City of St. Charles v. Schone

• Decision Date: 13 June 1978
• Docket Number: Nos. 38365,38377,s. 38365
• Parties: CITY OF ST. CHARLES, Missouri, Plaintiff-Appellant, v. Orville G. SCHONE and Patricia L. Schone et al., Defendants-Respondents. . Louis District, Division Three
• Court: Missouri Court of Appeals

Page 769

569 S.W.2d 769

CITY OF ST. CHARLES, Missouri, Plaintiff-Appellant, v. Orville G. SCHONE and Patricia L. Schone et al Defendants-Respondents.

Nos. 38365, 38377.

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

June 13, 1978.

J. David Bechtold, Keith W. Hazelwood, St. Charles, for plaintiff-appellant.

Carter & Becker, Charles F. Dufour, Clayton, for defendants-respondents.

KELLY, Judge.

In this cross appeal the City of St. Charles in Cause No. 38377 appeals from the judgment of the Circuit Court of St. Charles County whereby the trial court held that with respect to Count II of the City's petition for Declaratory Judgment pursuant to the requirements of § 71.015 RSMo. 1969, V.A.M.S. "The Sawyer Act" for the purpose of annexing a certain unincorporated area in St. Charles County it lacked jurisdiction to reach the merits of the cause because the defendants named in the petition "are only renters or lessees of certain apartments and businesses and not owners of property sought to be annexed by said Count II, and as such do not fairly and adequately represent the class."

The defendants' appeal in Cause No. 38365 is from the judgment of the Circuit Court in Counts I and III of the City's petition whereby the trial court found that the annexation of the areas of unincorporated land sought to be annexed therein to be reasonable and necessary to the proper development of the City of St. Charles and that the City had the ability to furnish normal municipal services of said City to those areas sought to be annexed within a reasonable time after annexation.

The issue raised in Count II, stated simply, is what does the term "inhabitants," employed in § 71.015 subsection 3 mean in the sentence contained therein which reads as follows:

"Such action shall be a class action against the inhabitants of such unincorporated area under the provisions of section 507.070 RSMo."

The facts pertinent to this issue are that the area sought to be annexed in this Count is situated south of Interstate 70 where it intersects with Fifth Street in St. Charles County, Missouri, immediately south and somewhat east of the corporate limits of the City of St. Charles. It is approximately an area of 11 acres improved with apartments and two commercial establishments. The area is zoned commercial. From the evidence we deduce that there are approximately 175 apartment units, and two commercial establishments, one occupied by the Goodyear Wholesale Tire Center and the other by J. & R. Pallet Repair, located in this area.

Preliminary to the institution of this suit Ben Holbert, the Annexation Director for the City, compiled a list of the "residents" of the areas to be annexed. The source of this data were the records of water-taps. Assisted by one of his employees, Mr. Holbert ascertained that there were 119 people, according to the water-tap records in the three areas; 7 resided in the area sought to be annexed in Count I of the petition, 112 in the area included in Count II, and 1 in the area in Count III of the petition. In compiling this list he admitted that he made no determination whether any of these persons were owners of the land which they inhabited.

Although the petition as filed at least as it is copied in the transcript of the record alleged in paragraph 3 of each Count that "all of the defendants specifically named are residents or owners of land herein described," we are unable to determine from this record who most of the defendants are. From the caption of the case and the briefs filed by the parties to this appeal we are able to ascertain that Orville G. Schone and Patricia L. Schone are named defendants. From an entry of appearance by the only counsel who appeared at the trial of the action and in this court we learn that he is attorney of record for the following: "Schone, Hohman, Schmidt and Feltz." ¹ James Feltz, Jr., testified as a defense witness at trial, and according to his testimony he is the owner of a home in which he resides at 405 Lilac, and this is situated in the area sought to be annexed by the City in Count I of its petition.

When this case was argued, upon interrogation by one of the members of this court, counsel for those defendants named in the entry of appearance, candidly admitted that he represented owners of land but did not specify what area they inhabited, if any, among the three unincorporated areas named in the City's petition.

Mr. Holbert also testified that of those persons selected as representative of the class, service of process was obtained on all seven of the residents in the area described in Count I of the City's petition, but that in respect to one of these the service was, for some unexplained reason, invalid. Eighty-five residents of the area described in Count II of the petition were served and the sole resident of the area described in Count III of the City's petition was also served. Of those residents of the apartments in the area described in Count II of the City's petition who had been served, at the time of trial fifty-seven were still residents. One of the two commercial establishments in this area had also been served. There is no entry of appearance in behalf of any of these members of the class to be affected by any decision on Count II of the petition.

As we understand the argument of both counsel, the question succinctly stated is whether in a class action under the provisions of § 71.015 subsection 3, RSMo. 1969, V.A.M.S., where an area sought to be annexed has been improved by apartment buildings it is necessary to join as party defendants the owners of the land on which the apartment buildings are erected, and does the failure to do so deprive the trial court of jurisdiction to reach the merits of the question of annexation? We believe it does not.

The General Assembly in enacting the Sawyer Act provided that the declaratory judgment action should be a class action against the "inhabitants of such unincorporated area . . .," but in so doing chose not to define the term. By § 1.090 RSMo. 1969, V.A.M.S. we are directed to take words and phrases in their plain or ordinary and usual sense except that technical words and phrases having a peculiar and appropriate meaning in law shall be understood according to their technical import. It is not contended by either of the parties to this appeal that the word "inhabitants" is a technical word and we are of the opinion that it should be taken in its plain or ordinary and usual sense.

The City contends that the term "inhabitant" means one who is a resident or who dwells in a place as distinguished from a transient. In support of this construction of the term it relies on the definition found in State v. Snyder, 182 Mo. 462, 82 S.W. 12 (1904), and Stevens v. Larwill, 110 Mo.App. 140, 84 S.W. 113, 118 (1904). In Snyder the court was construing the term "inhabitant" as employed in § 2419, Rev.St. 1899, the statute of limitations applicable to a bribery prosecution and in Larwill the question whether the administrator was a nonresident of the state. The Larwill court said, 84 S.W. l.c. 118: "The words 'inhabitant,' 'citizen,' and 'resident' mean substantially the same thing, and one is an inhabitant, resident, or citizen of the place where he has his domicile or home. * * * A man's residence is his home or habitation fixed at any place, without a present intention of removing therefrom."

The term "inhabitant" is defined in Webster's Third New International Dictionary (Unabridged) as: "1: a person who dwells or resides permanently in a place as distinguished from a transient lodger or visitor." It would appear, however, that to qualify as an "inhabitant" one must be more than a resident. This court in State v. Bunce, 187 Mo.App. 607, 173 S.W. 101, 102 (1915), said:

"Mr. Black, in his Law Dictionary (2d Ed.) p. 1026, defines 'resident' as being one who has his residence in a place. It is more limited than the word 'inhabitant,' the latter implying, he says, 'a more fixed and permanent abode than does resident.' "

Defendants, on the other hand, rely on City of St. Charles v. Schroeder, 474 S.W.2d 55 (Mo.App. 1971) where in this court reversed the granting of a declaratory judgment authorizing the City to proceed with annexation because the list from which those named as defendants were chosen did not include all, or even a substantial number, of the property owners in the area proposed to be annexed, and were not fairly chosen within then Rule 52.09 V.A.M.R. ² As we later pointed out in ...