Shawnee Bend Special Road Dist. 'D' v. Camden County Com'n

• Court: Missouri Court of Appeals
• Writing for the Court: FLANIGAN; In Weston, at the outset of the hearing before the county court, the road district attempted to disqualify one member of the county court
• Citation: Shawnee Bend Special Road Dist. 'D' v. Camden County Com'n, 800 S.W.2d 452 (Mo. App. 1990)
• Decision Date: 10 December 1990
• Docket Number: No. 16685,16685
• Parties: SHAWNEE BEND SPECIAL ROAD DISTRICT "D," et al., Plaintiffs-Appellants, v. CAMDEN COUNTY COMMISSION, et al., Defendants-Respondents.

Page 452

800 S.W.2d 452

SHAWNEE BEND SPECIAL ROAD DISTRICT "D," et al., Plaintiffs-Appellants, v. CAMDEN COUNTY COMMISSION, et al., Defendants-Respondents.

No. 16685.

Missouri Court of Appeals,

Southern District,

Division Two.

Dec. 10, 1990.

Mary Adele Greer, Laurie, for plaintiffs-appellants.

Hamp Ford, David W. Walker, Knight, Ford, Wright, Atwill, Parshall & Baker, Columbia, for defendants-respondents.

FLANIGAN, Chief Judge.

On November 3, 1988, plaintiffs filed in the Circuit Court of Camden County a "Petition for Review," seeking to challenge an order of the Camden County Commission ("the county commission"), issued on October 24, 1988, dissolving Shawnee Bend Special Road District "D" ("the road district"), which had been organized under the provisions of §§ 233.170 to 233.315. ¹ Plaintiffs in the proceeding are the road district, the last elected commissioners of the road district, and other residents of the district. Defendants are the county commission, the three members of the county commission, and the county clerk.

During the course of the circuit court proceeding, plaintiffs and defendants, through their respective attorneys, on June 13, 1989, filed a document entitled "Stipulation of Facts." On October 16, 1989, the court entered judgment in favor of the defendants and against the plaintiffs. The judgment affirmed the order of the county commission.

The judgment recited that the record before the county commission was not filed in the circuit court within the 30-day period required by § 536.130.1, and that the duty to file the record was upon plaintiffs under § 536.130.4. The judgment also recited that for those reasons "plaintiffs did not perfect their request for judicial review." The judgment further recited that the court had "gratuitously" reviewed the stipulation and "considering the limited scope of judicial review permitted by § 536.140.2 and the further restriction imposed on the court by § 536.140.5 ... the court concludes that plaintiffs' action, on its merits, fails." The judgment also recited: "Further, the facts set forth in the stipulation of the parties do not show any legal 'conflict of interest' which disabled the members of the Camden County Commission from acting on the petition to disincorporate the special road district." Plaintiffs appeal.

The statement of facts portion of the brief of plaintiffs-appellants sets forth several facts concerning events preceding October 24, 1988, the date of the issuance of the county commission's order. In their brief, defendants-respondents adopt that statement of facts.

Section 49.220 reads, in pertinent part:

"If a majority of the commissioners of the county commission shall be interested in any cause or proceeding pending before them, ... the same shall be certified with the original papers to the circuit court of the county, which shall proceed thereon to final judgment and determination in like manner as the county commission should have done."

For the reasons which follow, this court holds that under the stipulated facts it was the duty of the county commission, under § 49.220, to have certified the proceeding, "with the original papers," to the Circuit Court of Camden County and, in turn, it was the duty of that court, under § 49.220, to "proceed thereon to final judgment and determination in like manner as the county commission should have done."

Section 233.295 reads:

"Whenever a petition, signed by the owners of a majority of the acres of land, within a road district organized under the provisions of sections 233.170 to 233.315 shall be filed with the county commission of any county in which said district is situated, setting forth the name of the district and the number of acres owned by each signer of such petition and the whole number of acres in said district, the said county commission shall have power, if in its opinion the public good will be thereby advanced to disincorporate such road district. No such road district shall be disincorporated until notice be published in some newspaper published in the county where the same is situated for four weeks successively prior to the hearing of said petition."

Appellants' "statement of facts" includes the matters set forth in the following 8 paragraphs.

