Williams v. City of Illmo

• Court: Missouri Court of Appeals
• Writing for the Court: McDOWELL
• Citation: Williams v. City of Illmo, 279 S.W.2d 196 (Mo. App. 1955)
• Decision Date: 05 May 1955
• Docket Number: No. 7216,7216
• Parties: H. G. WILLIAMS; Janie Williams; Clyde A. Bass; Henry Koch; Ruth Louise Koch; Frank Raines; Pauline Raines; Lester Raines; Neta Raines; Herman F. Held; Stella B. A. Held; Aloys Heisserer; Mary M. Heisserer; Wm. H. Moore; Mauda B. Moore; Paul H. Blattel; Vernedia Blattel; Joe Urhahn; Bertha Urhahn; W. A. Eifert; Rovena Eifert; Harold A. Roth; Juanita R. Roth; B. J. Bruhl; Ella Bruhl; Robert A. Schiwitz; Mabel Schiwitz; Alfred W. Raines; Betty Lou Raines; Frank G. Campbell and Annie Lee Campbell, Respondents, v. CITY OF ILLMO, a Municipal Corporation, Appellant.

Page 196

279 S.W.2d 196

H. G. WILLIAMS; Janie Williams; Clyde A. Bass; Henry Koch Ruth Louise Koch; Frank Raines; Pauline Raines; Lester Raines; Neta Raines; Herman F. Held; Stella B. A. Held Aloys Heisserer; Mary M. Heisserer; Wm. H. Moore; Mauda B Moore; Paul H. Blattel; Vernedia Blattel; Joe Urhahn; Bertha Urhahn; W. A. Eifert; Rovena Eifert; Harold A. Roth; Juanita R. Roth; B. J. Bruhl; Ella Bruhl; Robert A. Schiwitz; Mabel Schiwitz; Alfred W. Raines; Betty Lou Raines; Frank G Campbell and Annie Lee Campbell, Respondents, v. CITY OF ILLMO, a Municipal Corporation, Appellant.

No. 7216.

Springfield Court of Appeals, Missouri.

May 5, 1955.

J. Grant Frye, Cape Girardeau, for appellant.

Stephen Barton, Thomas L. Arnold, Benton, for respondent.

McDOWELL, Presiding Judge.

This is an action in equity by owners of real estate located adjacent to the city of Illmo, Missouri, to declare void an extension of that city which includes their property. The action further seeks to enjoin the city officials from enforcing said ordinance. The judgment of the court was in favor of plaintiffs declaring the extensions void and enjoining the officers and agents of said city from enforcing them. Defendant appealed.

The petition in substance states that defendant-City passed ordinance No. 393 to submit to the voters a proposition to extend the city limits annexing two separate tracts of land designated as tract I and tract II. An election was had April 1, 1952, and the extension adopted by a vote of 128 to 127, and the officers of said city have taken steps to put the extension into effect and exercise jurisdiction over the areas included in the ordinance; that said properties sought to be annexed are lands used solely for agricultural and horticultural purposes and for country homes; that the extension in no way redounds to the benefit of the city or makes its limits more regular; that there would be an increased tax burden upon plaintiffs; that there now is ample unimproved real estate within the present city limits to care for all its needs; that the population is sufficiently stable as not to indicate any future needs for the annexed territory; that the territory annexed is not needed for streets, sewers, water mains, residential or business use, nor is it needed for police or health requirements and the only purpose of such annexation is to secure additional revenue; that the ordinance is unreasonable and oppressive.

The petition asks for the ordinance to be declared void and that the defendant's officers, agents and employees and their successors be enjoined from attempting to enforce it.

The answer is a general denial and an affirmative plea that the annexed territory is now served by the city in the way of fire protection, municipal water system, sanitation, sewer disposal, police regulation of dogs, voting facilities, reduced fire insurance risks and other incidental benefits; that the city has a low tax rate and practically no indebtedness, has modern fire fighting equipment, sewer system, municipal water system, excellent streets and sidewalks and other features.

The judgment of the trial court rendered April 11, 1953, held the ordinance void and enjoined the city, its officers and persons from putting into force said ordinance extending the limits of the city and from exercising municipal authority including the assessing of taxes on lands in the territory sought to be annexed.

The evidence shows that Illmo was incorporated as a city of the fourth class in 1906 and embraces about 390 acres within the corporate limits. It is bisected by the main line of the Cotton Belt Railroad running east and west. It has developed in two sections. The section north of the railroad is a residential and manufacturing section. The section south of the railroad contains the main residential and business section of the town. According to the census the population in 1910 was 976; in 1930, 1129; in 1940, 1224; and in 1950, 1247. The west boundary of Illmo joins the city of Fornfelt, which has a population of 1539, and west of Fornfelt is the village of Ancel, having a population of 295. They usually speak of these three cities as 'Tricity'. They all adjoin and lie along the Cotton Belt Railroad right-of-way from east to west. The southern section lies south and east of the depot on the north side of Hickory street from First to Second street, then on both sides of Second street south two blocks to Cherry street.

