Binger v. City of Independence

• Decision Date: 11 September 1979
• Docket Number: No. 60762,60762
• Citation: 588 S.W.2d 481
• Parties: Glenn H. BINGER et al., Respondents and Cross-Appellants, v. CITY OF INDEPENDENCE, Missouri, Appellant and Cross-Appellee
• Court: Missouri Supreme Court

Page 481

588 S.W.2d 481

Glenn H. BINGER et al., Respondents and Cross-Appellants, v. CITY OF INDEPENDENCE, Missouri, Appellant and Cross-Appellee

No. 60762.

Supreme Court of Missouri, En Banc.

Sept. 11, 1979.

Rehearing Denied Oct. 19, 1979.

Robert H. Freilich, University of Mo., School of Administration, Kansas City, James S. Cottingham, Thomas D. Cochran, Richard G. Carlisle, Independence, for appellant and cross-appellee.

W. Raleigh Gough, Rufus B. Burrus, Independence, for respondents and cross-appellants.

JAMES A. FINCH, Jr., Senior Judge.

This is an appeal in a declaratory judgment suit wherein plaintiffs, as representatives of a class of objecting property owners, sought a declaration that annexations by the City of Independence of five contiguous areas in which plaintiffs reside were unreasonable and therefore void. The trial court held that plaintiffs were entitled to maintain the class action, that all of the annexations were unreasonable and voidable and that they should be set aside as requested by plaintiffs. On appeal the Missouri Court of Appeals, Western District, reversed, holding that the annexations were valid. However, on application of plaintiffs, it ordered the case transferred to this court "because of the general interest and importance of this case in that the opinion herein of this court may extend or broaden the present scope of review and quantum of proof necessary in annexation cases." We now decide the case as though here on direct appeal. Mo.Const., Art. V, § 10. We reverse.

Independence is a constitutional charter city. Such cities annex territory by amending their city charters to incorporate into the city the area to be annexed. City of Hannibal v. Winchester, 391 S.W.2d 279 (Mo. banc 1965).

In 1958, Independence adopted a "holding ordinance" to indicate that it was contemplating annexation of a large area to the east and northeast. The city annexed 13.4 square miles thereof in 1960 and 16 square miles in 1963, plus two very small tracts in 1961 and 1962. These extended the eastern boundary of Independence to the Little Blue River and increased the area of the city to 47.8 square miles.

In 1968 the city completed and published a comprehensive plan for future development which included planning for areas proposed for annexation. Some revisions were made subsequently and in the spring of 1972 the city adopted ordinances which provided for amending the city charter to annex five territories containing 29.7 square miles of land. These territories were a part of the area designated in the "holding ordinance" of 1958 and included in the comprehensive plan.

The ordinances called for a vote thereon by the voters of Independence in a special election to be held on December 5, 1972. In that election the vote favored annexation of all five territories. Territory No. 3 was to be annexed effective December 31, 1973, Territories 1 and 2 effective December 31, 1974, and Territories 4 and 5 effective December 31, 1975.

Thereafter, the procedures whereby annexation was accomplished were attacked in a proceeding in the nature of quo warranto which sought to oust Independence from exercising jurisdiction over the five territories annexed. The trial court ordered ouster but on appeal this court reversed, holding (1) that annexation by charter amendment was the proper and exclusive method of annexation by a constitutional charter city, (2) that proposals to approve such charter amendments could be voted on at a special election and (3) that simultaneous elections in the territories to be annexed, required by § 71.870, ¹ were not necessary because on December 5, 1972, the date of the special election, Jackson County had not yet become a first class chartered county. State at inf. of Martin v. City of Independence, 518 S.W.2d 63 (Mo.1974). ² Thereupon plaintiffs filed this action attacking the reasonableness of and necessity for the annexations.

