City of Duquesne, In re

• Decision Date: 15 April 1958
• Docket Number: No. 7667,7667
• Citation: 313 S.W.2d 65
• Parties: In the Matter of the Petition to Incorporate the CITY OF DUQUESNE, MISSOURI, Petitioners-Appellants.
• Court: Missouri Court of Appeals

Page 65

313 S.W.2d 65

In the Matter of the Petition to Incorporate the CITY OF DUQUESNE, MISSOURI, Petitioners-Appellants.

No. 7667.

Springfield Court of Appeals, Missouri.

April 15, 1958.

James E. Brown, Stanley P. Clay, Joplin, for appellant.

Frieze & Crandall, Carthage, Loyd E. Roberts, Joplin, amici curiae.

McDOWELL, Judge.

This appeal is from a judgment of the Circuit Court of Jasper County, Missouri, affirming an order and judgment of the County Court denying a petition to incorporate Duquesne as a city of the fourth class.

May 4, 1956, a verified petition was filed in the County Court of Jasper County for an order incorporating certain territory in said county as a city of the fourth class, under the name of 'Duquesne'.

The petition alleged all of the essential elements for incorporation required by Section 72.080 RSMo 1949, V.A.M.S. for incorporation of a city or town as a city of the fourth class.

The County Court set a hearing on the petition for May 21, 1956. At this hearing petitioners were represented by Stanley P. Clay; Loyd E. Roberts appeared for and in behalf of 121 taxpaying citizens within the proposed incorporation and Arkley Frieze appeared in behalf of O. E. Buder of St. Louis Trust Company, owner of property located in the proposed incorporated area.

At the hearing Mr. Roberts was permitted, over objection of appellants, to file a petition for 121 taxpaying citizens in opposition to the incorporation. The court permitted Mr. Roberts and Mr. Frieze to act as amici curiae.

Judge Shadday, speaking for the court, stated that the court had been advised by the Prosecuting Attorney's office that all resident taxpayers could be heard and that the court would hear evidence by interested parties. He stated that according to investigations made by the court, one-half of the area included in the petition is used for agricultural purposes; that only 490 of the 3200 acres included are subdivided; and, that accepting the population as given in the census report at 909 people, there are only 180 persons per square mile as compared to 800 per square mile for Asbury and 1600 per square mile for Duenweg.

The court raised the question as to whether the area at present constitutes a city or town which could be legally incorporated under Sec. 72.080.

A census of the population in the proposed area showed the number of adults to be 590 and the total population to be about 900.

From the evidence the court found that more than half the taxpaying citizens within the proposed incorporation had signed the petition.

Appellants objected to the filing of the petition of the 121 taxpayers, who opposed the incorporation, on the grounds that the only issue involved was whether the petition filed was good and sufficient and that the acceptance of a counter-petition was a method of ascertaining the wishes of a part of the people in the community and was not acceptable. Appellants, likewise, objected to the appearance of Mr. Roberts and Mr. Frieze as attorneys. The court ruled that they could appear as amici curiae.

The court, in its judgment, denied incorporation of Duquesne on two grounds. First, that the evidence was insufficient to show the existence of a city or town. Second, that approximately one-half of the proposed area to be incorporated was purely agricultural land. The court stated that it had gone over the territory sought to be incorporated, had gone to the county assessor's and surveyor's offices and found no records or plats showing a city or town and that there was no evidence showing that any municipal functions had ever been exercised by the proposed area.

The judgment of the Circuit Court affirming, on appeal, the judgment of the County Court, found there was substantial and competent evidence to support the judgment of the County Court, particularly paragraph (1).

Paragraph (1) of the County Court's judgment reads:

'The Court finds that there is no existing City or town of Duquesne 'not incorporated', referable to the area of proposed incorporation within the meaning of Section 72.080, R.S. Missouri 1949 [V.A.M.S.]. No evidence was offered by petitioners to show that any unincorporated city or town exists on or covers the area proposed to be incorporated. That an unincorporated city or town may exist without incorporation is recognized in the Missouri Statutes, as for example, Section 71.090, R.S. Missouri 1949 [V.A.M.S.], which permits the change of name of an unincorporated city or town. This Court believes it has no power to incorporate a fourth class city under the law and evidence presented.'

On May 24, 1956, the date of the rendition of judgment by the County Court, appellants filed notice of appeal to the Circuit Court. Notice was directed to the County Court and requested that court, under its certificate, to return to the Circuit Court all documents and papers properly on file in the matter, together with a transcript of the evidence, the order, decree, decision or judgment and to proceed hereon according to law.

