Incorporation of City of River Bend, In re, 36107

• Decision Date: 12 August 1975
• Docket Number: No. 36107,36107
• Citation: 530 S.W.2d 704
• Parties: In re the INCORPORATION OF the CITY OF RIVER BEND. STATE ex rel. Carl W. WEBB et al., Relators-Petitioners-Appellants, v. Hon. Lawrence K. ROOS, Supervisor of St. Louis County, et al., Respondents, New Four Season, Inc., et al., Intervenors-Respondents, Edgewater Health Care, Inc., a corporation, etc., Intervenor-Respondent. . Louis District, Division One
• Court: Missouri Court of Appeals

Page 704

530 S.W.2d 704 In re the INCORPORATION OF the CITY OF RIVER BEND.
STATE ex rel. Carl W. WEBB et al., Relators-Petitioners-Appellants,
v.
Hon. Lawrence K. ROOS, Supervisor of St. Louis County, et
al., Respondents,
New Four Season, Inc., et al., Intervenors-Respondents,
Edgewater Health Care, Inc., a corporation, etc.,
Intervenor-Respondent. No. 36107. Missouri Court of Appeals, St. Louis District, Division One. Aug. 12, 1975.
Motion for Rehearing or Transfer to Court of Appeals En Banc
Denied Oct. 22,
1975.

Page 705

Zimbalist, Schramm & Walker, Clayton, for relators-petitioners-appellants.

Thomas W. Wehrle, County Counselor, James H. White, Assoc. City. Counselor, Clayton, for defendant-respondents.

Husch, Eppenberger, Donohue, Elson & Cornfeld, Shulamith Simon, St. Louis, for intervenors-respondents.

John P. Sullivan, Clayton, for intervenor-respondent.

DOWD, Judge.

Appeal from the circuit court's dismissal of a petition to review a decision by the St. Louis County Council that denied an election for a proposed municipal incorporation.

On October 19, 1972, appellants presented their petition to the St. Louis County Council, requesting that the County Council hold an election for the incorporation of the proposed City of River Bend. Appellants instituted their incorporation action under § 72.080 RSMo. 1969 (1971 Supp.). That section provides that any unincorporated city, town or other area may be incorporated 'whenever a number of qualified electors equal to fifteen percent of the votes cast in the last gubernatorial election in the area proposed to be incorporated shall present a petition to the governing body of the county in which such city or town or area is situated.' ¹ If the governing body is satisfied that the requisite number of electors

Page 706

have signed the petition, it shall declare that an incorporation election be held. § 72.080.

The County Council denied appellants' petition on February 8, 1973. Thereafter, on March 9, 1973, appellants filed a two-count petition in the circuit court. Count one was a petition for a writ of mandamus, seeking to compel the County Council to hold the requested incorporation election. Count two was a petition for judicial review, seeking to reverse the County Council's order denying the election. Upon motion by respondents, the trial court dismissed both counts. We affirm.

The motion to dismiss appellants' petition was granted because notice of the appeal from the County Council's decision was not filed with the County Council within ten days of the date of the Council's decision, as is required by § 49.230 RSMo. 1969. Appellants contend that § 49.230 is not the exclusive avenue for review of the County Council's decision and that they have the option to proceed under the Administrative Review Act, Chapter 536, which allows thirty days for serving notice of an appeal. § 536.110(1) RSMo. 1969 and Rule 100.04(a). The narrow issue before...