City of Bourbon v. Miller

• Decision Date: 13 November 1967
• Docket Number: No. 52957,52957
• Citation: 420 S.W.2d 296
• Parties: CITY OF BOURBON, a Municipal Corporation, Respondent, v. Frank MILLER and Catherine Miller, his wife et al., Appellants, Eugene E. Johnson and Geneva E. Johnson, his wife et al., Defendants.
• Court: Missouri Supreme Court

Page 296

420 S.W.2d 296

CITY OF BOURBON, a Municipal Corporation, Respondent, v. Frank MILLER and Catherine Miller, his wife et al., Appellants Eugene E. Johnson and Geneva E. Johnson, his wife et al., Defendants.

No. 52957.

Supreme Court of Missouri, En Banc.

Nov. 13, 1967.

G. C. Beckham, Steelville, for respondent.

Samuel Richeson, Dearing, Richeson, Weier & Roberts, Hillsboro, for appellants.

EAGER, Judge.

The action involved here is a declaratory judgment suit seeking approval of the annexation of two tracts of land to the plaintiff, a city of the fourth class. The trial court approved the annexation, and a majority of the defendants appealed. The defendants were chosen as representatives of the property owners in the two tracts and there is no contention that they do not fairly represent those classes. Plaintiff alleged that the annexation sought was 'reasonable and necessary to the proper development of the City,' and that it was 'in position to furnish * * * the normal municipal services of the City * * * as same may be needed, and within a reasonable length of time * * *.' Defendants' position is that the annexation is unreasonable, unnecessary and arbitrary, and that the city would not be able to furnish normal municipal services to the areas within a reasonable time. The proceedings were instituted by a resolution adopted by plaintiff's Board of Aldermen on January 7, 1964. The appeal came first to this Court, but the cause was thereafter transferred to the Springfield Court of Appeals for lack of jurisdiction. An opinion was written and filed there on February 17, 1967; we ordered the case transferred here, upon application of the defendants. The opinion approved the annexation of one tract and disapproved the annexation of the other. We shall adopt, without quotations, parts of the statement of the facts made by the Court of Appeals, with or without changes.

Bourbon is located near the northeast corner of Crawford County, Missouri, 22 miles from the county seat at Steelville, and about 70 miles southwest of St. Louis. In 1960 it had a population of 779. In 1940 its population was 363, and in 1950, 543. At the trial a witness stated that the then population 'will exceed 1,000.' The St. Louis-San Francisco Railroad runs through the approximate center of the town; old U.S. Highway 66 also runs through it and new Highway 66, now Interstate 44, skirts a part of the east side and runs through the north part. The main body of the city is more or less rectangular but an irregularly shaped area extends to the southwest for approximately a mile. The south part of this extension (containing approximately 45 acres) is described as 'Siebenman Acreage Subdivision,' and was annexed to the City of Bourbon about one year before the present trial.

The city has no municipal electrical service and we assume, because of the lack of evidence, no municipal hospital or health services, no library, no park system, no garbage collection service, no zoning or planning ordinances, and no provision for the construction or maintenance of streets except, perhaps, from general funds or 'gas tax' revenue. Nothing in the transcript indicates that annexation is required to secure uniform grade or alignment of streets in the areas sought, to maintain the peace, or make police ordinances effective. Likewise, the record indicates that the land proposed to be annexed is not needed by the city for water supply, sewer, or other utility purposes. Bonds for a municipal gas distribution system 'have been voted,' but when, if ever, such a system might be put into operation depends on the 'Illinois-Oklahoma Corporation' securing permission to build a gas line through Missouri along U.S. Highway 66. Annexation will have no effect upon the public school system, either for those presently residing in Bourbon or those living in the outlying community.

The assessed valuations of the 'property' in the city were: $521,450 in 1955, $624,880 in 1960, and $851,420 in 1963. Revenue derived from a $1.70 levy amounted to $14,477.16 in 1963, and gross receipts were $19,074.78. The city anticipates a $200 monthly income from the state gasoline tax, and one dollar per month per sewer hookup, of which there were 85 when the testimony was heard. Revenue from its municipal water system was not shown. The city owes a $51,000 balance on its water revenue bonds and $65,000 on a sewer bond issue of $68,000. Three efforts to gain approval of the city's $125,000 limit for sanitary sewer bonds were defeated; finally, the $68,000 issue was approved, and the first phase of the system was put into operation in October, 1962; the second and last phase followed in July, 1963. There are no plans for extending or enlarging the existing system. Of the 85 sewer connections in the city, 50 were residential; the others were for businesses. About ten additional connections are possible and one witness estimated that only one-fourth of the present town is served by the sewers. More bonds would have to be voted before there could be any expansion of the present system and, from past results that would seem unlikely, particularly insofar as it might concern a large, new area.

