical equivalent of saying that the evidence on behalf of the state is uncontradicted or undisputed, which does not constitute prejudicial error. State v. Willis, Mo., 328 S.W.2d 593, 595 [7]; State v. Powell, Mo., 357 S.W. 2d 914, 918[5]; State v. Michael, Mo., 361 S.W.2d 664, 666-667[6-8]. Furthermore, the second of these episodes was followed by a full recognition and discussion by the prosecuting attorney of the state’s burden of proof and of its obligation to prove the defendant’s guilt beyond a reasonable doubt.

The final portion of the argument assigned as error occurred during the closing or rebuttal argument on behalf of the state. In State v. Beasley, 353 Mo. 392, 182 S.W.2d 541, 544[6], this court observed that “the State’s counsel can go further by way of retaliation, in answering arguments of the defendant’s counsel, than he would be authorized to do in the first instance.”

Each side was allowed an hour and a half for oral argument. Counsel for the defense argued the case vigorously and with few objections by the state. They were accorded a wide latitude in their arguments, attacked the state’s evidence and the state’s failure to produce additional evidence, and suggested several theories on which there could be reasonable doubts of their client’s guilt. In beginning his rebuttal, the prosecuting attorney referred to the fact that the state had a theory about the case and asked the rhetorical question of the jury if they were innocent of a crime charged and “could prove that you were innocent of that crime, wouldn’t you do it ?” The obj ection was that the argument was in direct violation of the court’s instruction that the defendant was presumed to be innocent until proved guilty. During the discussion of the objection, the prosecuting attorney asked to be permitted “to tie it in with the balance” of his statement, but he had no opportunity to explain at that time. When he continued his argument, the prosecuting attorney paid tribute to the ability and resourcefulness of defense counsel and in effect stated that because of the various and diverse theories and suggestions put forward by the defense in argument he did not know what to rebut. In context it appears that the use of the word “prove” was inept. Apparently the idea the prosecuting attorney was seeking to express was that defense counsel in their oral arguments had failed to adopt any particular theory of defense and had not demonstrated that there was a reasonable doubt of the defendant’s guilt.

The argument here in question is not violative of the restrictions of § 546.270 because, considered in context, it deals primarily with the weight and sufficiency of the state’s evidence. On the record before us we hold that the argument complained of does not constitute prejudicial error. State v. Johnson, 362 Mo. 833, 245 S.W.2d 43, 46[1]; State v. Hayzlett, Mo., 265 S.W.2d 321, 324[5,6]; State v. Varner, Mo., 329 S.W.2d 623, 633[18]; State v. Romprey, Mo., 339 S.W.2d 746, 755 [25]; State v. Garcia, Mo., 357 S.W.2d 931, 935[10, 11]; State v. Sawyer, Mo., 367 S.W.2d 585, 588 [9] ; State v. Siekermann, Mo., 367 S.W.2d 643, 651 [17]. Nevertheless, this is always dangerous ground and the best way for prosecutors to avoid the quicksands is to stay away from them. We adhere to the admonitions of Varner, 329 S.W.2d loc. cit. 633.

The defendant offered instruction A which the court refused. The instruction in effect told the jury that they may not consider the failure of the accused to take the stand in determining his guilt or innocence, that the jury may not draw any unfavorable inference from such failure, and that the prosecuting attorney may not comment on the accused’s failure to testify in his behalf since the state under the law has the burden of proving his guilt beyond a reasonable doubt. In State v. Long, 324 Mo. 205, 22 S.W.2d 809, 813[17], a similar instruction offered by the defendant was held to have been properly refused in that giving it would have been in direct violation of § 546.270. This court has consistently ruled that the failure to give such an instruction even when requested by the accused is not error. State v. Denison, 352 Mo. 572, 178 S.W.2d 449, 455 [13, 14]; State v. Rutledge, Mo., 267 S.W.2d 625, 626[5]; State v. West, Mo., 356 S.W.2d 880, 882[6],

We have considered all of the specifications of error presented by the defendant and find them to be without merit. The defendant was present throughout the trial, including his allocution and sentencing. He was effectively represented by able counsel at the trial and on appeal. We have also examined the parts of the record and entries designated in S.Ct.Rules 28.02 and 28.08 and find them to be proper in form and free from error. Accordingly the judgment is affirmed.

