City of St. Ann v. Buschard

• Decision Date: 28 February 1957
• Docket Number: No. 29502,29502
• Citation: 299 S.W.2d 546
• Parties: CITY OF ST. ANN, a municipal corporation, Respondent, v. Lewis BUSCHARD, Appellant.
• Court: Missouri Court of Appeals

Page 546

299 S.W.2d 546

CITY OF ST. ANN, a municipal corporation, Respondent, v. Lewis BUSCHARD, Appellant.

No. 29502.

St. Louis Court of Appeals, Missouri.

Feb. 28, 1957.

Motion for Rehearing or for Transfer to Supreme Court Denied

March 29, 1957.

Flynn & Parker, Norman C. Parker, St. Louis, for appellant.

Walter G. Treanor, Sp. Counsel, St. Louis, Paul Brackman, Brackman, Oetting & Brackman, Clayton, for respondent.

ELMO B. HUNTER, Special Judge.

This is an action by the City of St. Ann in St. Louis County, as plaintiff, for a declaratory judgment authorizing it to annex an adjoining area of approximately 750 acres also located in St. Louis County. The only specifically named defendant, Lewis Buschard, is a resident of the area sought to be annexed and as such, is alleged to be representative of all its inhabiants. Plaintiff City brings this suit pursuant to the so-called Sawyer Act passed by the 67th General Assembly, Laws 1953, page 309, Section 71.015 RSMo 1949, V.A.M.S., which provides that before a city may proceed to annex any area otherwise authorized by law, it must file an action in the Circuit Court of the County in which such unincorporated area is situated praying for a declaratory judgment authorizing such annexation. According to the Sawyer Act: '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.'

Plaintiff's petition contains the requisite allegations of fact, and the trial court held that its evidence adduced in support thereof satisfactorily established the facts alleged and satisfied the requirements of the Sawyer Act. It entered its judgment authorizing the annexation. In proper time defendant filed his motion for new trial and when it was overruled perfected this appeal.

On this appeal defendant raises and presents only two contentions of error. He contends the trial court erred in authorizing the proposed annexation because the evidence does not support the trial court's finding (1) that the annexation is reasonable and necessary to the proper development of the City of St. Ann; and (2) that the City of St. Ann has the ability to furnish normal municipal services to the unincorporated area within a reasonable time.

At the trial of the case in the Circuit Court plaintiff adduced evidence to the following effect: The City of St. Ann was incorporated April 7, 1948, as a city of the fourth class. It has undergone two previous annexations. To its north, east and south, it is fairly well surrounded by other incorporated areas. It encompasses an area of about 1,000 acres and has a population of approximately 12,000 people. It lies about seven or eight miles northwest of the City of St. Louis. The assessed valuation of all the property of St. Ann is $6,841.959. Its tax rete is 60cents per $100. Its budget for the current year (1955) is $62,000, and its anticipated income for the year is $58,000. It has a substantial surplus from prior years, thus enabling it to budget more than its actual income for the particular year. There was approximately $159,000 of the city's money in the bank at the close of business about a year prior to this litigation. Approximately $60,000 a year is required to operate the City of St. Ann in its present size. During January and February, 1954, the office of the Missouri State Auditor made an audit of the city's finances. According to the report of the State Auditor's Office, the city was in a sound and favorable financial condition. Its several funds had shown a substantial increase since the incorporation of the city in April, 1948. The State Auditor explains by reporting that 'this condition was principally the result of the rapid growth of the city since the date of incorporation as a fourth class city.'

Numerous residential developments have taken place in the City of St. Ann in recent years, and it is now almost entirely developed. It has only two small areas and a few lots that have not been improved. For all practical purposes there is no appreciable amount of available land in the city to enable it to grow larger. It has experienced and continues to experience considerable commercial development. It has about 75 business in the city, which is about what the average city of its size ordinarily has. Seven small businesses and one large clothing company are new businesses currently coming into St. Ann.

