Opinion
No. 7015.
February 6, 1952.
Jones, Ford Jones, Kennett, for appellant.
Tom B. Mobley, Kennett, for respondent.
This is an equity action. Judgment was rendered for the defendant and plaintiff appealed.
The action is in two counts.
The first count of plaintiff's petition seeks to have declared void two ordinances passed by defendant city, one in the year 1947, and one in 1948, extending the city limits of said city, together with all proceedings purporting to extend such city limits to include plaintiff's land and to enjoin the officers, agents and employees and their successors from attempting to enforce said ordinances against the lands of plaintiff.
Plaintiff pleads that the ordinances are void because the lands contained in the attempted extension of the city limits include only agricultural lands and that there were no justifiable reasons for the inclusion of one hundred per cent agricultural lands within the city limits.
Plaintiff says the sole purpose of the ordinance of 1947, to extend the city limits was a part of a scheme to secure sufficient additional votes within the corporate limits to enable it to pass the ordinance in 1948, extending the city limits to include plaintiff's property. This count alleges that at the time of the extension of the city limits in 1947, and in 1948, by the ordinances aforesaid, the defendant city had no public utility services but the same were furnished by private companies, did not have any sewer system, water system, fire department or adequate police protection and that it had within its city limits vacant lots and undeveloped territory necessary for its growth. It stated the lands attempted to be included by such extensions, including plaintiff's land, were not platted or held for sale or used as town lots or held to be sold as town property and that none of said property furnished abode for a densely settled community or represented actual growth of defendant city beyond its legal boundaries prior to the extensions and none of said property is needed for city purposes for the extension of its streets, sewers, lights or water system or to supply places for the abode or business of the residents of said city or needed for police regulation; that none of the territory so included is valuable by reason of its adaptability for city uses but that these lands are valuable only for agricultural purposes and that none derive any special value because they might be adaptable for city use.
The petition alleges that none of the lands so attempted to be included within the city ordinances are taxed by the city in any form. It then states that defendant is attempting and threatening to require plaintiff to pay drivers licenses and city taxes and assessments on bond issues and attempting to enforce certain quasi criminal ordinances against plaintiff and its employees and that plaintiff has no adequate remedy at law.
The second count of the petition is based upon estoppel. This count incorporates the allegations relied upon for relief in the first count and then adds that, by a final judgment of the county court rendered in 1935, plaintiff's land was excluded from the city limits of defendant city and that in 1939, the county court entered an order, upon a petition signed by a majority of the taxpayers, excluding said land; that this judgment was valid as amending the judgment of 1935, and was made in pursuance to a written contract between plaintiff and defendant city made in 1939, pending an action in certiorari in the Circuit Court of Dunklin County, in which the city, by its mayor and board of aldermen, agreed to dismiss the action in certiorari to test the validity of the judgment of the county court of 1935, and consented that the county enter a judgment excluding plaintiff's land and, in consideration thereof, plaintiff agreed to pay defendant $100 in lieu of taxes and assessments for the year 1939, and prior years and $100 a year for each year thereafter in lieu of assessments and taxes. Plaintiff alleged that it carried out its part of the contract.
Both counts of plaintiff's petition state that plaintiff, relying upon the exclusion of its property from the city limits, erected valuable improvements on its property.
Count II of the petition alleges that to include plaintiff's property would constitute fraud upon plaintiff and would be unreasonable, arbitrary and oppressive. Plaintiff then prayed that its property be declared not to be a part of the corporate limits of the city; that both ordinances be declared void and that the city and its officers be perpetually enjoined from enforcing its ordinances, etc., against plaintiff.
In passing upon the assignments of error we will detail the testimony necessary for a decision thereof.
This is an equity case in which it becomes our duty to review the record de novo and give such judgment as the trial court should have given. Handlan v. Handlan, 360 Mo. 1150, 232 S.W.2d 944, 946;. Marshall v. Callahan, Mo.App., 229 S.W.2d 730; Brannan v. Cruce, 240 Mo. App. 977, 225 S.W.2d 374; Bohnsack v. Hanebrink, Mo.Sup., 240 S.W.2d 903.
