State ex rel. King v. Village of Praethersville

• Citation: 542 S.W.2d 578
• Decision Date: 12 October 1976
• Docket Number: No. KCD,KCD
• Parties: STATE of Missouri on the information of William S. Brandom, Prosecuting Attorney of Clay County, Missouri, ex rel. Lawrence W. KING et al., Appellants, v. VILLAGE OF PRAETHERSVILLE, a Municipal Corporation, et al., Respondents. 27986.
• Court: Court of Appeal of Missouri (US)

Page 578

542 S.W.2d 578

STATE of Missouri on the information of William S. Brandom,

Prosecuting Attorney of Clay County, Missouri, ex

rel. Lawrence W. KING et al., Appellants, v. VILLAGE OF PRAETHERSVILLE, a Municipal Corporation, et al.,

Respondents.

No. KCD 27986.

Missouri Court of Appeals, Kansas City District.

Oct. 12, 1976.

Thaine Q. Blumer, Kansas City, for appellants.

Bernard D. Craig, Sr., Edward P. Moran, Richard M. Shteamer, John E. Craig, Kansas City, for respondents.

Before DIXON, P.J., PRITCHARD, C.J., and WASSERSTROM, J.

WASSERSTROM, Judge.

This is an original action in quo warranto seeking to have the original order of incorporation of the Village of Praethersville declared invalid and void and further seeking an order declaring that the individual respondents (village officials) are holding their offices without authority. The cause was tried to the court below without a jury and judgment was rendered for defendants. The issues presented by the parties on this appeal are first, whether the village was validly incorporated and second, whether successful prosecution of this cause of action is barred by the doctrine of laches.

On January 20, 1951, the County Court of Clay County, Missouri, issued an order incorporating the Village of Praethersville, the boundaries of said village encompassing some 1500 acres. Both at the time of incorporation and at the time of trial a maximum of 40 acres could fairly be characterized as urban. The remainder of the land was agricultural. The village population at the time of incorporation is unknown, but there were at least 91 taxpayers, and some 40 houses. Business establishments consisted of a bottled gas company, a combination grocery store-service station and a lumber yard. The latter two are now gone but there is still a store and several apple orchards. The village also contains one small schoolhouse. At the time of trial the village population was 126, residing in 55 houses.

At the time of incorporation the villagers had no plans for residential and industrial development and have since pursued none. Building permits for the houses built since incorporation have been issued orally by the city council. None of the existing agricultural land has been platted, and the physical character of the village itself has changed very little over the years. At the time of incorporation the existing roads and streets had been built by the state or county and no additions have been made thereto, though there has been some maintenance work done by the village. There is no municipal water supply or sewage treatment system, though abortive attempts were made at one time to gain the former by joining an adjacent rural water district.

The village council started functioning at least as early as 1952, and has enacted ordinances. At the time of trial the council had four members and a mayor. The village also has a clerk, treasurer, zoning commissioner, marshal and deputy marshal (unpaid) and a police judge (who has yet to hear a case). Since incorporation the village has levied and collected taxes based on a $0.50 per $100 valuation as determined by the Clay County Court. The village has also received revenue sharing funds from the Federal Government, and derives revenue from franchise agreements with five utility companies. Total yearly revenue at the time of trial was some $3,900--$4,000. There have been no bond issues. Expenditures by the village include those for road maintenance, repair and maintenance of the village fire truck and station, expenses of the zoning commission and police department, salaries for the village clerk and treasurer, expenses of the city council, legal notices, legal advice and preparation of tax bills to Clay County Court. The fire truck was purchased with money obtained in fund raising events and donations and is manned by volunteers. The zoning commission's activities have been minimal; the zoning code was adopted in 1964 and merely zoned the whole village residential. The only change in zoning was made in 1969 when the present relators successfully applied to have their land rezoned to heavy industry.

Under the standards set forth in § 80.020 RSMo 1969 and under Missouri case law, it cannot be gainsaid that the incorporation of the village in this case was improper. Section 80.020 provides in pari materia that a petition for incorporation shall be presented to the county court and shall set forth the metes and bounds of the village and commons. Under Missouri law there is no probation against incorporating land which 'may become so surrounded and connected with lands used for town and city purposes, as to be and constitute a part thereof, so that the incorporation of the town or city would, as a necessity, include within its natural boundaries such lands.' State ex inf. Crow v. Flemming, 158 Mo. 558, 59 S.W. 118, 120 (1900); State ex rel. Scott v. Lichte, 226 Mo. 273, 126 S.W. 466 (1910); State ex inf. Rosenberger v. Town of Bellflower, 129 Mo.App. 138, 108 S.W. 117 (1908). However, 'county courts have no right or jurisdiction to incorporate surrounding or adjacent farming lands into cities, towns or villages.' State ex inf. Eagleton v. Champ, 393 S.W.2d 516, 522 (Mo. banc 1965); accord State ex rel. Patterson v. McReynolds, 61 Mo. 203 (1875); Petition to Incorporate the City of Duquesne, 322 S.W.2d 857, 863 (Mo.1959); see In Re Incorporation of Village of Lone Jack, 471 S.W.2d 513 (Mo.App.1971). Thus, '(1) land used solely for farming or agricultural purposes is not to be included in any great amount, and (2) only land which is devoted to community purposes and is an integral part of the community to be incorporated shall be included within the incorporation.' In Re Incorporation of Village of Lone Jack, supra at 516.

A review of the evidence herein, in light of the foregoing rules, makes it clear that the 1951 incorporation was improper. Only some 3% of the land is urban and there was no evidence of an actual connection between the urban and agricultural land. Therefore it follows that judgment should be entered for relators, unless relief should be denied because of the 22 year delay which has intervened between the date of incorporating and the filing of this action. Respondents vigorously contend that the cause of action here is barred by that consideration under the doctrine of laches.

It is well settled in Missouri that the state may be barred by laches from successfully maintaining a quo warranto action challenging the validity of a village, city or school district. State ex inf. Eagleton...