City of O'Fallon v. Bethman

569 S.W.2d 295, 1978 Mo. App. LEXIS 2190
CourtMissouri Court of Appeals
DecidedJune 13, 1978
DocketNo. 38819
StatusPublished
Cited by13 cases

This text of 569 S.W.2d 295 (City of O'Fallon v. Bethman) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of O'Fallon v. Bethman, 569 S.W.2d 295, 1978 Mo. App. LEXIS 2190 (Mo. Ct. App. 1978).

Opinion

DOWD, Presiding Judge.

Annexation case. O’Fallon, a city with a population in 1976 of 8,200 and 2,739 acres of land, seeks to annex a contiguous unincorporated area of 1,673 acres with a small population.1 There was no dispute that O’Fallon had a strong fiscal base with a large budgetary surplus for calendar year 1976. The city appeals a judgment of the circuit court of St. Charles County holding that it failed to demonstrate the reasonableness of its annexation plan and dismissing its petition.

O’Fallon is a city of the fourth class centrally located in St. Charles County. It has a uniform southern boundary formed by interstate highway 70 which is joined to the north by what may be termed two irregular “northwestern” and “northeastern” boundaries. The proposed area of annexation is contiguous to the northeastern boundary. The area’s predominant boundary is formed by state highway 79 which intersects with O’Fallon’s city limits to the southeast and with state highway M to the northwest. Highway M runs north and south through the center of O’Fallon and intersects with highway 79 about three-quarters of a mile north of the city limits. Twenty-five acres in the area is city-owned property lying directly north of the intersection of highways M and 79.

Following our review of the lengthy trial record, accumulated over four days of testimony before the court, we feel the evidence made the issue of the annexation plan’s reasonableness a “fairly debatable” one. We thus reverse the trial court’s judgment and hold that O’Fallon did sustain its burden of proof on the reasonableness issue.

Section 79.020, RSMo empowers the mayor and board of aldermen of a fourth class city, with the consent of the voters of that city, to extend the city limits over adjacent territory “in such manner as in their judgment and discretion may redound to the benefit of the city . . . Section 71.015, RSMo (Sawyers Act) is procedural in nature and applies to all cities. It provides that whenever the governing body of a city chooses to exercise its power to annex adjacent unincorporated territory and has adopted a resolution to that effect,2 the city shall, before seeking the consent of the voters in a municipal election, obtain a declaratory judgment authorizing it to proceed with the annexation. Under § 71.015 the city’s petition must state facts showing (1) the area to be annexed, (2) that such annexation is “reasonable and necessary to the proper development of said city”3 and (3) the ability of the city to furnish its normal municipal services to the unincorporated area within a reasonable time after the effective date of annexation. Unlike pre-Sawyers Act cases the municipality [299]*299seeking to annex now carries the burden of establishing reasonableness as well as the other required elements of § 71.015. Young v. Mayor, Council & Citizens, 531 S.W.2d 732, 737 (Mo. banc 1976); City of Mexico v. Hodges, 482 S.W.2d 545, 547 (Mo.App.1972).

Several threshold issues are presented before we reach the issue of the reasonableness of the annexation. The Sawyers Act directs that the city maintain the action as a class action against the inhabitants of the unincorporated area under the provisions of § 507.070, RSMo. That section requires that the class be such that its members will fairly insure adequate representation. Rule 52.08 requires that the claims or defenses of the representative parties be typical of those of the class and that the representatives will fairly and adequately protect the interests of the class. These requirements are mandatory and not merely technical or directory. City of Aurora v. Coleman, 490 S.W.2d 668, 670 (Mo.App.1973); City of Salisbury v. Nagel, 420 S.W.2d 37, 47 (Mo.App.1967).

Respondent contends that the city’s designation of the representative parties against whom suit was brought violated the statute, emphasizing that only three of thirty farm tract owners were named as members of the class — a nonresident owner of a 5-acre tract (Peuser), an owner of a 5-acre tract from whom O’Fallon had previously purchased property (Bethman) and a retired farmer living on a 90-acre tract who represented a small fraction of the total agricultural acreage in the area (Mispagel). We rule this point against respondents.

The adequacy of a representative class must be determined under the factual circumstances of each case. City of St. Ann v. Buschard, 299 S.W.2d 546, 554 (Mo.App.1957). Many factors may be considered in making such a determination. The primary consideration, however, is that all diversified class interests and points of view be represented and that those parties that are named represent a truly adverse interest so that issues are actually litigated without collusion. The rights of absent class members must be protected. City of Aurora v. Coleman, 490 S.W.2d 668, 670 (Mo.App.1973); City of St. Charles v. Schroeder, 474 S.W.2d 55, 60 (Mo.App.1971); Milton Const. & Supply Co. v. Metropolitan St. Louis Sewer District, 308 S.W.2d 769, 772 (Mo.App.1958). In City of St. Charles the rejection of a class was due in part to the absence of an agricultural representative.

Under the facts of this case and applicable law the city’s selection of the named defendants to represent the inhabitants of the area was sufficient to satisfy the statutory requirements. The city had earlier purchased land from defendant Bethman for a sewage lift station and he had indicated he would oppose any attempt at annexation. Defendant Mispagel owned a 90-acre tract immediately west of Monsanto’s property on which crops were raised by a tenant and beef cattle by Mr. Mispagel himself. He had indicated hostility at a proposal by O’Fallon to obtain a second sewer easement over his property. Mrs. Mispagel owned a one-fourth interest in an 82-acre tract located on the opposite comer of the proposed area which was put to agricultural use. The two industrial tract owners (Monsanto Chemical Company and Sucat, Inc.), the owner of the school site (Fort Zumwalt School District), and the owner of the church site (Hope Bible Church) were designated as defendants.

Although representatives of the school and church testified in favor of annexation they were the sole representatives of their respective interests. While Monsanto announced at the beginning of the trial that it did not oppose annexation the other industrial tract owner was named and did present evidence in opposition to annexation. The fact that some named defendants do not oppose or may in fact support annexation does not require a holding that other named defendants cannot adequately represent the interests of all the inhabitants. City of Des Peres v. Stapleton, 524 S.W.2d 203, 206 (Mo.App.1975). The fact-that defendants’ counsel demonstrated competence and a willingness to challenge every element of the city’s case and did in [300]*300fact prevail in the circuit court precludes the possibility of collusion having taken place in this lawsuit.

Respondents further contend the trial court’s decision may be supported by the failure of the city’s petition to describe the area sought to be annexed. Section 71.015 provides that the petition shall state facts showing the area to be annexed.

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Cite This Page — Counsel Stack

Bluebook (online)
569 S.W.2d 295, 1978 Mo. App. LEXIS 2190, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-ofallon-v-bethman-moctapp-1978.