St. Louis County v. City of Florissant , 406 S.W.2d 281 ( 1966 )

WELBORN, Commissioner.

St. Louis County, its supervisor and various individuals filed suit for a declaratory judgment and injunction in order to nullify action of the City of Florissant annexing adjacent territory. The trial court found the action of the city valid and denied the requested injunctive relief. Plaintiffs have appealed from the judgment. We have jurisdiction because St. Louis County, a political subdivision of the state within the meaning of § 3, Article V, Constitution of Missouri, 1945, V.A.M.S., is a party to the litigation.

Prior to 1963, the City of Florissant operated under a special legislative charter granted in 1857 to the City of St. Ferdinand (Laws of Mo., 1856-1857, p. 574). On May 21, 1963, the voters of Florissant, acting under § 19 of Article VI, Constitution of Missouri, 1945, approved a constitutional charter which became effective September 12, 1963.

On November 11, 1963, the Florissant City Council enacted an ordinance, proposing to submit to the voters of the city, an amendment to the city’s charter, extending the city’s limits. The city limits had not been defined in the original charter. The amendment proposed the adoption of a new section of the charter, defining the city’s limits, as extended, by metes and bounds. On December 23, 1963, the petition in this case was filed in the St. Louis Circuit Court.

Pursuant to the ordinance proposing the charter amendment, an election was held on January 14, 1964, at which the voters of Florissant approved the amendment.

Before examining the evidence on the issue of reasonableness of the annexation, we turn to the contention of the appellant that the purported annexation was invalid because of failure of the city to comply with § 71.015, RSMo 1959, V.A.M.S. (the “Sawyers Act”), and §§ 71.860 to 71.920, Laws of Mo. 1963. Noncompliance by the city with such provisions is admitted. The city’s response is that the statutory requirements do not apply to annexation by a constitutional charter city, but that if they, by their terms, do apply, they conflict with §§ 19 and 20 of Article VI of the Constitution of Missouri, 1945, and are, therefore, invalid.

House. Bill No. 21, enacted by the 72nd General Assembly, Laws of 1963, p. 126, became effective October 13, 1963. The measure now appears as §§ 71.860 to 71.920 of the Revised Statutes. § 71.860 provides:

“The provisions of section 71.015 (the ‘Sawyers Act’) shall apply as well to all cities, towns, villages and municipalities of whatsoever kind, located in any first class county which has adopted a constitutional charter for its own local government, except as provided in section 71.920.” (The exception, which will be referred to hereinafter, is not pertinent here.) St. Louis County, in which the City of Florissant is located, is a constitutional charter county.

The appellants recognize that in 1955, this court, in McConnell v. City of Kansas City, 282 S.W.2d 518, held that the Sawyers Act, insofar as it purported to apply to constitutional charter cities, conflicted with §§ 19 and 20 of Article VI of the Constitution of Missouri, 1945, and that, therefore, the act did not apply to such cities. Appellants assert that the enactment by the General Assembly in 1963 of § 71.860 was “an obvious attempt to reverse by legislative action the holding of the McConnell case insofar as it applies to home rule charter counties.” In just what respect the constitutional problem considered in McConnell would be affected by the governmental structure of the county in which the municipality is located, appellants do not enlighten us. We perceive none which would require reconsideration of the basis of the McConnell holding.

Appellants contend further that the McConnell decision is of questionable authority, in the light of the en banc decision of 1965 in City of Hannibal v. Winchester, 391 S.W.2d 279. Although certain assumptions of McConnell were rejected by the majority of the court in Winchester, nevertheless, the majority opinion in no uncertain terms reaffirms the holding of McConnell. Judge Eager, in the majority opinion, stated: “For these reasons, we hold the Sawyers Act inapplicable, and in so far as it purports to apply to a constitutional charter city as a mandatory procedure, it is also unconstitutional. We adhere to the result and, generally, to the reasoning of the McConnell case.” (Emphasis supplied), 391 S.W.2d 283. In his concurring opinion, Judge Hyde stated: “In any event, Sec. 71.015 cannot be construed as a mandatory requirement for annexation by a charter city as the principal opinion so clearly shows.” 391 S.W.2d 291. In view of this recent pronouncement, we need pursue appellants’ contention in this respect no further.

