State on Information of Eagleton v. Champ, 49734

• Citation: 393 S.W.2d 516
• Decision Date: 12 July 1965
• Docket Number: No. 49734,49734
• Parties: STATE of Missouri on the information of Thomas F. EAGLETON, Attorney General, Relator, v. Norman B. CHAMP, Joseph Champ, Bill Bangert, Rosemary Bangert, and Archie Null, the purported Trustees of the Village of Champ, Missouri, and the Village of Champ, Missouri, a Municipal Corporation, Respondents.
• Court: United States State Supreme Court of Missouri

Page 516

393 S.W.2d 516

STATE of Missouri on the information of Thomas F. EAGLETON Attorney General, Relator, v. Norman B. CHAMP, Joseph Champ, Bill Bangert, Rosemary Bangert, and Archie Null, the purported Trustees of the Village of Champ, Missouri, and the Village of Champ Missouri, a Municipal Corporation, Respondents.

No. 49734.

Supreme Court of Missouri, En Banc.

July 12, 1965.

Opinion Modified on Court's Own Motion and Motion for

Rehearing or for an Order Retaining Jurisdiction

Denied Sept. 13, 1965.

Thomas F. Eagleton, Atty. Gen., of Missouri, James J. Murphy, Asst. Atty. Gen., James M. Douglas, Sp. Counsel to Atty. Gen., David F. Ulmer, Edwin D. Akers, Jr., Sp. Asst. Attys. Gen., Jefferson City, for relator.

John A. McCarty, Clayton, T. E. Lauer, Columbia, Veryl L. Riddle, Riddle, O'Herin & Newberry, Malden, for respondents.

Norman C. Parker, St. Louis County Counselor, Joseph B. Moore, Associate County Counselor, John J. Collins, Asst. County Counselor, for St. Louis County, Mo., amici curiae.

FINCH, Judge.

This is an original action in quo warranto filed September 4, 1962, ex officio by the Attorney General of Missouri, as relator. Count I seeks to have the original order of incorporation of the Village of Champ, entered by the St. Louis County Council on January 14, 1959, declared invalid and void, and Count II seeks a similar ruling with reference to a purported order of annexation of additional territory entered by the County Council on September 5, 1962. An order ousting the individual respondents from their village offices and preventing them from exercising authority over the territories is sought.

The Honorable Harry C. Blanton was appointed by this court as Special Commissioner to take testimony, make findings of fact and conclusions of law, and submit a recommendation to this court. He has made his report and has recommended denial of relator's prayer in Count I with reference to the original incorporation and the granting of relator's prayer of ouster in Count II with reference to the annexation.

Evidence taken by the Special Commissioner discloses these facts: In 1957, or perhaps earlier, Mr. Bill Bangert and some associates conceived of a plan which they named Metro. It involved the construction of a domed, all-weather sports stadium to seat 115,000 people. A three-level restaurant seating 1500 was to be suspended at the top of the dome. An underground, multi-level parking garage under the stadium was to have a capacity of 27,000 automobiles, and be adapted to conversion to a civil defense shelter accommodating 600,000 people in the event of a nuclear attack. There were to be two and one-half million square feet of adjacent shopping facilities, plus office space. The plan was to locate Metro in northwest St. Louis County near Interstate Route 70 and the proposed circumferential highway, in an incorporated village to be established.

On May 12, 1958, a petition was filed with the County Council of St. Louis County asking it to incorporate approximately 840 acres as a village under the provisions of Sec. 80.020. (All references are to RSMo 1959, V.A.M.S., unless otherwise indicated.) This area included the site where Metro was to be constructed. Following procedure prescribed by the Charter of St. Louis County, the petition was referred to various agencies, including the St. Louis County Planning Commission. It recommended that the petition for incorporation be denied. This original petition to incorporate the Village of Champ was never acted on by the County Council. Subsequently, on November 12, 1958, an amended petition was filed with the County Council, this time describing 314.3 acres and asking that it be incorporated as the Village of Champ. This revised area still included the site where Metro was to be located. The unverified amended petition was signed by eleven persons who purported to be more than two-thirds of the taxable residents of the area sought to be incorporated. The County Planning Commission again recommended against incorporation, stating, in part, that the proposed village '* * * does not meet the minimum standards for an incorporated area.' The matter was investigated by the County Council and on January 7, 1959, a public hearing was conducted. On January 14, 1959, the Council entered its order approving the incorporation and appointing five trustees of the village.

