City of Kirkwood v. Allen, No. 49920

• Court: Missouri Supreme Court
• Writing for the Court: DONNELLY; STORCKMAN; STORCKMAN; FINCH; HYDE; PER CURIAM
• Citation: 399 S.W.2d 30
• Parties: CITY OF KIRKWOOD, a Muncipal Corporation, Respondent, v. Leslie L. ALLEN et al., Appellants.
• Docket Number: No. 49920
• Decision Date: 10 January 1966

Page 30

399 S.W.2d 30 CITY OF KIRKWOOD, a Muncipal Corporation, Respondent,
v.
Leslie L. ALLEN et al., Appellants. No. 49920. Supreme Court of Missouri, En Banc. Jan. 10, 1966.
Rehearing Denied Feb. 14, 1966.

Page 31

John R. Barsanti, Jr., Ramon J. Morganstern, Husch, Eppenberger, Donohue, Elson & Cornfeld (formerly Husch, Eppenberger, Donohue, Elson & Jones), St. Louis, for plaintiff-respondent, City of Kirkwood.

Norman C. Parker, St. Louis County Counselor, Lawrence J. Bannes, Asst. County Counselor, William J. Becker, Clayton, for certain appellants.

Morton I. Golder, Asst. County Counselor, Clayton, for appellant St. Louis County.

Greensfelder, Hemker & Wiese, Mark R. Gale, St. Louis, for Gib Bend Realty Co.

DONNELLY, Justice.

This is a class action filed pursuant to Sec. 71.015 (all statutory references are to RSMo 1959, V.A.M.S., unless otherwise stated) by the City of Kirwood whereby it seeks a declaratory judgment that it may proceed as otherwise authorized by law in the annexation of an area of approximately 4,000 acres lying adjacent to and westerly of the city. St. Louis County is a named defendant and one of the appellants, and for that reason, among others, appellate jurisdiction is in this Court.

Page 32

In this opinion, we adopt substantial portions of the opinion written by Stockard, C., in Division No. 2 of this Court.

Sections 77.020 and 78.060 provide that 'The mayor and council of * * * [the City of Kirkwood], with the consent of a majority of the legal voters of such city voting at an election thereof * * *' have the authority to extend the limits of the city over territory adjacent thereto '* * * in such manner as in their judgment and discretion may redound to the benefit of the city.' The exercise of this authority is subject to the provisions of Sec. 71.015, which reads as follows:

'Whenever the governing body of any city has adopted a resolution to annex any unincorporated area of land, such city shall, before proceeding as otherwise authorized by law or charter for annexation of unincorporated areas, file an action in the circuit court of the county in which such unincorporated area is situated, under the provisions of chapter 527 RSMo, praying for a declaratory judgment authorizing such annexation. 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. Laws 1953, p. 309, Sec. 1.'

It is the judgment obtained pursuant to provisions of this statute from which this appeal has been taken. However, before we may consider the merits of this appeal we must first determine the effect, if any, of recent legislation pertaining to the right or power of the City of Kirkwood to annex territory.

In 1963 after the declaratory judgment was obtained by the City of Kirkwood but before it became final (because appealed), the Legislature enacted House Bill 21 (Secs. 71.860-71.920), which became effective October 13, 1963.

Section 71.860 reads as follows:

'The provisions of section 71.015 shall apply as well to all cities, towns, villages and municipalities of whatsoever kind, located in any first class county which has adopted a constitutional charter for its own local government, except as provided in section 71.920. Laws 1963, p. 126, Sec. A (Sec. 1).'

Section 71.870 reads as follows:

'The legislative body of any city, town or village located within the boundaries of a first class chartered county shall not have the power to extend the limits of such city, town or village by annexation of unincorporated territory adjacent to the city, town or village in accordance with the provisions of law relating to annexation by such municipalities until an election is held at which the proposition for annexation is carried by a majority of the total votes cast in the city, town or village and by a separate majority of the total votes cast in the unincorporated territory sought to be annexed. There shall be separate elections submitting the proposition of annexation to the two groups of voters, the same to be held simultaneously. The elections shall be held, except as herein otherwise provided, in accordance with the general state law governing elections in first class counties. Laws 1963, p. 126, Sec. A (Sec. 2).'