In 30 C.J.S., Equity, § 10, 328, the law regarding equitable jurisdiction is stated thus: "Broadly speaking the sound discretion of the court is the controlling guide of judicial action in every phase of a suit in equity. So the granting of equitable relief is ordinarily a matter of grace, and whether a court of equity will exercise its jurisdiction, and the propriety of affording equitable relief, rests in the sound discretion of the court, to be exercised according to the circumstances and exigencies of each particular case. Of course, this discretion is not an arbitrary one, but must be exercised in accordance with the fixed principles and precedents of equity jurisprudence, and in accordance with the evidence. * * * "
In this opinion we will refer to appellant as plaintiff and to respondent as defendant, being the positions they occupied in the lower court.
Plaintiff's first assignment of error reads as follows: "Under the facts and record in this case the defendant is estopped to contend that plaintiff's land and property is within the city limits of defendant city."
This assignment of error covers practically all of the allegations in both counts of plaintiff's petition. It is admitted that defendant was organized as a city under the City, Town and Village Statute and that plaintiff's property, at that time agricultural land, was included in the city limits of defendant town. It was admitted that in 1935 plaintiff filed a petition in the county court of Dunklin County under Section 7144, R.S.Mo. 1929, now R.S.Mo. 1949, § 80.570, V.A.M.S. to have its real estate excluded from the city limits. This petition was in regular from except it did not contain the signatures of any taxpaying citizens. The county court rendered judgment excluding plaintiff's property.
Relying upon this judgment plaintiff improved its land by erecting a compress costing $135,000 and making other valuable improvements thereon. We think it reasonable to infer that these improvements would not have been made by plaintiff had not it been satisfactory at the time with defendant that plaintiff's land be excluded from the city limits and the burdens of taxation that go therewith. We think it also reasonable to infer from the evidence that defendant city was anxious that plaintiff make these improvements in order to have employment for its citizens, etc.
There was nothing further done until 1939, when defendant filed an action in certiorari in the Circuit Court of Dunklin County to test the validity of the county court's judgment excluding plaintiff's property from the city limits. It also filed a petition in the county court attacking said judgment, which petition was refused.
Pending the action in certiorari in the Circuit Court in the year 1939, plaintiff entered into a written contract with defendant city whereby the city dismissed the action in certiorari, consented that a judgment be entered in the county court on a petition filed therein by plaintiff, which did have a majority of the taxpaying citizens thereon, to exclude plaintiff's property from the city limits and plaintiff, in consideration thereof, agreed to pay $100 to defendant for taxes and assessments in 1939, and years prior thereto and $100 each year thereafter. This agreement was signed on the part of plaintiff by its attorney and on the part of defendant by its mayor and four members of the board of aldermen and approved by its attorney.
Plaintiff carried out its part of the agreement by paying the $100 each year up until 1948, when defendant refused to accept such payment.
In 1947 defendant enacted an ordinance for the extension of the city limits which included approximately 480 acres of land, all in section 6, twp. 16 north, range 8, which was adopted by the voters. This extension expressly excluded plaintiff's 12 or 13 acres of land, which is located in the southeast quarter of the southwest quarter of said section 6 and which land is bounded on the east by the St. Louis-San Francisco Railroad Company and Highway No. 25, on the south by Highway 25, on the north by the St. Louis South-western Railroad right-of-way and on the west by all farm lands. On the east side of Highway No. 25, just east of plaintiff's property in the southwest quarter of the southeast quarter was a part of the original town and just east of the boundary of the original town is White's Addition and the southeast quarter of the southeast quarter is all farm land. Just across the St. Louis Southwestern Railroad right-of-way from the north boundary of plaintiff's property, in the northeast quarter of the southwest quarter of section 6 and extending to the St. Louis-San Francisco right-of-way, is the original town and across the railroad to the west in the northwest quarter of the southeast quarter is a part of the original town and in said quarter and just east of the original town is Dunmire Addition. Allison's Addition is in the east part of the northeast quarter of the southeast quarter of said section 6, platted in 1929, and there is a street just south of that addition. All the balance of that quarter is in farm lands. All the north half of section 6 is in farm land excepting a small addition called Moody's Addition, located on the east side of Highway No. 25 in the southwest quarter of the northeast quarter.
