McDonnell Aircraft Corp. v. City of Berkeley, s. 48634

• Decision Date: 13 May 1963
• Docket Number: 48635,No. 1,Nos. 48634,s. 48634,1
• Citation: 367 S.W.2d 498
• Parties: McDONNELL AIRCRAFT CORPORATION, Plaintiff-Respondent, v. CITY OF BERKELEY, a Municipal Corporation, Defendant-Appellant. CITY OF ST. LOUIS, a Municipal Corporation, et al., Plaintiffs-Respondents, v. CITY OF BERKELEY, a Municipal Corporation, Defendant-Appellant
• Court: Missouri Supreme Court

Page 498

367 S.W.2d 498

McDONNELL AIRCRAFT CORPORATION, Plaintiff-Respondent, v. CITY OF BERKELEY, a Municipal Corporation, Defendant-Appellant.

CITY OF ST. LOUIS, a Municipal Corporation, et al., Plaintiffs-Respondents, v. CITY OF BERKELEY, a Municipal Corporation, Defendant-Appellant.

Nos. 48634, 48635.

Supreme Court of Missouri, Division No. 1.

May 13, 1963.

Boyle, Priest, Elliott & Weakley, Howard Elliott, Edward D. Weakley, Howard Elliott, Jr., St. Louis, for appellant, City of Berkeley.

Thomas J. Neenan, Thomas F. McGuire, Aubrey B. Hamilton, St. Louis, for City of St. Louis.

Samuel H. Liberman, St. Louis, Attorney for American Airlines and others.

Thomas S. McPheeters, Jr., Marion S. Francis, St. Louis, Attorneys for McDonnell Aircraft Corp.; Lewis, Rice, Tucker, Allen & Chubb, Bryan, Cave, McPheeters & McRoberts, St. Louis, of counsel.

HYDE, Judge.

Actions for declaratory judgment and injunction, consolidated for trial, to declare void proceedings of the City of Berkeley to annex Lambert-St. Louis Municipal Airport, owned by the City of St. Louis, and adjoining land of McDonnell Aircraft Corporation, northwest of the airport. Seven Airlines using the airport joined as plaintiffs with St. Louis. The court entered judgments declaring void the amendment to the charter of Berkeley extending its corporate limits and enjoining Berkeley from exercising any jurisdiction over the area. Berkeley has appealed from these judgments.

All parties say we have jurisdiction on the ground the construction of the Constitution of this state is involved (Sec. 3, Art. V, V.A.M.S.; constitutional references are to 1945 Constitution unless otherwise stated) but have different views as to the provisions to be construed. Berkeley claims that because it has adopted a charter for its own government, under Sec. 19, Art. VI, it has constitutionally vested legislative power, under Sec. 20, Art. VI, to extend its boundaries by charter amendment and that such action is not subject to judicial review. Thus its claim is that no court can judicially review charter amendments for annexation of territory by a constitutional charter city. This question was noted in State ex inf. Major v. Kansas City, 233 Mo. 162, 192, 134 S.W. 1007, 1015, as follows. 'In its brief in this court respondent has, for the first time, challenged the right of the court to pass upon the reasonableness of its action in amending its charter, for the reason that in so doing the qualified voters of Kansas City were acting under authority directly conferred by the Constitution of this state, and therefore were engaged in a legislative act not subject to judicial review. This question we regard as different from that of the unreasonableness or oppressiveness of an ordinance or resolution enacted by the lawmaking body of a city in the exercise of a delegated legislative power. In the latter case the right of judicial review is recognized law. This contention of respondent is not without support, but the question was not raised by striking at the information, or by the answer and return, or by exception to the finding of the commissioner against respondent upon that issue, and therefore it is not properly in the record for decision.' Berkeley did raise this question, at the time the petitions were filed, by motions to vacate the temporary restraining order then issued and thereafter in its answers.

The Major case was decided in favor of the City on all issues raised, including the issue of reasonableness, so that failure to decide the question of constitutional authority made no difference in the result. The argument for Berkeley's claim is that a constitutional charter city has the same authority in establishing and extending its area that the Legislature had when it fixed or extended boundaries of cities in granting and amending charters. See Giboney v. City of Cape Girardeau, 58 Mo. 141, 142, and cases cited. Thus we must determine the meaning and effect of Secs. 19 and 20 of Art. VI. The other parties claim there is involved the effect of Sec. 18, Art. VI, authorizing counties to adopt charters, on Secs. 19 and 20, saying it must be determined whether the legislative power, vested in a charter county by Sec. 18(c) 'pertaining to public health, police and traffic, building construction, and planning and zoning' may be ousted by action of a charter city. They say this was not settled by City of Olivette v. Graeler, Mo.Sup., 338 S.W.2d 827, because 'it did not involve a constitutional charter city or the question of conflicting constitutional provisions,' and because there was no 'point raised in that case that the territory within which a charter country exercises its municipal functions cannot be annexed by a city in a unilateral proceeding.' They also, citing Chambers v. City of St. Louis, 29 Mo. 543, 575, Dysart v. City of St. Louis, 321 Mo. 514, 11 S.W.2d 1054, 62 A.L.R. 762, and Sec. 305.190 RSMo, V.A.M.S., say St. Louis is exercising governmental functions in operating the airport which Berkeley cannot be permitted to disturb. Since at least the construction of Secs. 19 and 20 of Art. VI is required (and their effect on other constitutional provisions) our conclusion is that we have jurisdiction of the these appeals.