Section 71.880 reads as follows:

'Whenever any city, town or village located in a first class chartered county desires to annex any unincorporated land of the county, the governing body of the city, town or village shall, before proceeding as otherwise provided by law, certify a notice of such fact to the board of election commissioners and to the governing body

Page 33

of the first class chartered county, which notice shall include:

'(1) The description by metes and bounds of the unincorporated territory sought to be annexed, and

'(2) A copy of the order, resolution or ordinance which contains the legislative act of the municipality ordering such election. Laws 1963, p. 126, Sec. A (Sec. 3).'

Section 71.890 provides for publication and posting of notice of the election by the board of election commissioners. Section 71.900 specifies the form of the ballot.

Section 71.910 reads as follows:

'In the event that the proposition to annex such territory fails to receive the necessary majorities, the proposition shall not be resubmitted to the voters for a period of at least two years. Laws 1963, p. 126, Sec. A (Sec. 6).'

Section 71.920 reads as follows:

'In the event that the proposition to annex such territory is approved by a unanimous affirmative vote in both the annexing municipality and the territory sought to be annexed, the annexing municipality, other provisions of this chapter notwithstanding, shall extend its limits by ordinance to include such territory, specifying with accuracy the new boundary lines to which the city, town or village limits are extended. Upon duly enacting such annexation ordinance, the municipality shall cause three certified copies of the same to be filed with the clerk of the county wherein the municipality is located, whereupon the annexation shall be complete and final and thereafter all courts of this state shall take judicial notice of the limits of that municipality as so extended. Laws 1963, p. 126, Sec. A (Sec. 7).'

Prior to the enactment of Sec. 71.015 in 1953, the Legislature of Missouri delegated the authority to determine a change in boundaries by way of annexation of adjacent territory, as to the class of cities which includes the City of Kirkwood, to the '* * * majoy and council * * * with the consent of a majority of the legal voters of such city * * *.' By the enactment of Sec. 71.015, this authority was not repealed or changed. Instead, the Legislature imposed a condition precedent to the exercise of that authority, that is, '* * * before proceeding as otherwise authorized by law * * * for annexation of unincorporated areas * * *' the city was required to obtain the declaratory judgment required by Sec. 71.015. McConnell v. City of Kansas City, Mo.Sup., 282 S.W.2d 518; City of St Joseph v. Hankinson, Mo.Sup., 312 S.W.2d 4; Anderson v. Moline Acres, Mo.Sup., 386 S.W.2d 38. The procedure required to be followed, briefly stated, was as follows: (1) The governing body of the city was authorized to adopt a resolution to annex a described unincorporated area of land; (2) the city then obtained the declaratory judgment required by Sec. 71.015 as to the reasonableness of the proposed annexation and the ability of the city to furnish normal municipal services; (3) if a declaratory judgment favorable to the proposed annexation was obtained the city was then authorized to exercise the authority delegated by Secs. 77.020 and 78.060 by (a) the action of the mayor and council, and (b) the submission of the proposed annexation to voters of the city for approval; and (4) if the voters consented to the annexation the city was then authorized to take such steps as necessary to complete the annexation and assume jurisdiction over the area. Steps (1), (3) and (4) are legislative. Step (2) is judicial in nature. See the discussion on the part step (2) plays in the annexation procedure set out in City of St. Joseph v. Hankinson, supra, 312 S.W.2d at pp. 7-10.

In the instant case, after the legislative process proceeded only through step (1), and there has been no completion of the judicial step nor any effective exercise of the authority delegated by Secs. 77.020 and 78.060, the Legislature has enacted the 1963

Page 34

Act, effective October 13, 1963. We must determine its effect.

In City of St. Joseph v. Hankinson, supra, at p. 10, we said:

'It is hardly necessary to repeat the maxims that the courts should indulge a presumption in favor of constitutionality (Bowman v. Kansas City, Banc, Mo., 233 S.W.2d 26), that they should faithfully apply to the act its plain and rational meaning in order to ascertain its intent and promote its object (Union Electric Co. v. Morris, 359 Mo. 564, 222 S.W.2d 767, 770), and that statutes should be construed so as to give effect to legislative intent and avoid absurd and meaningless results (State ex rel. Gass v. Gordon, Banc, 266 Mo. 394, 181 S.W. 1016; State ex rel. Moseley v. Lee, 319 Mo. 976, 5 S.W.2d 83).'

Examination of Sec. 71.015 and the 1963 Act reveals at the outset an apparent conflict. The 1963 Act, by the terms of Sec. 71.860, makes the provisions of Sec. 71.015 applicable to the City of Kirkwood, which is a city in a first class county which has adopted a constitutional charter for its local government. However, as we have heretofore recognized, under Sec....