All of the Judges concur.


text:
    Guido BRUGIONI, Surviving Partner of Dominick Brugioni and Guido Brugioni, a Partnership, d/b/a Manhattan Club, Appellant, v. MARYLAND CASUALTY COMPANY, an Insurance Corporation, and Manufacturers and Mechanics Bank of Kansas City, a Corporation, Respondents.
    No. 50220.
    Supreme Court of Missouri, Division No. 2.
    Sept. 14, 1964.
    Motion for Rehearing or for Transfer to Court Bn Bane Denied Oct. 12, 1964.

      Roger C. Slaughter, R. T. Brewster, Slaughter & Brewster, Kansas City, for appellant.
    Hale Houts, Ralph H. Smith, Jr., Houts, James, Hogsett & McCanse, Kansas City, for respondents.
   STORCKMAN, Presiding Judge.

The plaintiff Guido Brugioni sued as a third-party beneficiary to recover under a bond or policy of insurance the sum of $16,-800 which amount he lost when he was held up and robbed on a parking lot maintained by the defendant Manufacturers and Mechanics Bank for the use of its customers. The bond was issued by the defendant Maryland Casualty Company and the named insureds were the Bank and the Sheffield Safe Deposit Company. The theory of the plaintiff’s action is that, in addition to the named insureds, the bond is for the benefit of customers of the Bank who suffer losses at the place and in the manner he did. A jury was waived; the court found the issues in favor of both defendants and the plaintiff has appealed. The question presented in this court as in the trial court is whether the bond affords protection to customers of the Bank, a class of which the plaintiff is a member, or whether indemnification is limited to the named insureds, the Bank and the Safe Deposit Company. In the view we take of the case, the material facts are not in dispute.

The plaintiff and his father were partners in the operation of a tavern in Kansas City known as the Manhattan Club. The father died after the loss in question and the plaintiff became the sole owner of the cause of action. The plaintiff had been a customer of the Bank for a number of years and frequently borrowed money for the purpose of cashing payroll checks for his customers, chiefly employees of Sheffield Steel Company. Pursuant to previous arrangements, he went to the Bank on January 7, 1960, near noontime, and borrowed the sum of $16,800. As collateral security he gave the Bank an assignment of a savings and loan account and a lien on his home. The plaintiff put the cash proceeds of the loan in a cloth bag and went to his automobile which was on a parking lot maintained by the Bank for the convenience of its customers. As he started to get into the car he was held up and robbed by a band of three or four men. He was severely beaten during the robbery and was taken to a hospital where he remained until January 20, 1960.

None of the $16,800 taken in the robbery was recovered. The plaintiff paid off the Bank’s loan in full, the last of it in June 1962. The plaintiff and his counsel had several interviews with Bank officers, who took the position that the loss was not covered by any of the Bank’s insurance policies. Under date of April 1, I960, plaintiff’s attorney wrote a joint letter to the defendant Bank and the defendant Casualty Company in which he asserted that the loss was completely covered by the Bank’s policy of insurance with Maryland Casualty Company an demanded immediate payment of the loss. The demand was not met and this suit was filed on June 13, 1960. The separate answers of the defendants admitted the existence of a contract of insurance but denied it was for the benefit of the plaintiff and further alleged that the defendant Casualty Company by its contract of insurance “agreed to indemnify and hold harmless only the Manufacturers & Mechanics Bank from and against any loss of its property through robbery in its parking lot.”

The contract of insurance issued by Maryland Casualty Company is in evidence as plaintiff’s exhibit 1 and the five riders attached are plaintiff’s exhibits 1-A through 1-E. The contract and riders are all dated November IS, 1959. The contract on its face is designated “Bankers Blanket Bond, Standard Form No. 24”. It is in the form of a policy of indemnity insurance and will sometimes be referred to as the bond.

