St. Louis County v. City of Florissant, 51204

• Decision Date: 11 July 1966
• Docket Number: No. 51204,51204
• Citation: 406 S.W.2d 281
• Parties: ST. LOUIS COUNTY, Missouri, and Lawrence K. Roos, Supervisor, and Theodore Glauert, et al., Plaintiffs-Appellants, v. The CITY OF FLORISSANT, Missouri, Defendant-Respondent.
• Court: Missouri Supreme Court

Page 281

406 S.W.2d 281

ST. LOUIS COUNTY, Missouri, and Lawrence K. Roos Supervisor, and Theodore Glauert, et al Plaintiffs-Appellants, v. The CITY OF FLORISSANT, Missouri, Defendant-Respondent.

No. 51204.

Supreme Court of Missouri, En Banc.

July 11, 1966.

Rehearing Denied Sept. 12, 1966.

Donald J. Stohr, St. Louis County Counselor, Clayton, Joseph B. Moore, St. Louis County Counselor, Clayton, Lawrence .j. Bannes, Special Assistant County Counselor, St. Louis, Lewis, Rice, Tucker, Allen & Chubb and James A. Singer, J. L. Pierson, and John Torrey Berger, Jr., Clayton, for appellants.

Carroll J. Donohue, Shulamith Simon, Husch, Eppenberger, Donohue, Elson & Cornfeld, St. Louis, for respondent.

WELBORN, Commissioner.

St. Louis County, its supervisor and various individuals filed suit for a declaratory judgment and injunction in order to nullify action of the City of Florissant annexing adjacent territory. The trial court found the action of the city valid and denied the requested injunctive relief. Plaintiffs have appealed from the judgment. We have jurisdiction because St. Louis County, a political subdivision of the state within the meaning of § 3, Article V, Constitution of Missouri, 1945, V.A.M.S., is a party to the litigation.

Prior to 1963, the City of Florissant operated under a special legislative charter granted in 1857 to the City of St. Ferdinand (Laws of Mo., 1856--1857, p. 574). On May 21, 1963, the voters of Florissant, acting under § 19 of Article VI, Constitution of Missouri, 1945, approved a constitutional charter which became effective September 12, 1963.

On November 11, 1963, the Florissant City Council enacted an ordinance, proposing to submit to the voters of the city, an amendment to the city's charter, extending the city's limits. The city limits had not been defined in the original charter. The amendment proposed the adoption of a new section of the charter, defining the city's limits, as extended, by metes and bounds. On December 23, 1963, the petition in this case was filed in the St. Louis Circuit Court.

Pursuant to the ordinance proposing the charter amendment, an election was held on January 14, 1964, at which the voters of Florissant approved the amendment.

Before examining the evidence on the issue of reasonableness of the annexation, we turn to the contention of the appellant that the purported annexation was invalied because of failure of the city to comply with § 71.015, RSMo 1959, V.A.M.S. (the 'Sawyers Act'), and §§ 71.860 to 71.920, Laws of Mo. 1963. Noncompliance by the city with such provisions is admitted. The city's response is that the statutory requirements do not apply to annexation by a constitutional charter city, but that if they, by their terms, do apply, they conflict with §§ 19 and 20 of Article VI of the Constitution of Missouri, 1945, and are, therefore, invalid.

House Bill No. 21, enacted by the 72nd General Assembly, Laws of 1963, p. 126, became effective October 13, 1963. The measure now appears as §§ 71.860 to 71.920 of the Revised Statutes. § 71.860 provides:

'The provisions of section 71.015 (the 'Sawyers Act') shall apply as well to all cities, towns, villages and municipalities of whatsoever kind, located in any first class county which has adopted a constitutional charter for its own local government, except as provided in section 71.920.' (The exception, which will be referred to hereinafter, is not pertinent here). St. Louis County, in which the City of Florissant is located, is a constitutional charter county.

The appellants recognize that in 1955, this court, in McConnell v. City of Kansas City, 282 S.W.2d 518, held that the Sawyers Act, insofar as it purported to apply to constitutional charter cities, conflicted with §§ 19 and 20 of Article VI of the Constitution of Missouri, 1945, and that, therefore, the act did not apply to such cities. Appellants assert that the enactment by the General Assembly in 1963 of § 71.860 was 'an obvious attempt to reverse by legislative action the holding of the McConnell case insofar as it applies to home rule charter counties.' In just what respect the constitutional problem considered in McConnell would be affected by the governmental structure of the county in which the municipality is located, appellants do not enlighten us. We perceive none which would require reconsideration of the basis of the McConnell holding.