The questions of the applicability and validity of §§ 71.870 to 71.920 present different considerations. § 71.870 provides:

“The legislative body of any city, town or village located within the boundaries of a first class chartered county shall not have the power to extend the limits of such city, town or village by annexation of unincorporated territory adjacent to the city, town or village in accordance with the provisions of law relating to annexation by such municipalities until an election is held at which the proposition for annexation is carried by a majority of the total votes cast in the city, town or village and by a separate majority of the total votes cast in the unincorporated territory sought to be annexed. There shall be separate elections submitting the proposition of annexation to the two groups of voters, the same to be held simultaneously. The elections shall be held, except as herein otherwise provided, in accordance with the general state law governing elections in first class counties.”

§ 71.880 provides for notice to the election authority and governing body of the county of the annexation proposal. § 71.890 requires four weeks’ publication of notice of the election on this proposal, the last publication to be not less than five days before the election. § 71.900 provides the form of ballot for the election and the certification of the results. § 71.910 prohibits resubmission within two years of a defeated proposal.

§ 71.920 provides, in part:

“In the event that the proposition to annex such territory is approved by a unanimous affirmative vote in both the annexing municipality and the territory sought to be annexed, the annexing municipality, other provisions of this chapter notwithstanding, shall extend its limits by ordinance to include such territory, specifying with accuracy the new boundary lines to which the city, town or village limits are extended.”

The only election on the Florissant annexation proposal was that held in Floris-sant on the charter amendment. However, the city contends that § 71.870, by its terms, is inapplicable to it; that if it is, the entire act, including §§ 71.870-71.920, is infected by the invalidity of § 71.860 as applied to constitutional charter cities; and that, in any event, §§ 71.870-71.920 conflict with the constitutional grant by §§ 19 and 20 of Article VI of the Constitution of Missouri, 1945, to charter cities of power to extend their limits by charter amendment.

In support of its contention that § 71.870 by its terms is inapplicable, the city advances two theories. The first is that in McConnell v. City of Kansas City, supra, this court, in 1955, held that § 71.015, by its terms applicable to “any city” seeking to annex, could not be applied to a constitutional charter city; that, in enacting §§ 71.860-71.920 in 1963, the legislature is presumed to have been familiar with the McConnell decision and to have used the term “city” with the understanding that the term would not include constitutional charter cities. However, the court in McConnell did not limit the meaning of the term “any city” as employed in § 71.015. The court assumed that the term was broad enough to include a constitutional charter city. The inapplicability of the statute to such a city was not due to any insufficiency in the language employed, but wag attributable to constitutional conflicts which prevented application to the full extent of the language employed. We are, therefore, of the opinion that the argument on this basis is without merit.

The city argues further that § 71.870 is not applicable because, by its terms, it purports to limit the authority of the “legislative body” to extend the limits of a city and, in a constitutional charter city, such authority is not vested in the city’s legislative body but rather in the city’s voters, by way of charter amendment. City of Hannibal v. Winchester, supra; McConnell v. City of Kansas City, supra; State ex inf. Taylor ex rel. Kansas City v. North Kansas City, 360 Mo. 374, 228 S.W.2d 762. At the time of the enactment of § 71.870, statutes applicable to certain classes and types of cities did purport to give full power to annex to the city’s legislative body. See §§ 73.-030-73.060, applicable to cities of first class; § 81.080, applicable to special charter cities of less than 20,000; § 81.200, applicable to special charter cities of between 20,000 and 250,000 population; § 82.090, applicable to constitutional charter cities in which the limits were not defined by the charter. In other classes of municipalities, the legislative body had a hand in the annexation procedure, but did not have complete authority for such purpose. Thus, in second class cities, the authority was vested in “(t)he council of such city, with the consent of the majority of the legal voters of such city voting at an election therefor * * * ” (§ 75.-020), in third class cities, in “(t)he mayor and council of such city,” with similar consent of the voters (§ 77.020), and in fourth class cities, in “(t)he mayor and board of aldermen,” likewise with consent of the voters (§ 79.020). In cities, towns and villages, the town council or board of trustees must petition the county court, which has the authority to order the annexation. § 80.030.