The municipal waterworks consist of two wells equipped with pumps of 350 and 125 gallon per minute capacity. Ten exploratory drill holes 'given' to the city by American Zinc, Lead and Smelting Company are said to be available for other water wells if necessary. This system also includes a 75,000 gallon water tower and a 30,000 gallon tower. Apparently water is available to all parts of the city and to anyone immediately outside the city limits willing to pay for extending the lines and paying for the service. The mayor testified that the present wells, pumps and tower facilities were adequate to supply water to the proposed annexed areas and that the city had a $10,000 surplus 'in our water system' that could be used for expansion. Of the 361 connections existing in 1964, 35 to 40 were to customers outside the city limits.

An 'organized volunteer fire department' serves the city and apparently all the neighboring community. There is a 20 cent city tax levy to support it. In addition to hoses, ladders, etc., the fire fighting equipment consists of a 1938 model pumper, a 1953 model pumper, and an 800 gallon water tank truck with portable pump acquired in 1963. The 1938 pumper and firehouse were purchased with donations made by people residing both within and without the city. It was not made clear whether those outside the city now contribute to the fire department.

Until a month before trial time the city's police department consisted of one officer paid $250 a month. The second officer added to the force is paid $15 a month by the city; the balance of his salary is supplied by Bourbon businessmen. Both officers are deputy sheriffs and act in such capacity when performing official duties beyond the city boundaries. They may therefore be called outside of the city through the sheriff's office.

The city's claim for annexation is predicated entirely upon the alleged shortage of rental housing and residential building sites within its present limits; and it contends that this situation will worsen when an anticipated new iron mine beneath and adjacent to the town is constructed and commences operations, and also if and when a lake proposed nearby becomes a reality. No mention is made of any need for business or industrial lands. The evidence as to available rental housing is couched in two brief conclusions, to-wit: Mayor Rhodemeier--'It is utterly impossible to find a rental place at the present.' President of the Board of Aldermen--'At the present, it is pretty hard to rent.' Aside from a tract owned by a Mrs. Roosman and the Siebenman Acreage Subdivision, both inside the present city boundaries, the mayor contended there were no 'suitable lots' available for building, whereas two aldermen estimated that there were 20 to 50 lots. The Roosman land consists of 12 to 15 unplatted acres which the owner refused to sell to the city for park purposes because 'she didn't need the money.' There is no definite testimony as to whether or not the owner would sell for housing purposes or for a subdivision. Siebenman Acreage Subdivision, annexed to the city a year before trial, contains 38 platted lots which represent about one-fifth of its total area. For some unknown reason an additional four platted lots were not annexed with the rest of that property, but these are now included in Tract No. 2. Only four houses have been built on the platted area of the subdivision. At least one-half of the unplatted portion of this subdivision is said to be suitable for residential building and this would provide space for an additional 100 to 150 lots. There was testimony that the owners of that subdivision would not sell a lot unless they were also permitted to build the house and sell it; they are nevertheless in the market to sell houses.

The American Zinc, Lead and Smelting Company has acquired surface and mineral rights to 1,130 acres just outside the corporate limits and also the mineral rights to 98 per cent of the land under the city itself. These acquisitions were made because exploratory drillings revealed the presence of an iron ore body of such magnitude as to permit mining in the area for an estimated 100 years. No surface operations will be undertaken within the city limits, present or proposed, and the ore under the city will be reached by drifts or tunneling. The commencement of construction was reported as probably coming 'within the next few years,' with a suggestion 'it might be ten or fifteen years.' The witness, a geologist, was not really in position to speak on that subject. It was stated that the initial construction period would consume about five years with an employment of approximately 100 persons; also, that the project in production would employ a total of up to 900 persons.

The lake...