Appellants contend further that the McConnell decision is of questionable authority, in the light of the en banc decision of 1965 in City of Hannibal v. Winchester, 391 S.W.2d 279. Although certain assumptions of McConnell were rejected by the majority of the court in Winchester, nevertheless, the majority opinion in no uncertain terms reaffirms the holding of McConnell. Judge Eager, in the majority opinion, stated: 'For these reasons, we hold the Sawyers Act inapplicable, and in so far as it purports to apply to a constitutional charter city as a mandatory procedure, it is also unconstitutional. We adhere to the result and, generally, to the reasoning of the McConnell case.' (Emphasis supplied), 391 S.W.2d 283. In his concurring opinion, Judge Hyde stated: 'In any event, Sec. 71.015 cannot be construed as a mandatory requirement for annexation by a charter city as the principal opinion so clearly shows.' 391 S.W.2d 291. In view of this recent pronouncement, we need pursue appellants' contention in this respect no further.

The questions of the applicability and validity of §§ 71.870 to 71.920 present different considerations. § 71.870 provides:

'The legislative body of any city, town or village located within the boundaries of a first class chartered county shall not have the power to extend the limits of such city, town or village by annexation of unincorporated territory adjacent to the city, town or village in accordance with the provisions of law relating to annexation by such municipalities until an election is held at which the proposition for annexation is carried by a majority of the total votes cast in the city, town or village and by a separate majority of the total votes cast in the unincorporated territory sought to be annexed. There shall be separate elections submitting the proposition of annexation to the two groups of voters, the same to be held simultaneously. The elections shall be held, except as herein otherwise provided, in accordance with the general state law governing elections in first class counties.'

§ 71.880 provides for notice to the election authority and governing body of the county of the annexation proposal. § 71.890 requires four weeks' publication of notice of the election on this proposal, the last publication to be not less than five days before the election. § 71.900 provides the form of ballot for the election and the certification of the results. § 71.910 prohibits resubmission within two years of a defeated proposal.

§ 71.920 provides, in part:

'In the event that the proposition to annex such territory is approved by a unanimous affirmative vote in both the annexing municipality and the territory sought to be annexed, the annexing municipality, other provisions of this chapter notwithstanding, shall extend its limits by ordinance to include such territory, specifying with accuracy the new boundary lines to which the city, town or village limits are extended.'

The only election on the Florissant annexation proposal was that held in Florissant on the charter amendment. However, the city contends that § 71.870, by its terms, is inapplicable to it; that if it is, the entire act, including §§ 71.870--71.920, is infected by the invalidity of § 71.860 as applied to constitutional charter cities; and that, in any event, §§ 71.870--71.920 conflict with the constitutional grant by §§ 19 and 20 of Article VI of the Constitution of Missouri, 1945, to charter cities of power to extend their limits by charter amendment.

In support of its contention that § 71.870 by its terms is inapplicable, the city advances two theories. The first is that in McConnell v. City of Kansas City, supra, this court, in 1955, held that § 71.015, by its terms applicable to 'any city' seeking to annex, could not be applied to a constitutional charter city; that, in enacting §§ 71.860--71.920 in 1963, the legislature is presumed to have been familiar with the McConnell decision and to have used the term 'city' with the understanding that the term would not include constitutional charter cities. However, the court in McConnell did not limit the meaning of the term 'any city' as employed in § 71.015. The court assumed that the term was broad enough to include a constitutional charter city. The inapplicability of the statute to such a city was not due to any insufficiency in the language employed, but was attributable to constitutional conflicts which prevented application to the full extent of the language employed. We are, therefore, of the opinion that the argument on this basis is without merit.

The city argues further that § 71.870 is not applicable because, by its terms, it purports to limit the authority of the 'legislative body' to extend the limits of a city and, in a constitutional charter city, such authority is not vested in the city's legislative body but rather in the city's voters, by way of charter amendment. City of Hannibal v. Winchester, supra; McConnell v. City of Kansas City, supra; State ex inf. Taylor ex rel. Kansas City v. North Kansas City, 360 Mo. 374, 228 S.W.2d 762. At the time of the enactment of § 71.870, statutes applicable to certain classes and types of cities did purport to give full power to annex to the city's legislative body. See §§ 73.030--73.060, applicable to cities of first class; § 81.080, applicable to special charter cities of less than 20,000; § 81.200, applicable to special charter cities of between 20,000 and 250,000 population; § 82.090, applicable to constitutional charter cities in which the limits were not defined by...