(273 S. W.) time the cause had been pending relative to the time at which the offer was made to file the counterclaim. plan was to make street part of extensive thoroughfare, which involved construction of viaduct over railroad, continuance of proceedings to assess damages and benefits until determination as to whether viaduct could be constructed duct ordinance and related matters was immaterial, when street would connect with others without the viaduct. 2. Municipal corporations 147 - Alderman moving from ward held de facto alderman. Alderman who had moved from ward in which elected, which fact was not known to other city officials or to public generally, though his office would thereby be vacated under Kansas City Charter, art. 2, § 3, held de facto alderman, and vote for street improvement ordinance valid and binding. [23] The amendment asked to be filed by the defendant consisted solely of the counter-held not required, and evidence as to the viaclaim, which set up an independent cause of action against the plaintiff, and which, according to the allegations, had fully accrued some months before the contracts here sued on were made, and about two years before the plaintiff's suit was filed. The counterclaim was the subject-matter of a suit which the defendant was at any time authorized to prosecute against the plaintiff, and the defendant was not deprived of this right by the refusal to permit the filing of an amended answer in which the amendment consisted solely of the counterclaim set up. The rule is that trial courts should be liberal in allowing amendments (Ensworth v. Barton, 67 Mo. 622; Lottman v. Barnett, 62 Mo. 159); yet such matters rest largely in the discretion of the trial court (Clark v. St. Louis Transfer Ry. Co., 127 Mo. 255, 30 S. W. 121; State ex rel. v. Sandusky, 46 Mo. 377; Dozier v. Jerman, 30 Mo. 216), and by the same and other authorities it is held that this court will not interfere, unless it is apparent that the discretion has been arbitrary and unjust-council, which might never be taken, as in any ly exercised. The circumstances here shown event means for obtaining money had been are not such as we can say that there was an fully provided. arbitrary and unjust exercise of discretion in| denying the right to file the counterclaim. The record shows that the trial of this case consumed five days, that in the course of the trial the various questions raised by counsel for the respective parties were thoroughly and ably discussed, and that the learned trial court gave a most considerate attention to all the evidence and to all the questions involved. We have reached the conclusion that the court committed no reversible error, and that the judgment should be affirmed. SMALL, C., not sitting. PER CURIAM. The foregoing opinion of LINDSAY, C., is adopted as the opinion of the court in banc. 3. Eminent domain 75-Ordinance providing for street improvement not invalid or incomplete in leaving determination of form of condemnation certificates to future action of council. Ordinance for street improvement, providing that assessments, if not paid voluntarily, should be paid in ten equal installments, and that condemnation certificates might be issued in such form as thereafter fixed by ordinance, held not invalid or incomplete in leaving form of condemnation certificates to future action of 4. Municipal corporations 450 (2)-No presumption benefit district does not embrace all property benefited. Where benefit district for street improvement prescribed by ordinance includes all lots fronting on street to be extended and widened, no presumption arises that any other property would derive special benefit, and, in absence of any such showing, ordinance cannot be held arbitrary or unreasonable. 5. Municipal corporations 450(2)—Proper ty in immediate locality of improvement presumptively receives benefit different from public at large. Property in immediate locality of street improvement presumptively receives benefit entirely different from that which inures to pub lic at large, though street is to become part of most used thoroughfare in city. All concur, except GRAVES, C. J., and 6. Municipal corporations 407 (1) - OrdiWALKER, J., who dissent. In re OAK ST. KANSAS CITY v. McTERNAN et al. (No. 25106.) (Supreme Court of Missouri, in Banc. Rehearing Denied May 23, 1925.) 13, 1925. April 1. Eminent domain 219-Continuance until determination of whether related improvement could be made not required. Where necessity for widening and extending street had been declared to exist, although nance may provide for ascertainment of public and private benefits from street improvement. Ordinance of Kansas City for street improvement, conforming to provisions of charter, may provide for ascertainment of both public and private benefits, and require each to contribute to expense of improvement, without transgressing constitutional limits. 