City of Joplin v. Village of Shoal Creek Drive

• Decision Date: 24 September 1968
• Docket Number: No. 8783,8783
• Citation: 434 S.W.2d 25
• Parties: CITY OF JOPLIN, Plaintiff-Respondent, v. VILLAGE OF SHOAL CREEK DRIVE, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 25

434 S.W.2d 25

CITY OF JOPLIN, Plaintiff-Respondent, v. VILLAGE OF SHOAL CREEK DRIVE, Defendant-Appellant.

No. 8783.

Springfield Court of Appeals, Missouri.

Sept. 24, 1968.

Motion for Rehearing or for Transfer to the Supreme Court

Denied Oct. 23,

1968.

Emerson Foulke, Joplin, for defendant-appellant.

Loyd E. Roberts, Roberts & Fleischaker, William H. Burden, Jr., Joplin, for plaintiff-respondent.

HOGAN, Presiding Judge.

This is an action for a declaratory judgment to determine the validity of an annexation. Both the plaintiff City and the defendant Village undertook to annex the same territory at substantially the same time, and the principal question in the case is which of the two proceedings had priority. The City of Joplin obtained a favorable judgment and the defendant Village has appealed.

In barest sketch, the facts are: On May 10, 1958, an annexation proposal was laid before the Joplin City Council by the city manager. This proposal was referred to a committee, and on August 8, 1958, at a special meeting of the council, an ordinance was introduced in the city council proposing that the corporate limits of the city be extended by amending the city's charter. The ordinance was given a first reading on August 8, 1958, and on November 4, 1958, the annexation was approved by the voters.

On August 9, 1958, one day after the Joplin ordinance was introduced, the Village of Shoal Creek Drive filed a petition with the County Court of Newton County, praying that part of the territory described in the Joplin ordinance be annexed to the Village as provided by § 80.030, RSMo 1959. ¹ On August 11, that court ordered the annexation prayed for in the Village's petition. Other facts, as material, will be noted in the course of the opinion.

We have had first to inquire into our jurisdiction. The judgment appealed from was entered on January 6, 1967, and a timely aftertrial motion was filed by the defendant on January 19. No action was taken by the trial court on the aftertrial motion, and the judgment became final on April 20, 1967. On June 7, 1967, the defendant filed a motion in the Supreme Court praying leave to appeal by special order as provided by Rule 82.07(a). In this motion the defendant alleged that jurisdiction of the appeal was in the Supreme Court because both parties were political subdivisions of the state. The motion was granted and the appeal was perfected and submitted in the Supreme Court. Upon examining the record, that court set aside the submission and transferred the appeal here without opinion on the ground that it lacked jurisdiction. The appeal has been argued and submitted here, and we have considered the case on its merits. As indicated, the principal question for decision is which of the two contending municipalities first instituted proceedings to annex the territory in dispute. Since Joplin is a constitutional charter city, and § 20, Article 6 of the Constitution of 1945 sets out the exclusive mode of annexation for constitutional charter cities, City of Hannibal v. Winchester, Mo., 391 S.W.2d 279, 288(18); McDonnell Aircraft Corporation v. City of Berkeley, Mo., 367 S.W.2d 498, 500(2), we have been led to inquire further whether the case involves a 'construction' of the constitution in the appellate jurisdictional sense. If so, we are without jurisdiction, for § 3, Article 5 of the constitution provides that the Supreme Court shall have exclusive appellate jurisdiction in all cases involving the construction of the Constitution of the United States or of this state. It has not been specifically ruled that no constitutional question whatever exists, and the Supreme Court's preliminary ruling on the question of appellate jurisdiction does not foreclose further review of that matter, nor preclude retransfer. Schmidt v. Morival Farms, Mo.App., 232 S.W.2d 215, 217--218(1) (2) (3).

For purposes of appellate jurisdiction, a distinction is drawn between 'construction' and 'application' of the constitution. Communications Workers of America, etc. v. Brown, Mo., 247 S.W.2d 815, 817; 1964 Wash.U.L.Q. § 1.010, pp. 442--445. It is only when constitutional provisions are not clear that resort must be had to construction, and if no construction of the constitution is called for, but only its application, appellate jurisdiction is vested in one of the courts of appeals, and not in the Supreme Court. E. B. Jones Motor Co. v. Industrial Commission, Mo., 298 S.W.2d 407, 411; Austin Western Road Machinery Co. v. City of New Madrid, Mo.App., 185 S.W.2d 850, 851(1). Section 20, Article 6 clearly prescribes the methods by which a constitutional charter city may amend its charter. In this case, we are only required to look to that section to determine what the methods of charter amendment are, and which of these methods was employed by the City of Joplin in this instance. It is not necessary to go further and determine the contextual meaning of a word or phrase, as was required, for example, in State ex rel. Voss v. Davis, Mo., 418 S.W.2d 163. We therefore conclude that no construction of § 20, Article 6 is required, and the appeal is properly lodged here. See State v. Metcalf, 130 Mo. 505, 506--507, 32 S.W. 993.

