author: WASSERSTROM, Judge.

text:
    STATE of Missouri, Respondent, v. Richard HAMM, Appellant.
    No. KCD 29672.
    Missouri Court of Appeals, Kansas City District.
    June 12, 1978.
    Motion for Rehearing and/or Transfer Denied July 20, 1978.
    Application to Transfer Denied Sept. 12, 1978.

      William F. Bauer, Asst. Public Defender, St. Joseph, for appellant.
    John D. Ashcroft, Atty. Gen., Michael H. Finkelstein, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., and SWOF-FORD, C. J, and WASSERSTROM, J.
   WASSERSTROM, Judge.

Defendant pleaded guilty to stealing by deceit in violation of Section 560.161. From a sentence entered pursuant to that plea, defendant appeals on the ground that the amended information failed to state conduct constituting the crime charged. An appeal on that ground is authorized despite the plea of guilty. State v. LePage, 536 S.W.2d 834 (Mo.App.1976).

The amended information alleges that defendant intentionally stole $800 by deceit over a nine day period by the following means. He obtained an Americash Plus card and the secret personal identification code of James F. Burnham to an automated teller, Docutel machine, operated by the American National Bank. Defendant then went to the machine and according to the instructions inserted the card and pressed buttons labeled with single digits so as to spell out Burnham’s personal identification code. Defendant then pressed the buttons to indicate that the machine should dispense $50. The machine did so and defendant took the money. Defendant followed this procedure on 16 separate occasions so that he obtained an aggregate sum of $800 in transactions of $50 each. The information further states that defendant’s use of the card and personal identification code was unauthorized by Burnham, that the $800 was the property of American National Bank, and that defendant followed the foregoing procedure with the intent of permanently depriving the bank of the use of the money so obtained by him.

Defendant argues in support of his attack upon the indictment that it “fails to state that Appellant made any representation at all, let alone a fraudulent misrepresentation, and it fails to state that the bank acted in reliance in parting with the EIGHT HUNDRED DOLLARS ($800.00).” This argument is based on the assumption that in order to support the offense, there must have been a verbal misrepresentation by the defrauding party directly to the party defrauded. Not so. The misrepresentation “may consist in any act, word, symbol, or token calculated and intended to deceive. It may be made either expressly or by implication * * *.” 35 C.J.S. False Pretenses § 17, p. 825. 32 Am.Jur.2d False Pretenses Sec. 17, p. 189, similarly states: “ * * * since a false pretense may be made by implication as well as expressly, words, written or spoken, are not essential to a false representation such as will subject one to punishment for obtaining money or property by false pretenses. Acts or conduct may constitute a false representation.” See also People v. Brady, 275 Cal.2d 984, 80 Cal.Rptr. 418 (1969). By his actions here, defendant represented falsely that he did have authority to use the Burnham bank card and personal identification code.

No case has been cited nor found by independent research involving a criminal prosecution arising from a fraudulent manipulation of an automatic bank teller such as here presented. This is probably due to the fact that this application of computer technology is relatively new. However, this situation is analogous to the fraudulent use of a stolen credit card, which numerous cases hold to provide the foundation for prosecution for false pretenses. Thus in Snipes v. State, 50 Ala.App. 139, 277 So.2d 413 (1973) the defendant presented the credit card of another person without permission, signed the sales slip and obtained merchandise. The defense was that the defendant had not misrepresented anything except possibly her marital status. The court rejected that contention holding:

“When appellant presented the Bank Americard in payment of the shoes and handbag bearing the name ‘Melvin Chat-man’ and signed the sales card ‘Mrs. Melvin Chatman’, she was then and there representing to Mrs. Foster that she was indeed Mrs. Melvin Chatman the same as if she had said, T am Shirley Chatman and my husband is Melvin Chatman’.”