In November and December 1986, petitions praying for the disincorporation of the road district were executed by certain individuals and corporations owning property within the district. Those petitions were filed with and verified by defendant Leo Marler, Camden County Clerk, on December 15, 1986.

In July and August 1988, petitions praying for the disincorporation of the road district "were executed by different individuals and/or corporations owning property within the road district." Those petitions were filed with and verified by defendant Marler on October 13, 1988.

"The petitions filed in 1986 and 1988 combined, constituted a 'majority of acreage owners' as that term is used in Section 233.295, RSMo, ² but neither the petitions filed in 1986 nor those filed in 1988, considered separately for each year, constituted a 'majority of acreage owners' as that term is used in Section 233.295, RSMo. The plaintiff road commissioners were notified of the filing of said petitions by virtue of the publication for four successive weeks in the Reveille Newspaper, located in Camdenton, Missouri, of a notice stating that the defendant commissioners would hold a public hearing pursuant to Section 233.295, on the 13th day of October 1988, to consider the petitions for disincorporation."

Prior to the commencement of the public hearing, plaintiffs filed with defendant Marler, the county clerk, "affidavits executed by individuals and/or corporations owning property within said district withdrawing their names from the petitions previously filed. Those individuals and/or corporations requesting such withdrawal constitute a majority of acreage owners within said district."

Thereafter, defendant commissioners called the public hearing to order at 10 a.m. on October 13, 1988. Present at the hearing were "plaintiff-commissioners, defendant-commissioners and defendant Leo Marler."

"Defendant Marler announced the filings of the affidavits executed by a majority of the acreage owners within said district withdrawing their signatures from the petitions for disincorporation leaving approximately 1,600 acres. Leo Marler further stated that, therefore, there was insufficient acreage left upon which the defendant commission could act.

"Testimony was received by defendant commission on the issue of disincorporation. Plaintiff commissioners stated that they felt the defendant commissioners had a conflict of interest in considering the petitions for disincorporation, since they were named defendants in a lawsuit then pending in the Circuit Court of Camden County filed by plaintiff road district (Case CV188-122CC) filed on the 24th day of March, 1988."

The county commission also heard testimony from individuals supporting the disincorporation of the road district. At the conclusion of the public hearing, the county commission took the matter under advisement. After the public hearing, the road district filed with the county clerk petitions executed by individuals owning property within the district who were opposing the disincorporation of the district. On October 24, 1988, the county commission issued its final order dissolving the road district.

The "petition for review" filed by plaintiffs in the circuit court alleged that the order of dissolution was unlawful because: (a) defendants did not have "the requisite number of acreage owners" supporting the disincorporation because the petitions supporting disincorporation were unlawful in that more than half of the number of "acreage owners" executing the petitions did so almost two years prior to the public meeting and "the majority of the acreage owners," prior to the public meeting and prior to the issuance of the order, had expressed their opposition to the disincorporation by affidavit, petition, and/or oral testimony; (b) the county commission issued the order notwithstanding the fact it had an inherent conflict of interest; (c) the county commission failed to record the public hearing so that a record of same could be preserved for review by the court.

In this court, each of the four "points relied on" advanced by plaintiffs here seeks to attack a finding or ruling of the trial court. Plaintiffs claim that the trial court erred (1) in finding that plaintiffs failed to perfect their request for judicial review by not complying with § 536.130.1, which deals with the time for filing the "record before the agency" in the reviewing court, because there was no record of the proceedings kept by the county commission and, further, "the parties agreed to submit the matter by stipulation to the trial court"; (2) in affirming the county commission's order "since defendants lacked jurisdiction to proceed due to the fact that the petitions advocating the disincorporation lacked the requisite number of acreage owners"; (3) in finding that the facts do not show any conflict of interest which would have disabled the defendant commissioners from considering the petitions advocating the dissolution of the road district; and (4) in failing to find that the order dissolving the road district "was arbitrary, capricious, not supported by competent and substantial evidence, and an abuse of discretion."

This court finds that point 3 is meritorious. In presenting the rationale for that finding, this court will refer to portions of the other points to the extent that the unusual facts require such references.

Statutes pertinent to issues on this appeal include the following:

Section 49.230:

"Appeals from the decisions, findings and orders of county commissions shall be conducted under the provisions of chapter 536, RSMo."

Section 536.010:

"For the purpose of this chapter:

(1) 'Agency' means any...