Emerson Elec. Mfg. Co. v. City of Ferguson, 48630

• Decision Date: 30 July 1962
• Docket Number: No. 48630,No. 2,48630,2
• Citation: 359 S.W.2d 225
• Parties: The EMERSON ELECTRIC MANUFACTURING COMPANY, a Corporation, Plaintiff- Respondent, North Hills Homesites et al., Plaintiffs-Appellants, v. CITY OF FERGUSON, a Municipal Corporation, Defendant-Appellant, and The Town of Normandy, a Municipal Corporation, Intervenor-Appellant
• Court: Missouri Supreme Court

Page 225

359 S.W.2d 225

The EMERSON ELECTRIC MANUFACTURING COMPANY, a Corporation, Plaintiff- Respondent, North Hills Homesites et al., Plaintiffs-Appellants, v. CITY OF FERGUSON, a Municipal Corporation, Defendant-Appellant, and The Town of Normandy, a Municipal Corporation, Intervenor-Appellant.

No. 48630.

Supreme Court of Missouri, Division No. 2.

July 30, 1962.

Carleno & Nick, Ferguson, Wehrle & Wehrle, Clayton, for appellant, City of Ferguson.

Bardgett, Gallagher & Hackmeyer and John E. Bardgett, Clayton, for intervenor-appellant, Town of Normandy.

William J. Costello and John C. Hannegan, St. Louis, for appellants, North Hills Homesites and others.

R. H. McRoberts, T. V. Connelly, A. H. Kerth, St. Louis, Bryan, Cave, McPheeters & McRoberts, St. Louis, Kerth, Thies & Schreiber, Clayton, of counsel, for plaintiff-respondent, Emerson Electric Mfg. Co.

EAGER, Presiding Justice.

This proceeding consists of two consolidated causes, in each of which there was an intervention by consent. The causes were consolidated for trial by order of court with the agreement of the parties. In one cause Emerson Electric Manufacturing Company sought a declaration that Ordinance No. 116 of the City of Ferguson, purporting to so extend its boundaries as to annex the Emerson property, was void; Emerson alleged that the attempted annexation was unreasonable, oppressive, and void on sundry stated grounds. It also sought an injunction against the levying and collecting of taxes from it under and pursuant to said ordinance. In a second count it pleaded that Ferguson lacked authority to annex its property or exercise any control over it because of a prior proceeding instituted by the Town of Normandy, the intervenor. In a third count it asserted that its property was located in an incorporated area, to-wit, St. Louis County, which was organized as a charter county pursuant to Art. 6, Sec. 18, Mo.Const., 1945, V.A.M.S., and that it was therefore exempt from Ferguson's annexation. A fourth count is wholly immaterial here. The other cause was a similar suit instituted as a class action against Ferguson by residents of North Hills Homesites. Ferguson had purported to annex that subdivision under a separate and subsequent Ordinance No. 214. That petition alleged that the purported annexation was 'unreasonable, arbitrary, fraudulent, illegal and unconstitutional * * *.' It specifically alleged the existence of prior proceedings to annex the same territory by the Town of Normandy, the priority of Normandy's proceedings, and the fact that North Hills was merely being used as part of a scheme of Ferguson to annex the plant of Emerson Electric and to make that annexation appear more reasonable. The annexation of North Hills by Ferguson was alleged to be unreasonable on sundry specific grounds. North Hills also attempted to raise the same supposed constitutional question mentioned above as constituting Emerson's third count.

The respective Intervening Petitions of the Town of Normandy set up its priority in right to the annexation of both the Emerson and North Hills properties (by factual allegations) and the consequent lack of all right and authority in Ferguson; it prayed a decree adjudging the Ferguson annexation, in each case, to be void, and for injunctions.

The trial court held sundry hearings, made extensive findings of fact and filed a memorandum opinion. It entered separate judgments. In the Emerson case it adjudged that the annexation by Ferguson was unreasonable and void, but held that Normandy had not acquired priority of jurisdiction. In so doing, its findings dealt in considerable detail with the nature, use and status of the Emerson property and with the specific reasons why such an annexation was neither necessary nor reasonable. It declared and adjudged that Ordinance No. 116 of Ferguson was 'unreasonable, unjust, oppressive and, * * * void.' It enjoined the enforcement of that ordinance, the exercise of jurisdiction thereunder, and also the 'levying, assessing or collecting' of municipal taxes. In the North Hills case it declared that the annexing ordinance of Ferguson was reasonable and valid, making findings of various supporting facts. It again disallowed the claim of Normandy to any prior right or jurisdiction. Ferguson, North Hills and Normandy, after unsuccessful motions in the trial court, have appealed. Since the causes were consolidated below, they are here on a joint transcript.

