City of Cape Girardeau v. Armstrong

• Decision Date: 18 July 1967
• Docket Number: No. 32610,32610
• Citation: 417 S.W.2d 661
• Parties: CITY OF CAPE GIRARDEAU, Missouri, a Municipal Corporation, Plaintiff, Respondent, v. F. J. ARMSTRONG, Albert O. Spalding, August H. Sanders, Seth S. Barnes, Glenn S. Johnson, Don Ikerman, David Hale, Robert Wilkenson and James Ainsworth, as Representatives of a Class, Defendants, and Homer A. George, Perry L. Krekel, Leonard M. Edmiston, Russell Armstrong, Lane Austin and A. L. Wessel, Intervenors, Appellants.
• Court: Missouri Court of Appeals

Page 661

417 S.W.2d 661

CITY OF CAPE GIRARDEAU, Missouri, a Municipal Corporation, Plaintiff, Respondent, v. F. J. ARMSTRONG, Albert O. Spalding, August H. Sanders, Seth

S. Barnes, Glenn S. Johnson, Don Ikerman, David

Hale, Robert Wilkenson and James

Ainsworth, as Representatives

of a Class, Defendants,

and

Homer A. George, Perry L. Krekel, Leonard M. Edmiston,

Russell Armstrong, Lane Austin and A. L. Wessel,

Intervenors, Appellants.

No. 32610.

St. Louis Court of Appeals, Missouri.

July 18, 1967.

R. P. Smith, Cape Girardeau, for defendants-intervenors-appellants.

Limbaugh, Limbaugh & Russell, Stephen N. Limbaugh, Cape Girardeau, for plaintiff-respondent.

RUDDY, Judge.

The City of Cape Girardeau (hereinafter referred to as City) brought this action, pursuant to the provisions of Section 71.015 RSMo 1959, V.A.M.S., (referred to as the Sawyer Act) seeking a declaratory judgment authorizing it to proceed as otherwise authorized by law in the annexation of approximately six to eight square miles of unincorporated land adjoining its present municipal borders. The defendants, inhabitants and owners of land in the area to be annexed, were sued as members of a class. Other persons living in the area proposed for annexation were permitted to intervene as defendants. All will be referred to as defendants. A non-jury trial resulted in an order and declaratory judgment that the proposed annexation was reasonable and necessary and authorized the City of Cape Girardeau to proceed under the appropriate statutes providing for an election to determine whether or not a majority of the qualified legal voters of the City favored the extension of the City over the territory described in plaintiff's petition and sought to be annexed. Some of the original defendants and intervenors appealed to the Supreme Court of this state. A motion to transfer the cause to this court was filed by the City and said motion was sustained by the Supreme Court.

The petition pleaded an abundance of facts, (which we need not detail because they will be summarized in our statement of the ultimate facts shown in evidence) showing, as required by Section 71.015, supra, (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, V.A.M.S., Laws, 1953, p. 309 § 1.

Defendants in their answer, inter alia, admit paragraph 4 of plaintiff's petition, wherein it is alleged that the defendants were joined as representatives of a class of all the inhabitants of said unincorporated area under the provisions of Section 507.070, supra, and that the defendants named have been fairly chosen and adequately and fairly represent the whole class, in that said defendants are all owners of real estate within the area proposed to be annexed. It was further alleged in said answer that the properties owned by them within the area to be annexed were purchased and developed by them as and for rural and agricultural lands and that the annexation would destroy such character of their properties and would burden them with additional heavy taxes and would confiscate their properties without compensation by destroying the present and contemplated use of said properties. Said defendants further alleged that they now enjoy many of the services which the City proposes to give to said lands and the owners thereof if annexation be decreed and completed.

The transcript of the evidence and the exhibits form a voluminous record which we have read and studied carefully. The evidence took a wide range and it would serve no useful purpose to detail all of it. To do so would only extend the length of this opinion beyond reasonable limits. There is little conflict in the testimony and the general information, facts and statistical data about the schools and school system, police department, fire department, library, parks and recreational areas, streets and sewers, water and utilities, and other municipal services rendered by the City, concerning their services, personnel, wages and equipment are not materially controverted.

