City of Olivette v. Graeler, 47983

CourtUnited States State Supreme Court of Missouri
Citation338 S.W.2d 827
Docket NumberNo. 47983,No. 2,47983,2
PartiesCITY OF OLIVETTE, a Municipal Corporation, Appellant, (Plaintiff), v. Walter GRAELER and Ruth Graeler, His Wife, et al., Being Representatives of a Class of Inhabitants of a Certain Unincorporated Area, Respondents, (Defendants). Industrial Properties, Inc., a Corporation, Respondent, (Intervenor-Defendant)
Decision Date12 September 1960

Carroll J. Donohue, Shulamith Simon, Husch, Eppenberger, Donohue, Elson & Jones, St. Louis, for appellant, City of Olivette.

Claude W. McElwee, St. Louis, Lewis, Rice, Tucker, Allen & Chubb, James A. Singer, J. L. Pierson, Clayton, Stolar, Kuhlmann & Meredith, Fred L. Kuhlmann, Fred Drews, St. Louis, Fordyce, Mayne, Hartman, Renard & Stribling, Thomas Rowe Schwarz, St. Louis, for respondents.

Samuel A. Mitchell, Charles M. Spence, St. Louis, Thompson, Mitchell, Thompson & Douglas, St. Louis, of counsel, amici curiae.

Thos. J. Neenan, City Counselor of City of St. Louis, Aubrey B. Hamilton, Associate City Counselor, Thomas F. McGuire, Associate City Counselor, St. Louis, for City of St. Louis.

Philip A. Maxeiner and Lewis, Rice, Tucker, Allen & Chubb, St. Louis, for St. Louis county Library Board.


This is a declaratory judgment action brought by the City of Olivette in connection with its proposal to annex an area adjoining it in St. Louis County. The action is being prosecuted pursuant to Section 71.015 RSMo 1949, V.A.M.S., Laws 1953, p. 309, Sec. 1, which is commonly referred to as the Sawyer Act. The original defendants, inhabitants and landowners in the area to be annexed, were sued as representatives of a class. Other interested persons were permitted to intervene as defendants. All of them are resisting annexation.

Trial was had by the court without a jury and a declaratory judgment was rendered authorizing the proposed annexation. Thereafter the trial court sustained the defendants' motions for a new trial and entered judgment dismissing the plaintiff's petition. The court concluded that Sec. 71.015 was not applicable in that the area sought to be annexed was not an 'unincorporated area' within the purview of the statute because it was being furnished services of a municipal nature by St. Louis County operating under its constitutional home rule charter.

Plaintiff's appeal was taken to the St. Louis Court of Appeals but was transferred to this court on the theory that a construction of Sec. 18 of Art. VI of the 1945 Constitution of Missouri V.A.M.S. was involved. The defendants raised in their answer and have preserved and presented on appeal the contention that the adoption by St. Louis County of a constitutional home rule charter with provisions for furnishing municipal services in the part of the county outside of incorporated cities pursuant to Art. VI, Sec. 18, of the Constitution had the force and effect of constituting all of St. Louis County an incorporated area and, therefore, the plaintiff City was not entitled to maintain this declaratory action because the Sawyer Act by its terms was applicable only to the annexation of an 'unincorporated area of land'. This contentiion involves a construction of Art. VI, Sec. 18, of the Constitution of this state and jurisdiction of the appeal is properly in the supreme court. Art. V, Sec. 3; City of Olivette v. Graeler, Mo.App., 329 S.W.2d 275.

The briefs of three amici curiae join with the defendants in advocating affirmance of the trial court's judgment. The brief of the St. Louis County Library District asserts that it was established in 1946 pursuant to what is now Sec. 182.010; that it furnishes library services to the areas of St. Louis County outside of incorporated cities and in some of the cities; and that it opposes annexations generally because in some instances there is a loss of tax revenue and territory to be served. The interest of the City of St. Louis in this litigation arises out of a similar proceeding by the City of Berkeley to annex an area in St. Louis County occupied in part by the Lambert-St. Louis Municipal Airport owned and operated by the City of St. Louis. The Monsanto Chemical Company has erected office buildings and laboratories on a 155-acre tract in the City of Creve Coeur immediately south of the area proposed to be annexed at a cost of approximately $15,000,000 and plans to utilize a portion of the area in question for the construction of additional facilities in connection with the Company's world headquarters being established in St. Louis County. It contends the City of Olivette could render it no service and would hinder its operations, particularly in the filed of zoning and taxation.