The provisions of the bond relating to customers, and with which we are primarily concerned, is a rider identified as plaintiff’s exhibit 1-C which we will sometimes refer to • as rider 1-C. The pertinent insuring provisions and particularly insuring clause (B) with rider 1-C incorporated therein are as follows:

“THE LOSSES COVERED BY THIS BOND ARE AS FOLLOWS:
“(A) * * *
“(B) * * *
“Any loss of any of the items of property enumerated in the paragraph defining Property, in the possession of any customer of the Insured or of any representative of such customer, whether or not the Insured is legally liable for the loss thereof,
"(a) * * *
“(b) * * *
“(c) through robbery or hold-up during banking hours while such customer or representative is in any building or on any driveway, parking lot, or similar facility maintained by the Insured as a convenience for such customers or representatives using motor vehicles provided that any such customer or representative is present in such building or on such facility for the purpose of transacting banking business with the Insured at any of the Insured’s offices covered hereunder;

excluding, in any event, loss caused by such customer or any representative of such customer.” Italics added.

The second paragraph of insuring clause (B), for which rider 1-C was substituted, covered losses of the same kind óf property through the same hazards “while within any of the Insured’s offices covered hereunder”. The legal effect of rider 1-C was to extend the coverage, among other places, to a “parking lot or similar facility maintained by the Insured as a convenience” for its customers present on such facility for the purpose of transacting banking business with the Insured.

The first paragraph of the bond recites that the Casualty Company “undertakes and agrees to indemnify and hold harmless THOSE DESIGNATED AS INSURED IN THE JOINT INSURED RIDER ATTACHED HERETO AS A PART HEREOF hereinafter referred to as Insured”. The joint insured rider attached thereto is marked for identification as plaintiff’s exhibit 1-D. Omitting immaterial portions, the rider provides as follows:

“1. From and after the time this rider becomes effective the Insured under the attached bond are: MANUFACTURERS AND MECHANICS BANK OF KANSAS CITY, KANSAS CITY, MISSOURI SHEFFIELD SAFE DEPOSIT COMPANY, KANSAS CITY, MISSOURI
“2. The first named Insured shall act for itself and for each and all of the Insured for all the purposes of the attached bond.
“3. * * *
“4_ * * *
“5. * % * Payment by the Underwriter to the first named Insured of loss sustained by any Insured shall fully release the Underwriter on account of such loss.
“6. If the first named Insured ceases for any reason to be covered under the attached bond, then the Insured next named shall thereafter be considered as the first named Insured for all the purposes of the attached bond.”

The contract provisions making the Bank and the Safe Deposit Company the named Insureds do not preclude other persons or classes of persons, such as customers, from being covered if other portions of the contract of insurance so provide. Giokaris v. Kincaid, Mo., 331 S.W.2d 633, 638-639 [4]; Kelso v. Kelso, Mo., 306 S.W. 2d 534, 536 [2, 3] ; Couch on Insurance 2d, Vol. 3, § 23:4; Couch on Insurance 2d, Vol. 4, § 27:24. See also Wise v. St. Louis Marine Insurance Company, 23 Mo. 80.

It is true as the defendants contend that it is the court’s duty to interpret insurance contracts and enforce them as they are written and not to remake them. Forir v. Toman, Mo., 202 S.W.2d 32, 34 [4]; Tant v. Gee, 348 Mo. 633, 154 S.W.2d 745, 748 [7], On the other hand, an insurance policy being a contract designed to furnish protection will, if reasonably possible, be interpreted so as to accomplish that object and not to defeat it, and, if terms of the contract are susceptible of two possible interpretations and there is room for construction, the provisions limiting or cutting down on the coverage of the policy, or avoiding liability therefor, will be construed most strongly against the insurer. Giokaris v. Kincaid, Mo., 331 S.W.2d 633, 638-640[4]; Consumers Money Order Corporation v. Pettit, Mo.App., 358 S.W.2d 422, 424[2].

The defendants further contend that the money of which the plaintiff was robbed was not “Property” within the meaning of the bond because it was not money “in which the Insured has an interest” which is one of the terms or qualifications used in the paragraph of the bond defining “Property”. There is no doubt that by reason of the completed loan the plaintiff owned the money and had exclusive possession of it and that the Bank had no direct interest in it. We are not concerned with the business interest or motive a bank would have in providing indemnity protection for its customers who are depositors and borrowers from loss by holdup or robbery while they are on the bank’s premises.

