City of Ash Grove v. Davis

Decision Date28 July 1967
Docket NumberNo. 8659,8659
PartiesCITY OF ASH GROVE, Missouri, a municipal corporation, Plaintiff-Respondent, v. Alta DAVIS, Defendant-Appellant, and Myrtle Hulston et al., Defendants.
CourtMissouri Court of Appeals

Page 194

418 S.W.2d 194
CITY OF ASH GROVE, Missouri, a municipal corporation,
Alta DAVIS, Defendant-Appellant,
Myrtle Hulston et al., Defendants.
No. 8659.
Springfield Court of Appeals, Missouri.
July 28, 1967.

Page 196

E. W. Collinson, John B. Newberry, Springfield, for defendant-appellant.

John K. Hulston, Lincoln, Haseltine, Forehand & Springer, Wallace N. Springer, Jr., Springfield, for plaintiff-respondent.

STONE, Presiding Judge.

From a declaratory judgment entered in this action under the Sawyers Act (V.A.M.S. § 71.015; Laws 1953, p. 309) authorizing plaintiff, the City of Ash Grove, Missouri, to annex contiguous lands, the instant appeal has been perfected by defendant Alta Davis, who owns a tract of about 43 acres, most of which is in the area sought to be annexed (hereinafter referred to as 'the proposed area').

Our appellate function is to review the case de novo and to reach our own conclusions with respect to the law and the facts, weighing and evaluating all competent evidence with due deference to the findings of the trial court where the credibility of witnesses is involved. V.A.M.R. Rules 87.11 and 73.01(d); V.A.M.S. §§ 527.070 and 510.310; City of Houston v. Duff, Mo.App., 338 S.W.2d 373, 375(1); City of Fulton v. Dawson, Mo.App., 325 S.W.2d 505, 516(1). As we review and consider the facts, we remain mindful of certain well-established principles, to wit, (1) that the Sawyers Act authorizes the proposed annexation only if (a) it 'is reasonable and necessary to the proper development of (the) city' and (b) the city is able 'to furnish normal municipal services' to the annexed area within a reasonable time (V.A.M.S. § 71.015; City of Aurora v. Empire District Electric Co., Mo.App., 354 S.W.2d 45, 48), (2) that reasonableness and necessity to proper municipal development are separate but closely related concepts (City of Olivette v. Graeler, Mo., 338 S.W.2d 827, 836--837(15); City of Woodson Terrace v. Herklotz, Mo.App., 349 S.W.2d 446, 448(1)), (3) that 'both parties,' i.e., both the city and property owners in the area sought to be annexed, are entitled to the test of reasonableness (City of Olivette, supra, 338 S.W.2d at 837(16); City of St. Ann v. Buschard, Mo.App., 356 S.W.2d 567, 575), (4) that the burden of pleading and providing the statutory prerequisites to annexation rests upon the city (City of Olivette v. Graeler, Mo., 369 S.W.2d 85, 93(3); City of Creve Coeur v. Patterson, Mo.App., 313 S.W.2d 739, 744(3)), and (5) that the city carries its burden of proof when the evidence raises

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'fairly debatable' issues as to those statutory prerequisites (City of St. Peters v. Kuester, Mo.App., 402 S.W.2d 70, 75(5); City of Creve Coeur v. Huddleston, Mo.App., 405 S.W.2d 536, 539--540(2)), which 'merely means that if there is substantial evidence both ways, then the legislative conclusion (of the board of aldermen) is determinative.' City of Olivette, supra, 369 S.W.2d at 96(5). See State ex inf. Mallett ex rel. Womack v. City of Joplin, 332 Mo. 1193, 1205, 62 S.W.2d 393, 398; State ex inf. Taylor ex rel. Kansas City v. North Kansas City, 360 Mo. 374, 397, 228 S.W.2d 762, 774(15). (All emphasis herein is ours.)

Ash Grove is a city of the fourth class situate in Boone Township, Greene County, Missouri, about eighteen miles northwest of Springfield. It is a clean, wholesome residential community, whose inhabitants are understandably proud of the historical fact (included in the transcript before us) that it was 'established' by Nathan Boone, the youngest son of Daniel Boone. But, although the city has continued to grow in stature by reason of the character of its citizens and the attainments of its native sons, it passed its numerical peak more than thirty years ago when the Ash Grove Lime and Portland Cement Company, the only major employer in the community, terminated its operations there. So, like hundreds of towns in rural areas, Ash Grove has experienced a slow but steady erosion in population, as evidenced by United States decennial census figures read into the record by counsel and within our judicial ken anyway, to wit, 1107 in 1930, 1101 in 1940, 970 in 1950, and 886 in 1960. Varble v. Whitecotton, 354 Mo. 570, 575, 190 S.W.2d 244, 246(4); Kirst v. Clarkson Construction Co., Mo.App., 395 S.W.2d 487, 497--498(15). The accelerated rate of decline in later years was not stemmed by two annexations, one about 1945 and another about 1949 or 1950, and there is no evidence from which it reasonably might be inferred that any reversal in trend has occurred since 1960 or is likely to occur in the foreseeable future. Many of the residents are retired, some work locally, and a substantial number are employed in Springfield. The city's counsel referred to Ash Grove as 'a bedroom town . . . for people who work in Springfield.'

