Seifert v. City of Poplar Bluff

• Decision Date: 10 January 1938
• Docket Number: No. 5912.,5912.
• Parties: SEIFERT et al. v. CITY OF POPLAR BLUFF.
• Court: Missouri Court of Appeals

112 S.W.2d 93

SEIFERT et al. v. CITY OF POPLAR BLUFF.

No. 5912.

Springfield Court of Appeals. Missouri.

January 10, 1938.

Appeal from Circuit Court, Butler County; James V. Billings, Special Judge.

Suit by George Seifert and others against the City of Poplar Bluff to enjoin the enforcement of an ordinance extending the limits of the City of Poplar Bluff. From a decree enjoining the enforcement of the ordinance, the defendant city appeals.

Reversed.

Randolph H. Weber and Bloodworth & Bloodworth, all of Poplar Bluff, for appellant.

Sam Phillips and L. E. Tedrick, both of Poplar Bluff, for respondents.

SMITH, Judge.

This is a suit instituted by George H. Seifert and 138 other property owners within the city of Poplar Bluff, brought for themselves and others similarly situated, in which they seek to enjoin the enforcement of an ordinance extending the limits to the city of Poplar Bluff.

The petition states that the defendant is a city of the third class; that the city, on the 15th day of June, 1936, through its mayor and the city council, passed and approved an ordinance No. 1012 extending the limits of Poplar Bluff and providing for a special election for the purpose of securing the consent and ratification of the ordinance. There is no alleged complaint against the validity of the ordinance passed, nor is there any alleged irregularity in the advertising and holding of the election, and it is alleged in the petition that the majority of the voters voting at said election voted in favor of the extension. The petition describes by metes and bounds the extension of the limits of said city. It is a very long description and need not be set out particularly in this opinion. It is sufficient to say that the extension as designated by the petition and by the plats submitted in evidence shows the outstanding lines to form a reasonably regular and rectangular shape of the city as extended, with the exception of a tract of land in the southern part of the territory which was omitted. This omitted part consists of about 193 acres which will be referred to again in our opinion.

The petition alleges that said extension is not necessary for the expansion of the city of Poplar Bluff because that said city has a large amount of vacant land within its limits and that the proposed parts to be taken in are largely not platted and are not held for sale as town lots; that the portion sought to be annexed does not furnish the abode for a densely settled population, but is used for the most part for agricultural purposes and are valuable for such use and for country homes; that the city does not furnish the territory in question with water, gas, electricity, lights, or sewage facilities and that none of the real estate sought to be annexed is needed for proper municipal purposes and that it is not needed for the extension of police protection and that said annexed territory does not require police protection of the defendant city; that none of the territory sought to be annexed is held for sale by its owners as town property. The petition states that the chief purpose, as they believe of the proposed extension, is to provide additional revenue for the city without corresponding benefits to the plaintiff and that the purpose of the annexation is not to increase the governmental functions of the city, but to decrease the costs of same at the expense of plaintiffs and others similarly situated.

The petition alleges that 90 per cent. of said territory sought to be annexed is vacant land, some of which is used for agricultural purposes; and that the extension of the limits of the city will work a fraud upon the rights of the plaintiffs and landowners in the annexed territory; that said ordinance is unreasonable, unjust, oppressive, and therefore denies plaintiffs equal protection of the laws as guaranteed by the Constitution of the United States and the Constitution of Missouri, Const.U.S. Amend. 14; Const.Mo. art. 2, § 30.

The petition further alleges that within the added territory are numerous and divers defective highways, by-ways, roads, culverts, and bridges that are dangerous to the traveling public and liable to cause injuries to people using same, for which injuries the city of Poplar Bluff and these plaintiffs as property owners and taxpayers would be responsible under the law if included within the corporate limits of said city; that said city would be financially unable to keep said defective highways in a reasonably safe condition; and that the city would be unable to properly police and properly furnish fire protection, water, and lights to said territory.

