Hixson v. Kansas City

• Decision Date: 09 April 1951
• Docket Number: No. 42406,42406
• Citation: 239 S.W.2d 341,361 Mo. 1211
• Parties: HIXSON et al. v. KANSAS CITY et al.
• Court: Missouri Supreme Court

Page 341

239 S.W.2d 341

361 Mo. 1211

HIXSON et al. v. KANSAS CITY et al.

No. 42406.

Supreme Court of Missouri, en Banc.

April 9, 1951.

Rehearing Denied May 14, 1951.

David M. Proctor, City Counselor, John J. Cosgrove, Asst. City Counselor, Kansas City, for appellants.

James P. Aylward, George V. Aylward and Terence M. O'Brien, all of Kansas City, for respondents.

TIPTON, Judge.

This is a declaratory judgment action brought in the circuit court of Jackson County by respondents, residents of Kansas City, Missouri, in behalf of themselves and all others similarly situated, to determine the legality of the refusal of appellants to submit a proposed amendment to the charter of Kansas City providing for a reduction of its territorial boundaries so as to exclude that part of Kansas City now lying in Clay County. This is the same territory that was annexed to Kansas City on January 1, 1950. The legality of this annexation was approved by this court in the case of State ex inf. Taylor, Attorney General, ex rel. Kansas City, v. North Kansas City, 360 Mo. 762, 228 S.W.2d 762, which judgment of this court became final on April 10, 1950. The trial court held that respondents were entitled to have the proposed amendment voted on by the electorate of Kansas City.

By stipulation it was admitted that on June 21, 1950, the respondents presented a petition signed by over 32,000 qualified voters of Kansas City to the Election Board of Kansas City to reduce the corporate limits of that city by excluding the area in Clay County. It is admitted that that board certified that a sufficient number of qualified voters had signed the petition for the proposed amendment under Section 20 of Article VI of the 1945 state constitution to have an election so the voters of that city may determine if its charter should be amended as proposed by the petition; that this petition was then submitted to the city clerk of Kansas City but the clerk refused to accept the petition; and that the transcript of the evidence and exhibits in the Taylor case, supra, shall be considered as evidence in this case.

The stipulation further stated that since the summer of 1947 to January 1, 1950, the population of the Clay County area has increased about 4,000; that during that time approximately 1,000 new homes have been built; that between January 1 and October 1, 1950, Kansas City issued 241 building permits for dwelling units and 2 permits for business buildings; that Kansas City has contracted to purchase the Milwaukee bridge which will benefit this area; and that Kansas City has given this area garbage collection, fire and police protection, street repairs, and has reduced the rates on utility service rendered.

The contentions of appellants are that they are without power to pass an ordinance submitting the proposed amendment to the charter of Kansas City; that the proposed amendment is unreasonable, in fact, the question of unreasonableness is res adjudicata, having been adjudicated in the Taylor case; and that the proposed amendment is unconstitutional because it impairs the obligation of contract in regard to the bonds sold by Kansas City after this area was annexed.

On the other hand, respondents contend that Section 20 of Article VI imposes upon appellants the duty of submitting the proposed amendment to the charter; that the proposed amendment is reasonable; and that it involves no impairment of contract obligations.

Section 20 of Article VI of our 1945 constitution reads: 'Amendments of any city charter adopted under the foregoing provisions may be submitted to the electors by a commission as provided for a complete charter. Amendments may also be proposed by the legislative body of the city or by petition of not less than ten per cent of the registered qualified electors of the city, filed with the body or official having charge of the city elections, setting forth the proposed amendment. The legislative body shall at once provide, by ordinance, that any amendment so proposed shall be submitted to the electors at the next election held in the city not less than sixty days after its passage, or at a special election held as provided for a charter. Any amendment approved by a majority of the qualified electors voting thereon, shall become a part of the charter at the time and under the conditions fixed in the amendment; and sections or articles may be submitted separately or in the alternative and determined as provided for a complete charter.'

If we were to concede that respondents are otherwise entitled to have the proposed charter amendment submitted to a vote of the people, and if we further concede that at such an election the charter amendment would receive a carrying vote, we would nevertheless be compelled to rule under this record that such action purporting to deannex the Clay County area would be unreasonable.

