City of Fulton v. Dawson

• Court: Missouri Court of Appeals
• Writing for the Court: HUNTER
• Citation: City of Fulton v. Dawson, 325 S.W.2d 505 (Mo. App. 1959)
• Decision Date: 01 June 1959
• Docket Number: No. 22977,22977
• Parties: CITY OF FULTON, Missouri, Plaintiff-Respondent, v. Mrs. G. Roy DAWSON et al., Defendants-Appellants.

Page 505

325 S.W.2d 505

CITY OF FULTON, Missouri, Plaintiff-Respondent, v. Mrs. G. Roy DAWSON et al., Defendants-Appellants.

No. 22977.

Kansas City Court of Appeals, Missouri.

June 1, 1959.

David V. Bear and Robert Hines, Columbia, for appellant.

Clyde Burch, City Atty., Fulton, for respondent.

HUNTER, Judge.

This is an action by the City of Fulton, as plaintiff, for a declaratory judgment authorizing it to annex a surrounding contiguous area of approximately 1387 acres. Numerous inhabitants of the proposed-to-be annexed area were named as defendants, and others were given leave to intervene. Hereafter in referring to defendants for expediency purposes we include all intervenors.

Plaintiff City brings this suit pursuant to Section 71.015 RSMo 1949 (Supp.1955), V.A.M.S., which provides that before a city may proceed to annex any area otherwise authorized by law, it must file an action in the circuit court of the county in which such unincorporated area is situated praying for a declaratory judgment authorizing such annexation.

According to the mentioned statute, 'The petition in such action shall state facts showing:

'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.'

Plaintiff's petition contains the requisite allegations of fact, and upon trial, the circuit court held that the evidence adduced in support thereof showed that plaintiff has fully complied with Section 71.015 RSMo 1949, V.A.M.S., and that the City of Fulton is authorized to annex the described territory. It entered judgment accordingly. In due time the defendants filed their motion for a new trial and upon it being overruled perfected this appeal.

On this appeal, defendants urge the trial court erred in authorizing the City of Fulton to annex the contiguous unincorporated land because (1) The land supposed to be annexed is largely agricultural and its value in respect to its adaptability to city uses is not greatly in excess of its value for use as agricultural or pasture land; (2) Plaintiff failed to sustain its burden of proof that the proposed annexation was reasonable; (3) Or was necessary to the development of plaintiff city; or (4) Did not prove that the city has the ability to furnish its normal municipal services to the unincorporated area within a reasonable time; and (5) That the Fenley farm and other farms in the proposed-to-be annexed area were not reasonably necessary to the development of the city--each and all resulting in such annexation being unreasonable, arbitrary and capricious.

Section 71.015 is generally referred to as the Sawyers Act and was passed by the 67th General Assembly in 1953. Its constitutionality was upheld by the Supreme Court in City of St. Joseph v. Hankinson, Mo., 312 S.W.2d 4, 9. In that decision the court said, loc. cit. 9: 'We construe Sec. 71.015 as merely giving to the courts, in advance of a consummated annexation, the same judicial power and authority to test the reasonableness and necessity for annexation which they have always exercised after its completion; that is to say, to decide whether the legislative declaration by the city is so palpably unreasonable and unnecessary as to be an arbitrary and oppressive exercise of its legislative power. Considered in this light, the change is procedural, and the legislature has not delegated to the courts the power to determine reasonableness or necessity in the first instance, as would a legislative body. * * * Subsection 3 of Sec. 71.015 requires the allegation of the city's ability to furnish normal municipal services within a reasonable time. That requires merely a finding of facts, pure and simple. * * * it also requires the city to show, prima facie, that the discretionary and legislative powers have not been unreasonably and arbitrarily exercised. To this extent the city must produce evidence of reasonableness, and to this extent the statute places the burden of proof upon the city.'

We proceed to summarize the evidence and in some instances to give only our conclusions as to what it shows. With a record consisting of two volumes of testimony in excess of 60 pages and a third volume of numerous detailed exhibits, we cannot do otherwise and stay within the bounds of an opinion of reasonable length.

