Hislop v. City of Joplin

• Decision Date: 31 May 1913
• Citation: 157 S.W. 625
• Parties: HISLOP et al. v. CITY OF JOPLIN.
• Court: Missouri Supreme Court

157 S.W. 625

HISLOP et al. v. CITY OF JOPLIN.

Supreme Court of Missouri, Division No. 1.

May 31, 1913.

1. MUNICIPAL CORPORATIONS (§ 29) — EXTENSION OF LIMITS — STATUTES — VALIDITY.

The proviso in Rev. St. 1899, § 5752, providing that the mayor and council, with consent of a majority of the legal voters, shall have power to extend the limits of the city over territory adjacent thereto, provided, however, that all agricultural and pasture lands in excess of 40 acres shall be exempt from taxation for city purposes, etc., is in conflict with constitutional provisions and void.

2. STATUTES (§ 64) — PARTIAL INVALIDITY.

The invalidity of the proviso in Rev. St. 1899, § 5752, providing that mayor and council, with consent of a majority of the legal voters, shall have power to extend the limits of the city over territory adjacent thereto, provided, however, that all agricultural and pasture lands in excess of 40 acres shall be exempt from taxation for city purposes, etc., does not render the whole act void, as there is no essential and inseparable connection in substance between subject of extension of limits and taxation or exemption from taxation.

3. MUNICIPAL CORPORATIONS (§ 33) — ORDINANCES — PRESUMPTION AS TO VALIDITY.

While the proviso in Rev. St. 1899, § 5752, providing that the mayor and council, with consent of a majority of the legal voters, shall have power to extend the limits of the city over territory adjacent thereto, provided, however, that all agricultural and pasture lands in excess of 40 acres shall be exempt from taxation for city purposes, etc., is invalid, it does not destroy the whole act and it will be presumed, in a suit to determine the validity of extension proceedings, that the ordinance not shown by the record submitted to the voters the question as to the proposed extension, following the valid portions of the section, and containing no provision attempting to exempt property from taxation.

4. MUNICIPAL CORPORATIONS (§ 122) — ORDINANCES — REASONABLENESS — PRESUMPTIONS.

An ordinance which is within the statutory power of a council to pass will be presumed reasonable and valid until the presumption is overthrown by evidence clearly showing the contrary, and this presumption is equally applicable to limit extension ordinances, under Rev. St. 1899, § 5752.

5. MUNICIPAL CORPORATIONS (§ 122) — ORDINANCES — REASONABLENESS — BURDEN OF PROOF.

The burden of proof is on the party assailing an ordinance as unreasonable.

6. MUNICIPAL CORPORATIONS (§ 33) — EXTENSION OF LIMITS — UNREASONABLENESS — EVIDENCE.

In a limit extension proceeding in which 2,100 acres, one-third of which was platted and containing about 300 families, was annexed to a city of 32,000 population, evidence held insufficient to show that the annexation was unreasonable or fraudulent.

7. MUNICIPAL CORPORATIONS (§ 33) — LIMIT EXTENSION PROCEEDINGS — FRAUD — EVIDENCE.

In proceedings to set aside extension of limits of a city, evidence that no lights, sewers, police, etc., had been provided for the annexed territory, is relevant on the question of fraud in the extension.

Appeal from Circuit Court, Jasper County; H. L. Bright, Judge.

Action by Charles Hislop and others against City of Joplin. From a judgment for defendant, plaintiffs appeal. Affirmed.

Mooneyham & Shepherd, of Joplin, for appellants. Mercer Arnold, of Joplin, for respondent.

BLAIR, C.

Plaintiffs are resident owners of realty in a tract which the defendant city attempted in 1908 to bring within its limits by proceeding under section 5752, R. S. 1899. An election was ordered and held, and, the requisite majority favoring the extension, the result was by ordinance duly passed declared to be the addition to the city of the tract involved. City taxes were assessed against and levied upon property in the affected territory, and the city officers were threatening and attempting to enforce their collection when this suit was begun by plaintiffs, for themselves and all others similarly interested and situated, to enjoin the city from proceeding further in that direction. The petition alleged that the extension was, on enumerated grounds, unreasonable, and that section 5752, R. S. 1899, was unconstitutional and void, and that consequently the assessment and levy were void and the taxes unenforceable. It is also alleged that the effect of the extension is to work a fraud upon the rights of plaintiffs and others, and further that resort to equity is necessary in order to prevent a multiplicity of suits. The case was submitted on plaintiffs' evidence, and the trial court dismissed the bill and rendered judgment for defendant.

1. Section 5752, R. S. 1899, provided that: "The mayor and council of such city, with the consent of a majority of the legal voters of such city voting at an election therefor, shall have power to extend the limits of the city over territory adjacent thereto * * * in such manner as in their judgment and discretion may redound to the benefit of the city: Provided, however, that all agricultural and pasture lands in tracts in excess of forty acres in such city shall be exempt from taxation for city purposes until said lands are laid off into lots and blocks and plats of the same filed for record."

The proviso in this section conflicts with constitutional provisions and is void. Whether its invalidity destroys all that part of the section concerning limit extensions is another question.

As has previously been pointed out (State ex rel. v. Wardell, 153 Mo. 319, 54 S. W. 574), the Legislature in 1889 repealed the then existing and valid section (Laws 1887, p. 66, § 2) authorizing cities of the third class to extend their limits and made a futile effort to replace it with section 1466, R. S. 1889, in which the proviso by which it was attempted to exempt from taxation certain agricultural and pasture lands included in such extension was held to invalidate the whole of the provision authorizing limit extensions.

In City of Westport ex rel. v. McGee, 128 Mo. 152, 30 S. W. 523, and Birch v. Plattsburg, 180 Mo. 413, 79 S. W. 475, the constitutionality of section 1580, R. S. 1889, by which section cities of the fourth class were authorized to extend their limits, was drawn in question. That section, after providing a method for the extension of limits by such cities, contained this final sentence: "All agricultural * * * lands included within the corporate limits of such city shall be exempt from taxation for city purposes until they have, by recorded plats or sale, been reduced to tracts or lots of five acres or less."

In the cases cited the quoted portion of section 1580 was held unconstitutional, but the court decided its invalidity did not affect the remainder of the section. In the first of these cases the court, in discussing the effect of the partial invalidity of section 1580, said: "It will be observed that no condition is annexed, and no proviso added, by which its powers over any territory thus annexed is curtailed. In this respect it differs radically and substantially from the act of 1887. But immediately following this provision is another which exempts, not the lands included in the extension only, but `all tracts of agricultural or pastoral lands included within the corporate limits of the city,' which exceed five acres in area. Standing thus, the two provisions are distinct, one relating to extension, the other to exemption from taxation without reference to extension." The court then pointed out that this section first contained no exempting clause; that in 1879 it was amended by adding a sentence by which it was attempted to exempt "all agricultural and pastoral lands included in such extension;" that in 1889 this was amended (section 1580) so as to read "All agricultural or pastoral lands included within the corporate limits of such city"; and in 1891 the entire invalid provision was eliminated and proceeded: "Can it be said, in view of this history of this provision, that the Legislature would have denied these cities the power to extend their limits, unless the unconstitutional provisions had been inserted in the act? Nothing short of the most positive language should lead us to such a conclusion. We do not think this general exemption indicates an intention to deny the right of extension, but was simply an attempt of the Legislature to exempt such property generally, because we must go further than merely to hold that the power to extend the limits was dependent upon the exemption, because, as it now appears, we must hold that the Legislature would have denied the power of incorporation altogether where...