The classification of Olivette from 1930 until 1957 was that of a town or village. In January 1957, it became a city of the third class and adopted the city managercouncil form of government which is an optional or alternative form under which cities of the third class may organize pursuant to Chapter 78, RSMo 1949, V.A.M.S. This action was instituted on February 13, 1957, pursuant to an ordinance adopted the day before. The present land area of Olivette is 2.66 square miles or 1703 acres. A census taken by city employees in July 1956 showed a population of 4980 persons. Generally, the principal municipal services rendered by the City of Olivette are fire and police protection twenty-four hours a day, a health department partially in cooperation and under contract with St. Louis County, and a building commission and city development director which handles building inspection and enforcement of zoning. The evidence tended to show that these and other services could be extended promptly to the area in question. In addition to its residential sections, the city has substantial commercial and industrial developments. It is in the Ladue School District. Based on information taken from the City Tax Rolls, the plaintiff's evidence tended to prove that about 89% of the city's area was developed and about 11% undeveloped or unplatted. In making this computation, if a subdivision was laid out, it was considered fully developed and included in the 89% even though there were no houses on it. At another place 190 acres within the city limits were said to be undeveloped.

Generally, the City of Olivette is bounded on the south by the City of Ladue; on the west by the City of Creve Coeur and a line 150 feet east of Warson Road; on the north by the right of way of the Chicago Rock Island and Pacific Railroad Company; and on the east by University City. Olive Street Road bisects Olivette from east to west. The area the City proposes to annex consists of .47 square miles or 303 acres. It is bounded on the south by the City of Creve Coeur, the northern limits of which is a line about 250 feet north of Olive Street Road; on the west by Lindbergh Boulevard; on the north by the Rock Island right of way; and on the east by the present western limits of Olivette which is a line 150 feet east of Warson Road.

The defendants' evidence shows that 173 acres of the area to be annexed is devoted to truck and dairy farming, raising chickens and hogs and egg production. The defendant Graeler lives on Warson Road; he owns 80 acres of land and rents 13 acres adjoining, all of which he farms. His farm buildings, besides his home, consist of three barns, several small sheds for livestock and pens for cattle, hogs and chickens. Mr. Graeler bought 117 acres of land, including this 80, from his father's estate in 1946 at $200 per acre. In 1955 he sold 37 acres for industrial purposes, presumably to the intervenor-defendant, Industrial Properties, Inc., for $200,000. The defendants, Edwin Zimmermann and Archie Viehmann, live on Lindbergh Boulevard; each owns a 40-acre tract which he farms. On each of these 40-acre tracts, in addition to the homes of the owners, there are the usual farm buildings. Two additional acres on or near Warson Road were owned by a landscape gardener and used in his business. The evidence is not clear but there appeared to be three industrial buildings in the area, either under construction or completed, probably located on the 37-acre industrial tract. This accounts for 212 acres of the area in question. Neither party undertook to prove the nature or use made of the remainder although the defendants' answer alleged that a considerable amount or all of the remainder was vacant land and devoted to agriculture. Defendants' proof also tended to show that over a period of years four residences had been constructed on the 150-foot strip on the east side of Warson Road. These and the homes of three defendants are the only residences shown to be in the area sought to be annexed. The area is zoned by the Planning Commission of St. Louis County in these categories: light industrial, commercial and '20,000 square foot single family residential.' But this court cannot determine the location or extent of these zones because the witness merely pointed to them on an exhibit which has not been lodged in this court. This is one of several instances where locations or objects on plats or maps were pointed out without oral description. This method of examination puts nothing in the record that will benefit an appellate court.

The business, industry and population of the entire county, including its towns and cities, have had a very rapid growth in recent years. It was a county of the first class with a population of 406,349 at the time it adopted a home rule charter in 1950 pursuant to the provisions of Sec. 18 of Art. VI of the Constitution. It furnishes services of a municipal nature to parts of the county including the area sought to be annexed. The services include zoning and planning, traffic laws, the police protection by the County Department of Police, health and sanitation services by the health department and the county hospital and road building and...

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