As to its city property, government and employees, St. Ann owns a new modern city hall. The city is governed by a mayor and a board of aldermen. It has a municipal court, a municipal judge, and a city attorney. Its full time employees include a city clerk, deputy clerk, treasurer and custodian. It has a police board composed of four citizens and a member of the board of aldermen who acts as its chairman. The police department consists of a full time police chief, two full time policemen, two other police officers who work a week on and a week off duty, and on their 'off duty week' ride two nights on duty in a police car, and twelve officers who are on call but who have other jobs. There are also 24 auxiliary police officers being trained under the civilian defense program of the St. Louis area. They are subject to duty call at any time. In the near future the city will be ready to start 17 auxiliary policemen in training. The police department has several fully equipped police cars owned by the City of St. Ann. It also owns nine radio receivers that are in the private cars of its police officers. These officers use their private cars when on duty for traffic patrol. There is a central dispatcher with the police department but no city owned sending equipment. The St. Louis County's Police Department by contract provides the sending service through its equipment. Until July 1, 1955, the proposed-to-be-annexed area was policed by the sheriff and constable of St. Louis County. Since that date it has been policed by the St. Louis County Metropolitan Police Department. In the past St. Ann's Police Department has provided frequent emergency police service to the proposed-to-be-annexed area. Although the county's police undertakes to occasionally patrol the highways within the proposed to-be-annexed area, the St. Ann police frequently arrive first on the scene of traffic accidents that occur there. Currently the St. Ann police are handling from 30 percent to 50 percent of all of the calls in a part of that area received by the county's police authorities. This is a courtesy service to the county's police authorities and to the proposed-to-be-incorporated area. The Police Board and Board of Aldermen of St. Ann are aware of the need for police protection in this area, and have gone on record that they will make whatever increases in personnel and equipment are necessary to police that area if and when annexed. However, it is the present opinion of the Chief of Police that there is now sufficient personnel to do that policing, particularly if one additional full time police officer is added to the Police Department. This additional officer already has been requested of the Board of Police Commissioners of St. Ann.

The City of St. Ann is served by the St. Louis Water Company, as is the proposed-to-be-annexed area. The cost of water to residents of St. Ann is reduced under a special contract between it and the city. These benefits would apply to any area annexed by the city.

St. Ann contracts with a private hauler to make pick-ups on garbage and trash three times a week at a cost to its residents of $16 per year.

St. Ann does not have a separate street department, having found it cheaper to contract for their repair on a cost-plus bais with a private contractor.

St. Ann does have a building and zoning ordinance containing provisions regulating such things as set back lines, building heights, and lot requirements. It has a building commissioner who checks every new building. As a result property values in St. Ann are high and stable.

There is no full time city engineer but there is a part time one who is paid for any special service he is requested to render by the city.

St. Ann does not maintain a fire department. It is served by a statutory fire district as is the proposed-to-be-annexed area. The proposed annexation would not affect the fire protection of that area, other than to cause a survey (as provided by St. Ann's water contract), and if there are not enough fire plugs in the proposed-to-be-annexed area, the water company would be compelled to install them at no charge.

Three parks are available to the residents of St. Ann. These parks have baseball facilities, picnic areas, rest rooms and playground areas. There is a city maintained planned playground program for all of the children in the community.

St. Ann has a health commissioner. It has its own sewer district and owns and operates its own sewer plant. However, there is now a metropolitan sewer district, and when a new subdivision or home in the proposed-to-be-annexed area comes in it must be referred to the metropolitan swer district and take its service from that district. This arrangement would not be changed by the proposed annexation. There is some indication that the metropolitan sewer district will eventually take over and service the St. Ann sewer system.

The City of St. Ann is divided into four wards, one of which is disproportionately large. The city has a plan to remedy this inequality and to provide equal representation for the area to be annexed.

Turning to the proposed-to-be-annexed area, its approximately 750 acres contain a population...