7. Appeal and error 843 (2) Whether charter too restrictive not considered when jury not restricted by instructions. Where jury were fully advised by unimpeachable instructions of all elements which should be considered in assessment of both direct and consequential damages for street im For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes provement, whether Kansas City Charter, art. [ and a freight yard of the Kansas City Ter6, 83, was too restrictive would not be con- minal Railway Company lie immediately sidered. on 10. Eminent domain 221 Interest 11. Eminent domain 247(1)—City not obli- Appeal from Circuit Court, Jackson County; Nelson E. Johnson, Judge. south of Twentieth, also an east and west street. On December 12, 1921, an ordinance was passed widening Oak street between Eleventh and Twentieth, to the extent of 14 feet on each side, and extending it north, through the middle of a block, from Eighth to Admiral boulevard. The ordinance formally condemned all the private property within the boundaries of the street as widened and extended, and provided that the compensation for the property taken or damaged should be "wholly raised by special assessments made against the city and against the several lots, tracks, and parcels of private property" within a benefit district which it determined and of the charter. The benefit district so preprescribed, all in accordance with article 6 scribed extends from Twentieth street to Admiral boulevard between parallel lines, one of which lies a half block east of Oak street, and Oak street extended, and the other a like distance west thereof. It is approximately a mile long and a block wide, and is located in the part of Kansas City devoted to business, and distinguished from residential, purposes. Pursuant to a provision therein that the damages caused by such public improvement should be ascertained in a court proceeding, begun in the first instance and maintained in the circuit court of Jackson county, the ordinance, accompanied by a map containing a description of the several lots or parcels of private property to be taken or damaged, with the respective names of the owners thereof, was filed in that court. Subsequently, and pursuant to notice duly given, a jury of six freeholders was impaneled to assess the damages and benefits. It appears that 154 tracts, and in connection with them 117 buildings, owned by practically that many different persons and corporations, were subject to an investigation as to both damages and benefits, and 37 tracts under different ownerships as Wash Adams, John W. Adams, Francis C. to benefits only, they lying between Eighth Downey, and Gerson B. Silverman, all of and Eleventh streets, where no additional Kansas City (John B. Quigley and Harry property was taken for the purposes of the Howard, both of Kansas City, on the brief), | street. With respect to the hearing, the recfor appellants. Proceeding by Kansas City to open and widen Oak street under an ordinance. From a judgment of the circuit court, confirming verdict of jury assessing damages and benefits to land, Michael McTernan and others appeal. Affirmed. Solon T. Gilmore, City Counselor, and J. C. Petherbridge, both of Kansas City (Henry S. Conrad, Elliott Jones, and A. L. Cooper, all of Kansas City, of counsel), for respondent. ord recites: "Before the court and jury for a period of six weeks, every day continuously (except Sundays) evidence, oral and documentary, was introduced upon the trial of this case, on the part of Kansas City, and upon the part of each and every property owner affected by this cause, and upon the part of these appellants respectively. * * "The jury RAGLAND, J. This controversy grows out of a proceeding to widen and extend a street under the provisions of the charter of * collectively and individKansas City. The street sought to be wid-ually, after being impaneled and sworn, and ened and extended is Oak, a north and south before it heard any evidence and afterwards street. As now established it extends from and during the trial, and before it returned its Eighth on the north to Twentieth on the the jury, examined the entire district to be verdict, by the direction of the court made to south, and is 56 feet wide. Admiral boule- condemned and taken and to be benefited as set vard, an east and west street, lies a block forth in the said Oak street ordinance, and the north of Eighth, and the right of way, tracks, jury examined each and every piece of prop (273 S.W.) erty and the improvements, if any thereon, to be taken, and to be benefited, and the evidence was introduced upon the witness stand in the cause by all parties in interest of the reasonable market value of the respective properties to be taken, and of each piece thereof, and of the reasonable market value of the improvements taken thereon." At the conclusion of the hearing which, as stated, lasted six weeks, the jury was duly instructed and the issues submitted to them. After having the matter so submitted under consideration for about three months, the jury returned a verdict assessing damages and benefits. With respect to the damages, the verdict recites: "We ascertain the actual value of the property taken and damaged by reason of the opening, widening, establishing, extending. and altering of said Oak