The paragraph of the bond defining property deals with two categories; the first consists of enumerated items of property and the other of chattels not enumerated. Each has its own modifying clauses. The definition of Property mentions by name more than forty different kinds of property. Omitting the items of enumerated property not here involved, the paragraph reads as follows:

“DEFINITION OF PROPERTY
“Wherever used in this bond Property shall be deemed to mean money, currency, coin, bank notes, Federal Reserve notes, * * * (1) in which the Insured has an interest or (2) which are held by the Insured for any purpose or in any capacity and whether so held gratuitously or not and whether or not the Insured is liable therefor, (3) and chattels which are not here-inbefore enumerated and for which the Insured is legally liable.” The numbers in parentheses have been added for convenient reference.

It is apparent that the items of property as set out in the above paragraph are restricted by clause (1) which requires the insured to have an interest, or by clause (2) which requires that the item be held by the insured although it does not matter in such instance if the insured is liable or not liable for the loss. The indemnity provided in clause (3) relating to chattels not enumerated requires that the insured be liable for the loss. The defendants’ contention that rider 1-C does not apply to money of customers in which the Bank has no interest does not take into consideration the significant language of reference in rider 1-C, the specific modifying provisions of the rider and the provisions of the policy as a whole.

The loss insured by rider 1-C is “any of the items of property enumerated in the paragraph defining Property”; there is a specific requirement that the item must be in the possession of a customer or his representative while on the Bank’s premises. Terms of reference employed in other insuring clauses and in other parts of the bond are “Property” or “loss of Property”, capitalized as in the definition itself. If it were the intent of rider 1-C to incorporate the restrictive or qualifying phrases and not merely the “items of property”, that purpose could have been more consistently accomplished by starting the first paragraph of rider 1-C with the customary term “Any loss of Property * * It is quite evident that the reference term in rider 1-C, “items of property enumerated in the paragraph defining Property” was deliberately chosen to limit the reference and to avoid a conflict between other portions of rider 1-C and the defining paragraph.

The conflict which is pointed up by the defendants’ contention is between the requirement of the defining paragraph that the insured Bank have an “interest” in the property or that the property be “held” by it, and the requirement of the rider that the property be in the possession of the customer or his representative along with other qualifying circumstances. In other words, under the facts of this case, the customer would have to be in possession of money in which the Bank had an interest or which was held by the Bank. No one has undertaken to explain by what means a customer or his representative while on the Bank’s parking lot would lawfully be in possession of money in which the Bank had an interest. As to the other modifier, obviously the money could not be in the possession of a customer on the parking lot and at the same time be held by the Bank. Moreover, if the Bank is the only party indemnified under rider 1-C, it would at least be a duplication because the same and greater coverage appears to be provided by other parts of the bond and in particular by the first paragraph of insuring clause (B) which covers loss of “the Property” while it is on the Insured’s premises located anywhere. Furthermore, if the Bank alone is insured under rider 1-C, why should the Bank’s loss be excluded if it is “caused by such customer or any representative of such customer” as provided in the last clause of the rider? The construction for which the defendants contend would render rider 1-C either redundant, unnecessary or entirely meaningless.

A policy of insurance must be construed as a whole and every clause must be given some meaning if it is reasonably possible to do so. Central Surety & Insurance Corp. v. New Amsterdam Casualty Co., 359 Mo. 430, 222 S.W.2d 76, 78[1], 80[6]. Furthermore, it is the duty of the court to reconcile conflicting clauses in an insurance policy if it is possible to do so consistent with the intention of the parties as ascertained from the terms used. Soukop v. Employers’ Liability Assurance Corp., 341 Mo. 614, 108 S.W.2d 86, 92 [8-12], 112 A.L.R. 149; Heald v. Aetna Life Insurance Co., 340 Mo. 1143, 104 S.W.2d 379, 383 [6],

The coverage of the bond appears to have been carefully planned and the bond and its riders are skillfully drafted to express the coverage intended. As we have pointed out, rider 1-C contains its own qualifications or restrictions, both with respect to the property loss insured and the activity in which the customer must be engaged at the time. The word “items” as used in rider 1-C denotes an individual thing as an article of household goods or something singled out from a category of things of the same kind. Webster’s Third New International Dictionary. The words “items of property enumerated in the paragraph defining Property,” used in the rider appear to have been carefully and deliberately chosen to single out and isolate the enumerated articles of property to the exclusion of the modifying phrases relating to the interest and possession of the Bank.

