City of Aurora v. Empire Dist. Elec. Co., 7943

• Decision Date: 14 February 1962
• Docket Number: No. 7943,7943
• Citation: 354 S.W.2d 45
• Parties: The CITY OF AURORA, Missouri, a municipal corporation, Plaintiff-Respondent, v. The EMPIRE DISTRICT ELECTRIC COMPANY et al., Defendants-Appellants.
• Court: Missouri Court of Appeals

Page 45

354 S.W.2d 45

The CITY OF AURORA, Missouri, a municipal corporation Plaintiff-Respondent, v. The EMPIRE DISTRICT ELECTRIC COMPANY et al., Defendants-Appellants.

No. 7943.

Springfield Court of Appeals, Missouri.

Feb. 14, 1962.

Edward V. Sweeney, Monett, Emory Melton, Cassville, for appellants.

Ratican & Faulkner, William A. Ratican, Jr., Aurora, for respondent.

RUARK, Presiding Judge.

This is an appeal by the defendants from a judgment rendered in favor of the plaintiff City of Aurora, authorizing the annexation of certain lands under the Sawyer Act (Section 71.015, V.A.M.S., Laws of 1953, p. 309).

The petition describes the lands by metes and bounds. The charging portion is:

'3. That the above described real property is contiguous with the present corporate limits of said City, and the area is now unincorporated; that the population of the City is increasing and many new homes and business buildings have been, and are being built in said City; that virtually all of the area within the present corporate limits of said City has been utilized for construction of new homes and industrial plants; that unless the within described area is annexed to said City the growth and development of the City of Aurora, Missouri will be restricted and retarded; and that it is necessary and reasonable that the said area be so annexed to said City.'

The petition states that the areas sought to be annexed are so situate that they are now being or will be developed as city property which will satisfy such need for additional sites for residence and industry; that the city can furnish normal municipal services, et cetera.

Defendants' motion to dismiss having been overruled, they filed answer, in effect a denial of each fact, and the cause was tried on the issues thus presented.

Such issues must be presented and determined in the same manner as in other actions. City of Olivette v. Graeler, Mo., 338 S.W.2d 827, 837. And under the general rules of pleading and practice the plaintiff is held to the theory which he specifically selects and presents as his ground for recovery. ¹ In the determination of such issues the plaintiff city has (since the Sawyer Act) the procedural burden. It must make a prima facie case in favor of its legislative ordinance. City of St. Joseph v. Hankinson, Mo., 312 S.W.2d 4, 10; City of Olivette v. Graeler, supra, 338 S.W.2d 827; City of St. Ann v. Buschard, Mo.App., 299 S.W.2d 546; City of Creve Coeur v. Patterson, Mo.App., 313 S.W.2d 739.

The question of whether city boundaries shall be extended is a legislative function delegated to the governing body of the city. This function can in nowise be exercised by the courts. The scope of our review, and indeed the limit of our jurisdiction, is to determine whether or not the legislative act of the city council was arbitrary and unreasonable or in excess of the power granted by the statute. If it be found that the reasonableness is 'fairly debatable,' that ends the question in so far as the courts are concerned. It is then for the electorate. ² In determining this question the courts have devised and attempted to follow certain positive and negative guides. We will not repeat them in detail here. They are enumerated in most of the decisions. See State ex inf. Major v. Kansas City, 233 Mo. 162, 134 S.W. 1007; City of Houston v. Duff, Mo.App., 338 S.W.2d 373; see generally Washington University Law Quarterly, April 1961, p. 159. We might add that other factors to be considered, not regularly so listed but referred to on more than one occasion, are a comparison of the relative benefit or detriment, in other words, fairness to the citizens of the annexed territory who have no voice in the proceedings for annexation (City of Woodson Terrace v. Herklotz, Mo.App., 349 S.W.2d 446, 451; see Jones v. City of Ferguson, Mo.App., 164 S.W.2d 112, 119-120; Ozier v. City of Sheldon, Mo.App., 218 S.W.2d 133; Boals v. Garden City, Mo.App., 50 S.W.2d 179; Missouri Zinc Fields Co. v. Webb City, 215 Mo.App. 39, 242 S.W. 1008), and the needs of the area for municipal services. City of Olivette v. Graeler, supra, 338 S.W.2d 827, 838. Also sometimes attention is paid to the fact of whether the annexation makes the boundaries of the city more regular or irregular. ³ All these rules or guides are to be considered, if the facts so justify, but they are only factors, no one of which is necessarily controlling, and those relevant are to be considered in relation to each other. Hence no fixed formula can be stated, and each case must stand on its own circumstances. ⁴