Defendant's testimony is that there were about 50 houses on this 480 acres of land, included in the 1947 extension; that there were three business houses and that after the inclusion of the land in 1947 about 20 houses had been erected in defendant city.
There is no dispute that at the time of these extensions, and, now, there are vacant lots and undeveloped territory in defendant city; that the population of the city was 429 when it was made a city of the fourth class in 1939.
It would seem from the testimony that most of the houses on the lands included in the extension are a part of the original town or just along the border thereof or in these small additions described. There are a few farm houses on the lands which are used for agricultural purposes. We think plaintiff is practically right when he says that ninety-eight per cent of the land included in this extension is purely agricultural land, unplatted and has never been assessed for taxes by the city. We find from the testimony that only six of the houses mentioned in the 50 houses, have been assessed for taxes by the city.
The evidence shows that defendant city has no waterworks, sewer system or fire prevention machinery. It has a marshal who serves a part of the time. The mayor testified that plaintiff's property derived no benefit, whatever, from being taken into the city. However, it will be noted that plaintiff's property is just across the railroad and highway from the town; that it never was open for city use in any manner. It has plaintiff's compress and three houses thereon, has its own private road and, in no way, could be or was ever used for any kind of city development or purposes and that the value is not enhanced by such extension of the city limits.
There was testimony that some crap shooting had taken place on plaintiff's property and that defendant's officers were denied the right to go thereon. Plaintiff's property is used solely for compress business.
The ordinance of 1948, included plaintiff's property alone.
In Fleshner v. Kansas City, 348 Mo. 978, 156 S.W.2d 706, 707, the court states the law: "It is true, as appellant urges, that the doctrine of estoppel applies to municipalities as well as to natural persons and private corporations when necessary to prevent a manifest injustice. But as to municipalities it is applied cautiously because of the public interest involved. State [ex inf. McKittrick] v. Missouri Utilities Co., 339 Mo. 385, 96 S.W.2d 607, 106 A.L.R. 1169. Nevertheless, it is a well-recognized rule that the doctrine of estoppel is not applied in cases such as this where the city had no power under any circumstances to make the oral contract in question. `Vain and futile would Constitution and statutes and charter be if any officer of the state, or of a county, or of a city or other municipality, could follow them only when he saw fit. If by estoppel such salutary provisions, enacted with wise foresight as checks upon extravagance and dishonesty, can be utterly abrogated at will by any officer, such provisions then subserve no purpose * * *.'"
This case expressly holds that one dealing with those representing a municipal government must take notice of the limitations of their powers and authority.
Section 2962, R.S.Mo. 1929, now R.S.Mo. 1949, § 432.070, V.A.M.S. reads as follows: "No county, city, town, village, * * * or other municipal corporation shall make any contract, unless the same shall be within the scope of its powers or be expressly authorized by law, nor unless such contract be made upon a consideration wholly to be performed or executed subsequent to the making of the contract; and such contract, including the consideration, shall be in writing and dated when made, and shall be subscribed by the parties thereto, or their agents authorized by law and duly appointed and authorized in writing."
Now it is contended by plaintiff in its brief and we quote from page 25 thereof: "It is plaintiff's contention that under the peculiar facts and circumstances of this case the judgment of the County Court of December 29, 1939, is valid and enforcible as an estoppel. It was a valid compromise of an existing dispute, and the town of Arbyrd, under the record of this case, certainly should be estopped by record to dispute the validity and finality of the judgment of the County Court of December 29, 1939. * * *"
With this contention we do not agree. At the time of the making of this compromise agreement and the entering of the judgment by the county court in 1939, defendant city was a city of the fourth class and the county court was without jurisdiction to enter a judgment on the subject matter involved.
Under section 6947, R.S.Mo. 1929, being section 7097, R.S.Mo. 1939, R.S.Mo. 1949, § 79.020, V.A.M.S. the law is stated: "* * * The mayor and board of aldermen of such city, whether the same shall have been incorporated before becoming a city of the fourth class or not, with the consent of a majority of the legal voters of such city voting at an election therefor, shall have power to extend the limits of the city over territory adjacent thereto, and to diminish the limits of the city by excluding territory therefrom, and shall, in every case, have power, with the consent of the legal voters as aforesaid, to extend or diminish the city limits in such manner as in their judgment and discretion may redound to the benefit of the city: * * *."