street, under said Ordinance No. 41446, and also the actual damage done to each piece of private property not actually taken by reason of these proceedings, as the just compensation therefor to be as follows, to wit. As to benefits: "To pay the just compensation so ascertained and determined for the private property taken and damaged for the opening, widening, establishing, extending, and altering of Oak street aforesaid, we assess against Kansas City, Mo., as the amount of benefit to said city, and the public generally, including the benefit to all the property of said city within the benefit district, the sum of twenty-one dollars ($21.00), and the balance of such compensation we assess against the several lots and parcels of private property within the benefit district, exclusive of the improvements thereon, deemed actually and specially benefited by the proposed opening, widening, establishing, extending and altering of said Oak street, each lot or parcel of ground so benefited being assessed with an amount which bears the same ratio to such balance as its benefit bears to the whole benefit to all the private property as assessed. No piece of private property herein is assessed with benefits in any amount in excess of the actual, special, and peculiar benefits which the same will receive by reason of the proposed opening, widening, establishing, extending, and altering of said Oak street, as follows, to wit. "Whereas, owing to the rapid growth and development of Kansas City, the advent and increasing use of motorcars and, trucks, the north and south public traffic of the city has become badly congested and is constantly increasing over the existing streets and viaducts crossing the tracks and right of way of the Kansas City Terminal Railway Company, leading to and from the business centers and the resident district of the city; and "Whereas, in order to provide for and relieve such constantly increasing congested traffic, it is necessary, and it is the purpose of Kansas City, to construct a great north and south bridge over the Missouri river, at the north side trafficway from the Armour-Swift-Burlington of the city, through the business sections thereof to the southern part of the city, and along what is known as the Locust street connection (a public highway) connecting with Admiral boulevard; thence south from Admiral boulevard over and along Oak street to Twentieth street; thence south along Oak street, produced from the north, over and across the tracks, right of way, and land of the Kansas City Terminal Railway Company to Gillham road; thence south along Gillham road to Locust street; thence south along Locust street to Twenty-Seventh street; thence along Gill ham road south and southeastwardly, connect- way.' * * * The viaduct ordinance, among other things, ordered the Kansas City Terminal Railway Company, pursuant to the terms of a contract alleged to have been entered into between The total damages awarded for property the company and Kansas City, "to construct taken and damaged was $862,203.39; a like a viaduct and its approaches to be used as amount was assessed as benefits against the and for a public highway in Oak street and city and property within the benefit district. Oak street produced south, over and across From the judgment of the circuit court con- its tracks, right of way, and lands to the firming the verdict, the owners of three tracts south line thereof, beginning in Oak street affected thereby have appealed: McTernan at the south line of Nineteenth street, and exand Oglebays with respect to damages award-tending south in Oak street and Oak street ed, and Ella B. Adams as to benefits assessed. produced to the south line of its lands and At the same time that the ordinance widening and extending Oak street, called the Oak street ordinance, was passed, a companion ordinance, known as the viaduct ordinance, was enacted. The purpose of this latter ordinance as disclosed by the preamble was as follows: right of way in Kansas City, Mo." The ordinance further provided that "if said company does not agree within 30 days * * * to comply with the terms of this ordinance, then the city counselor is hereby instructed to take such legal action as his department may deem proper to enforce a compliance therewith on behalf of said company." At, including the construction of a viaduct over the time this cause was called for trial a proceeding was pending and undetermined before the Public Service Commission, wherein Kansas City sought an order compelling the railway company to comply with the provisions of the ordinance with respect to the construction of a viaduct. Bottomed on the facts just outlined, certain property owners, including these appellants, filed a motion that this cause be continued from time to time and held in abeyance until it could "be definitely ascertained whether or not the intended scheme and plan of the said Kansas City, Mo., as proclaimed in its viaduct ordinance, is or will be an established fact." The motion was overruled, and the trial proceeded, with the result as heretofore stated. Other record