Ash Grove has one regular police officer (identified by the city clerk as the 'chief of police' and by the officer himself as 'city marshal') who 'is on call 24 hours a day' and some weeks is relieved by 'a special police . . . maybe two nights.' The city marshal is also a deputy sheriff, with a portion of his compensation paid by Greene County. He patrols and furnishes the same police protection in the city and in the proposed area; and when on night patrol, he usually can be reached only by radio through the sheriff's office. The city marshal serves in still another capacity as fire chief. The city owns a 1949 or 1950 model fire truck with a 300 gallon pumper tank and also provides 'storage space for the Greene County truck.' A squad of eight volunteer firemen man the equipment and answer calls both inside and outside the city. Within the corporate limits, the city truck is used and water is available through fire hydrants in the municipal water system. Without the city, the county truck is used and, of course, no water is available from the municipal system.

Residents of the annexed area, 'all of them,' already have water service from the municipal system; but, since mains outside the city have been laid by the customers, they are 'small water lines . . . not sufficient for fire hydrants.' To supply sufficient water 'in case of a fire,' larger mains would have to be laid. When asked 'how many water mains' to the perimeter of the proposed area the city could lay in the event of annexation, the water and sewer superintendent said 'one probably without any additional money.'

The municipal sewer system was constructed in 1956 with capacity to handle

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double the present load. Most of the business buildings and a few of the residences in the proposed area 'are already on the sewer,' having been connected at the expense of the property owners. Of the bonds issued for construction of the sewer system, general obligation bonds in the aggregate principal sum of $53,000 and revenue bonds in the aggregate principal sum of $64,000 remained outstanding at the time of trial. The last general obligation bonds mature in 1976 and the last revenue bonds in 1981. In the event of annexation, the sewer system could be extended to serve other residents in the proposed area only 'through (another) bond issue.' A periodic examination of the city's books and financial records by certified public accountants, completed only a few months prior to trial, showed that adequate balances were being maintained in the sinking funds and that the city's financial condition was good.

Ash Grove has no street department. As the city clerk explained, street maintenance 'is done by the county but with our tax money'--'it is taken out of our tax money that the county collects.' There is no showing that Ash Grove has a health department or officer; and there is no municipal zoning ordinance or building, plumbing or electrical code. The area outside the city already is 'under the (county) zoning and planning commission that calls for an inspection of the sewage disposal, septic tank, lateral lines, footings (and) construction of the building proper.'

Empire District Electric Company provides the same electric service at the same rates to customers in the city and in the proposed area. A 20-year natural gas franchise was granted to the Gas Service Company but the city's water and sewer superintendent added that 'to comply with our ordinances they are to have our (distribution) system in . . . the Fall of 1966.' At the time of trial in March 1966, construction had not begun either on the municipal distribution system or on the pipeline to supply that system.

The city clerk testified that the area within the present corporate limits of Ash Grove is 322.4 acres; but, although knowledgeable in practically every other field of interrogation, she declined to 'even guess' as to the size of the proposed area. Pointing to the testimony of witness Hall, the sole member of the board of aldermen called to the stand, the city's brief states that 'the only witness who gave a judgment as to the acreage contained in the proposed area to be annexed estimated it to be 150 acres which appears accurate from an examination of petitioner's exhibit 20,' a large map of the city and proposed area (hereinafter referred to as 'the map') drawn to scale and identified by the county surveyor. However, this was the testimony of witness Hall: 'Q. (D) o you know how many acres of vacant farm land the city is proposing to take into the City of Ash Grove at the present time? A. Not exactly . . . Q. What is your judgment? A. About 150 I would guess.' Defendant's brief opens with the statement that this action involves 'the annexation of some 200 acres of land to the city,' but the only transcript reference is to the annexation ordinance which (as it appears in the record) simply provided for annexation of the additional territory between the then city limits and the proposed city limits as outlined on the map attached to and made a part of the ordinance. Finding no testimonial...

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