In order to avoid tripping over our own rules and guides, we do well to hie back to the statute fixing the authority of the city. The Sawyer Act permits the annexation when (a) such annexation is reasonable and necessary to the proper development of the city and (b) the city is able to furnish its normal municipal services to the annexed area within a reasonable time. We find most of the discussions in the cases concern themselves with 'reasonableness,' this because we assume, as was stated in City of St. Joseph v. Hankinson, supra, 312 S.W.2d 4, 9, the 'necessity' is a part of the 'reasonableness,' or at least they are 'closely related concepts.' City of Woodson Terrace v. Herklotz, supra, 349 S.W.2d 446, 448. This 'necessity' of the city applies not only to the present but also to such future needs as are reasonably foreseeable and not too remote or speculative, ⁵ although 'visionary' needs are too remote. Stoltman v. City of Clayton, 205 Mo.App. 568, 226 S.W. 315, 321.

Historically and factually, Aurora is a well-balanced city of the third class. It has had a satisfactory but not a boom growth in recent years. Population figures are:

1930 3875

1940 4056

1950 4153 (or was it 4,053 or 4,059?)

1960 4665

The city has the amount of industry satisfactory and normal to a city of its size. Most of such industry has been located in the city for at least fifteen years, although one of the principal industries has expanded its operations considerably within the past three years. There are, according to the secretary of the chamber of commerce, a total of 1450 persons engaged in industry, large and small. The city has a police department, a fire department, a street department, and a health officer. In addition there are two parks and a public library. Parks, library, and hospital are administered by separate boards. The parks and library seem to have a comfortable surplus on hand. The hospital is said to be self-supporting. The city does not own any utilities except its sewer and disposal system. Electricity and water are supplied by the Empire District Electric Company, and gas is supplied by the Gas Service Company. Both of these companies hold franchises with the city, and both of them also supply service to areas not within the city under the regulation of the Public Service Commission.

The sewer and disposal system was recently secured by means of issuance of bonds in 1958 and 1959 (the total amount outstanding on March 31, 1960, was $443,000, being $245,000 in general obligation bonds and $198,000 in revenue bonds). A new 39-bed hospital was constructed by the issuance of bonds (in 1958). The amount outstanding March 31, 1960, was $213,500. Total bond obligations outstanding as of March 31, 1960, including amortized interest, were $1,091,525.03.

In 1958 the city passed a zoning ordinance, and in the two years following its passage the city clerk issued a total of 182 'building permits' over all. These include remodeling, repair, moving, and removal, but 91 of them are concerned with new building of various character.

The city lies in the shape of a rectangle with the northwest quarter cut out. Its area is 1460 acres. It is, or at least was, bisected east and west by U. S. Highway 60, but it appears that such highway is or was under study for, or in the process of, relocation. Of the area within the city limits, approximately 2/3 has been platted, and streets, alleys, lots, and blocks have been laid out. Part of this platted area has been zoned for industrial uses, but most of it is zoned B for residential purposes. Of the approximately 1/3 unplatted area within the city, about 180 acres are zoned residential B and most of the remainder is classified residential A. Requirements as to dimension and type of structure are higher in Zone A than in Zone B. Since the principal issue in this case is the contention that virtually all of the area within the city has been utilized for construction of homes and the growth of the city will be retarded unless the additional areas be annexed (in other words, that the city is bursting at its seams), a consideration of the whole area in regard to space within the city becomes most important.

In regard to the platted portion of the city, the evidence is 'incredibly vague' (City of Creve Coeur v. Patterson, Mo.App., 313 S.W.2d 739, 744) as to the number of vacant lots and blocks suitable and available for use. City councilman Hall testified:

'Q. Is there a need in the city for building lots?

'A. Yes, there is.'

The manager of the Empire District testified there were 'not too many' desirable building lots within the present city limits.

'Q. Is there a need for desirable building lots?

'A. Well, apparently so, because so many people are going outside the city limits to build a better type of house.'

That is all the evidence we find as to residential space within the platted areas.

Of the unplatted areas, there are an approximately square tract of 160 acres lying in the northeast corner of the city and another 20 acres lying immediately south of the southeast quarter thereof, or a total of 180 acres, all zoned residential B. In former times Aurora sat on or partly on an old mining camp, and a part of this 180 acres (one of plaintiff's principal witnesses estimated 75%) is pitted with old sludge ponds, shafts, tailing piles, mill foundations, et cetera. Another of pla...