City of St. Charles v. Schroeder, 33884

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: PER CURIAM
• Citation: 474 S.W.2d 55
• Parties: CITY OF ST. CHARLES, a Municipal Corporation, Plaintiff-Respondent, v. Robert SCHROEDER et al., Defendants, Harold Berger, et al., IntervenorDefendants-Appellants.
• Docket Number: No. 33884,33884
• Decision Date: 23 November 1971

Page 55

474 S.W.2d 55 CITY OF ST. CHARLES, a Municipal Corporation, Plaintiff-Respondent,
v.
Robert SCHROEDER et al., Defendants, Harold Berger, et al.,
IntervenorDefendants-Appellants. No. 33884. St. Louis Court of Appeals, Missouri. Nov. 23, 1971.

Page 56

J. B. Carter, Paul Gordon Latt, Clayton, for defendants-appellants.

Davis & Hannegan, Ervin D. Davis, St. Charles, for plaintiff-respondent.

DOERNER, Commissioner.

By this action, brought under what is commonly known as the Sawyer Act, Section 71.015, RSMo 1969, V.A.M.S., the City of St. Charles sought a declaratory judgment authorizing it to proceed with the annexation of 5843 acres adjacent to the present city limits. The trial court sustained the City's petition and entered the judgment prayed for, and the above named intervening defendants, hereafter referred to as the defendants, appealed.

The map incorporated herein and a brief statement of the events preceding the institution of the suit will facilitate an understanding of the issues presented.

Page 57

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The evidence reveals that prior to 1960 the City of St. Charles, a city of the third class, contained 2959 acres. In that year the City annexed an area of 2316 acres. Thereby it almost doubled its size to a total of 5275 acres, contained in the area marked 'A' on the foregoing map. On November 27, 1967, the City adopted two resolutions which together proposed the annexation of additional land with a combined acreage of 10,908 acres. Separate petitions for declaratory judgments were filed by the City on January 4, 1968, in the Circuit Court of St. Charles County, each of which dealt with different areas. By the first action, assigned Cause Number 5888, the City sought the court's approval of the annexation of 5065 acres located south of Interstate Highway 70, designated on the foregoing map as area 'B'. By the second action, given Cause Number 5889, the City sought authorization by the court for the annexation of a total of 5843 acres contained in the parts marked C--1, C--2 and C--3, frequently referred to in the evidence, respectively, as the cone-shaped area, the triangle area, and the bottom land area.

Page 58

In general, the City as presently constituted sits on high ground, overlooking the Missouri River. From the record it appears that the cone-shaped area, C--1, is similarly situated topographically. The triangular area, C--2, contains a subdivision named Mamelles Hills, located on high, hilly land. The Wabash Railroad, which follows the present northern city limits, is built at the foot of bluffs along which the Mississippi River once flowed. From these bluffs toward the present location of the river the area marked C--3, containing about 3000 acres, is bottom land. It is undisputed that except for about 700 acres used for an airport virtually all of the 3000 acres are presently used for agricultural purposes.

With that background in mind we turn to the consideration of the first of the two points relied on by defendants in this appeal. Section 71.015 provides that the action brought thereunder, '* * * shall be a class action against the inhabitants of such unincorporated area * * *.' Civil Rule 52.09, V.A.M.R., requires that the petition in a class action shall allege such facts as shall show that '* * * the defendants specifically named and served with process have been fairly chosen and adequately and fairly represent the whole class. The plaintiff shall be required to prove such allegations, * * *.' The gist of defendants' initial point is that the 21 persons named as defendants, both in the City's original petition and in its second amended petition, on which the case was tried, were not fairly chosen and did not adequately represent the class of persons within the area the City proposed to annex.

We are of the opinion that there is merit in defendants' complaint. The only evidence as to the manner in which the 21 original defendants were chosen was the testimony of Ervin D. Davis, the attorney for the City. He testified that '* * * I personally chose those names from a list of names that was furnished to me as being property owners within the proposed annexed areas. I simply chose names at random with the reservation that I tried to choose some who were home owners within a subdivision and some who I felt to be owners of a tract of land in contrast to one lot. * * *' He also stated that Gerald O. Denningmann, who with his wife Joy was named as an original defendant, was the owner of a tract but that he didn't know where it was located. Mr. Davis further said that Al Schroeder, similarly named, was the developer of the subdivision called Mamelles Hills. And that Eugene Glosier and Betty Glosier, his wife, who were likewise named, also owned two properties, one near Highway 94 and the other near the Cave Springs overpass.

Mr. Davis was not asked, nor did he state, who furnished him with the list of property owners from which he chose the 21 original defendants. Of greater importance, he was not asked, nor did he state, whether the list from which he made his selections included the names of all of the landowners in the area proposed to be annexed. In that connection we note that attached to the City's second amended petition as an exhibit was a list of names of about 250 persons alleged to be property owners in the unincorporated area. We also note that a similar list of names of about the same number of persons was identified as a list of property owners in the unincorporated area and was admitted into evidence as City's exhibit number 125. A comparison of the two lists, while not exhaustive, indicates that the names on both lists are substantially the same. A careful examination of both does reveal that the names of the 21 persons named as defendants do appear on both lists, and, conversely, that no one was named as an original defendant whose name was not on such lists. There are references in the transcript to 1500 residences existing in the unincorporated area at the...