City of St. Ann v. Spanos

• Decision Date: 09 January 1973
• Docket Number: Nos. 34540,34539,s. 34540
• Citation: 490 S.W.2d 653
• Parties: CITY OF ST. ANN, a municipal corporation, Plaintiff-Respondent, v. Theodore SPANOS, Jr., et al., Defendants, and St. Louis County, Missouri, a Body Corporate and Politic, Intervenor-Defendant-Appellant. CITY OF ST. ANN, a municipal corporation, Plaintiff-Respondent, v. CANYON CORPORATION, Defendant, and St. Louis County, Missouri, a Body Corporate and Politic, Intervenor-Defendant-Appellant. . Louis District
• Court: Missouri Court of Appeals

Page 653

490 S.W.2d 653

CITY OF ST. ANN, a municipal corporation, Plaintiff-Respondent, v.Theodore SPANOS, Jr., et al., Defendants, andSt. Louis County, Missouri, a Body Corporate and Politic,

Intervenor-Defendant-Appellant.

CITY OF ST. ANN, a municipal corporation, Plaintiff-Respondent, v.CANYON CORPORATION, Defendant, andSt. Louis County, Missouri, a Body Corporate and Politic,

Intervenor-Defendant-Appellant.

Nos. 34540, 34539.

Missouri Court of Appeals, St. Louis District.

Jan. 9, 1973.

Motion for Rehearing or Transfer to Court En Banc or to

Supreme Court Denied Feb. 13, 1973.

George F. Gunn, Jr., County Counselor, Andrew J. Minardi, Associate County Counselor, Thomas W. Wehrle, DeputyCounty Counselor, Clayton, for intervenor-defendant-appellant.

William R. Dorsey, Clayton, for plaintiff-respondent.

DOWD, Chief Judge.

Annexation Cases.City of St. Ann v. Spanos was instituted by filing a petition for declaratory judgment on February 5, 1971.City of St. Ann v. Canyon Corporation was instituted when a petition was filed on June 25, 1971.Both filings were pursuant to Section 71.015¹ which requires such actions for authorization to annex.

The land sought to be annexed in the Spanos case involves two separate areas.Area 1, referred to in the trial as parcels 1 through 6 or as the Greenspon property is located along the west side of Adie Road west of the present city limits of St. Ann.Area 2, referred to as parcels 7 through 9, is located directly south of the city limits.The land sought to be annexed in the Canyon case is located west of the city and is separated from the city by the Greenspon property.

St. Louis County, Missouri was granted leave to intervene in Spanos on March 23, 1971 and in Canyon on October 4, 1971.The causes were consolidated for trial, and judgments were entered for the respondent in both causes.The County appealed.

THE SPANOS ANNEXATION

The appellant raises a number of contentions regarding the Spanos annexation among which is the failure of the respondent to give proper notice to the County as is required by Section 71.880.This section provides in part 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 of the first class chartered county. * * *'(Emphasis added).

There is no dispute that the St. Louis County Board of Election Commissioners received notice of the passage of St. Ann OrdinanceNo. 627 to annex the lands involved in Spanos.However, Section 71.880 also required that notice be given to the St. Louis County Council prior to the election to vote on annexation held January 19, 1971.The only evidence that such notice was attempted was the testimony of Mrs. Margaret Filla, City Clerk of St. Ann, that she thought she had sent the notice.Mrs. Lela Apperson, Chief Deputy, County Clerk's office and recording secretary of the County Council, testified that she brought the file of the Council dealing with the Spanos and Canyon annexations.That file contained a letter dated March 3, (1971) from Mrs. Filla with a certified copy of Ordinance 627.From the transcript this appears to be the only communication concerning the Spanos annexation which the County Council received from St. Ann.This totally failed to meet the statutory requirements in that it did not precede the election held on January 19, 1971.The respondent's brief is refreshingly candid in conceding that the evidence is weak as to proof that the notice was sent.The fact is that the record is devoid of evidence that the required notice was given.And respondent's contention that this weakness applies to appellant's evidence is of no avail.In City of Ash Grove v. Davis, Mo.App., 418 S.W.2d 194, also an action for a declaratory judgment, the court stated at p. 196:

'* * * As we review and consider the facts, we remain mindful of certain well established principles, to wit, * * * that the burden of pleading and proving the statutory prerequisites to annexation rests upon the city * * *.'

We hold that the respondent failed to comply with the Section 71.880 requirement of giving notice to the County, and therefore, the annexation pursuant to St. Ann OrdinanceNo. 627 is null and void.St. Louis County v. City of Florissant, Mo., En Banc, 406 S.W.2d 281.

THE CANYON ANNEXATION

As stated above, the Canyon property is separated from the City of St. Ann by parcels 1 through 6 of Spanos and makes no contact with the City.Section 79.020 provides in part:

'The mayor and board of aldermen of such city * * * shall have power to extend the limits of the city over territory adjacent thereto * * *.'(Emphasis added).

With the Spanos annexation null and void, the question arises as to whether the Canyon property is adjacent to St. Ann.

Neither party cites, nor does our research reveal, a case which defines adjacent involving an annexation.However, in State v. North Kansas City, En Banc, 360 Mo. 374, 228 S.W.2d 762, the court treated contiguous as being synonymous with adjacent, as we define adjacent in this opinion.The court, in discussing contiguity as a necessary element for annexation, held that the contiguity between the annexing city and the territory to be annexed was not broken by the Missouri River which separated the two areas.(l.c. 773).Earlier, in State ex rel. Musser v. Birch, 186 Mo. 205, 85 S.W. 361, the court noted that adjacency was required for...