Thus, if the construction contended for by the city is adopted, the effect of the legislation would be considerably limited, as it would be applicable only to first class cities, of which there are none in St. Louis County, and certain special charter cities, the provisions of § 82.090 purporting to grant authority to annex to the legislative body of a constitutional charter city having been declared unconstitutional in City of Hannibal v. Winchester, supra. Any such limitation of the application of §§ 71.870-71.920, by reason of the language of § 71.870, would be contrary to the provisions of § 71.880, part of the same act, which requires “any city, town or village located in a first class chartered county” which desires to annex unincorporated land to certify such fact to the board of election commissioners in order that the elections required by the act may be held.

In construing this legislation, we must, if possible, give effect to the entire act. “(I)t is the duty of the court to reconcile or harmonize, so far as is practicable, the various parts and provisions, including those that are apparently conflicting or inconsistent, * * 82 C.J.S. Statutes § 346, p. 714. In our opinion, the legislature intended the enactment to have the broad general coverage, stated in § 71.880, and not the limited application which would follow the construction urged by the city. This legislation is obviously a part of the continuing struggle in St. Louis County between the county government and the many municipalities of that county over the right to provide local governmental service and to exercise local governmental authority over the portions of the county which have not been incorporated as municipalities. The clear import in this act of legislative policy favoring the county should not be nullified by a construction which would make the act practically meaningless.

We reject the city’s contention that the invalidity of § 71.860, insofar as it would make § 71.015 applicable to constitutional charter cities “infects” the 1963 amendment in its entirety so that the entire act must fall as applied to such cities. We fail to see that the provisions “relating to the dual election are inextricably connected to the provisions requiring a declaratory judgment.” The only such connection pointed out by the city is the elimination of the necessity for a declaratory judgment in the event of a unanimous affirmative vote. However, as to constitutional charter cities, the requirement is nonexistent, so that the ultimate result is the same. The absence of a severability clause is of no significance. See § 1.140, RSMo 1959, V.A.M.S.

Finally, the city asserts the invalidity of §§ 71.870 to 71.920 as applied to it on the grounds that it would result “in the same irreconcilable contradiction between statute and constitution that formed the basis of the holdings in McConnell v. [City of] Kansas City [Mo.], 282 S.W.2d 518; City of Hannibal v. Winchester, supra * * *; and State [ex inf. Taylor ex rel. Kansas City] v. North Kansas City [360 Mo. 374], 228 S.W.2d 762, 771-[772].” We have referred to the first two cases cited previously. In the third, the court declared that a statutory requirement of approval of an annexation proposal by Ys of the voters (§ 7626, RSMo 1939) in a constitutional charter city conflicted with the constitutional requirement of a majority vote for approval of a charter amendment.

The cases relied upon and others do hold that a constitutional charter city has the power to annex adjacent land by an amendment of its charter; that a charter amendment is the only way by which such a city may extend its boundaries; that specific legislative authority to such effect is not required; and that the legislature may not limit the exercise of such power by imposing conditions which conflict with constitutional procedural provisions. However, municipal annexation is “a matter of more than merely municipal affairs and concern.” McDonnell Aircraft Corp. v. City of Berkeley, Mo.Sup., 367 S.W.2d 498, 503 [4]. Consequently,' annexation by a constitutional charter city is subject to control and regulation by the General Assembly, consistently with the constitutionally established procedure for charter amendment. Judge Eager, in the majority opinion in City of Hannibal v. Winchester, discussed McDonnell as follows (391 S.W.2d l. c. 285):

“The Court there also held, however, that the bringing of additional territory into cities without the consent of the inhabitants of the area was a governmental function in which the whole state had an interest; and further, that §§ 19 and 20 of Art. 6 do not give full and unrestricted legislative power to constitutional cities. We interpret this to mean that the legislature may step in where problems of state policy and interest are concerned; that it may express a state policy concerning territory to be annexed, as it has in § 71.015 by requiring that the action be ‘reasonable and necessary to the proper development’ of the annexing city, thus expressly giving to the courts the power to inquire into that question. But the Berkeley case reaffirms the principle that the legislature may not prescribe a procedure for annexation which is in conflict with constitutional provisions; and it does not hold that express legislative authority or power is necessary before a constitutional charter city may make an annexation by charter amendment under § 20 of Art. 6.” (Emphasis supplied.)