The city is composed of 1383 platted lots or approximately 70 blocks of 24 lots each. 1244 of these lots are in the southern section and 139 in the northern section. While there is conflicting evidence as to the amount of vacant lots, we think the testimony is that there were about 530 of the platted lots vacant or twenty five per cent as shown by the city and county assessors' books, at the time of the annexation; that 112 of these vacant lots are on hard surfaced streets. The evidence also shows that at the time of the annexation, about twenty five per cent of the territory within the city limits was unplatted land, much of it used for farming purposes. The evidence shows that much of the railroad property within the city limits was idle and unused at the time of the annexation and was available to the city for industrial and business property. It shows that at the time of the annexation there were 333 business improvements and residences in Illmo. There were houses listed for sale and practically no demand for building sites; that only 15 new homes had been built within the city in the last 10 years; that many of the vacant lots are in the business district and nearby improved residential areas.

The evidence further shows that the city once supported three large hotels in the business district, which have disappeared years ago and the sites are now vacant; a large three story opera house once existed but burned down and the lot remains vacant. However, there is a picture show, two small rooming houses to take care of the hotel accommodations, drug stores, garment factories and other business buildings.

As to the growth of the city, we quote from defendant's brief, page 5: 'There has been a decrease in the number of hotels and eating establishments during the past thirty-odd years. A part of the 'roundhouse had been removed, a part of the repair shops of the Cotton Belt Railroad had been taken away, and the stockyards were no longer in existence.'

We further quote from defendant's brief, on page 6: 'The assessor thought that the city area was about 390 acres. Of this, about 90 acres was in railroad property. About 90 acres of the rest was unplatted. This left about 210 acres in buildings.

'The consolidated school district in which Illmo (and also Fornfelt) was located, had an assessed valuation in 1952 of $1,176,940.

'The city had a bonded indebtedness of $17,000.00 which was the balance of the costs of the municipal water works. * * * It had a sinking fund to redeem those bonds with the sum of $12,000.00 in it. The bonds could not be paid as they were not callable. They were payable at the rate of $2,000.00 per year.'

As to the territory included in the city limits, we quote from defendant's brief, page 7: 'The terrain on which the City of Illmo is located is generally steep and hilly, being a part of the Mississippi River hills. Illmo is 'composed of cuts and draws.'

'All the streets were laid out at right angles and went up and down hills in a constant pattern of squares. One witness for the city said: 'The prime purpose of the city taking this in is not to make the streets more regular. * * *''

Defendant's testimony is that the city now has about 50 blocks of cement, concrete or bituminous concrete streets, 150 blocks of sidewalks and had recently paved 23 additional blocks of streets.

The outlet from the city is first a farm to market road, Route K, which extends from Highway 61 at the western border of Ancel on the north side of the railroad through Ancel, Fornfelt and into the north section of Illmo. It crosses the railroad tracks near the depot to the south, passes over First street in the south section of Illmo, turns east on Hickory street one block, then due south on Second street to the south city limits where it intersects a public road, called the Commerce road, leading to the south.

The evidence on the part of defendant is that there is talk of another highway being extended from the south section of Illmo down the south side of the railroad right-of-way to Highway 61. The main outlet, however, is Route K, which connects with U. S. Highway 61.

Defendant, in its brief, admits it does not have equipment for street maintenance but rents such equipment from the Illmo Special Road District.

We think the evidence is admitted that at the time Illmo was established it was a railroad town; that much of the railroad business has now been discontinued or moved to other sections. A part of the railroad shops are gone and much of the business that used to be done in the Illmo shops has been discontinued.

As to fire fighting equipment, the city owns one fire truck which cost approximately $10,000.00. As to the defendant's testimony of offering fire protection to the proposed annexation of tract I, defendant's witness, Martin, testified that 18 years previously, while he was fire chief, he had helped extinguish a fire on plaintiff-Williams' house in tract I. As to police protection the city has a police judge and a city marshal. As to sanitation, Dr. Dorris, a member of the City Council, was appointed Health Commissioner and the testimony is that the city had sprayed the surrounding territory on one occasion by airplane with DDT to kill noxious insects; that the city had by ordinance provided for the vaccination of dogs and for the destruction of stray dogs; it had ditched and drained areas of the city; that it has a weed killing and weed cutting program and clean-up campaign.

As to other...