City of Perryville v. Brewer, 38425

• Decision Date: 11 October 1977
• Docket Number: No. 38425,38425
• Citation: 557 S.W.2d 457
• Parties: CITY OF PERRYVILLE, a Municipal Corporation, Plaintiff-Respondent, v. Cyril (Syril) BREWER, Floyd Huber, Albert W. Bergman, John Brune & Albert Stueve, Defendants-Appellants, Charles L. Drury, Trustee, Kenneth Krauss, Dennis Sauer, Leo Miederhoff, Bill G. Bailey, Homer Roy, Michael J. Sutterer, Lawrence Feltz, Davis Farm Supplies, Inc., Perryville Development Corporation, and Gary Brewer, as members of a class composed of inhabitants of the area proposed to be annexed to the City of Perryville, Defendants, Adrian Giesler, Dorothy Giesler, Charles M. Kiefner and Marilyn S. Kiefner, Intervenors. . Louis District, Division Three
• Court: Missouri Court of Appeals

Page 457

557 S.W.2d 457

CITY OF PERRYVILLE, a Municipal Corporation, Plaintiff-Respondent, v. Cyril (Syril) BREWER, Floyd Huber, Albert W. Bergman, John Brune & Albert Stueve, Defendants-Appellants Charles L. Drury, Trustee, Kenneth Krauss, Dennis Sauer, Leo Miederhoff, Bill G. Bailey, Homer Roy, Michael J. Sutterer Lawrence Feltz, Davis Farm Supplies, Inc., Perryville Development Corporation, and Gary Brewer, as members of a class composed of inhabitants of the area proposed to be annexed to the City of Perryville, Defendants Adrian Giesler, Dorothy Giesler, Charles M. Kiefner and Marilyn S. Kiefner, Intervenors.

No. 38425.

Missouri Court of Appeals, St. Louis District, Division Three.

Oct. 11, 1977.

John P. Bradshaw, Finch, Bradshaw, Storm & Steele, Cape Girardeau, for defendants-appellants.

Francis Toohey, Jr., Perryville, Buerkle, Buerkle & Lowes, Albert C. Lowes, David G. Beeson, Jackson, for plaintiff-respondent.

WEIER, Judge.

In this declaratory judgment action brought under the provisions of the Sawyer Act (§ 71.015 RSMo.1969), the City of Perryville sought authorization to annex a circumferential unincorporated area contiguous to its city limits. From a judgment favorable to the city, the defendants-appellants, who are residents and landowners in the area affected, have appealed raising as their principal challenge the sufficiency of the evidence to support the court's judgment that the proposed annexation was both reasonable and necessary.

After their appeal, defendants filed in this court a motion to remand the case to the circuit court because the city annexed several portions of the area which is the subject of this suit after the judgment was entered. Those annexations were alleged to have been accomplished under the provisions of § 71.012 RSMo.Supp.1976, which governs annexations petitioned by real property owners in the annexed area and not objected to by any interested persons. The portions of territory voluntarily annexed by this process consisted of 625 acres of St. Mary's Seminary, 90 acres of public school property, and a 10 acre subdivision, according to the appellants' allegations.

The motion asks that we send this case back to the circuit court for further proceedings in light of the voluntary annexations because the present declaratory judgment can no longer be complied with in terms of the territory to be annexed and because the voluntary annexations have effected a change in the electorate required to vote on the involuntary annexation under § 79.020 RSMo.1969. Before considering the merits of the appeal, we first digress to consider this motion.

Ordinarily, of course, we may not consider any facts outside the record unless they are subject to judicial notice. State ex rel. Freeze v. City of Cape Girardeau, 523 S.W.2d 123, 127(5) (Mo.App.1975); Rawlings v. Taylor, 477 S.W.2d 737, 739(1) (Mo.App.1972); City of Joplin v. Village of Shoal Creek Drive, 434 S.W.2d 25, 28-29(4) (Mo.App.1968). Municipal ordinances, the method by which a voluntary annexation is accomplished, are generally not judicially noticed. Rather they must be proven like any other fact. State ex rel. Freeze v. City of Cape Girardeau, supra at 127(4). In this case, however, we can consider the fact of the voluntary annexation, despite its absence from the record and our inability to judicially notice the enabling ordinances, because that fact was conceded by opposing counsel in his suggestions in opposition to the motion to remand. Such a concession brings the conceded fact before us. See, Rawlings v. Taylor, supra at 739(1); City of Joplin v. Village of Shoal Creek Drive, supra at 28-29(4).