The 314.3-acre tract included in the village as incorporated was bounded roughly as follows: On the north by Interstate Route 70, on the east by the incorporated municipality of Bridgeton, and on the south and west by unincorporated areas. Generally, the tract was at the top of rolling land which adjoins the bottomlands of the Missouri River. The river was located approximately one and one-half miles to the west. On the south side of the incorporated area there was a roadway known for a portion of the distance as McKelvey Road and thereafter as Creve Coeur Mill Road. The actual south boundary of the incorporated village as established by the County Council was set back 200 feet from these roadways, apparently at the suggestion of the St. Louis County Highway Engineer for reasons that had to do with possible issuance of tax bills by the county at a future date for the improvement of Creve Coeur Mill Road.

Within the incorporated area proper there were seven houses, a school and a church. The church and the school were located on Penn-Junction Road, which was a public road extending in a northerly direction for a distance of approximately 465 feet from its intersection with Creve Coeur Mill Road. The Penn-Junction Baptist Church had been constructed as a mission church in 1956 and had a membership of about 140, of whom one person lived in the incorporated village. The church was about 500 feet from Creve Coeur Mill Road. Penn-Junction School was located about 800 feet from Creve Coeur Mill Road. It was built in 1954 as a consolidation of two rural schools located in the Pattonville School District. In 1958 it had about 235 students, of whom six or eight lived in the incorporated area.

A private roadway known as Branneky Lane ran northwardly from the end of Peen-Junction Road to the residence of the Branneky family, which was just beyond the north boundary of the village as established in the order of incorporation. Six of the houses in the incorporated village were located along Branneky Lane. Two of them, known as the Barklage and Null houses, had been there many years. The other four, described by everyone as substandard houses, were built between 1955 and a time which was about a year before the original order of incorporation. The seventh house, known as the Cook house, was located a half mile or so west of Branneky Lane and was located on a 110-acre farm. The Cooks had a driveway from their place directly to Creve Coeur Mill Road and did not use Branneky Lane. Appearently they had an easement across the Null farm to Branneky Lane and there was a dirt lane located there but it was used very infrequently and was not the means of access used by the Cooks. Incidentally, Bill Bangert bought the Cook house in the fall of 1958 and moved into it with his family in December of 1958. There were five additional houses immediately adjacent to the incorporated area which were excluded from the tract actually incorporated as the Village of Champ. The Branneky residence at the end of Branneky Lane was excluded, although apparently one of their farm buildings was included in the village limits. This house had been there for many years, as had its occupants. The reason for its exclusion is not clearly shown in the record. In addition, the King residence and three Miller residences, located in the 200-foot strip separating the incorporated area from Creve Coeur Mill and McKelvey Roads, were excluded at the request of the County Highway Engineer. All of the houses were occupied and had been there for a number of years.

Approximately 30 of the 314.3 acres in the incorporated village were used for building sites, lawns and streets. The remainder of the village area, which would have been approximately 284 acres, was used for agricultural purposes or lay in rough, wooded land. Estimates of the portion thereof actually used for farming ranged from 150 to 220 acres. At the time of the original incorporation the area surrounding the village as incorporated largely was vacant or used for agricultural purposes. Starting at about that time, however, there was a residential development to the south across Creve Coeur Mill Road in an unincorporated area. Various housing developments were started in that area at that time and grew rapidly thereafter. Bridgeton, to the east, also was growing.

The Metro Plan was based on the hypothesis that the stadium and accompanying commercial development would be municipally owned and would be financed through the issuance of revenue bonds. Bonds could not be issued by an unincorporated area and hence a municipal entity was required. The Plan itself would use 208 of the 314.3 acres in the original village. The 208 acres included the area where the church, school and houses (other than the Cook house) were located. There were plans for relocating all of these in the remaining village area.

After the incorporation of the village, the 1959 Missouri General Assembly passed legislation which would have enabled the Village of Champ to own and finance the Metro project, but the act was vetoed by Governor Blair. Thereupon the conclusion was reached by the trustees that Champ should annex Missouri River bottomland adjacent thereto and develop it as an industrial park, with a possibility of building the stadium in the original village area at a later date. Bangert arranged for various studies and surveys at his expense, following which steps were taken by the Village of Champ seeking to annex approximately 3100 acres of additional land for the express purpose of developing it as an...