The City (respondent) dissatisfied with the statement of facts set out in defendants' (appellants') brief has ably and fairly set out in its brief a comprehensive statement of facts. In presenting our summary of the facts we can do no better than adopt the format followed by the City in its statement of facts. In addition, we adopt such of the statistical data we feel pertinent to the issues. We proceed to summarize the facts drawn from the record and in some areas detail the evidence.

The City of Cape Girardeau, famous for its roses, was founded as a town in 1806 and was incorporated as a city in 1843 and elected to become a city of the third class, alternative form of government, in 1918. This government was continued until September 20, 1965 when the city was organized under the City Manager form of government.

The boundaries of the City were established on March 29, 1872 and were extended on three occasions since that date; on January 15, 1925, April 25, 1947, and June 8, 1958. The last extension of 1958 added about 1800 acres of land and the City now contains approximately 10 square miles of land or 6400 acres. At the time of trial in December 1965 its population was approximately 30,000 persons, which included the student enrollment at Southeast Missouri State College located in the City. The census report since 1910 shows a steady increase in the population. In 1910 the population was 8475 and has grown to approximately 25,000 persons, plus 5,300 graduate students attending the aforesaid college. The City is located on the west bank of the Mississippi River and for that reason can expand only in three directions. It is bounded on the south, west and north by an irregular pattern and border that does not follow any natural or artificial landmarks. Several major highways traverse the City and are located nearby. Interstate 55 connecting St. Louis and Memphis, Tennessee, passes west of the City and as we shall point out later forms the western boundary of the area to be annexed. Interstate 55 is a limited access highway and three outlets flow from this highway into Cape Girardeau: U.S. Highway 61 connects with I--55 and by an interchange approximately one and one-half miles northwest of the northwest corner of the City provides access to the City from I--55. From this interchange U.S. 61 continues southeast into the City and then turns southwest to a point where it again connects with I--55 at an interchange and merges into that highway going south. About one-half the distance between the north and south intersections of U.S. 61 and I--55, Missouri Route K also known as the Gordonville Road, comes out of Cape Girardeau and passes over I--55 and connects with I--55 by an interchange immediately west of the City. Traffic may proceed eastwardly out of the City by means of a toll free bridge across the Mississippi River connecting with Illinois State Highways 146 and 3. There are a number of other state roads that traverse the City and pass westwardly, either over or under I--55, but at which points no interchange with I--55 is provided. All of these highways and roads referred to, with the exception of I--55, extend or pass through the area proposed to be annexed. One of these roads namely, Route K or Gordonville Road, is to be constructed as a limited access highway from U.S. 61 in the City west to I--55 interchange. The evidence indicates that the right-of-way is presently being acquired for this project, the purpose of which is to connect the Illinois traffic that comes over the Mississippi River bridge referred to with I--55. This project was the result of a survey of traffic needs by the Highway Department of the State of Missouri. This survey also illustrated the projected future street and highway needs.

The City has 83 miles of improved streets, three hospitals having a total bed capacity of 275, staffed by a large number of doctors. It has a daily newspaper having a large circulation and a weekly newspaper. There are two radio stations, eight motels and three hotels that provide 653 rooms in the City and within the city limits there are approximately 40 churches representing all faiths. There are 20 housing developments planned or under construction and the percentage of home ownership is 82%. Its population and industry is serviced by the St. Louis--San Francisco Railroad and the Missouri Pacific Railroad, eight motor freight carriers, and dry dock facilities available for river transportation. It has an airport that is supervised by an airport board appointed by the city fathers; however, the airport is not in the present city limits nor in the proposed annexed area but is in an adjoining county. At this airport the Ozark Airlines provides commercial air service and the Cape Central Airways provides a charter service. There is a new terminal building and four hangars. A Federal Aviation Communication station is located at the airport. A bond issue was voted for a new East-West runway, which bonds were matched by funds obtained from the Federal Government. The East-West runway will have taxi strips and will be 6,500 feet in length so as to accommodate jet service. This project is now underway. The testimony indicated that the airport was the third most active one in the State of Missouri, measured by take offs and landings. The City has three banks with total assets of over $46,000,000 and three savings and loan associations with total assets of over $70,000,000. The assessed valuation (1964--1965) of the City is $40,000,000 of which $30,500,000 is a real estate assessment. The...