Town of Blue Summit, In re
| Decision Date | 07 December 1970 |
| Docket Number | No. 25384,25384 |
| Citation | 461 S.W.2d 332 |
| Parties | In the matter of the Incorporation of the TOWN OF BLUE SUMMIT, Missouri. |
| Court | Missouri Court of Appeals |
Betsy Ann Stewart, Jack C. Terry, Independence, for proponent.
William L. Turner, H. Michael Coburn, Kansas City, for respondents. Gage, Hodges, Kreamer & Varner, Kansas City, of counsel.
This is an appeal from a judgment rendered by the Circuit Court reversing an order of the County Court of Jackson County entered on April 9, 1968, purporting to incorporate an approximately mile square area lying between Kansas City and Independence as the Town of Blue Summit. In the interest of clarity, we pronounce here at the outset of this opinion that the county court's order of that date is of no decretal validity and presents nothing reviewable by this court and that we will rule accordingly. From the record, which is in a state of considerable confusion, we undertake to extract essential facts in chronological order.
Proceedings for incorporation originated in the County Court of Jackson County on February 17, 1966, upon a verified petition (consisting of six documents, identical in text, differing only as to purported signatures thereon), filed by proponents seeking incorporation under provisions of Section 80.020 V.A.M.S., (all statutory references are to R.S.Mo., 1969, V.A.M.S. unless otherwise noted) which provides inter alia that the county court may incorporate a town or village upon petition by 'two-thirds of the taxable inhabitants'. Members of the county court at that time (referred to in the record as the 'old court') were Judges Charles C. Curry, Morris Dubiner and Floyd E. Snyder. Aside from essential jurisdictional allegations, the petition alleged that there were 715 taxable inhabitants of the area sought to be incorporated and that it (the petition) contained the signatures of 487 individuals--10 more than necessary to constitute two-thirds of the stated number.
On April 4, 1966, upon due notice given, the county court held a public hearing at which both proponents and opponents were present. No transcript of that proceeding was preserved. After hearing evidence the county court made no decision but entered an order taking the matter under advisement.
On January 1, 1967, the personnel of the county court changed, in that Judges Charles B. Wheeler, Jr. and Alex M. Petrovic succeeded Judges Dubiner and Snyder. At that time the case was still under advisement and undecided.
On April 3, 1967, twenty-four of the petitioners filed withdrawals of their signatures, and on April 10, 1967, fourteen more petitioners filed such withdrawals. Assuming the validity of those withdrawals, the remaining signatures would thereby have been reduced to less than two-thirds of the alleged number of taxable inhabitants.
The first affirmative action taken by the new county court was on April 11, 1967. On that date another hearing (the second) was held to consider the merits of the petition for incorporation. Those proceedings were recorded and appear in the transcript. Evidence was presented on the issues of reasonableness of the proposition, feasibility of the municipal services needed and available, and whether two-thirds of the taxable inhabitants of the area favored incorporation. Thereupon the court made formal written findings, including recitals to the effect that the incorporation petitioned for was authorized by the facts and the law, was reasonable and proper, and should be granted. Relative to the numerical sufficiency of the petition, the court found 'That the petition for incorporation filed herein has been signed by more than a majority of the taxable inhabitants residing within the area proposed for incorporation.' The formal adjudication of incorporation was entered as follows:
'IT IS, THEREFORE, ORDERED, ADJUDGED, DECREED AND DECLARED that the petition for incorporation filed herein by the taxable inhabitants of the community of Blue Summit be and the same is hereby approved, and the proposed town of 'BLUE SUMMIT' be and the same is hereby declared to be a body politic and corporate as a town and the name thereof is hereby declared to be 'TOWN OF BLUE SUMMIT,' * * *'.
Additionally the court declared the metes and bounds of the town and appointed five trustees to administer its affairs. The order of incorporation thus entered was not simply a ministerial act, but amounted to a judgment having the force of any other judgment rendered by a court of competent jurisdiction. 21 Mo.Digest, Municipal Corporations, k12(9) p. 410.