Fulton is a city of third class with an approximate area of 2.5 square miles, or 1720 acres. Its present population is slightly in excess of 10,000 as compared with 8,297 in 1940 and 6,105 in 1930. It proposes to annex approximately 1,387 acres of land contiguous to it and surrounding it. On October 10, 1956, the City Council of Fulton passed its annexing ordinance and called for a special election by the legal voters of Fulton to determine if a majority were in favor of the proposed annexation. This ordinance directed the institution of this declaratory judgment action.

The proposed-to-be annexed land is owned by approximately 105 separate owners including in addition to individual owners, Missouri State Hospital No. 1, (140 acres); Missouri School for the Deaf, (40 acres); William Woods College, (16 acres); and Westminster College. Among the larger individual owners, who vigorously opposed the proposed annexation, are Mrs. G. Roy Dawson, (103 acres); Mrs. Margaret Fenley, (70 acres); and Ernest Mirts, (5 acres off the front of his 80 acre farm).

According to unmerous witnesses Fulton is experiencing a healthy and substantial population and business growth. It has an immediate need for more land for residential and business building purposes. Vacant land suitable for such purposes within the present city limits is scarce, and it is necessary to annex as proposed in order to meet these needs of the city.

Fulton's mayor, Edward Estes, testified that numerous new industries and installations have located in Fulton during the past five years. These include the Laclede Christy Experiment and Testing Station; Central Electric Corporation; a new R. E. A. Building; Missouri Concrete; I. G. A. Foodliner; Montgomery Ward; Travelier Motel; Ovid Bell Press expansion; Davis Paint Company; State Hospital expansion; Westminster College expansion; and William Woods expansion--as to put it 'to name a few'. The mayor also named eight new subdivisions that have gone in during the past year or were in the process thereof as (1) Dr. Durst's, (2) Paul Herring's, (3) T. J. Neukomm's, (4) the South School subdivision, (5) McIntire's, (6) Tucker's, (7) Acree's and Whitlow's.

Additionally, the mayor testified: Fulton is growing rapidly. Building sites for either residential or other purposes are very scarce inside the city. He has requests all the time for private building lots from contractors both for home building and for industrial purposes. Approximately two years ago, somewhat as a result of numerous requests from individuals trying to find locations to build houses and the recognition of the City Council that the city was in the process of growing pains ('we have just outgrown our town'), a city planning commission, comprising eighteen members was formed. After considerable study this commission asked that the city extend its city limits. The City Council after taking into consideration such things as health problems, sewers, zoning, water, lights, gas, and other related matters, asked the people for a bond issue to extend and expand its utilities, and the council passed the mentioned annexing ordinance. It is desirable to bring in the proposed area not only because it is needed to give the city needed territory for the construction of homes and business buildings but because of zoning and police considerations.

Mayor Estes explained: Fulton's city limits come right up to the Dawson property and stop, this being a north boundary. To the northeast, the city can't grow because of the Harbison Walker land and heavy terrain. There are undesirable properties springing up around the city, and it would be a great advantage to the city to be able to zone that area. As to building sites, Dr. Durst's subdivision has six lots and they are possibly all sold. The Herring subdivision has about ten or twelve lots, all sold. The Neukomm subdivision has six houses. The South School subdivision, owned by the St. Louis Construction Company, has about 200 lots with about 100 of them unsold. This company builds prefabricated houses, and the prospective purchaser is expected to buy a house and lot together which decreases any demand for them.

With regard to the Fire and Police Departments the mayor testified: Fulton's fire department is adequate to give protection to the proposed-to-be annexed area. This opinion is supported by a recent study made by the Missouri Inspection Bureau. At the present time Fulton is answering all fire calls within a reasonable distance outside its present city limits, including the proposed-to-be annexed area. The fire department has two pump trucks equipped with ladders and hoses. It has five firemen on full time duty, and available on call are an additional eighteen volunteer firemen.

Fulton's police department consists of nine regularly employed police officers who work three shifts around the clock. All of them are subject to call at any time. It has one patrol car and a radio equipped motorcycle. In contemplation of the annexation and other requirements, the police department with the support of the mayor is requesting an increase of the police budget. However, the mayor believes the present force could by extra effort police the present city and the proposed-to-be annexed area.

Woodrow W. Lewis, Chief of Police, testified: The annexation would be desirable...