State ex rel. Horn v. Randall, 21941

• Decision Date: 11 January 1955
• Docket Number: No. 21941,21941
• Citation: 275 S.W.2d 758
• Parties: STATE of Missouri, ex rel. Claude C. and Mary HORN, M. G., and Adus Beamer, Arnold L. and Helen Phinney, Bob and Joanne Roberts, Horace R. Hubbard, Jack G. and Harriet Beamer, Willard Grindley, Fred E. and Iris Schoonover, David H. Long, Jr., Ralph Risser, Herman Welliner, Robert C. Oliver, Jr., Frank J. Kennedy, Stewart S. Mitchell, and N. J. Ammon, Bryce B. Smith, Joseph and Electa Relaford, Nelson and Beulah A. Johnson, Jerry T. and Dorothy C. Duggan and Nelson A. Johnson, as Executor of the Estate of William M. Duck, Deceased, Juvenile Improvement Club, G. J. Ford, Kansas City Area Council Boy Scouts, Robert J. Ingraham, Respondents, v. William J. RANDALL, Fred W. Klaber (Henry Fox, Jr., his successor), and Harry M. Fleming, Stanford Miller and Mary Martha McLeod, individually and as Executors of the Will of Hugh Miller, Deceased, and Martha S. Miller, Matt J. Bowen and Midwest Pre Cote Company, Appellants.
• Court: Missouri Court of Appeals

Page 758

275 S.W.2d 758

STATE of Missouri, ex rel. Claude C. and Mary HORN, M. G. and Adus Beamer, Arnold L. and Helen Phinney, Bob and Joanne Roberts, Horace R. Hubbard, Jack G. and Harriet Beamer Willard Grindley, Fred E. and Iris Schoonover, David H Long, Jr., Ralph Risser, Herman Welliner, Robert C. Oliver Jr., Frank J. Kennedy, Stewart S. Mitchell, and N. J. Ammon, Bryce B. Smith, Joseph and Electa Relaford, Nelson and Beulah A. Johnson, Jerry T. and Dorothy C. Duggan and Nelson A. Johnson, as Executor of the Estate of William M. Duck, Deceased, Juvenile Improvement Club, G. J. Ford, Kansas City Area Council Boy Scouts, Robert J. Ingraham, Respondents, v. William J. RANDALL, Fred W. Klaber (Henry Fox, Jr., his successor), and Harry M. Fleming, Stanford Miller and Mary Martha McLeod, individually and as Executors of the Will of Hugh Miller, Deceased, and Martha S. Miller, Matt J. Bowen and Midwest Pre Cote Company, Appellants.

No. 21941.

Kansas City Court of Appeals, Missouri.

Jan. 11, 1955.

G. H. Maitland, Kansas City, Joseph R. Stewart, John G. Madden, Kansas City, for appellants.

J. G. Beamer, Fred Bellemere, Jr., Nelson E. Johnson, Geo. K. Brasher, Edward M. Tracewell, James Daleo, Burr S. Stottle, Kansas City, for respondents.

CAVE, Presiding Judge.

This is a certiorari proceeding to test the legality of an order of the county court amending the zoning of a particular 65-acre tract of land located in the unincorporated part of Jackson County. The amendment rezoned the land from District 'D' (agricultural) to District 'H' (heavy industry).

Jackson County was zoned under authority of Chapter 64, RSMo 1949, V.A.M.S. On August 13, 1952, Hugh Miller and his wife, Martha, filed an application with the Jackson County Planning Commission to rezone the 65-acre tract from District D to District H, 'for the proposed use as a rock quarry'. Protests were filed and a hearing was had before the zoning commission, which refused to recommend that the tract be rezoned. The Millers appealed to the county court as provided by Section 64.120. Two hearings were held before that body, and on November 17, 1952, an order was entered directing the rezoning of the tract as prayed. See Section 64.140. Thereupon, relators below, respondents here, filed their petition in the circuit court for certiorari as provided in Subsection 3 of Section 64.120. The petition alleged that the order of rezoning was 'illegal, arbitrary and discriminatory for the following reasons:' 1. That the decision was based upon inadequate competent evidence; 2. that the decision was against the overwhelming weight of the evidence; 3. that the decision was not made by the unanimous and unqualified vote of all members of the court, as required by Section 20 of the Zoning Order of Jackson County and Section 64.140; 4. that the decision resulted in 'spot zoning'; 5. that the order would result in the creation of a nuisance and a menace to health; 6. that the order violated the property rights of the relators, lowers the value of their respective properties, and deprives them of their property without due process of law. The writ was issued as prayed. The county court filed return to the writ, and attached thereto a certified copy of the proceedings and evidence before it. Thereafter, Matt J. Bowen, the Midwest Pre Cote Company, Stanford Miller, Mary Martha McLeod and Martha S. Miller filed intervening petitions in support of the order of rezoning and a large number of individuals and organizations were permitted to file petitions in opposition to the order.

