City of Olivette v. Graeler

• Decision Date: 17 November 1959
• Docket Number: No. 30179,30179
• Citation: 329 S.W.2d 275
• Parties: CITY OF OLIVETTE, a municipal corporation, Plaintiff-Appellant, v. Walter GRAELER et al., Defendants-Respondents, Industrial Properties, Inc., a corporation, Intervenor, Respondent.
• Court: Missouri Court of Appeals

Page 275

329 S.W.2d 275

CITY OF OLIVETTE, a municipal corporation, Plaintiff-Appellant, v. Walter GRAELER et al., Defendants-Respondents, Industrial Properties, Inc., a corporation, Intervenor, Respondent.

No. 30179.

St. Louis Court of Appeals, Missouri.

Nov. 17, 1959.

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

Claude W. McElwee, Lewis, Rice, Tucker, Allen & Chubb, James A. Singer, Jerome M. Rubenstein, J. L. Pierson, Fordyce, Mayne, Hartman, Renard & Stribling, Thomas Rowe Schwarz, Samuel A. Mitchell, Charles M. Spence, Thompson, Mitchell, Thompson & Douglas, St. Louis, for respondents.

BRADY, Commissioner.

This is an action by the City of Olivette seeking a declaratory judgment in a proceeding under Section 71.015 RSMo 1949, V.A.M.S., Laws of Missouri 1953, p. 309, commonly known as the Sawyer Act. By this action the City of Olivette seeks to annex some 300 acres of land which is adjacent to its present boundaries. The first amended petition describes the property to be annexed, alleges the reasonableness and necessity of the annexation, and the immediate availability of the City of Olivette's services to the area sought to be annexed. Anwers resisting the annexation were filed by the class action respondents, certain landowners in the tract sought to be annexed, and by the intervenor respondent. Appellants filed a reply brief and upon oral argument we granted respondents leave to file an additional memorandum in response to appellant's reply brief. We also granted Monsanto Chemical Company leave to file brief as amicus curiae. Each respondent filed a motion to dismiss the appeal and we received suggestions in support of the motions and suggestions in opposition, and upon one of the motions affidavits and counter-affidavits were filed.

The trial court held:

'Finding and Order on Defendants and Intervenor-Defendant's Motions for New Trial.

'This proceeding is brought under the provisions of Sec. 71.015, R.S.Mo. 1949, Laws 1953, for a declaratory judgment authorizing the annexation of certain lands to the City of Olivette.

'Sec. 71.015 relates to the annexation of 'any unincorporated area of land.' It has not been contended that geographically the phrase 'unincorporated area' means anything other than that the proposed to be annexed area lies outside the boundaries of an incorporated municipality. From this point of view it is undisputed that the proposed to be annexed area is an 'unincorporated area of land.'

'St. Louis County under the provisions of its Home Rule Charter, adopted in 1950, has and exercise powers and functions in the unincorporated areas of the County which are identical with the powers and functions of a municipal corporation. That this is true to some extent at least is supported by language of the Supreme Court of Missouri in the case of State [on Inf. of Dalton] ex rel. [Shepley] v. Gamble, et al. , 280 S.W.2d 656, wherein it is stated:

'Moreover, charter counties are endowed with some of the powers and functions of a municipal corporation in the area outside incorporated cities. They are empowered to exercise legislative power pertaining to public health, police, and traffic, building construction, and planning and zoning in such areas. Section 18(c), supra. These are police powers ordinarily vested in municipal corporations. * * * A county under the special charter provisions of our constitution is possessed to a limited extent of a dual nature and functions in a dual capacity. It must perform state functions over the entire county and may perform functions of a local or municipal nature at least in the unincorporated parts of the county. * * * (l[oc]. c[it]. p[age] 660)

'If then the legislature in enacting Sec. 71.015 impliedly meant, by using the phrase 'unincorporated area,' both an area which was outside the boundaries of an incorporated municipality and which was not receiving municipal services, the area here involved is not covered by the provisions of said section since the evidence abundantly shows, and the Court finds, that St. Louis County does render to the unincorporated areas of the county (including the proposed to be annexed area) services which are municipal in nature.

'Whether or not these municipal services rendered by St. Louis County in the unincorporated area are as broad or extensive as those services which might be rendered by an incorporated municipality is debatable but not pertinent if we assume the intention of the legislature was to exclude from the purview of Sec. 71.015 those areas which receive municipal services.

