City of St. Joseph v. Hankinson, 45803

• Citation: 312 S.W.2d 4
• Decision Date: 10 March 1958
• Docket Number: No. 2,No. 45803,45803,2
• Parties: CITY OF ST. JOSEPH, a municipal corporation, Plaintiff-Respondent, v. William A. HANKINSON et al., Defendants, Ned Carnes et al., Defendants-Appellants
• Court: United States State Supreme Court of Missouri

Page 4

312 S.W.2d 4

CITY OF ST. JOSEPH, a municipal corporation, Plaintiff-Respondent, v. William A. HANKINSON et al., Defendants, Ned Carnes et al., Defendants-Appellants.

No. 45803.

Supreme Court of Missouri, Division No. 2.

March 10, 1958.

Motion for Rehearing or to Transfer to Court en Banc Denied

April 14, 1958.

Ronald S. Reed, St. Joseph, Lewis F. Randolph, Lewis F. Randolph, Jr., Randolph & Randolph, St. Joseph, for appellants Ned Carnes et al.

Culver, Phillip, Kaufmann & Smith, W. H. Utz, Jr., Francis Smith, St. Joseph, Francis Pickle, J. B. Steiner, St. Joseph, for respondent.

Joseph M. Garvey, St. Joseph, for intervenor, James M. Queen.

EAGER, Judge.

This is an action filed by the City of St. Joseph pursuant to Sec. 71.015 RSMo, V.A.M.S. (1957 Cum.Supp., Laws 1953, p. 309); therein it seeks a declaratory judgment authorizing it to proceed as otherwise authorized by law in the annexation of described territory. The action is a class suit, and approximately 75 individuals, residents of the area proposed for annexation, were named as defendants; these defendants were selected from different parts of the proposed area. Thereafter several hundred others were permitted to intervene in groups, and they became parties defendant; the several groups filed answers. The petition sets out in much detail various statistical, historical and economic facts concerning St. Joseph, past and present, its municipal departments and services, its utilities, the nature, development and population of the area proposed for annexation, certain facts concerning the employments of its residents, and the municipal services which plaintiff proposes to furnish to the unincorporated area, all generally in compliance with Sec. 71.015, supra. Many of these facts will be developed in detail in discussing the evidence. The defendants denied many allegations, and alleged affirmatively the inadequacy of certain municipal services within the incorporated area and the inability of the city to furnish adequate municipal services to the area proposed; they further alleged that a large part of the area proposed for annexation was land used for agricultural and horticultural purposes which was valuable only on account of those uses, and that many of the residents and businesses therein were economically independent of the city. Sundry other defenses were stated, negative and affirmative; the pleadings, pro and con, are amply sufficient to raise all the questions which we shall discuss in this opinion. The trial consumed 37 days and extended over a period of several months; at its conclusion, the trial court rendered painstaking and detailed findings of fact and conclusions of law, and entered a judgment declaring that plaintiff was authorized to proceed with the annexation proposed, in accordance with the statutes 'pertaining to annexation by cities of the first class.' Joint motions for judgment or in the alternative for a new trial were filed and overruled; thereafter various defendants appealed, both individually and as representatives of the class. We may state here, that while there was a denial in the principal answer of the fact of a proper class representation, that question has now been waived, and the record establishes overwhelmingly the presence of an adequate, and highly vocal, representation; in fact, 91 witnesses testified for the defendants, and the entire record comprises more than 3,400 pages. The trial court found that there was fair and adequate representation. For convenience and brevity we shall hereafter refer to the area proposed for annexation as 'the area.'

Our jurisdiction depends upon constitutional questions raised by the intervenor James M. Queen, who owns real estate in, and resides in the area. These questions were raised upon his entry into the case and were preserved in his motion for a new trial. The trial court found Sec. 71.015, supra, to be constitutional. Mr. Queen has filed a separate notice of appeal. We shall refer to him as the 'intervenor,' though the term may be somewhat confusing. Upon being permitted to intervene, Mr. Queen became a defendat, as did the hundreds of other intervenors; indeed, he was actually a member of the class which was originally sued, and to this extent his rights may be broader than those of a true intervenor. He was, we think, entitled to raise any legitimate defenses which came within the general scope of the original suit, and which the original defendants might have raised. Even in true intervention the intervenor may generally do so (39 Am.Jur., Parties, Sec. 79, pp. 950-953; Young v. Pressgrove, 355 Mo. 204, 195 S.W.2d 516), but he may not, by a purported intervention, lug in a different and extraneous cause of action. Pine Lawn Bank & Trust Co. v. City of Pine Lawn, 365 Mo. 666, 285 S.W.2d 679, 685; State ex rel. State Highway Commission v. Hudspeth, Mo.App., 303 S.W.2d 703. In this instance we feel that we should consider the constitutional questions, thus accepting jurisdiction.