The county court is a court of limited jurisdiction and can only exercise such powers as are expressly given it by statute. It had no legal power whatsoever to exercise jurisdiction in matters pertaining to the exclusion of plaintiff's property from the city limits of defendant city and its judgment touching that subject was a nullity.
Likewise, the written contract made during the pendency of the action of certiorari, by the mayor and board of aldermen and the city attorney on the part of defendant city, was void because of lack of authority on the part of such officers to make such a contract.
In Fleshner v. Kansas City, supra, 156 S.W.2d on page 707, the court makes this statement of law: "The rules of law governing this case, established for the public good, doubtless impose a severe hardship on appellant. However, one may not deal with those representing municipal governments without taking notice of the limitations of their powers and authority."
Plaintiff, in this case, admits that at the time he filed his petition in 1939 with the county court, signed by a majority of taxpayers and at the time the court entered its judgment, excluding plaintiff's property from the city limits of defendant city, plaintiff was not aware that defendant had become a city of the fourth class and, judging from this statement, we must infer that plaintiff was ignorant of the law and of the powers and duties of the mayor and board of aldermen when the written contract, relied upon by plaintiff, was entered into, but certainly that gives no grounds for relief by a court of equity.
We will examine the law as pertains to the judgment of the county court rendered in 1935.
Section 7144 RSMo 1929, now RSMo 1949, § 80.570, V.A.M.S., provides: "The county court of each county shall have power * * * in its discretion, on the application of any person or persons owning a tract of land containing five acres or more in such town or village, used only for agricultural purposes, to diminish the limits of such town or village by excluding any such tract of land from said corporate limits; provided, that such application shall be accompanied by a petition asking such change and signed by a majority of the taxpayers in such town or village. * * *"
Now, by the express words of this statute, the county court is invested with power to exclude agricultural lands from the city limits provided the application shall be accompanied by a petition asking such change and signed by a majority of the taxpayers. It is admitted in the case at bar that at the time the judgment was entered in 1935, excluding plaintiff's land from the city limits of defendant city, a petition was filed by plaintiff but it was not signed by any taxpayers. There is no question but what it stated that its property was used solely for agricultural purposes and there is no question but what the county court had jurisdiction to determine the legality of such petition if it contained jurisdictional facts.
In Village of Grandview v. McElroy, 222 Mo.App. 787, 9 S.W.2d 829, the Kansas City Court of Appeals, passing upon the statute as it existed in 1919, which is the same as by us herein quoted, where a petition was filed, signed by a majority of the taxpayers of the village of Grandview, asking the exclusion of land from the city limits, and challenged by writ of certiorari because no notice, of the filing of the petition in the county court to exclude such land, was given to the town or taxpayers, who did not sign the petition. The court on page 832 of 9 S.W.2d states:
"The statute under which the proceedings were had in this case authorizes the county court to exclude the tract of land from the corporate limits of a town or village upon application of the owner of such tract of land, accompanied by a petition signed by a majority of the taxpayers therein. This statute does not require the giving of a notice to the town or village or to the taxpayers therein. For this reason respondent contends that the jurisdiction of the county court in this proceeding attached upon the filing of the petition purporting to contain all of the facts necessary to give the court jurisdiction, and jurisdiction having attached it was then the duty of the court to hear the cause and determine the existence or nonexistence of the jurisdictional facts alleged in the petition. It is also contended that the finding and judgment of the county court that it did have jurisdiction to hear and determine said cause is a final judgment, and cannot be reviewed in this proceeding, because certiorari does not lie to correct errors committed by the county court in the exercise of its rightful jurisdiction. * * *
"* * * There was no question of fraud in these cases. This being true, the jurisdiction attached in the county court upon the filing of a petition which recited the existence of facts necessary to give the court jurisdiction, and, jurisdiction having thus attached, the court was authorized to proceed with the case and in such proceedings determine whether or not the facts giving it jurisdiction, existed as alleged in the petition. As the statute gives the county court exclusive jurisdiction to determine these matters, its finding in that regard cannot be inquired into in the absence of illegality in the proceedings or fraud in the procurement of the judgment. * * *
"`The jurisdiction of the county court in this matter attached by the filing of the petition with it, signed by what purported to be a majority of the inhabitants of the district sought to be incorporated, and no mere error of judgment, on the part of that body, in the matter of computing the fact, as to the real number of the inhabitants of the incorporated district, or error of judgment on its part as to the question of law, as to who of the designated community are to be reckoned and counted as "taxable inhabitants," can be inquired into by this or any other court, to arrest or disturb the force of the finding and judgment, or to correct a possible error of fact or law, that court "`might have made in the course of its inquiry, unless illegality in the proceedings or fraud in the procurement of the order was practiced, which at the time could not reasonably have been foreseen and averted.'" (Italics theirs.)
