Nolting v. City of Overland

• Decision Date: 11 February 1946
• Docket Number: 39287
• Citation: 192 S.W.2d 863,354 Mo. 960
• Parties: Fred G. Nolting, Alice H. Von Schrader and William A. Zykan v. City of Overland, a Municipal Corporation, Defendant, John D. Coffman and Eighty-five Other Citizens (Intervenors), Appellants
• Court: Missouri Supreme Court

192 S.W.2d 863

354 Mo. 960

Fred G. Nolting, Alice H. Von Schrader and William A. Zykan v. City of Overland, a Municipal Corporation, Defendant, John D. Coffman and Eighty-five Other Citizens (Intervenors), Appellants

No. 39287

Supreme Court of Missouri

February 11, 1946

Rehearing Denied March 11, 1946.

Appeal from Circuit Court of St. Louis County; Hon. Amandus Brackman, Judge.

Affirmed.

Barton N. Grant, Milton F. Napier, A. Evan Hughes and Marvin E. Boisseau for appellants.

(1) The proceedings of the City of Overland were regular and valid. Sec. 7097, R.S. 1939; State ex rel. v. Birch, 186 Mo. 205; State ex rel. v. Town of Westport, 116 Mo 582. (2) It has been determined by constitutional and statutory enactment that all of St. Louis County is appropriate territory for Municipal Government. Constitution of Missouri, Art. VI, Sec. 26 (Amendment of 1924); Constitution of Missouri, 1945, Art. VI, Secs. 30, 18; Secs 15348, 15641 et seq., R.S. 1939. (3) The fact that the territory included in the annexation is suitable for municipal government is res adjudicata. The territory had already been incorporated as a Fire District under the provisions of Laws of Missouri 1941, page 505, which has been held constitutional. Laws 1941, p. 505, sec. 1; State ex rel. Fire District of Lemay v. Smith, 184 S.W.2d 593. (4) The passage of the annexation ordinance creates a prima facie case of validity, and the ordinance was not unreasonable. The statute gives the Mayor and Board "an extraordinary latitude of discretion not amenable to judicial review except in a capital case." State ex rel. v. Birch, 186 Mo. 205; Algonquin Golf Club v. Glendale, 81 S.W.2d 354, 230 Mo.App. 951; Central Missouri Oil Co. v. St. James, 111 S.W.2d 215, 232 Mo.App. 142; State ex inf. v. Kansas City, 233 Mo. 162; Vestal v. Little Rock, 54 Ark. 321.

Edwards, Metcalfe & Strong and Walter L. Metcalfe for respondents.

(1) Section 34 of the Fire District Law providing, "No village or city shall annex any part of any Fire District herein created unless the city shall annex the whole of said district," is unconstitutional. State ex rel. Lemay Fire District v. Smith, 184 S.W.2d 593; Art. 4, Sec. 28, Art. 9, Sec. 7, Art. 10, Sec. 12, Art. 2, Sec. 30, Art. 4, Sec. 53, Mo. Constitution. (2) A litigant is bound by the theory upon which he tries his case in the lower court, and the cause must be determined upon that theory in the appellate court. Dougherty v. Gangloff, 239 Mo. 649, 144 S.W. 434; Feil v. Wells, 282 S.W. 25; Kirkpatrick v. Wiley, 197 Mo. 123, 95 S.W. 213. (3) The extension of the limits of the City of Overland to the area described herein was an unreasonable exercise of power under the laws of the State of Missouri. State ex inf. Major, Attorney General, v. Kansas City, 233 Mo. 162, 134 S.W. 1007; Jones v. City of Ferguson, 164 S.W.2d 112; Boals v. Garden City, 50 S.W.2d 179; Stoltman v. City of Clayton, 205 Mo.App. 568, 226 S.W. 315; Jones v. City of Clayton, 7 S.W.2d 1022; Prairie Pipe Line v. Moscow Mills, 300 S.W. 298. (4) The property annexed was not adjacent to the original City of Overland. Nomath Hotel Co. v. Kansas City Gas Co., 233 S.W. 75; State v. Minnetonka, 59 N.W. 972, 57 Minn. 526, 25 L.R.A. 755. (5) The proceedings had by the City of Overland were ineffective to extend the boundaries of the City over any territory. The mere submission of a question to the people without an ordinance by the Board of Aldermen extending the boundaries of territory adjacent to the City, and without a finding that such an extension would redound to the benefit of the City, is invalid. State ex rel. v. Birch, 186 Mo. 205, 85 S.W. 361; Winter v. City of Kirkwood, 296 S.W. 232; Algonquin Golf Club v. City of Glendale, 230 Mo.App. 951, 81 S.W. 354; State ex rel. v. West Plains, 147 S.W. 163; City of New Franklin v. Edwards, 23 S.W.2d 235; State ex rel. Barkwell v. Trimble, 309 Mo. 546, 274 S.W. 683. (6) An ordinance passed a month and a half after the election, after the City had commenced exercising municipal jurisdiction over the extended territory, and after the rights of third parties has intervened, as evidenced by the filing of this suit, cannot cure any fatal defect upon which plaintiffs rely. Steiger v. City of Ste. Genevieve, 235 Mo.App. 579, 141 S.W.2d 233.