'This assumption would appear to be a reasonable one, and one intended by the legislature, since in every county in the State of Missouri, except in St. Louis County, 'unincorporated area' and absence of municipal services are synonymous.

'Since Sec. 71.015 is made expressly applicable only in the event the area to be annexed is an 'unincorporated area,' this is a necessary prerequisite to the court's jurisdiction in proceedings under that statute which is here absent.

'Accordingly, the judgment entered herein on April 18, 1958 is vacated and set aside and plaintiff's petition dismissed.'

It is clear that the trial court's action in dismissing appellant's petition is based upon its construction of Article 6, Section 18, Constitution of Missouri 1945, V.A.M.S., and it is from this order that appellant has taken its appeal. The fact that it has chosen this court as the proper forum in which to bring its appeal does not vest this court with jurisdiction, although it might explain why appellant's brief failed to contain any statement of jurisdiction. Questions of jurisdiction are matters of first concern to every appellate court, and can arise sua sponte as well as by suggestion of a party litigant. Briley v. Thompson, Mo.App., 285 S.W.2d 27; Hahn v. Hahn, Mo.App., 287 S.W.2d 337; Taney County v. Addington, Mo.App., 296 S.W.2d 129; Dillen v. Edwards, Mo., 263 S.W.2d 433; East Park Dist., etc., Kansas City v. Mansfield, 240 Mo.App. 325, 201 S.W.2d 434; Miller v. Haberman, Mo.App., 219 S.W.2d 656; Coghlan v. Trumbo, Mo.App., 171 S.W.2d 794. This court is a court of general jurisdiction and the Supreme Court has that jurisdiction specifically conferred upon it. Holland v. City of St. Louis, Mo., 262 S.W.2d 1 at page 3; State ex rel. Thompson v. Roberts, Mo., 264 S.W.2d 314; Vogrin v. Forum Cafeterias of America, Inc., Mo.App., 301 S.W.2d 406. Article 5, Section 3, Constitution of Missouri 1945, V.A.M.S., grants exclusive appellate jurisdiction to the Supreme Court in all cases involving the construction of the Constitution of this State. In Dorrance v. Dorrance, 242 Mo. 625, 148 S.W. 94, 98, the Supreme Court defined the term 'construction' as follows:

'* * * Construction is a broad term, and perhaps as instructive a definition as could be stated is quoted from Abbott in Webster's International Dictionary as follows: 'Strictly, the term (construction) signifies determining the meaning and proper effect of language by a consideration of the subject-matter and attendant circumstances in connection with the words employed.''

In the case of E. B. Jones Motor Co. v. Industrial Commission, Division of Employment Security, Mo., 298 S.W.2d 407, loc. cit. 410, the court said 'It is only when constitutional provisions are not clear that resort must be had to construction.'

Section 71.015, supra, provides:

'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 R.S.Mo., 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, R.S.Mo.Laws 1953, p. 309, Sec. 1.' (Emphasis supplied.)

Article 6, Section 18(c), Constitution of Missouri 1945, V.A.M.S., provides:

'The charter may provide for the vesting and exercise of legislative power pertaining to public health, police and traffic, building construction, and planning and zoning, in the part of the county outside incorporated cities; and it may provide, or authorize its governing body to provide, the tems upon which the county shall perform any of the services and functions of any municipality or political subdivision in the county, except school districts, when accepted by vote of a majority of the qualified electors voting thereon in the municipality or subdivision, which acceptance may be revoked by like vote.'

In State On Inf. of Dalton ex rel. Shepley v. Gamble, 365 Mo. 215, 280 S.W.2d 656, the Supreme Court, en banc, held that the duty of a charter county to perform state functions over the entire county and to perform functions of local or municipal nature at least in the unincorporated part of St. Louis County are constitutional grants and take precedence over, and are not subject to legislative power.

Section 18(h) of Article 6, supra, provides that the charter '* * * shall supersede any existing charter or government * * *.' Section 18(a) of Article 6, supra, provides:

'Any county having more than 85,000 inhabitants, according to the census of the United States, may frame and adopt and amend a charter for its own government as provided in this article, and upon such adoption shall be a body corporate and politic.' (Emphasis...