In discussing the issues in this case the court further stated on page 834 of 9 S.W.2d: "We must presume right action on the part of the county court, and in so doing we must presume, in the absence of a contrary showing, that the petition and application for diminution of the limits of appellant, village, recited all necessary jurisdictional facts, and that the court so found on representations to it at the time the order in question was made."
The only possible grounds to sustain the judgment of the county court made in 1935, is the law last quoted, that is, that we must presume in the absence of a contrary showing, that the petition and application for diminution of the limits of defendant, village, recited all the necessary jurisdictional facts. It is admitted in this case that plaintiff's petition did not cite all the jurisdictional facts in that it failed to have a majority of the taxpayers, or any taxpayer, sign the same as required by the statute to give jurisdiction to the county court.
Under the law the county court is vested with the power to judicially determine whether or not the facts alleged in the application had been proven and there is no appeal from its decision. The law does provide a remedy by certiorari but the findings of the county court can only be inquired into in the case of illegality or fraud. Village of Grandview v. McElroy, supra.
We cannot agree with the contention of plaintiff herein that this judgment became final and binding upon the dismissal of action of certiorari by defendant city. We hold that the county court only had jurisdiction when the petition was signed by a majority of the taxpaying citizens. Since under the facts it is admitted that the petition was not so signed, we agree with the trial court that the county court's judgment, made in 1935, excluding plaintiff's property from the city limits, was void. Its validity could not be aided by the contract made between defendant and plaintiff and the thirteen years of acquiescence in the exclusion of plaintiff's property from the city limits. We hold that such facts do not constitute grounds for estoppel.
Under this assignment of error it is contended by plaintiff that the ordinance under which the extension of 1947 was made was void and that the purpose of said ordinance was solely to bring in additional voters within the city limits in order to pass an ordinance in 1948 extending the city limits so as to include the property of plaintiff.
It will be noted from the facts that the original city limits of defendant city included plaintiff's property. It is just a little hard to understand why the 1947 extension expressly excluded plaintiff's property. Of course it was not necessary that such extension be made to acquire the property of plaintiff and we find no law that the express exclusion thereof from such extension amounts to an exclusion of plaintiff's property from the city limits.
In testing the validity of the 1947 extension the law governing the same is clearly set out in Jones v. City of Ferguson, Mo.App., 164 S.W.2d 112, 118. We quote:
"Our Supreme Court in a very carefully considered opinion in State ex inf. Major, Atty. Gen v. Kansas City, 233 Mo. 162, 134 S.W. 1007, which has been widely cited and followed, laid down the rules by which we must be guided in determining the reasonableness and necessity of the extension of the boundaries of defendant herein. The court, basing its views on Vestal v. City of Little Rock, 54 Ark. 321, 329, 15 S.W. 891, 16 S.W. 291, 11 L.R.A. 778, a leading case on the subject involved, held that the boundaries of a city may reasonably and properly be extended so as to take in contiguous lands (1) when they are platted and held for sale or use as town lots; (2) whether platted or not, if they are held to be brought on the market and sold as town property when they reach a value corresponding with the views of the owner; (3) when they furnish the abode for a densely settled community or represent the actual growth of the town beyond its legal boundary; (4) when they are needed for any proper town purpose, as for the extension of its streets, or sewer, gas or water system, or to supply places for the abode or business of its residents; or for the extension of needed police regulation; and (5) when they are valuable by reason of their adaptability for prospective town uses. State ex inf. Major, Atty. Gen. v. Kansas City, 233 Mo. 162, 213, 214, 134 S.W. 1007.