In this case the item of property involved is “money”. This is to be taken from the paragraph defining property and transferred to rider 1-C unencumbered by restrictions and qualifications of the definitive paragraph and subject only to the limitations imposed by rider 1-C. Consequently the insuring clause, rider 1-C, must be interpreted and applied to the facts of this case as if it read: “Any loss of [money] in the possession of any customer of the Insured * * *, whether or not the Insured is legally liable for the loss thereof, * * * (c) through robbery or hold-up during banking hours while such customer * * * is * * * on any driveway, parking lot or similar facilities maintained by the Insured as a convenience for such customers * * * using motor vehicles provided that any such customer or representative is present * * on such facility for the purpose of transacting banking business with the Insured at any of the Insured’s offices covered hereunder ; excluding, in any event, loss caused by such customer or any representative of such customer.”

The result is that the loss of plaintiff's money through robbery was within the coverage of the bond and the plaintiff is an indemnitee under the bond even though the plaintiff is not a named insured and contributed nothing directly to the payment of the premium. He is a third-party beneficiary and, in the circumstances of this case, si entitled to sue the defendant Casualty Company directly. Crow v. Kaupp, Mo., 50 S.W.2d 995, 997 [2]; Motley v. Callaway County, 347 Mo. 1018, 149 S.W.2d 875, 877 [7]; McCoy v. St. Joseph Belt Ry. Co., 229 Mo.App. 506, 77 S.W.2d 175, 180[2], Under the law and the evidence the plaintiff is entitled to recover against the defendant Casualty Company.

We are not persuaded, however, that the plaintiff is entitled to a judgment against the defendant Bank. Plaintiff’s theory of liability is that the Bank under rider 1-D was designated as agent for all insureds including customers and that the Bank was guilty of a breach of trust in refusing to present a claim to the Casualty Company on plaintiff’s behalf. Regardless of what authority or obligation was imposed on the Bank by the rider, the plaintiff was not prejudiced because he could and did present his demand to the Casualty Company, and there is no showing that the plaintiff was damaged by the Bank’s inaction or refusal to make a claim. The plaintiff’s claim against the Bank is denied.

Section 375.420, RSMo 1959, V.A. M.S., provides that in any action against any insurance company to recover the amount of any loss under certain kinds of insurance policies, including indemnity, “if it appear from the evidence that such company has vexatiously refused to pay such loss,” the court or jury may, in addition to the amount of the recovery, allow damages not to exceed ten percent on the amount of the loss and a reasonable attorney’s fee. The plaintiff contends he is entitled to the statutory allowance in this case. An extended review of the many cases on the subject is unnecessary since the disposition of the issue depends essentially on the language of the statute and the record in the particular case. The decisions have generally held that the word “vexatiously”, as used in the statute, means without reasonable or probable cause or excuse. Pfingsten v. Franklin Life Insurance Co., Mo., 330 S.W.2d 806, 817[17]; Dixon v. Business Men’s Assurance Co. of America, 365 Mo. 580, 285 S.W.2d 619, 629[11]. Under the evidence and circumstances shown by the record, we are convinced that the refusal of the Casualty Company to pay the loss and the ensuing conduct of the litigation was not vexatious in the statutory sense. We are buttressed in this conclusion by the fact that an able trial judge initially found the issue of liability in favor of the defendant Casualty Company.

Since this is a court-tried case and it appears that no additional evidence 'could be adduced at a new trial, we are admonished to render or direct the entry of such judgment as the trial court ought to have given. Section 512.160(3), RSMo 1959, V.A.M.S.; Sebastian County Coal & Mining Co. v. Mayer, 310 Mo. 104, 274-S.W. 770, 773-774[6]; Young v. New York Life Insurance Co., 360 Mo. 460, 228 S.W.2d 670, 672.