While none of the parties initially questioned the jurisdiction of this court, we have entertained substantial doubt that we have jurisdiction. We questioned counsel at some length on this score during the oral argument, and have since invited and received written suggestions on the subject from counsel. It is hardly necessary to say that we have no right to determine the merits unless some ground of our jurisdiction is affirmatively established. Cotton v. Iowa Mutual Liability Insurance Co., 363 Mo. 400, 251 S.W.2d 246; Blair v. Hamilton, Mo., 292 S.W.2d 578.

We have determined that we do not have jurisdiction and that the consolidated cases must be transferred to the St. Louis Court of Appeals. In Emerson's Count III (repeated to some extent by North Hills) it raised the point that the area where its plant was located lay in St. Louis County, which had adopted a County Charter under Art. 6, Sec. 18, Mo.Const., 1945, and that the area was therefore already incorporated into a municipal corporation and might not be annexed; thus, the purported annexation proceedings were alleged to be void as in conflict with said Art. 6, Sec. 18. That constitutional question was determined adversely to Emerson's contention in City of Olivette v. Graeler, Mo., 338 S.W.2d 827, and, of course, it is now moot. In fact, it has not been briefed in this case.

Any remaining contention of jurisdiction here must rest upon the 'amount in dispute.' (Mo.Const., 1945, Art. 5, Sec. 3.) We must recall that these suits are, primarily, actions to test the reasonableness of specific ordinances of annexation and to procure adjudications that the respective annexations are void. These are not suits filed primarily to invalidate any taxes. Incidentally and prospectively, the plaintiffs sought also to enjoin the levy and collection of those future taxes and license fees which would result from the annexation; and the trial court did so enjoin the collection of taxes in the Emerson case. The record does not show that any taxes have ever actually been assessed or levied against these properties, or that any of the properties involved have been placed on the tax rolls of Ferguson. Essentially, what the record does show is this: that the Emerson real estate and tangible personal property is carried by St. Louis County at a valuation of $2,981,300; that based upon this valuation and the Ferguson tax rate for the year 1959 the property taxes, real and personal, would have been $32,496.17; that, dependent upon the method adopted in assessing the tax, Emerson would have been subjected to a merchants' and manufacturers' license tax for the year ending September 30, 1958, of $22,544.80 or $34.062, with a slight increase for the next year. The record shows nothing with reference to any valuations or prospective taxes on North Hills where, of course, the ownership lay in many individuals. There was testimony from a real estate appraiser of unquestioned standing that, in his opinion, the value of the Emerson property would be decreased or depreciated in total value, if annexed, by a minimum of $750,000 to a maximum of slightly over one million dollars, dependent upon the amount of taxes to be levied upon it. This witness explained that he had merely capitalized the prospective tax burden to be levied (a method which he said was generally used) and that he based his conclusions upon taxes alone, allowing three credits to be expected from a prospective annexation, namely,--the elimination of the county library tax, the present cost of garbage disposal, and the cost of an existing contract for supplemental fire services. He had not made any independent appraisal of the property.

The great majority of annexation cases which have been decided in this court have involved constitutional questions. City of Olivette v. Graeler, Mo., 338 S.W.2d 827; City of St. Joseph v. Hankinson, Mo., 312 S.W.2d 4; McConnell v. City of Kansas City, Mo., 282 S.W.2d 518; Hislop v. Joplin, 250 Mo. 588, 157 S.W. 625; State ex rel. Musser v. Birch, 186 Mo. 205, 85 S.W. 361; Copeland v. City of St. Joseph, 126 Mo. 417, 29 S.W. 281; State ex rel. Moody v. Wardell, 153 Mo. 319, 54 S.W. 574; Kansas City v. Stegmiller, 151 Mo. 189, 52 S.W. 723; City of Westport v. Kansas City, 103 Mo. 141, 15 S.W. 68; Nolting v. City of Overland, 354 Mo. 960, 192 S.W.2d 863; Powell v. City of Joplin, 335 Mo. 562, 73 S.W.2d 408. The cases of State ex inf. Taylor ex rel. Kansas City v. North Kansas City, 360 Mo. 374, 228 S.W.2d 762, State ex inf. Major v. Kansas City, 233 Mo. 162, 134 S.W. 1007, and State ex rel. Brown v. Town of Westport, 116 Mo. 582, 22 S.W. 888, were original quo warranto proceedings filed in this court. The recent case of Mayor, Councilmen & Citizens of City of Liberty v. Dealers Transport Co., Mo., 343 S.W.2d 40, came here on transfer from a Court of Appeals, as did the older case of State ex inf. Mallett ex rel. Wommack v. City of Joplin, 332 Mo. 1193, 62 S.W.2d 393. Hixson v. Kansas City, 361 Mo. 1211, 239 S.W.2d 341, involved the effect of the prior quo warranto judgment of this court in the Taylor case, supra,--i. e., on the principle of res adjudicata. Jurisdiction once established would normally continue, in order to give effect to our judgment.

Generally, if a suit is not one for a money judgment the test of our jurisdiction...