The record of the County Court, together with notice of appeal, was filed in the Circuit Court on June 15th and within thirty days from the date of rendition of judgment in the County Court.

We are first presented with the question of jurisdiction. It is suggested that appellants failed to comply with section 536.110 RSMo 1949, V.A.M.S. of the Administrative Procedural Act in their attempted appeal from the County Court to the Circuit Court; that the Circuit Court was without jurisdiction to hear the appeal and therefore this court is without jurisdiction to hear it.

It is the duty of the court of appeals to determine its jurisdiction in matters presented. Ashauer v. Peer, 346 Mo. 218, 139 S.W.2d 991; Perkins v. Burks, Mo.Sup., 61 S.W.2d 756; Rust Sash & Door Co. v. Gate City Bldg. Corp., 342 Mo. 206, 114 S.W.2d 1023; Pursley v. Pursley, Mo.Sup., 213 S.W.2d 291; Miller v. Haberman, Mo.App., 219 S.W.2d 656.

The right of appeal from an order of a county court is purely statutory except insofar as the Constitution authorizes an appeal. Duenke v. St. Louis County, 358 Mo., 91, 213 S.W.2d 492; Sec. 478.070(4) RSMo 1949, V.A.M.S.; In re City of Uniondale, 285 Mo. 143, 225 S.W. 985; In re City of Kinloch, 362 Mo. 434, 242 S.W.2d 59; In re Village of Pleasant Valley, Mo.App., 272 S.W.2d 8.

The Legislature provided a method of review from judgments of the county court prior to the adoption of the new Constitution. Sec. 2088, RSMo 1929 (now Sec. 49.230 RSMo 1949, V.A.M.S.). This section provides:

'In all cases of appeal from the final determination of any case in a county court, such appeal shall be prosecuted to the appellate court in the same manner as is now provided by law for the regulation of appeals from magistrates to circuit courts, and when any case shall be removed into a court of appellate jurisdiction by appeal from a county court, such appellate court shall thereupon be possessed of such cause, and shall proceed to hear and determine the same anew, and in the same manner as if such cause had originated in such appellate court, without regarding any error, defect or informality in the proceedings of the county court.'

It is suggested that the method of review provided for in Sec. 49.230 has been repealed by Sec. 22, Art. V of the Constitution (1945), V.A.M.S. With this contention we do not agree. Sec. 22, Art. V reads:

'All final decisions, findings, rules and orders of any administrative officer or body existing under the constitution or by law, which are judicial or quasi-judicial and affect private rights, shall be subject to direct review by the courts as provided by law; and such review shall include the determination whether the same are authorized by law, and in cases in which a hearing is required by law, whether the same are supported by competent and substantial evidence upon the whole record.'

County courts were deprived of their judicial character and reduced to administrative agencies by the adoption of the new Constitution. Sec. 22, Art. V of the Constitution repealed that part of Sec. 49.230 which provides for the scope of review. The scope of review provided under Sec. 49.230 was that the appellate court should try the case de novo. Sec. 22, Art. V of the Constitution provides that the scope of review shall be whether or not the judgment is supported by substantial and competent evidence upon the whole record. This section is self enforcing and repeals the scope of review provided in Sec. 49.230. Wood v. Wagner Electric Corp., 355 Mo. 670, 197 S.W.2d 647, 649; Kansas City v. Rooney, 363 Mo. 902, 254 S.W.2d 626; In re Village of Pleasant Valley, supra, 272 S.W.2d at page 12.

The law was stated in Wood v. Wagner Electric Corp., supra, as follows:

'The provision in Section 22 that administrative decisions 'shall be subject to direct review by the courts as provided by law' refers to the method of review to be provided (certiorari, appeal, etc.) and not to the scope of the review 'in cases in which a hearing is required by law.' For the latter, this stated minimum standard ('supported by competent and substantial evidence upon the whole record') is mandatory and requires no legislation to put it into effect. * * *'

Sec. 536.110 RSMo 1949, V.A.M.S. of the Administrative Procedure and Review Act does not apply to agencies which have their own separate review provision set up in their own special statutes. This Act was never intended to be a complete or adequate statute for administrative review of procedure. 4 M.B.J. 161, 171 (1948); M.L.R., Vol. 17 (1952) p. 287.

It is said in the Missouri Bar Journal (1948) Committee Reports, page 171, that a statute was passed at the 1945-46 session to implement section 22 of Article V and Section 16, Article IV of the Constitution 1945. It stated: '* * * This statute contains provisions relating to rule making, declaratory judgments and judicial review. Its provisions with respect to judicial...