Prior to 1953 the courts of Missouri reviewed the validity of annexation proceedings only after they were consummated. This occurred when and if suits attacking such annexations were filed. Usually this was by suits in equity to enjoin enforcement. Sometimes it was by quo warranto and at least once it was by a suit for declaratory judgment. As this court said in City of St. Joseph v. Hankinson, 312 S.W.2d 4, 8 (Mo.1958), "In so doing, it has been the universal rule that the court does not, in any sense, substitute its discretion or judgment as to the advisability or propriety of the annexation for that of the legislative body of the city, and that it does not review the legislative discretion; its consideration of 'reasonableness' is confined to a determination of whether there exists a sufficient showing of reasonableness to make that question, at the least, a fairly debatable one; if there is such, then the discretion of the legislative body is conclusive. State ex inf. Taylor ex rel. Kansas City v. North Kansas City, Banc, 360 Mo. 374, 228 S.W.2d 762; Faris v. City of Caruthersville, Mo.App., 301 S.W.2d 63; State ex inf. Mallet ex rel. Womack v. City of Joplin, 332 Mo. 1193, 62 S.W.2d 393; Dressel v. City of Crestwood, Mo.App., 257 S.W.2d 236. The function of our courts, historically, has been merely to determine, in the light of these principles, whether the exercise of the legislative powers has been arbitrary and clearly unreasonable. (See the cases just cited.) Only to this extent do our courts consider the reasonableness of an annexation."

In 1953 legislation known as the Sawyers Act was enacted. Laws 1953, p. 309, § 1. It now is identified as § 71.015. It provides:

"Whenever the governing body of any city has adopted a resolution to annex any unincorporated area of land, such city shall, before proceeding as otherwise authorized by law or charter for annexation of unincorporated areas, file an action in the circuit court of the county in which such unincorporated area is situated, under the provisions of chapter 527 RSMo, praying for a declaratory judgment authorizing such annexation. The petition in such action shall state facts showing:

1. The area to be annexed;

2. That such annexation is reasonable and necessary to the proper development of said city; and

3. The ability of said city to furnish normal municipal services of said city to said unincorporated area within a reasonable time after said annexation is to become effective. Such action shall be a class action against the inhabitants of such unincorporated area under the provisions of section 507.070, RSMo."

This section was construed in City of St. Joseph v. Hankinson, supra, at p. 9 as follows:

"We construe § 71.015 as merely giving to the courts, in advance of a consummated annexation, the same judicial power and authority to test the reasonableness and necessity for an annexation which they have always exercised after its completion; that is to say, to decide whether the legislative declaration by the city is so palpably unreasonable and unnecessary as to be an arbitrary and oppressive exercise of its legislative power."

In McConnell v. City of Kansas City, 282 S.W.2d 518 (Mo.1955), plaintiff attacked an annexation by Kansas City on the basis that it had not obtained the declaratory judgment mandated by § 71.015. The court held that the Sawyers Act, insofar as it sought to impose the procedure therein specified on a constitutional charter city as a condition precedent to proceeding with annexation, was unconstitutional. This ruling was reaffirmed in Hannibal v. Winchester, 391 S.W.2d 279 (Mo. banc 1965) and in St. Louis County v. City of Florissant, 406 S.W.2d 281 (Mo. banc 1966). Plaintiffs do not now contend otherwise but they do assert that the Sawyers Act, in addition to prescribing a procedure to follow in the annexation process, had the effect of impliedly repealing the previously existing discretion of city legislative bodies to resolve the reasonableness of and necessity for annexation and that this portion of the Act is applicable to constitutional charter cities. They further contend that since cities which are required by the Sawyers Act to file a suit to determine reasonableness and necessity have the burden of proof to establish that annexation is reasonable and necessary, a similar burden must be placed on constitutional charter cities, even though the action attacking reasonableness is filed by property owners, because to hold otherwise would result in a denial of equal protection as between constitutional charter and other cities.

We reject both of these contentions. With reference to the argument that the Sawyers Act had the effect of limiting the legislative discretion of all cities in the annexation process, it is true that this court in McDonnell Aircraft Corp. v. City of Berkeley, 367 S.W.2d 498 (Mo.1963) held that even though constitutional charter cities are not required to follow the Procedure specified in § 71.015, said section does set Standards for all cities in that it requires that such annexation must be reasonable and necessary. However, that does not mean that enactment of § 71.015 had the effect of changing the nature of judicial review of such proceedings from what it had been theretofore. In fact, the decisions of this court hold to the contrary. As previously noted, the court in City of St. Joseph v. Hankinson, supra, held that the Sawyers Act merely provided for the courts in advance of the completion of annexation, to exercise "the same judicial power and authority to test the reasonableness and necessity for an annexation which they have always exercised after its completion;" 312 S.W.2d at 9. Case law already required that annexation be reasonable and necessary.

This conclusion that a change in the nature of judicial review of annexation was not produced by enactment of the Sawyers Act necessarily follows from what the court said later in City of Olivette v. Graeler, 369 S.W.2d 85, 96 (Mo.1963):

"In our view plaintiff...