The petition further states that if said ordinance is permitted to stand, plaintiffs' interests, rights, and property will be seriously and dangerously affected and will result in taxation without representation, annexation without authorization, burdens without benefits, and responsibilities without redress, and that the plaintiffs have no adequate remedy at law.

The petition closed with a prayer that the defendant city and its officers, agents, servants, and employees be enjoined and restrained from extending the limits of said city so as to take in the property mentioned in said petition and from assuming jurisdiction over the same.

The city filed an answer admitting that the city is of the third class, that the mayor and city council passed and approved the bill and ordinance referred to in the petition and which ordinance was approved by the majority of voters voting at a special election, duly called and held as provided by law, and denied each and every other allegation contained in the petition. The answer further states that on and after the passage by the city council of said bill and ordinance and its approval by the mayor and approval by legal voters of said city at a special election on the 15th day of July, 1936, said ordinance was decreed duly adopted and the city limits legally and duly extended; that the city has since said 15th day of July and now does exercise municipal power, authority, and control of the territory so included within the extended limits.

The answer further states that its ordinance extending the city limits is reasonable and properly extends the limits so as to take in adjacent and contiguous territory for the following reasons, to wit:

"First: All of said territory is adjacent to the old city limits, and a large part of said territory is now platted and held for sale or use as town lots.

"Second: That much of said territory not platted, has been and is now held to be brought on the market and sold as town property, when they reach a value corresponding with the views of the owners.

"Third: That a large portion of said territory is now and has been for many years a densely settled community and furnishes the abode of a large population and represents the actual growth of the City of Poplar Bluff beyond its old legal boundary.

"Fourth: That said territory is needed for town and city purposes for the proper and needed extensions and improvements of its streets, sewer, gas, light and water systems and to supply places for the abode and places of residence of the people, and for the extension of needed police regulation.

"Fifth: That said territory embraced within said annexation is principally valueable by reason of its adaptability for prospective town uses and its sole enhanced value is because of and by reason of its being the only territory adjacent to said city which is suitable and adaptable, and has its special value for the proper and needed growth and expansion of the City of Poplar Bluff.

"Wherefore, having fully answered, defendant prays that the petition of plaintiffs be dismissed for want of equity, that it have judgment for its costs herein expended and for all proper and equitable relief."

After the issues were thus made by the pleadings at the January, 1937, term of the circuit court, the regular judge thereof, Hon. Robert I. Cope, entered an order disqualifying himself in said cause and upon written agreement by said parties, the Honorable James V. Billings, judge of the Twenty-second judicial circuit of Missouri, was called in this cause and on the 16th day of January, 1937, heard the testimony presented by both sides in this case and took the case under advisement, and on the 13th day of March, 1937, rendered a decree in favor of plaintiffs and perpetually enjoined the enforcement of the ordinance.

Motion for new trial was filed and overruled and the city has appealed to this court. In the decree filed by the trial judge, the contention of the plaintiffs was sustained in practically every allegation set out in their petition. The decree follows largely the allegations of the petition.

As above stated, the extension of the limits of the city forms a reasonably rectangular shape of the city, except within the southern part of the proposed extension, there is omitted a tract of land, consisting of approximately 193 acres, which makes an irregularity within the southern boundary line of the city as extended. Much is said by the plaintiffs in their printed statement and argument about the omission of this tract of land from the extension. It is upon this tract that the railroad shops are located. The plaintiffs contend seriously about omitting this tract causing the release from city taxes, much valuable property which should have been included, and much has been said about the irregularity of the southern boundary. There is nothing said in plaintiffs' petition as to the irregularity of the boundary line, or as to the ordinance being void because of said irregularity in the line. The petition does set out by metes and bounds the limits of the extension, but nowhere does it complain of its irregularity in boundary lines. It is possible, however, that such could and should be considered under the charge of the unreasonableness of the proposed extension. But as we read the evidence and the argument...