of facts will be stated where necessary in connection with the questions considered. Appellants have made no formal assignment of error. They have, however, in 31 paragraphs covering 55 printed pages, under the caption, "Points and Authorities," set forth numerous propositions, any one of which they aver is sufficient to overturn the judgment nisi. There is such an overlapping of subject-matter, and such an admixture of argument, that it is difficult to isolate the specific grounds relied upon for a reversal. But from such an analysis as we have been able to make we summarize the appellants' contentions as follows: I. The motion for a continuance should have been sustained, and for the same reason it was error (1) to give instructions 22 and 55, and (2) to refuse instruction B. II. The ordinance pursuant to which the proceeding was had is void (1) because not lawfully enacted; and (2) because it does not provide a method of paying for the property taken and damaged. III. Said ordinance is unconstitutional (1) be cause the benefit district created by it is unreasonably restricted; and (2) because it requires the cost of a city wide benefit to be borne by the owners of property in a circumscribed locality. IV. The charter provision (section 3, art. 6), relating to the assessment of damages and benefits, is unconstitutional (1) because it unduly limits the award of consequential damages, and (2) because it requires benefits to be assessed to the extent necessary to pay the damages regardless of the actual benefit derived to the property against which it is assessed. V. (1) There was no evidence of special benefits; (2) the damages allowed the appellant McTernan are inadequate; (3) the verdict is not responsive to the court's instructions; and (4) instruction A should have been given. [1] I. Appellants insist that the trial of this cause should have been stayed until it could be definitely ascertained whether the city would succeed in carrying out its plan By and across the lines and property of the Kansas City Terminal Railway Company. In these days but few public improvements are undertaken which have no relation to a definite plan of city building formulated by a plan commission or similar advisory body. But for reasons which are obvious all the improvements comprehended within such a plan cannot go forward simultaneously. Ordinarily it is intended that they be accomplished progressively as required by the growth and expansion of the city. In the instant cause it is wholly immaterial that it is intended that Oak street as widened and extended shall ultimately become a part of a much more extensive thoroughfare. the passage of the Oak street ordinance, Kansas City in effect legislatively declared, as it was competent for it to do, that a public necessity existed for the enlargement and extension of Oak street, independently of any other contemplated improvement, and without reference thereto. And in this proceeding it seeks merely to effectuate the single purpose declared by the ordinance, nothing more. The viaduct ordinance and matters relating thereto, offered in evidence by certain of the property owners, were therefore wholly irrelevant for any purpose of the case. Instructions 22 and 55 which are in accord with this view were properly given, and instruction B, the converse of them, was properly refused. But it is contended that the necessity for widening and extending Oak street as specified in the ordinance is wholly dependent upon whether the street is projected south by means of a viaduct across the lines of the Kansas City Terminal Railway Company; that without such a southern extension the street is a cul de sac. This last assertion is clearly without a basis of fact. At its southern terminus, Oak street connects with Twentieth, and Twentieth in turn, and within the compass of a few blocks, with a number of north and south thoroughfares which cross the lines of the Terminal Railway Company. It is altogether probable that Oak street, even as widened and extended, will not be as extensively traveled as it would be if carried across the railroad by a viaduct, but we cannot say as a matter of law that there is no necessity for its enlargement unless the viaduct is built. Nothing in fact is disclosed by the proceeding which would warrant judicial interference with the action of the common council in declaring that such necessity does exist. Kirksville v. Hines, 285 Mo. 233, 239, 225 S. W. 950. [2] II. 1. At the time of the passage of the Oak street ordinance the lower house of the common council of Kansas City consisted of 16 members. When the ordinance was (273 S.W.) One of those who voted for it was Harry to await the maturity of all the installments Sandler, who had previously moved from of the special assessments. In the meantime the ward in which he had been elected. Sec- the rights of the owners with respect to the tion 3, art. 2, of the Charter provides that use of their property may be somewhat "if, after his election, he [a member of the hampered by the pendency of the proceeding, lower house] shall move from such