There was an extended trial in the circuit court, resulting in approximately 700 pages of testimony as shown by the transcript filed herein. The judgment of the trial court, among other things, recites: 'The court having considered the pleadings and heard the evidence and being fully advised in the premises, finds the issues generally in favor of the Relators and Intervenors * * * and against the Respondents and Intervenors * * * and finds that the Respondents, the judges of the County Court of Jackson County, Missouri, acted illegally, without authority of law and beyond and in excess of their jurisdiction in attempting to rezone the following described property from District 'D' (agricultural) to District 'H' (heavy industry): * * * and finds that the order of the County Court * * * should be modified by striking out and vacating subparagraph 25.5 and all provisions of said order purporting to rezone the above described real property * * *. That the Respondents, the members of the County Court * * * authorize and direct the Zoning Engineer * * * to correct the original Zoning maps and classifications * * * so as to conform to the provisions of this order'.

After the motion for new trial was overruled, appeal was perfected to this court.

It is stated in respondents' brief that at pretrial conferences, the court was advised by the attorneys representing all parties 'that upon this statutory writ of certiorari, * * * the court might hear additional evidence if it deemed it necessary, but that the sole purpose of the hearing upon the writ was to determine whether or not the county judges had acted illegally and in excess of their authority'. We do not find such an agreement or understanding in the transcript; however, it is not specifically denied by appellants. The appellants do contend that the issue before the circuit court was whether the order of the county court was supported by competent and substantial evidence upon the whole record; and that the circuit court erred in trying the cause de novo and substituting its opinion for that of the county court.

We have stated the above proceedings and occurrences in the trial court because they raise the fundamental question whether a circuit court may hear and consider additional evidence when it is called upon to review the orders of an administrative agency; or is it limited to a consideration of the record which that agency had before it, and from such record determine whether the order of the agency was supported by competent and substantial evidence?

In considering this question, it must be kept in mind that the county court is no longer a judicial court, but has become an 'administrative body' within the contemplation of Section 22, Article V of the Constitution, V.A.M.S.; Kansas City v. Rooney, 363 Mo. 902, 254 S.W.2d 626. The perplexing question is whether the scope of review, by the circuit court, of findings and orders of the county court is exclusively provided for by said Section 22, and as implemented by Ch. 536, RSMo 1949, Administrative Procedure Act, amended Laws of 1953, page 678 et seq., V.A.M.S.

In the Rooney case the court said, 254 S.W.2d 627: '* * * the scope of review on any appeal from the County Court is that provided by Section 22, Article V. As we held in the Wood case, all previous statutes are amended by substituting the provisions of Section 22, Article V, for any scope of review previously stated, because the constitutional standard of review 'is mandatory and requires no legislation to put it into effect.' * * * In other words, review by a Circuit Court of decisions of a County Court are now on the same basis as review of awards of Workmen's Compensation or orders of the Public Service Commission. As we recently pointed out in Michler v. Krey Packing Company, 253 S.W.2d 136, 142, decisions of administrative tribunals are not reviewed de novo because courts have no authority to make findings of fact in such cases. An administrative tribunal 'is the fact-finding body, and the Court examines the evidence not to make findings for the Commission but to ascertain whether its findings are properly supported.' This 'does not mean that the reviewing court may substitute its own judgment on the evidence for that of the administrative tribunal. But it does authorize it to decide whether such tribunal could have reasonably made its findings, and reached its result, upon consideration of all of the evidence before it; and to set aside decisions clearly contrary to the overwhelming weight of the evidence.''

This limited scope of review has been announced in a multitude of cases which may be found cited under the above constitutional section and the Administrative Review Act.

The court also held in the Rooney case that the provision of Section 49.230, which authorized the circuit court to hear a cause de novo on appeal from the county court, had been repealed by said constitutional Section 22, and that the scope of review provided in said Section 22 was substituted therefor.

Thus it would appear that if the administrative tribunal "is the fact-finding body" and the reviewing court "may [not] substitute its judgment on the evidence for that of the administrative tribunal", and may not decide the cause 'de novo', then no useful purpose would be or could be served by introducing additional evidence when the cause is heard in the reviewing court.

Our attention is called to the following language in Section 64.120(3): 'Upon the presentation of such petition the court may allow a writ of certiorari directed to the board for review of the data and records acted upon or it may appoint a referee to take additional evidence in the case.' It is argued that the italicized clause authorizes the reviewing court to hear additional evidence. Under authority of the Rooney case, supra, this clause has been repealed by constitutional Section 22 and the scope of review is limited by that section and Chapter 536, supra.

We are cited to State ex rel. Swofford v. Randall, Mo.App., 236 S.W.2d 354, and State ex rel. Christopher v. Matthews, 362 Mo. 242, 240 S.W.2d 934. We did say, under the particular facts in the Swofford case that it was proper to introduce evidence in the circuit court 'in order to determine whether or not the Board had acted illegally.' However, that statement should be construed to refer only to the charge that the...