He further stated (391 S.W.2d l. c. 286):

“On matters of state policy or interest, including regulations and limitations concerning territory ouside the city, the legislature may act, so long as it does not interfere with the constitutional method of annexation or enact laws inconsistent with it. The statutes recently enacted applicable to first class charter counties (St. Louis County, at present) come within that classification. Sections 71.860-71.920, Laws 1963. Thus, although the legislature may not change the method by which such cities may annex, it may provide the scope of any such annexation and add requirements therefor as, for instance, in the annexation of other cities, towns or villages. See Section 82.090.”

Judge Hyde, in his concurring opinion, stated (391 S.W.2d l. c. 290):

“Although the Legislature cannot change the method by which the charter of a constitutional charter city may be amended, because the Constitution provides the only way it may be done, I recognize that the Legislature may provide the scope of annexation that could be accomplished by an amendment and add requirements therefor as it did in Sec. 82.090 for annexing other cities, towns or villages; and has since done by Secs. 71.860y71.920, Laws 1963, p. 126 as to certain first'class counties.”

Although we agree with counsel for the city that the remarks concerning the statutes here under consideration were dicta in Winchester, nevertheless they are clearly consistent with prior holdings relative to the status of annexation by constitutional charter cities, McDonnell, supra, and with cases upholding the application to constitutional charter cities of enactments of the General Assembly dealing with matters of general state-wide concern. City of Joplin v. Industrial Commission, Mo.Sup., 329 S.W.2d 687; State ex rel. Spink v. Kemp, 365 Mo. 368, 283 S.W.2d 502.

We do not find conflict between the statute here under consideration and the constitutional provisions relating to charter amendment. The city urges that there would be conflict with the procedures specified for submission of proposed amendments by a petition of electors or by a charter commission. However, we are called upon to decide the case now before us, not a case arising under other and different circumstances. For the same reason, we do not consider the contention that the prohibition against resubmission of a defeated proposal within two years (§ 71.910) conflicts with § 20 of Article VI. In any event, the city has not demonstrated that “the time necessarily consumed in obtaining [the results of the dual election] would, at least in many instances, make it impossible for the charter city to submit annexation proposals to its electors within the time limits prescribed by the procedure set forth in the constitution,” the problem which was created by the Sawyers Act requirement of a final declaratory judgment and which resulted in the determination of inapplicability of that Act in McConnell v. City of Kansas City, 282 S.W.2d l. c. 522.

In our opinion, §§ 71.870 and 71.-880 are applicable to the action of the City of Florissant in proposing to annex additional territory and so applied, the provisions are valid and constitutional. Failure on the part of the city to comply with such requirements renders null and void the purported annexation pursuant to Ordinance No. 1358 and the election held thereunder.

Appellants also contend that the trial court should have declared invalid Ordinance No. 1326, passed by the Florissant City Council on August 13, 1963, and Ordinance No. 1329, adopted by the Council on August 19, 1963, both enactments having been made while Florissant was a special charter city. Ordinance No. 1326 extended the city’s boundaries. Ordinance No. 1329 expressly repealed Ordinance No. 1326. It also extended the boundaries in terms identical with Ordinance No. 1326, but set an effective date of September 9, 1963. No action was taken to comply with the Sawyers Act with respect to either ordinance. According to the city, it attempted no exercise of jurisdiction under either ordinance over the areas involved. The trial court, in its findings of fact, concluded that the charter amendment superseded Ordinances Nos. 1326 and 1329.

Failure of the city, as a special charter city, to comply with the Sawyers Act would avoid the effect of Ordinances Nos. 1326 and 1329. Julian v. Mayor, Councilmen and Citizens of City of Liberty, Mo.Sup., 391 S.W.2d 864. In order to avoid any question of revival of the ordinances found to have been superseded by the charter amendment which we have held to be invalid, the final judgment should also declare Ordinances Nos. 1326 and 1329 invalid and of no effect.

Therefore, the judgment is reversed and remanded with directions to enter a new judgment declaring the purported amendment to the Charter of the City of Floris-sant, submitted to the voters of said city pursuant to Ordinance No. 1358, is null and void, declaring Ordinances Nos. 1326 and 1329 of the City of Florissant null and void, and enjoining the city from exercising jurisdiction over the area purported to have been annexed and its residents.

PER CURIAM:

The foregoing opinion by WELBORN, C., is adopted as the opinion of the Court.