These are, briefly: that Sec. 71.015 delegates legislative authority and powers to the judiciary and permits the latter to encroach upon the legislative function, in contravention of Art. 2, Sec. 1 of the Constitution of Missouri, V.A.M.S.; that it is vague and indefinite in that it does not provide adequately for a determination of the individual rights of inhabitants and property owners; and that it does not provide the court with specific 'authority to annex.' A question of due process was pleaded but has not been briefed, and we disregard it. The substantive question is the first one mentioned. For convenience we quote here Sec. 71.015 in full: 'Whenever the governing body of any city has adopted a resolution to annex any unincorporated area of land, such city shall, before proceeding as otherwise authorized by law or charter for annexation of unincorporated areas, file an action in the circuit court of the county in which such unincorporated area is situated, under the provisions of chapter 527 RSMo, praying for a declaratory judgment authorizing such annexation. The petiton 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 no become effective. Such action shall be a class action against the inhabitants of such unincorporated area under the provisions of section 507.070, RSMo.'

It is conceded that St. Joseph is a city of the first class under general law (see Chapter 73, RSMo 1949, V.A.M.S., and State ex rel. Moseley v. Lee, 319 Mo. 976, 5 S.W.2d 83). It is not a constitutional charter city. Thus, the case of McConnell v. City of Kansas City, Mo., 282 S.W.2d 518, holding Sec. 71.015 unconstitutional as to Kansas City, is inapplicable. The rights and powers of plaintiff to annex territory were granted by Secs. 73.030, 73.040, 73.060 and 73.110(43) RSMo 1949, V.A.M.S., and were governed solely thereby until the enactment of Sec. 71.015 in 1953; the city might theretofore annex by ordinance, subject to the requirements and limitations thus imposed. Coming directly to the contention that Sec. 71.015 improperly delegates legislative power, we may concede the general contention of intervenor that the creation of municipalities and other governmental subdivisions, and the extensions of their boundaries, are legislative functions. We also recognize, as have Missouri Courts generally, that strictly legislative powers may not be delegated to nonlegislative bodies, or 'bargained away.' See, generally: City of Springfield v. Clouse, Banc, 356 Mo. 1239, 206 S.W.2d 539; State ex rel. Field v. Smith, Banc, 329 Mo. 1019, 49 S.W.2d 74; Cavanaugh v. Gerk, Banc, 313 Mo. 375, 280 S.W. 51; Bader Realty & Investment Co. v. St. Louis Housing Authority, Banc, 358 Mo. 747, 217 S.W.2d 489. These cases are cited by intervenor, but on their facts they are in nowise controlling here, nor are they strictly applicable; we need not discuss them. Counsel also cite and discuss certain cases from other states. The scope of this opinion will not permit us to discuss these individually; some will be mentioned. The principle often announced is that if the legislature prescribes the conditions necessary for an annexation, it may delegate to the courts the power to determine whether those conditions exist; and such is a proper judicial function or one of a mixed legislative and judicial nature, 16 C.J.S. Constitutional Law Sec. 139, p. 637; State ex rel. Klise v. Town of Riverdale, 244 Iowa 423, 57 N.W.2d 63; Ruland v. City of Augusta, 120 Kan. 42, 242 P. 456; Udall v. Severn, 52 Ariz. 65, 79 P.2d 347; City of Galesburg v. Hawkinson, 75 Ill. 152; 69 A.L.R. 266, note. The foregoing are the authorities relied on principally by the intervenor; they recognize the general principle just stated, but held, respectively, that the particular delegation of power to the courts in each case was unconstitutional because, under the varying statutes, the court was merely required to determine whether the annexation was 'desirable' (Klise), or the 'advisability' of the annexation (Ruland), or whether the territory 'ought to be annexed' and could be annexed without injustice (Udall), or whether territory 'ought to be' detached from the municipality (Galesburg). The gist of the holdings in these and many other cases is that the legislature may not properly delegate to the courts the broad power to determine the political and economic expediency of an annexation, or leave to them a general discretion as to whether the public interest requires the annexation. With that principle we have little quarrel, and it is unnecessary to discuss the cases further. Our immediate problem is to determine on which side of the fence our particular statute falls.

In interpreting ...