No appeal was taken from the judgment of incorporation entered on April 11, 1967, as is provided for by Section 49.230 V.A.M.S. Nor was review sought under provisions of Chapter 536, Administrative Procedure and Review. Consequently, that judgment became final and conclusive on May 11, 1967--hence impregnable to collateral assault and subject to question only by a direct proceeding instituted for that purpose. 21 Mo.Digest, Municipal Corporations, k18, p. 413.
On May 24, 1967, at the relation of the opponents of incorporation, Joseph R. Teasdale, prosecuting attorney for Jackson County, filed an action in quo warranto in the Circuit Court of Jackson County, Case No. 704, 411, atta cking the validity of the April 11, 1967, judgment, on grounds that the incorporation was based on a finding that only a majority of the taxable inhabitants favored the incorporation, and that the petitions, after withdrawals, did not contain the signatures of two-thirds of the taxable inhabitants, as required by law to authorize the incorporation. Named as defendants in that action were the five individuals the county court had appointed as trustees of the town of Blue Summit. Those defendants filed separate answers denying the validity of the signature withdrawals, affirmatively asserting that the county court had jurisdiction to incorporate the town of Blue Summit by complying with all laws relative to that function, and, alleging that more than two-thirds of the taxable inhabitants had signed the petition.
While the described quo warranto action was still pending the county court attempted to amend its April 11, 1967, order of incorporation by entering another order of September 19, 1967, (without further hearing of evidence) reciting findings that 'the petition for incorporation filed herein has been signed by more than two-thirds of the taxable inhabitants residing within the area proposed for incorporation' and that "a majority' should be corrected to read 'two-thirds'.'
No decision was ever rendered by the circuit court on the question at issue in the quo warranto action, that is, whether the town of Blue Summit was legally incorporated. On November 27, 1967, following a hearing of that cause in Division No. 13 of the Jackson County Circuit Court, the court found that 'the record of the proceedings in the County Court is inadequate as relates to the numerical sufficiency of the petitioners for the Court to determine if the County Court exceeded its jurisdiction in incorporating the village of Blue Summit', and entered an order as follows:
'IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the case be remanded to the County Court for a rehearing on the issue of the proponents compliance with R.S.Mo. 80.020 as to the numerical sufficiency of the petitioners only.'
Thereafter, on March 27, 1968, the county court conducted a third hearing of 'the case of the incorporation of the City of Blue Summit', limited to the question of 'the numerical sufficiency of the petitioners only'. The court again examined and considered the six sections of the petition, the signature withdrawals and affidavits pertaining thereto. Oral evidence was heard at considerable length, and the interested parties argued the merits of their respective positions.
Following that hearing, and on April 9, 1968, the county court entered its final order entered 'Order Affirming Order of Incorporation'. Paradoxically, the order is based on a finding that on April 4, 1966, at the first hearing, the old court had assumed jurisdiction, determined that more than two-thirds of the taxable inhabitants had signed the petition and then took the matter under advisement--this, notwithstanding positive testimony of members of the 'old court', adduced at the March 27, 1968, hearing, that there had been no hearing, discussion, reception of evidence or a determination as to the numerical sufficiency of signatures on the petition when the matter was first heard on April 4, 1966. Stated conclusions of law prefacing the order are to the effect (1) that the petition as filed on April 4, 1966, was sufficient, and (2) that withdrawals of signatures in order to be effective must have been filed prior to April 4, 1966. The next of the attemptedly decretal portion of the order reads as follows:
'IT IS THEREFORE, ORDERED, ADJUDGED, DECREED AND DECLARED that the Order of this Court of April 11, 1967, and as amended by Order of this Court on September 19, 1967, approving the petition for incorporation of the community of Blue Summit and declaring the same to be a body politic incorporated as a town...
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