Since plaintiffs allege that the annexation is arbitrary, unreasonable, unjust and oppressive and in effect works a fraud on their rights, and was declared by the court to be unreasonable, oppressive, illegal and void, it is necessary first to decide the constitutional question raised; that is whether any annexation by a charter city is subject to judicial review. It is well settled that the method by which a charter city may annex territory is by charter amendment. City of Westport v. Kansas City, 103 Mo. 141, 15 S.W. 68; Kansas City v. Stegmiller, 151 Mo. 189, 52 S.W. 723; State ex inf. Major v. Kansas City, 233 Mo. 162, 134 S.W. 1007; State ex inf. Taylor ex rel. Kansas City v. North Kansas City, 360 Mo. 374, 228 S.W.2d 762. The Taylor case, as did the Major case, considered the reasonableness of the annexation by a constitutional charter city and decided that issue in favor of the City. In considering this matter, it must be recognized that under our present constitution, even the legislature no longer has the authority it had at the time of the Giboney decision (58 Mo. 141) to incorporate cities and change their charters, this being prohibited by Sec. 40(22), Art. III. Sec. 15 Art. VI, now requires general laws authorizing such action. Can a constitutional charter city now do, without consideration of its effect on others, something the legislature cannot do? Our view is that it cannot do so. Moreover, even as to Acts of Congress, the United States Supreme Court has said: 'We may inquire whether its action is arbitrary or capricious, that is, whether it has reasonable relation to a legitimate end. If it is an appropriate means to such an end, the decisions of the Congress as to the degree of the necessity for the adoption of that means, is final.' Norman v. Baltimore & Ohio R. Co., 294 U.S. 240, 55 S.Ct. 407, 79 L.Ed. 885. It is also well established that the test of validity of exercise of the police power is reasonableness. 11 Am.Jur., Constitutional Law, Secs. 302-309; 16 C.J.S. Constitutional Law, Sec. 198. An arbitrary, unjust, unreasonable and unnecessary annexation was considered a taking without due process in State ex rel. Bibb v. City of Reno, 64 Nev. 127, 178 P.2d 366. It was there contended that under a special charter granted by the legislature 'that the city has an absolute power to annex'; but the court, giving extreme examples of what such absolute power could lead to, held '[a]n annexation which is arbitrary, unreasonable, unjust and unnecessary will be held invalid.' In State ex rel. Davis v. Stuart, 97 Fla. 69, 120 So. 335, 64 A.L.R. 1307, the boundaries of a city were extended by Acts of the state legislature to increase its size from 640 acres to 9460 acres mainly rural lands. It was held these Acts 'would appear to contravene those provisions of our Declaration of Rights protecting the rights of private property such as those which prohibit the taking of private property without just compensation and guarantee the equal protection of the laws and the right to acquire, possess, and protect private property.' A similar case in this state as to area affected is Nolting v. City of Overland, 354 Mo. 960, 192 S.W.2d 863, in which we held the annexation invalid because unreasonable, unjust and oppressive. (For cases from other states see Annotation, 64 A.L.R. 1335; see also 16A C.J.S. Constitutional Law Sec. 604c, p. 726.)

It is not necessary to go as far as the Florida and Nevada cases because we cannot sustain the claim of Berkeley that Secs. 19-20, Art. VI, give to cities organized under it the full authority originally possessed by state legislature under our original constitution of 1820. In Kansas City v. J. I. Case Threshing Machine Co., 337 Mo. 913, 87 S.W.2d 195, we considered the home rule charter provisions of our 1875 Constitution (Secs. 16-17, Art. IX as amended in 1920) holding that 'a municipal corporation has no powers which are not derived from and subordinate to the state' and that a charter city's powers 'must come from either a constitutional or legislative grant.' (87 S.W.2d l.c. 198.) We also said the constitutional grant 'did not make the people of such cities independent of the Legislature in all matters and delegate to them legislative authority to decide all policies concerning the affairs of government to be carried on in their areas.' As to this, we quoted with approval the following statement from 19 R.C.L. 749: 'One state cannot without the consent of the other states divide itself up into a number of independent sovereignties, and consequently a municipal corporation cannot be made a free city wholly immune from legislative control. It is an essential element of all constitutional...