In the first place, that question was adjudicated in the Taylor case, supra. In the second place, the testimony and exhibits that were in the Taylor case are before us by stipulation of parties. And in the third place, the prayer of respondents' petition in this declaratory action, among other things, asks 'that this court determine all questions of validity in the premises.' Therefore, the question of reasonableness is directly before us.

Respondents contend that the Taylor case is not res adjudicata in this case because different parties are involved. They make this contention for the reason that the class represented by the intervenors in that case was limited to residents of the Clay County area while the class represented in this case resides both in Clay and Jackson Counties.

In the Taylor case the intervenors were opposed to the annexation of the Clay County area to Kansas City. In the case at bar, respondents are opposed to this territory's being a part of Kansas City and are trying to de-annex it. So, the interest of the intervenors in the Taylor case and the interest of respondents are the same. Under similar circumstances we held that the rule of 'privies' of parties applied and that the parties in the second suit whose interests were the same as the parties to the first suit were bound by the judgment of the first suit in the case of Drainage District No. 1 Reformed v. Matthews, Mo.Sup., 234 S.W.2d 567, loc.cit. 574. In ruling that case, we said:

'The doctrine [res adjudicata] is applicable if (as here) the interest of the represented and the representative are so identical that the inducement and desire to protect the common interest may be assumed to be the same in each and if there can be no adversity of interest between them. The rule of Powell v. City of Joplin, supra [335 Mo. 562, 73 S.W.2d 408], is not opposed to the fundamental principle that a stranger to a cause and to its subject matter is not bound by a judgment as to which he had no opportunity to be heard. But in the instant circumstances under the applicable principles and the broad policy of the law to bring litigation to an end the res judicata rule must be applied. And under the principles of that rule 'privity' depends more upon the relation of the parties to the subject matter than upon their connection as parties with or any activity in the former litigation. Generally speaking, privies are those legally represented at the trial. Privity connotes those who are in law so connected with a party to the judgment as to have such an identity of interest that the party to the judgment represented the same legal right; and where this identity of interest is found to exist, all are alike concluded and bound by the judgment. Cases cited in preceding paragraph, and 30 Am.Jur. Judgments, Sec. 225; Taylor v. Sartorius, 130 Mo.App. 23, 108 S.W. 1089, 1094; Perkins v. Goddin, 111 Mo.App. 429, 85 S.W. 936; Wors v. Tarlton, 234 Mo.App. 1173, 95 S.W.2d 1199, 1207. Plaintiffs' final contention must be denied.' (Italics ours.)

The case of Powell v. City of Joplin, 335 Mo. 562, 73 S.W.2d 408, loc.cit. 410-411, involved the validity of the annexation to the city of Joplin of certain lands in Newton County. We held that the issues in the Powell case were res adjudicata because the validity of the annexation had been decided in the case of Schildnecht v. City of Joplin, 327 Mo. 126, 35 S.W.2d 35 and Id., 226 Mo.App. 47, 41 S.W.2d 590. In ruling the Powell case, we said "In the case of Clark v. Wolf, 29 Iowa 197, the precise question was considered at length, and it was there held that a judgment against a county or its legal representatives, in a matter of general interest to all the people thereof, as one respecting the levy and collection of a tax, is binding not only on the official representatives of the county named in the proceeding as defendants, but upon all the citizens thereof though not made parties defendant by name. This we think is so both on principle and authority, for in suits of the character mentioned the legally constituted representatives of the county stand in the place of each citizen of the county who is liable to be called on as a tax-payer to contribute his proper proportion to liquidate the demand which a judgment may establish.' These principles should apply with equal force to a judgment in favor of a municipal corporation involving its jurisdiction over annexed land. There was not in this case any suggestion of fraud or collusion in the procurement of the judgment in the Schildnecht Case. And the record of that case would not sustain such a suggestion if made.'

There is not the slightest suggestion that there was any fraud or collusion by the intervenors in the Taylor case. In the Taylor case, 228 S.W.2d loc.cit. 778, we found as a fact that the annexation of this area was reasonable, and did not decide that question on the presumption that it is prima facie reasonable if that question is fairly debatable. In ruling this issue, we said:

'From that testimony we cannot say that the question of reasonableness is not a ...