# City of Kirkwood v. Allen > Supreme Court of Missouri · January 10, 1966 · 399 S.W.2d 30 URL: https://www.frixlaw.com/law-library/cases/9773944 ## Case - **Full name:** CITY OF KIRKWOOD, a Municipal Corporation, Respondent, v. Leslie L. ALLEN Et Al., Appellants - **Court:** Supreme Court of Missouri - **Decided:** January 10, 1966 - **Citations:** 399 S.W.2d 30; 1966 Mo. LEXIS 837 - **Precedential status:** Published - **Opinion:** Dissent by Hyde - **Judges:** Donnelly, Holman, Henley, Eager, Storckman, Hyde, Finch - **Cited by:** 39 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9773944 ## Opinion text HYDE, Judge (dissenting). I concur in dissenting opinion of Finch, J., herein holding an election is not required to precede a resort to the declaratory judgment procedure provided by Sec. 71.015, RSMo; but I desire to make the following statement concerning my view as to other reasons why the same result should be reached. I stated my view concerning Sec. 71.015, called the Sawyers Act, in a separate concurring opinion in City of Hannibal v. Winchester, Mo.Sup., 391 S.W.2d 279, 290 , as follows: “All the Act says is: ‘Whenever the governing body of any city has adopted a resolution to annex any unincorporated area of land, such city shall, before proceeding as otherwise authorized by law or charter for annexation of unincorporated areas, file an action in the circuit court of the county in which such unincorporated area is situated, under the provisions of Chapter 527, RSMo 1949, praying for a declaratory judgment authorizing such annexation.’ (Emphasis mine.) ‘A resolution is ordinarily ministerial in character and relates to the administrative business of the municipality, whereas an ordinance is distinctively a legislative act.’ 5 McQuillin, Municipal Corporations 52, Sec. 15.02. Nowhere in Sec. 71.015 is there any requirement that there be a resolution to begin annexation proceedings and there is no reason why there must be a resolution in the annexation process. There can be no doubt that annexation is the exercise of legislative power so that an ordinance which is a legislative act is required. Thus only if the term ‘resolution’ is construed to include ‘ordinance,’ as suggested in the McConnell case [McConnell v. City of Kansas City] ( 282 S.W.2d 518 ), would the provisions of Sec. 71.015 be mandatory as to any city. This is true because a city can annex without a resolution but cannot annex without an ordinance. Literally, by its terms, Sec. 71.015 only requires a declaratory judgment ‘whenever’ a resolution has been adopted and it does not anywhere require the adoption of a resolution.” - *43 This statute seems to me to authorize an optional procedure because it does not require a resolution as an essential step in annexation proceedings and there is no claim that any other statute requires it. Such construction is in accord with the title to the Act which is: “An Act relating to annexation of unincorporated areas by cities, and providing for actions therefor.” (Laws Mo.1953, p. 309.) This does not indicate a mandatory requirement and to construe it as mandatory would be giving the statute a construction not authorized by the title, in violation of Sec. 23, Art. Ill of the Constitution. See discussion of effect of this constitutional provision in State ex rel. Normandy School District, etc. v. Small, Mo.Sup., 356 S.W.2d 864, 867-869 , and cases cited. The failure of this title to provide a mandatory requirement is emphasized by the heading placed on this section 71.015 in the published statutes as follows: “Annexation of territory, declaratory judgment required — proceedings.” The lack of a statement in the title that anything is required actually makes it necessary to construe the Sawyers Act procedure as only optional procedure. (Emphasis mine.) Prior to the adoption of Sec. 71.015, the effective method for determining the reasonableness of an annexation was quo warranto after the election had been carried. See State ex inf. Mallett ex rel. Womack v. City of Joplin, 332 Mo. 1193 , 62 S.W.2d 393 ; State ex inf. Taylor ex rel. Kansas City v. North Kansas City, 360 Mo. 374 , 228 S.W.2d 762 . Sec. 71.015 provided a new and better remedy by which a city could have the issue of reasonableness of an annexation determined before going to the expense of holding an election. All it had to do was to adopt a resolution to annex and file an action for declaratory judgment. If it got a favorable judgment, the issue of reasonableness was res judicata. See City of St. Joseph v. Hankinson, Mo.Sup., 312 S.W.2d 4, 17 . However, if a city does not get the issue of reasonableness decided by the Sawyers Act procedure before an election, it may still be determined in quo warranto after the election. The 1963 Act (Laws Mo.1963, p. 126) does not change this situation. All it provides is: “The provisions of section 71.015, RS Mo 1959, 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 7 of this act.” Sec. 1 now Sec. 71.860. (Emphasis mine.) All this does is to make Sec. 71.015 applicable to all municipalities in first class charter counties instead of only to cities as before. It, in no way, changed its application or effect. It added nothing to require it as mandatory procedure and if it was not mandatory before, the 1963 Act did not make it mandatory. Therefore, my view is that it is still optional with any municipality in St. Louis County and elsewhere whether it acts under Sec. 71.015 to determine the reasonableness of a proposed annexation before it adopts an ordinance therefor or takes any other steps for that purpose. If it does so, as has been done in this case, my conclusion is that this would make the issue of reasonableness res judi-cata; and I would hold the action of the City of Kirkwood herein to be proper and entitled to be finally determined by this Court on the merits. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9773944. Public record. Not legal advice.