"In the same case the court also laid down rules for determining when city limits should not be extended to take in contiguous lands, as follows: (1) When they are used only for purposes of agriculture or horticulture and are valuable on account of such use; (2) when they are vacant and do not derive special value from their adaptability for city uses. * * *"
In Seifert v. City of Poplar Bluff, Mo. App., 112 S.W.2d 93, this court held in an action brought to enjoin the enforcement of an ordinance extending the city limits that it is presumed that the proceedings for adoption of the ordinance were legal and that the extension was reasonable and necessary and objectors have the burden of showing the contrary. The court held that it could not review the city's exercise of discretion in extending the boundaries, where the question of extension was one on which reasonable men would differ; that the determination of such a question would be for the city council and city electors and not for the court. Then this case, almost word for word, follows the law as stated in Jones v. City of Ferguson, supra, and, from an examination of plaintiff's petition, it would seem that plaintiff copied the requirements for the annexation of additional lands by the extension of the city limits from these cases. Stoltman v. City of Clayton, 205 Mo.App. 568, 226 S.W. 315, 316.
In a recent case decided by Kansas City Court of Appeals, Ozier v. City of Sheldon, Mo.App., 218 S.W.2d 133, which was a proceeding in equity to declare void an extension of the city which included the property of the plaintiff, it being a city of the fourth class, the court passed upon the question of whether or not the extension was void, as being unreasonable and arbitrary as a matter of law. After quoting section 7097, RSMo 1939, which provides for the extension of city limits, the court, 218 S.W.2d on page 137, states the law thus: "The general rule is that such discretionary prerogative of the city council is presumed to have been reasonably exercised. But a rule equally well settled is that the reasonableness of an ordinance is a subject of judicial inquiry. State ex rel. v. Birch, 186 Mo. 205, 219, 85 S.W. 361."
In this opinion the court quotes the rule of law, governing the conditions under which the city limits may reasonably be extended to take in contiguous lands, from State ex inf. Major v. Kansas City, supra. It then states that the city limits should not be extended to take in contiguous lands used only for purposes of agriculture or horticulture and when they are vacant and do not derive special value from their adaptability for city uses. Then the court approved the following factors in determining the reasonableness of the city annexation of territory:
"`(a) Annexed territory has advantages of city;
"`(b) will make limits regular;
"`(c) secures uniform grade and alignment of streets in added territory;
"`(d) required by public convenience and health;
"`(e) necessary for enforcement of police ordinances;
"`(f) necessary to foster growth and prosperity of city;
"`(g) necessary for extension of gas, water, sewer, street, or police systems;
"`(h) more adequate school facilities.'"
When we examine the record in the case at bar we find that the territory annexed by the 1947 extension does not have any advantages from defendant city by reason of annexation. The mayor, testifying for the city, so said. And we find that such annexation will not make the city limits regular, neither was it made for the purpose of uniform grade and alignment of streets in added territory, for there were no streets in this territory. There was no contention that the territory was required for public convenience and health.
There was some testimony that some violations of the law were taking place on a part of this property but we think such evidence was wholly insufficient to justify us in finding that the extension was necessary for the enforcement of police ordinances. In fact, at the time of the extension, the defendant city, itself, did not have sufficient police protection. It only had a police for a part of the time and that was in daytime.
Under the testimony we must find that the extension of the city was not necessary to foster the growth and prosperity of the city. We find that the extension was not necessary for extension of gas, water, sewer, street or police system because defendant city had none of these. There was no evidence to indicate that such extension was made to have more adequate school facilities.
Our conclusions as to the above matters are further borne out by the evidence that of all this territory taken in section 6, 480 acres, only six pieces of property near the city limits were ever taxed. There is no contention that this vast amount of farm land annexed in such extension was platted or held for sale or use as town lots or ever intended to be sold as town property when they reached a value corresponding with the views of the owners; the evidence conclusively shows that such agricultural lands did not furnish the abode for a densely settled community or represent the actual growth of the town beyond its legal boundaries.
Considering the evidence as a whole and applying the law as has been expounded by our courts we believe the facts fall far short of the necessary elements required by law for the reasonable extension of defendant's corporate limits as was done by the ordinance and extension of 1947.