Accordingly, the judgment in favor of the defendant Manufacturers and Mechanics Bank of Kansas City is affirmed. The judgment in favor of the defendant Maryland Casualty Company is reversed and the cause is remanded with directions to enter judgment in favor of the plaintiff and against the defendant Casualty Company as of March 25, 1963, the date of the original judgment, for the sum of $16,800 with interest thereon at the rate of six percent from April 1, 1960, the date of demand, to said March 25, 1963, and that the judgment so rendered bear interest as provided by law. Section 408.040, RSMo 1959, V.A.M.S.

All of the Judges concur.


author: ANDERSON, Judge.

text:
    The STATE of Missouri, at the relation of William H. DANIELS and Kathryn Daniels, Relators-Respondents, v. Walter A. KASTEN, as Mayor of the City of Jackson, Missouri, Jim R. Litzelfelner, Pertle E. Probst, Kermit Wallenmeyer, E. W. Stovall, Johnny Gibbs, Martin E. Piepenbrok, Chester O. Lincoln and Willard Klaus, as Aldermen of the City of Jackson, Missouri, Hubert W. Seabaugh, as City Clerk of the City of Jackson, Missouri, and Arlus J. Seabaugh, as Building Inspector of the City of Jackson, Missouri, Defendants-Appellants.
    No. 31651.
    St. Louis Court of Appeals. Missouri.
    Sept. 25, 1964.

    Buerkle & Lowes, Albert C. Lowes, Jackson, Jackson & Thomasson, Donald P. Thomasson, Cape Girardeau, Paul A. Mueller, Jr., Jackson, for defendants-appellants.
    Finch, Finch, Knehans, James A. Finch, Jr., Cape Girardeau, for relators-respond-ents.
   ANDERSON, Judge.

This is an action in mandamus brought by William H. Daniels and Kathryn Daniels, as relators against certain officers of the City of Jackson, namely the Mayor, Aldermen, City Clerk and Building Inspector, to compel them to issue to relators a permit for the construction of an addition to their building to be used for the slaughtering of animals for food. (Following the trial of said cause the court rendered judgment for relators making peremptory its alternative writ previously issued, which writ had ordered the officials of the city to issue said building permit or show cause why they should not do so. Defendants appealed to the Supreme Court on grounds that the appeal was vested in said court because constitutional questions were involved. The Supreme Court ruled there was no question raised in the trial which involved the construction of the Constitution of either the United States or the State of Missouri, and transferred the case to this court. State of Missouri ex rel. William H. Daniels et al. v. Walter A. Kasten et. al., Mo., 368 S.W.2d 429.

Jackson is a city of the fourth class located within Cape Girardeau County. At all times mentioned herein Walter A. Kasten was the Mayor of said City. The Members of the Board of Aldermen were Jim R. Litzelfelner, Pertle E. Probst, Kermit Wal-lenmeyer E. W. Stovall, Johnny Gibbs, Martin E. Piepenbrok, Chester O. Lincoln and Willard Klaus. Hubert W. Seabaugh was the City Clerk, and Arlus J. Seabaugh, the Building Inspector of said city.

William H. Daniels and Kathryn Daniels are the owners of a certain tract of land in Jackson, to-wit; Lot 10 in the original town, now the City of Jackson.

The City of Jackson has an ordinance, being No. 1570 relating to the construction of buildings within the city. By said ordinance it is provided that no wall structure, building or part thereof shall be built, enlarged or altered until the proposed project or construction together with the statement of the materials to be used shall have been submitted to the City Clerk, who shall bring the matter before the Board of Aider-men, who shall, if the same be in accordance with the provisions of the ordinance, issue a permit for the proposed construction. The ordinance sets out the form of application to be used. This form calls for disclosure of the name of owner, name of contractor, type of building and size thereof, and estimated cost. By paragraph 2 of said ordinance it is provided that no permit shall be issued to construct a business house in any residential district unless there shall be submitted to the Board of Aldermen a petition in writing signed by three-fourths of all the property owners in that district giving their consent thereto. A residential district is defined as any given street in the city where the majority of structures facing both sides of the street are used for human habitation or for religious worship, and in the event said business house is being erected on a corner lot the consent of the property owners of lots on the facing street and the property owners facing both sides of the street along the side of the building shall also be obtained.