ward, his but, if so, such interference must be deemed office shall thereby be vacated." The record one of the unavoidable hardships incident shows that Sandler continued .to attend the to the exercise of the power of eminent domeetings of the council, and to participate main. Jasper Land & Improvement Co. v. officially in its proceedings, including the Kansas City, 293 Mo. 674, 679, 239 S. W. 864 ; passage of the ordinance in question, for a Brunn v. Kansas City, 216 Mo. 108, 119, 115 long period of time after his removal from S. W. 446. the ward from which he had been elected. The fact of his removal, however, was not at the time known to the other city officials or to the public generally. Under the circumstances he was a de facto alderman, and for reasons of public policy his actions as such must be deemed valid and binding. Perkins v. Fielding, 119 Mo. 149, 159, 160, 24 S. W. 444, 27 S. W. 1100; Simpson v. McGonegal, 52 Mo. App. 540, 544, 548. as [4] III. 1. As stated, the benefit district prescribed by the ordinance is approximately a mile long and a block wide. It includes within its boundaries all lots which front on Oak street, including the part not widened. No presumption arises from the general situation and no effort was made to show, that any other property by reason of its locality or otherwise, would derive special benefit from the improvement. There is, therefore, no basis for a holding that the ordinance in the matter of defining the limits within which private property will be deemed benefited is arbitrary or unreasonable. [5, 6] 2. The argument is again pressed that whatever benefit may be derived from widening and extending Oak street is city wide, and not confined to the immediate locality of the improvement. In this connection it may be said that the fact, if a fact, that Oak street, as widened and extended, may be obtain- | is designed to become a part of the most used thoroughfare in Kansas City, is wholly immaterial on the question of special benefits. This because the property in the immediate locality of the improvement presumptively receives a benefit entirely different from that which inures to the public at large. That an ordinance of Kansas City, which conforms to the provisions of its charter, may, without transgressing constitutional limitations, provide for the ascertainment of both the public and the private benefit, and require each to contribute to the expense of the improvement from which they are respectively derived, is no longer an open question. [3] 2. The ordinance under consideration provided that the assessments to pay for the private property taken or damaged, if not paid voluntarily, should be paid in ten equal annual installments, bearing 7 per cent. interest per annum. It further provided for the issuance of condemnation certificates for the assessments not voluntarily paid "in such form as may hereafter be fixed by ordinance," and directed the board of public works to "sell such certificates at such price, not less than the face value of the special assessments * able," the proceeds to be used for the payment of property taken or damaged. Appellants make the point that the ordinance with respect to providing a method for the payment of damages, is not complete, in that it leaves the determination of the form of the condemnation certificates to the future action of the council, which may never be taken. It is obvious, however, that the means for obtaining the money with which to pay for the property taken or damaged has been fully provided for. Pursuant to the ordinance and charter provisions, special benefits aggregating the necessary amount have been assessed against property in the benefit district, and adjudged to be liens thereon. These assessments are due in ten equal annual installments, with interest, and their payment may be coerced by special execution. The city, however, cannot take possession of the property condemned until the damages are fully paid, and the provisions relating to the issuance of condemnation certificates are designed merely to accelerate such payment. It is true that the common council may never prescribe the form of the proposed condemnation certificates and even if it does the board of public works may not be able to sell them at a price equal to the face value of the special assessments. In either of such events the taking possession by the city of the property condemned will have [7] IV. 1. Appellants have devoted several pages of their printed argument to a critical examination and analysis of the language of paragraph "third" of section 3, art. 6, of the Charter of Kansas City. From such exposition they derive the conclusion that this provision unduly restricts the award of consequential damages. We do not feel called upon to follow them into this field of exegesis. This because the jury were fully advised, by instructions which were unimpeachable, as to all the elements which should be considered in the assessment of the damages, both direct and consequential. [8] 2. The general instruction as to the assessment of benefits was in part as follows: |