This court held in State ex inf. Prosecuting Attorney, ex rel. Hogan v. City of West Plains, 163 Mo.App. 166, 147 S.W. 163, 164, that the question of the extension of the city limits is left exclusively to the judgment of the board of aldermen. But their discretion is subject to the general power of the court to declare ordinances or resolutions relating thereto void for unreasonableness.
It seems clear from the evidence in the case at bar that the only advantage of any consequence, which would accrue to defendant from the annexation of the territory involved herein, would be to bring into the city a considerable amount of property for tax purposes and to subject such property to taxes, fees and assessments as municipalities are authorized to levy, while, on the other hand, no reciprocal advantage or advantages would accrue to the owners of the property annexed. There is no question but what the validity of this ordinance could have been successfully attacked by any persons interested in the property so annexed but the serious question involved is that plaintiff herein has no interest in the property so annexed by the ordinance of 1947, and, unless the actions of defendant city constitute legal fraud as to plaintiff, they are in no position to take advantage of the unreasonableness of this ordinance.
The ordinance of 1948, complained of by plaintiff extended the city limits to take in only plaintiff's property. This is not agricultural property but purely industrial property. Plaintiff contends that the extension of 1947 was made for the purpose of securing sufficient votes within the city limits so that the ordinance taking in plaintiff's property in 1948 could be passed.
The evidence does not support this contention. The vote on the ordinance of 1947 was 83 to 3. The vote on the ordinance in 1948 was 102 to 6. This would indicate that almost the entire population voting approved the ordinance. It is true that plaintiff's property, admittedly, will receive no benefits whatsoever from including it within the city limits. This was admitted in plaintiff's testimony. It is also true that there has been no growth nor increase in the population of the city sufficient to necessitate such extension for any proper municipal purposes. This property, however, is located just across the right-of-way of the railroad from defendant city. Certainly none of plaintiff's property has been platted or held for sale as town lots and none of its is held to be bought or sold as town property. It furnishes no abode for a densely settled community; neither does it represent the actual growth of the town beyond its legal boundaries. None of the real estate is needed for any proper city purposes, as extension of its streets, or sewers, gas or water system or to supply space for the abode or business of the city's residents, nor is the extension needed for police regulation. None of plaintiff's property is valuable by reason of its adaptability for prospective town uses.
As we have said in this opinion, from the evidence in the case, there was but one reason for taking plaintiff's property into the city limits and that was because it would pay twenty eight per cent of all taxes and assessments of defendant city.
We, however, hold that to declare ordinance No. 48 void would not relieve plaintiff from its obligations to defendant city. Its status was in no way changed by such ordinance. It was already within the legal city limits and equity will not do a foolish thing by declaring the ordinance of 1948 void. We find that the evidence is insufficient to establish fraud in that the passing of the ordinance of 1947 was one for the purpose of securing sufficient votes to extend the city limits to include plaintiff's land by the 1948 ordinance. There is not that clear and convincing proof on the part of plaintiff in this case to warrant us in using the strong arm of equity to declare the ordinance in question void and to estop defendant city from asserting its legal powers over plaintiff's property.
We, therefore, must find against plaintiff on its first contention.
Assignment of error No. II complains "The purported extension of the city limits of 1947 is invalid."
We have passed on this point in deciding the first assignment of error. The authorities cited by plaintiff, to sustain its contention under this assignment, differ widely on the facts from those involved in plaintiff's case.
Stoltman v. City of Clayton, supra, in no way conflicts with our opinion. It merely holds that the owner of property included in territory annexed may bring a bill in equity to have the extension of the city limits declared unreasonable and void and the city authorities enjoined from exercising authority over such territory. Plaintiff is not an owner of property included within the limits of the territory included in the 1947 extension and, therefore, is precluded from bringing such equitable action.
Jones v. City of Ferguson, supra, was relied upon by us in deciding the first point and we fully agree with the law therein declared. So do we agree with the law declared in all the other cases cited by plaintiff but hold that plaintiff, under the facts in the case at bar, is not entitled to the relief prayed for.
Assignment of error No. III complains that the ordinance of 1948 is invalid. We hold that to declare this ordinance invalid would be useless because plaintiff's property was already within the corporate limits of defendant city.
We find for defendant on both counts of plaintiff's petition.
Judgment affirmed.
VANDEVENTER, P. J., and BLAIR, J., concur.