There was also in existence in Jackson at all times herein mentioned Ordinance No. 79 which reads as follows:

“It shall be unlawful for any person or persons to establish or maintain a regular slaughter house within the corporate limits of this city, or within one hundred yards of the city limits or any dwelling, street, highway, or thoroughfare, for the purpose of slaughtering cattle, hogs, sheep or other animals, and it shall be unlawful for any person or persons to carry on the business of slaughtering within the city limits. Any person violating the provisions of this ordinance shall be deemed guilty of a misdemeanor and, upon conviction, shall forfeit and pay to the city not less than five nor more than fifty dollars.”

Relators’ signed application for a building permit was filed with the City Qerk on November 20, 1961. It contained the following information:

“Name of owner — Wm. H. Daniels Name of contractor — Strack Bro. Type of building and size thereof— Commercial 38' x IS'' 8" 16 feet in Height Estimated Cost — $5,000.00 Location (lot, block or addition) Lot 10, Original Town of Jackson Type of materials to be used — Additional to present Building. Concrete foundation, concrete Floors, brick veneer walls; masonry walls, built up roof.”

W. H. Daniels testified that the application for the building permit was for an addition to Relators’ then existing food locker. He further testified that he contemplated to later install in this building refrigeration and other equipment, and intended to slaughter animals inside ■ the building; that this was to be in connection with the operation of his business there at Jackson. He stated he took bids for the construction and Strack Brothers were the low bidders at $5,111.80.

He further stated that at the hearing before the Board of Aldermen, he made the statement that the total investment would run around -twenty some odd thousand dollars; that the greater amount of the investment would be for refrigeration equipment and other equipment that would be installed in the building; that there would be no outside pens of any kind used in connection with the operation of the business, and no animals would be held there over night; he told the City Council that the- offal from the killing operations would be picked up by one of the packing plants and hauled off and not rendered at his place in Jackson; that his facilities and method for cleaning would be similar to those in use in other plants in Missouri and would meet the requirements of the Depart-ent of Health; that he anticipated spending $29,000 for the operation; that he did not think the matter of his spending $5,000 for the building and $24,000 for equipment was discuss.ed at the meeting with the Council; that in estimating the cost in his application for a permit at $5,000 he deemed it included just the three walls, roof and floor, and not the cooler and equipment or the blacktopping of the drive; that he did not secure the consent of three-quarters of the people in the immediate area, as required by Ordinance 1570.

Walter A. Hasten, the Mayor of Jackson, testified on behalf of the defendants. He testified he recalled Mr. Daniels making the statement to the Council that he intended to expend approximately $29,000 on the project; that after Mr. Daniels and Mr. Finch left the meeting, he and the members of the Council thought the estimated cost was underestimated. He stated that other grounds for turning down the application were the requirement of Ordinance 1570 with respect to consent of three-fourths of the property owners, and Ordinance 79. Subsequently on December 18, 1961, the Council took formal action and rejected the application. The book containing the minutes of that meeting was not produced at the trial, but Mr. Hasten testified it showed, “ * * * ‘We will reject the application on the grounds of our ordinance.’ ” He further stated that the motion to reject the application made no reference to the cost of the project.

The trial court in response to defendants’ request made findings of fact and conclusions of law. The only parts thereof material to this appeal are as follows:

“4. Relators duly applied on November 20, 1961 for a building permit to build an addition to the existing building on said real estate.
“5. Defendants refused to issue the building permit and based their refusal on Ordinances 79 and 1570 of the City of Jackson set out in Exhibits B and C of re-lators’ petition.
“6. Ordinance 79 is invalid under the holding of the St. Louis Court of Appeals in [State ex rel.] Jack Frost Abatoirs [Abattoirs] Inc. vs. A. J. Steinback [Steinbach], 274 S.W.2d 588.
“7. Ordinance 1570 is invalid under the holding of the Missouri Supreme Court in the case of Hays vs. City of Poplar Bluff, 263 Mo. 516 [173 S.W. 676, L.R.A.1915D, 595],
“8. Mandamus will i:e to compel the issuance of a building permit.
“THEREFORE the alternative writ is made peremptory and the defendants are hereby ordered to issue a building permit of the City of Jackson, Missouri to the re-lators for the construction of an addition to the existing building on Lot 10 in the original town, now city, of Jackson, Missouri, in accordance with the application for building permit filed by re-lators on November 20, 1961.”

