City of Kinloch, In re
| Citation | 242 S.W.2d 59,362 Mo. 434 |
| Decision Date | 09 July 1951 |
| Docket Number | No. 41857,No. 1,41857,1 |
| Parties | In re CITY OF KINLOCH |
| Court | Missouri Supreme Court |
Norman C. Parker and Flynn & Parker, all of St. Louis, Roy McKittrick, St. Louis, of counsel, for appellant.
Adrian L. Bushman, Clayton, for respondents.
VAN OSDOL, Commissioner.
In this proceeding instituted by petition purportedly signed by two thirds of the legal voters of the City of Kinloch, a city of the fourth class in St. Louis County, the County Court of St. Louis County ordered the dissolution and disincorporation of the City and appointed a trustee to do the acts necessary to bring to a close all of the City's affairs. The County Court in making the order was acting pursuant to the provisions of Sections 7215 to 7220, inclusive, R.S.1939, Mo.R.S.A. Secs. 7215 to 7220, now Sections 79.490 to 79.540, R.S.1949.
The County Court granted an appeal to the Circuit Court of St. Louis County wherein upon a hearing de novo the County Court's order dissolving and disincorporating the City and appointing the trustee was affirmed. After a motion for a new trial and to set aside the order or judgment and to enter judgment denying the petition was overruled, the City appealed to this court. In the Circuit Court the appellant, City of Kinloch, had moved to dismiss the proceeding on the ground the County Court and the Circuit Court upon appeal had no jurisdiction of this proceeding. Appellant City correctly asserts herein that the case involves a construction of Section 1, Article V, and Section 7, Article VI, Constitution of Missouri, 1945, Mo.R.S.A.Const. Art. V, Sec. 1 and Art. VI, Sec. 7.
It is appellant's primary contention that, since county courts have not been included in Section 1, Article V, Constitution of 1945, supra, which constitutional provision enumerates the courts in which the 'judicial power of the state' is vested, the County Court of St. Louis County had no jurisdiction or power to entertain the petition and to order the disincorporation of the City of Kinloch. Appellant also directs our attention to Section 7, Article VI, Constitution of 1945, providing that county courts 'shall manage all county business as prescribed by law'; and appellant reminds us that county courts are no longer courts in a juridical sense. State ex rel. Kowats v. Arnold, 356 Mo. 661, 204 S.W.2d 254. Appellant asserts that a proceeding for the disincorporation of a city involves the exercise of 'a judicial function.' Appellant insists that the Constitution of 1945 has deprived county courts of power to exercise judicial functions, and Section 79.490, supra, is no longer effective in giving county courts the power to order the disincorporation of a fourth-class city.
It does not necessarily follow that, because county courts are no longer courts of record and are no longer vested with 'judicial power,' county courts may not continue, as the legislative agency, to hear and determine facts upon which the legislative will as expressed by statute is to be effectuated in disincorporating a city.
Section 79.490 reads as follows,
In State ex rel. and to Use of Behrens v. Crismon, 354 Mo. 174, 188 S.W.2d 937, 939, it is said, "The power to create or establish municipal corporations, or to enlarge or diminish their area, to reorganize their governments, or to dissolve or abolish them although is a political function which rests solely in the legislative branch of the government, and in the absence of constitutional restrictions, the power is practically unlimited.' 37 Am. Jur., Municipal Corporations, Sec. 7, p. 626. In that connection this court has said: State ex rel. Consolidated School District No. 8 of Pemiscot County et al. v. Smith, State Auditor, 343 Mo. 288, 121 S.W.2d 160, 162, and cases therein cited.' A municipal corporation when once incorporated can only become disincorporated by resorting to the proceedings pointed out by statute. State ex rel. and to Use of Behrens v. Crismon, supra; State ex rel. Hambleton v. Town of Dexter, 89 Mo. 188, 1 S.W. 234.
Prior to the case In re City of Union-dale, 285 Mo. 143, 225 S.W. 985, the questions of the nature of a county court's duties or functions as being either purely ministerial or judicial, and of the consequent right of appeal from a determination, order or judgment of a county court in incorporating or disincorporating a town or city were somewhat in doubt because of the decisions of the Kansas City and Springfield Courts of Appeals, respectively, in the case of Hall v. DeArmond, 46 Mo.App. 596; and in the case In re Town of Arcadia, Mo.App., 201 S.W. 359. In the Hall case, the Kansas City Court of Appeals expressed the view that In the Arcadia case, the Springfield Court of Appeals followed the Hall case, and affirmed a circuit court's judgment dismissing an appeal from a county court's order disincorporating the town of Arcadia.
In the case In re Incorporation of Uniondale, Mo.App., 203 S.W. 508, the St. Louis Court of Appeals held an appeal was allowable from an order of the county court in an incorporating proceeding; the court was of the opinion that the order was clearly one in the nature of a judgment in rendering which the county court was acting in a judicial capacity. However, the St. Louis Court of Appeals certified the case to this court on the ground the decision was in conflict with Hall v. DeArmond, supra; and In re Town of Arcadia, supra. This court in examining the Uniondale case approved the decision of the St. Louis Court of Appeals with respect to the part of the decision holding the county court's order was appealable, stating the order of the county court had 'the force and effect of a judgment.' But this court in its opinion further stated, 'While the county court, in passing upon the petition, is performing a judicial function, and its pronouncement thereon is a judgment, yet all the agencies invoked by the state--the majority of the taxable inhabitants, their petition, and the county court--taken collectively, is but the instrumentality through which, in the manner prescribed, the legislative power is exercised in creating cities of the fourth class.' In re City of Uniondale, supra, 285 Mo. at page 151, 225 S.W. at page 986, 987. See also In re City of Berkeley, Mo.App., 155 S.W.2d 138.
In the early case of Kayser v. Trustees of Bremen, 16 Mo. 88, at page 91, it was pointed out that the Act of 1845 for the Incorporation of Towns did not delegate political power to county courts. It was said the duties imposed on county courts in relation to the subject are 'judicial in their nature'; the court continued-- (Our italics.)
We believe this court, in the Uniondale and Kayser cases, was in no way intending to say that the county courts, in passing upon the petitions for incorporation, were performing a judicial function in the sense of exercising the 'judicial power' of a court in administering justice between litigants by the selection and application of appropriate principles of law or equity.
A statute by which an official (or a board, commission or other agency) is required to ascertain the existence of facts and apply the law to the facts in order to determine his official action does not necessarily confer 'judicial power' in a constitutional sense. The constitutional meaning of 'judicial power of the state' does not contemplate every exercise of duties judicial in nature, but refers to such powers and authority as courts and judges exercise; such as legitimately pertain to an officer in the department designated by the Constitution as 'judicial'; such as are exercised in the ordinary forms of a court of justice, in a suit between parties, with process. State ex rel. School District No. 1 v. Andrae, 216 Mo. 617, 116 S.W. 561. Many administrative and quasi judicial bodies, as a part of their delegated duties, must hear and determine facts in order to ascertain what action the law imposes upon them. In this respect such bodies are performing duties judicial in nature. But an administrative body or even a quasi judicial body is not and cannot be a court in a constitutional sense. State ex rel. Keitel v. Harris, 353 Mo. 1043, 186 S.W.2d 31.
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