In Re City of Uniondale , 285 Mo. 143 ( 1920 )

On August 17, 1914, a petition was filed in the County Court of St. Louis County for an order incorporating certain territory in said county as a city of the fourth class, under the name of "Uniondale." The petition was formally presented for consideration August 28, 1914, but the court ordered that the cause be set down for hearing September 14, 1914; that at such time any person desiring to present objections to the granting of the relief prayed for be heard; and that a copy of the order be published in the St. Louis County papers. The publication was made. Thereafter certain "citizens and taxpayers of Overland Park" (a residence district within the territory sought to be incorporated) filed a "remonstrance." After a number of continuances, a hearing was had on the petition and "remonstrance," with the result that the court granted the prayer of the petitioners and made an order in due form incorporating Uniondale as a city of the fourth class. From this order the county court allowed "remonstrators" an appeal to the Circuit Court of St. Louis County. A transcript of the proceedings in the county court was duly filed in the circuit court, and thereafter the City of Uniondale, appearing specially, moved the circuit court to dismiss the cause upon the ground that the court was without jurisdiction to proceed therein for the reason that no appeal will lie from such an order or judgment of the county court. This motion was sustained, and from this order of the circuit court the "remonstrators" were granted an appeal to the St. Louis Court of Appeals. That court held that the only question presented for determination on the appeal to it was "whether or not, under our law, an appeal lies from an order or judgment of a county court incorporating a city." It came to the conclusion that such an appeal does lie and ordered the judgment reversed and the cause remanded. However, deeming its decision to be in conflict with that of the Kansas City Court of Appeals in Hall v. DeArmond, 46 Mo. App. 596, and with that of the Springfield Court of Appeals in In re Town of Arcadia, 201 S.W. 359, it certified the cause here.

I. The question involved here, it seems to us, is not whether an appeal lies from an order of a county court incorporating a city of the fourth class, considered abstractly, but whether the so called "remonstrators" in this case had the right to appeal. The order of the County Court of St. Louis County has the force and effect of a judgment. [State ex inf. v. Fleming, 147 Mo. 1, 10.] It finally disposes of the matter and is, therefore, a final judgment. Had the petitioners been aggrieved by this judgment, there is no doubt but that under Section 3956, Revised Statutes 1909, they would have been entitled to an appeal to the circuit court, and thereupon that court would have become possessed of the cause and authorized to hear and determine it as though it had originated therein. [Sec. 4091, R.S. 1909; State v. Wiethaupt, 238 Mo. 155; State v. McElhinney, 246 Mo. 44.] Whether "remonstrators" had the right to appeal rests upon other considerations. The relevant portion of the statute relating to the incorporation of cities of the fourth class (Sec. 8529, R.S. 1909) is as follows:

"Any city or town of the State not incorporated may become a city of the class to which its population would entitle it under this article, and be incorporated under the law for the government of cities of that class, in the following manner: Whenever a majority of the inhabitants of any such city or town shall present a petition to the county court of the county in which such city or town is situated, setting forth the metes and bounds of their city or town and commons, and praying that they may be incorporated, and a police established for their local government, and for the preservation and regulation of any commons appertaining to such city or town, and if the court shall be satisfied that a majority of the taxable inhabitants of such town have signed such petition, the court shall declare such city or town incorporated."

The procedure prescribed is brief and simple. "Whenever a majority of the inhabitants shall present a petition to the county court, . . . praying that they may be incorporated, . . . if the court shall be satisfied that a majority of the taxable inhabitants . . . have signed such petition, the court shall declare such city or town incorporated." No notice of any kind is required. It is not necessary that the petition shall have been on file for any length of time, or even that it shall have been filed at all, before being taken up for consideration by the court. Upon its presentation the court may immediately proceed to determine whether it is signed by a majority of the taxable inhabitants, and, if it is satisfied that such is the case, may make its order of incorporation without further ado. Not only, therefore, is notice not required, but the statute does not contain the slightest implication that the taxable inhabitants of the territory sought to be incorporated, who do not sign the petition, may appear and contest it. It must be borne in mind that this proceeding is not an "action" within the meaning of the code wherein any person may be a defendant who has or claims an interest in the controversy adverse to the plaintiff. It is a special statutory proceeding. The statute that created the right provides the remedy and prescribes the procedure. It is complete within itself and it alone, therefore, determines who may be parties. [1. C.J. 988, n. 72.] Taking it as the criterion it must be held that the proceeding is in no sense adversary. The action of the citizens and taxpayers of Overland Park, in filing a remonstrance in order to become parties, was entirely futile. Their relation to the proceeding might be considered that ofamici curiae, but nothing more. It follows that they were not entitled to appeal.

II. It is said that taxpayers who are opposed to incorporating a given territory into a city should be accorded the right to be heard in a proceeding instituted for that purpose because, if sustained, it subjects them to the burdens of municipal taxation. In answer to this contention it is sufficient to say that the giving or withholding of such right is a matter that rests wholly within the discretion of the Legislature. It is not essential to the validity of the proceeding that all taxpayers who may be affected thereby have their day in court. The Legislature has the power to incorporate territory into a city with or without the consent of its inhabitants (St. Louis v. Allen, 13 Mo. 400; Taylor v. Carondelet, 32 Mo. 105, 110), provided it does it by general law. [Cons. Art. IX, Sec. 7.] And while the county court in passing upon the petition is performing a judicial function and its pronouncement thereon is a judgment, yet all the agencies invoked by the statute — the majority of the taxable inhabitants, their petition and the county court — taken collectively, is but the instrumentality through which, in the manner prescribed, the Legislative power is exercised in creating cities of the fourth class.

The judgment of the circuit court is affirmed. Brown andSmall, CC., concur.