The first point made by appellants is that the trial court erred in holding Ordinance 79 invalid. In support of the assignment it is urged that under section 79.370 RSMo 1959, V.A.M.S., a city of the fourth class has the statutory right to prohibit slaughter houses within the city, j Said section is a part of Chapter 79 RSMo 1959, V.A.M.S., which deals with cities of the Fourth Class. It provides that “The board of aldermen shall have power, by ordinance, to secure the general health of the inhabitants of the city by any measure to regulate, suppress and abate slaughter houses, slaughtering animals, * * * and to pass ordinances for the prevention of nuisances and their abatement.” In State ex rel Jack Frost Abattoirs, Inc. v. Steinbach, Mo.App., 274 S.W.2d 588, this court held that the statute did not empower the city to prohibit slaughterhouses, since the words “regulate, suppress and abate” refer to actions directed toward something in existence, while “prohibit” prevents its coming into existence, j In that case we affirmed a judgment for Relators in a mandamus proceeding brought to compel the issuance of a building permit for a slaughter house in Montgomery City, Missouri, on the ground that Section 79.370, RSMo 1959, V.A.M.S., supra, did not empower the city to prohibit the building of slaughter houses within said city. We still hold to the views expressed in that opinion, and therefore rule that the trial court in the case at bar did not err in holding the ordinance invalid.

i Appellants also attack the ruling of the trial court that Ordinance 1570 was invalid.

One of the grounds upon which the-Board of Aldermen refused to issue the permit was non-compliance by Relators with paragraph 2 of Ordinance 1570, which requires the filing of the written consent of three-fourths of the property owners in the residential district where the proposed building is to be erected. The trial court held said ordinance invalid under the authority of Hays v. City of Poplar Bluff, 263 Mo. 516, 173 S.W. 676, L.R.A.1915D, 595, in which case an ordinance of the City of Poplar Bluff which contained a similar provision was held void for the reason that it amounted to a delegation of legislative power of the city to such property owners, a power not conferred on said city by its charter.

This same ruling was made in the earlier case of City of St. Louis v. Russel, 116 Mo. 248, 22 S.W. 470, 20 L.R.A. 721. In that case the court declared void a city ordinance which provided that no permit to conduct a livery stable without the written consent of the owners of one half the ground of the block where said livery was proposed to be located. The court in passing on the question said “ * * * Ministerial powers may be delegated by a city, but legislative powers cannot. Legislative power implies judgment and discretion on the part of those who exercise it, and a special confidence and trust on the part of those who confer it.”

Any other rule could lead to undesirable results. For instance, one person might obtain permission from the required three-fourths because he was more popular in that area, while another might be refused though the businesses and buildings were identical. Then again another person might succeed in buying enough land in the area to have a controlling voice in the matter. Thus the effect of such a provision is to make the right to build in a particular location dependent wholly on the will and whim of the owners in that vicinity without the application of any sensible fixed guide lines or standards, calculated to protect the interests of all the inhabitants, and result in unequal treatment under the law.

Our conclusion is that under the Supreme Court cases we are bound to hold that the trial court did not err in finding the provisión of the ordinance in question invalid. j

Appellants also contend that the trial court erred in not making a finding with respect to whether the Board could refuse a permit where the cost of the building had been significantly and materially understated in the application.

In the first place there was no sufficient evidence in the record that would have justified a finding that the cost of the building in the case at bar had been significantly and materially understated. In their application relators estimated the cost of the building at $5,000. At the trial Mr. Daniels testified that the low bid for its construction was $5,111.80. Under this evidence it could hardly be said there was a significant and material understatement. For that reason no useful purpose would have been served for the court to make the finding which appellants now contend should have been made. It could not have materially affected the result of the trial. If such a finding had been made it would .have been error for lack of evidence to support it. Furthermore there is no substantial evidence that the building permit was rejected for the reason that the estimated cost was materially underestimated. Mr. Hasten, the mayor, testified that the motion rejecting the application made no reference to the question of costs.

We find no error in the record.

The judgment of the trial court is affirmed.

E. M. RUDDY, P. J., and WOLFE, J., concur.