The issue is then presented whether the voluntary annexation of a portion of the disputed territory, subsequent to the issuance of a declaratory judgment under § 71.015, supra, authorizing the disputed territory to be involuntarily annexed, necessitates a remand of this case for further proceedings. The procedure necessary for a fourth class city, like Perryville, to involuntarily annex territory, as provided by § 71.015 RSMo.1969 and § 79.020 RSMo.1969, requires the city to adopt a resolution to annex the unincorporated territory desired, file an action in the circuit court of the county in which the territory is located seeking a declaratory judgment authorizing the annexation and, if receiving the declaratory judgment, hold an election in which the voters of the city decide whether to annex.

Here, the City of Perryville adopted the appropriate resolution and asked for and received the appropriate declaratory judgment. That judgment authorized the annexation of the entire 2,940 acres of land in question and made way for the holding of an election among Perryville's voters on the desirability of the annexation. It is the defendants' contention that by voluntarily annexing ¹ over 700 acres of the territory subsequent to the issuance of the declaratory judgment and prior to the holding of the election, the city has made it impossible for the circuit court's judgment to be complied with, in that the election can be held only as to the territory left after the voluntary annexation instead of the entire territory as contemplated in the circuit court's judgment. To support this contention the defendants cite two cases, ² which are, however, irrelevant because they address the question of the circuit court's power to vary the territory proposed for annexation by the city. They do not address the question of the city's power to vary from the declaratory judgment of the court.

There is, however, one case which does consider the latter question. That case, Young v. Mayor, Council and Citizens of City of Liberty, 531 S.W.2d 732 (Mo. banc 1976), involved a situation in which a special charter city obtained the declaratory judgment required by § 71.015 RSMo.1969, but then varied from it by passing an annexation ordinance including less than one-half of the territory authorized to be annexed by the judgment. ³ The territory mentioned in the ordinance was, however, wholly within the territory mentioned in the judgment. Young v. Mayor, etc., supra at 735. The court held that a city may not vary from the declaratory judgment in that way and that § 71.015 required the city to obtain another declaratory judgment directed to the consideration of the revised territory desired for annexation only. See, Young v. Mayor, etc., supra at 737-739. The court said that "(i)n view of the effect of the burden which that legislation shifted to the city of establishing in advance the reasonableness of its annexation proposal and in view of the requirement that the petition for approval describe the area proposed to be annexed, it is reasonable to conclude that the legislature intended to require the city to comply with the Act with respect to the area ultimately annexed and to require judicial authorization for that particular action." Young v. Mayor, etc., supra at 738(9).

This language can be interpreted to either support or destroy the defendants' position. In one sense the city did not comply with § 71.015 with respect to the area ultimately to be annexed in that some portion of that area has been annexed under § 71.012 and the declaratory judgment obtained for the whole area will only be used to annex the remainder. On the other hand, all the territory subject to the judgment will be annexed to the city if the election is successful even though some of it will have been annexed by a different means. That differentiates this case from Young. Here, Perryville being a city of the fourth class, all the territory will be annexed after the procedure required by §§ 71.015 and 79.020. In Young, only half the territory was annexed by the time the statutory procedure was completely followed. The City of Perryville will not be varying the amount of territory annexed, as was true in Young, but will only be varying the method of annexation. The latter variance, unlike the former, cannot really affect the circuit court's determination as to whether the statute's requirements of reasonableness and ability to provide municipal services are met. For these reasons, we hold Young inapplicable to this case. The city's variance from the declaratory judgment does not invalidate the proceeding so as to require that it apply for a new declaratory judgment.

The defendants' other contention is that the voluntary annexation has increased the city's electorate beyond what it was at the time the judgment was issued and thus has diluted the votes of other city residents who might oppose the annexation in violation of § 71.015. The defendants cite no authority in support of their contention that enlarging the electorate voting on annexation violates § 71.015. Nor have we been able to find any supporting authority for this contention. Moreover, it appears that the only people whose rights could be prejudiced by an enlarged electorate are those who were city voters before the voluntary annexation. Logically, it is to protect city voters' rights that an election on annexation is required at all. But voluntary immigration of new voters into the city between judgment and election could not be prevented under normal circumstances. Furthermore, there is no way the rights of the defendants, people who currently live outside the city, could be prejudiced by the enlarging of the city electorate. The rights of defendants are protected by the requirement that the city bring a declaratory judgment action against them in which the city must prove the reasonableness of the annexation. The size or persuasion of the city electorate cannot affect the decision on the declaratory judgment. Since the appellants cannot be prejudiced by this change in the electorate after the issuance of the declaratory judgment, there is no reason to remand the case on that basis either. The motion to remand is denied.

After this diversion in a collateral but important area, we turn to the merits of...