Westhues, C. Bohling, C., concurs; Barrett, C., not sitting.

OPINION

WESTHUES

This case was argued and submitted at the May term, 1945. An opinion was adopted by the court, written by the author of this opinion, remanding the cause to the trial court with directions to dismiss plaintiff's petition for the reason that the question at issue had become moot before the judgment was entered in the trial court. Plaintiffs, respondents, filed a motion for rehearing urging that a decision in this case will affect and decide questions in dispute which have not become moot. Upon a careful consideration of the argument in the motion for rehearing we have concluded that there is merit in respondents' position. A rehearing was granted and the case was resubmitted at the January, 1946, call of the court. A brief history of the controversy will be sufficient to an understanding of the issues presented.

Plaintiffs filed this suit to declare void an ordinance extending the city limits of the defendant city of Overland. At an election held on October 27, 1942, the voters of the city authorized the extension. On August 6, 1943, another election was held and the city limits reduced to the original boundaries. An ordinance was passed, August 7, in obedience to the mandate of the election. In our original opinion we held that since the judgment of the trial court was not entered until August 23, 1943, the question at issue had become moot. In that opinion we also said that the city had repealed the ordinance extending the city limits and therefore plaintiffs had received all the relief they could obtain by their suit. However, the statement that the ordinance was repealed was not accurate. The ordinance passed in 1943 simply reduced the city limits to the original boundaries and did not repeal the extension ordinance. In plaintiffs' petition, filed in November, 1942, it was alleged that the city of Overland was about to levy and assess taxes against the lands taken in by the extension proceedings. Plaintiffs asked for injunctive relief. The record discloses that taxes were levied in the year 1943. Plaintiffs also alleged that the ordinance was unreasonable, unjust and oppressive. Facts were recited in the petition which plaintiffs contend sustained that conclusion. If the extension of the city limits was void then it must follow that the taxes levied were also void.

We will now consider the case upon the merits. The trial court decided that the ordinance extending the city limits was unreasonable and therefore void. From the judgment entered the intervenors appealed. The conclusion of the trial court was amply supported by the evidence. The record shows that the city of Overland, a city of the fourth class, contained four hundred and seventy-four acres of land before the extension. The territory annexed contained five thousand five hundred and ninety-one acres. Within the original boundaries there were a little over ten miles of streets. Within the annexed area there were over one hundred and eight miles. The city had a population of about three thousand inhabitants and the extension added about thirty thousand. The area taken in covered territory surrounding a number of other villages, such as Schuermann Heights Margona, Sycamore Hills and Mary Ridge. These villages were completely fenced in by the extension of the limits of the city of Overland. Much of the land taken in was farm land that had not been platted or offered for sale as town lots and was not needed for municipal purposes. It is important to observe that much of the territory taken in was and is adjacent to other villages and that the inhabitants thereof had and have no community interest with the city of Overland. Many cases of this state have been examined and no case has been found where a court has sustained an ordinance extending the city limits to the extent attempted by the ordinance in this case. See Stoltman v. City of Clayton, 205 Mo.App. 568, 226 S.W. 315; State ex inf. Major, Atty. Gen. v. Kansas City, 233 Mo. 162, 134 S.W. 1007; Jones v. City of Ferguson, 164 S.W.2d 112; Hislop v. Joplin, 250...