Another matter of which we must dispose before turning to the merits is the plaintiff's motion directed to certain writings which were not incorporated in the transcript but were nonetheless filed here as 'exhibits' by the appellant. These papers consist of some minutes of the Joplin City Council showing, among other things, that the meeting of August 8, 1958, was a special meeting attended by only five of the nine members of the council, and some records of proceedings before the trustees of the Village of Shoal Creek Drive. The Village maintains that we should receive and consider these papers because our review of the case amounts to a 'trial de novo'; the City of Joplin objects to any consideration of these writings because they were never considered by the trial court.

This aspect of the case need not detain us long. It may be that able and experienced counsel for the defendant intended to offer the writings he now tenders and introduce them in evidence at the trial. However, there is nothing before us to indicate that they were offered in evidence, or considered at the trial, and they have not been incorporated or even referred to in the transcript. We can review only the record presented, and it cannot be supplemented by filing extraneous writings not incorporated in the transcript nor conceded by adverse counsel. Pretti v. Herre, Mo., 403 S.W.2d 568, 569(3); Nelson v. Hammett, Mo., 189 S.W.2d 238, 242(2, 3). Further, counsel is mistaken in his suggestion that we can receive and consider evidence which was not presented on trial because our review of this court-tried case is sometimes called a 'trial de novo.' Rule 73.01(d) does provide that in a court-tried case '(t)he appellate court shall review the case upon both the law and the evidence as in suits of an equitable nature,' and appellate review under this rule is sometimes loosely referred to as a 'trial de novo.' Nevertheless, all the quoted language means is that all court-tried cases are reviewed as equity cases were reviewed before enactment of the Civil Code of 1943. Durwood v. Dubinsky, Mo., 291 S.W.2d 909, 919(11); 1 Carr, Missouri Civil Procedure, § 813, pp. 879--880 (1947). Our appellate courts review the evidence de novo in a court-tried case, but they do not and never have literally tried cases anew, as does a circuit court on appeal from a probate or magistrate court. George v. Waller, Mo., 19 S.W.2d 284, 285(1); State ex rel. Scott v. Smith, 176 Mo. 90, 106, 75 S.W. 586, 590(3). Our jurisdiction in this case is appellate only. State ex rel. Wulfing v. Mooney, 362 Mo. 1128, 1139, 247 S.W.2d 722, 726(5, 6).

On the merits, the parties agree that in case of conflict between competing annexations the proceeding first initiated has precedence and the later one must yield. Mayor, Councilmen, and Citizens of City of Liberty v. Dealers Transport Co., Mo., 343 S.W.2d 40, 42(1); State ex inf. Taylor ex rel. Kansas City v. North Kansas City, 360 Mo. 374, 403--404, 228 S.W.2d 762, 778--779; State ex inf. Goodman ex rel. Crewdson v. Smith, 331 Mo. 211, 214, 53 S.W.2d 271, 272(1). They disagree as to what is required of each to initiate an annexation proceeding, and each municipality claims it had priority.

The defendant's first point is that the Joplin annexation proceeding was not initiated on August 8, 1958, because the ordinance proposing amendment of the charter was not passed and did not become an ordinance in fact until August 18. The plaintiff maintains that the introduction of the ordinance in the Joplin City Council, without passage, was sufficient to initiate the annexation proceeding and give it priority. We think we must agree with the plaintiff.

Joplin is a constitutional charter city; as previously noted, it can annex territory only by amending its charter as provided by § 20, Article 6 of the constitution. Looking to that section, we find that charter amendments (and annexations) may be submitted by a charter commission, and that '(a)mendments may also be proposed by the legislative body of the city or by petition of not less than ten per cent of the registered qualified electors of the city * * *.' In this instance, Joplin chose to act by proposal of the legislative body, specifically, by ordinance. It may be granted that the ordinance introduced on August 8 was subject to amendment before final passage, and the ordinance might even have been defeated upon a vote, but in our view that is not determinative here. The doctrine of pre-emption or prior jurisdiction as applied to annexation proceedings is but a specific application of the more general rule that when several separate authorities have concurrent jurisdiction of the same subject matter the one in which proceedings were first commenced has...