So also in Hymes v. United States, 260 A.2d 679 (D.C.App.1970), the defendant was prosecuted for obtaining gasoline by false pretenses. The prosecution introduced seven receipts for gasoline obtained by use of a credit card issued to another and used by the defendant without permission. The court held that this evidence was sufficient upon which to convict. The court further held that there was sufficient proof to support “reliance” without the necessity for evidence by the service station attendants who waited upon the defendant. See also Teves v. State of Maryland, 237 Md. 653, 207 A.2d 614 (1965); Annot. “Criminal Liability for Unauthorized Use of Credit Card,” 24 A.L.R.2d 986, Sec. 7 at l.c. 998.

A like ruling was made in another analogous situation in State v. Moore, 189 Wash. 680, 66 P.2d 836 (1937), where the defendant presented a check with a forged endorsement to a bank for payment. The information charged grand larceny by false pretenses. One defense made was the lack of any representation by the defendant. The court held that when defendant presented the check, “he thereby represented that he was a lawful holder of the check, the legal assignee of the true payee, and that he was entitled to possession of the check and the money that it represented. * * * False pretenses may be made by conduct and actions as well as by word of mouth.” Another analogous case is State v. Kelly, 27 N.M. 412, 202 P. 524 (1921) where the presentation of a spurious bond for redemption was held to be a false pretense.

Just as the facts here show a misrepresentation by defendant through his conduct, so also the facts clearly show reliance thereon by the bank. The machine was so programmed that no money would be paid out without the insertion of the appropriate card and the corresponding personal identification numbers. When those items were supplied, the response was programmed so as to pay out the money. No difference can be perceived whether the bank gave approval after the presentation of those identification items or whether it programmed its acceptance upon those conditions in advance. In either case, the bank equally relied upon the presentation of the card and personal identification.

The facts alleged in the amended information adequately stated an offense of obtaining money by deceit, and the judgment of conviction is therefore affirmed.

All concur.


source: Caselaw Access Project

author: TURNAGE, Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Terrell L. FAIRCLOTH, Appellant.
    No. KCD29897.
    Missouri Court of Appeals, Kansas City District.
    June 12, 1978.
    Motion for Rehearing and/or Transfer Denied July 20, 1978.
    Application to Transfer Denied Sept. 12, 1978.

      John B. Schwabe, II, Columbia, for appellant.
    John D. Ashcroft, Atty. Gen., Stanley Robinson, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   TURNAGE, Judge.

Terrell L. Faircloth was convicted of burglary second degree, § 560.050, RSMo 1969. The jury assessed punishment at imprisonment for ten years. On this appeal Fair-cloth raises questions concerning a line-up; the prosecutor’s argument; admission of evidence; and failure to excuse certain veniremen for cause. Affirmed.

Faircloth does not challenge the sufficiency of the evidence so a brief statement will suffice. Shortly after noon in October, 1976, Willis Chin heard his doorbell ring. After a short delay, Mr. Chin reached a room next to his patio. He saw a man standing in this room near the door leading to the patio. When Chin yelled the man ran onto the patio. The day was sunny and Chin saw another man standing on the patio and got a full frontal view of this man. Chin later identified the man on the patio as Faircloth.

After the man ran out of the house and joined Faircloth on the patio, the two ran toward the front of the house. In the meantime Chin obtained a ball bat and ran out the front door and again saw the men as they ran toward the front of the house. The men disappeared down the street.

Chin notified the police and gave a description of Faircloth as to his physical characteristics and clothing. A short time later Faircloth was arrested while walking down a highway near Chin’s home. In addition, an automobile parked near Chin’s home was found to be registered to Fair-cloth.

Examination of the door frame on the patio for fingerprints yielded prints which were later matched with Faircloth and found to be his. A garden spade, or trowel, was found under the patio deck and marks on the door indicated the spade had been used to force the door open.

On the day Faircloth was arrested a lineup was held in Columbia. Faircloth was the only person possessing the particular physical characteristics Chin had given to the police as possessed by the man he had seen standing on his patio.

Faircloth first urges the court erred in overruling his pre-trial motion to suppress the line-up identification because of the absence of any others in the line-up possessing the same physical characteristics as Faircloth. However, Chin was shown to have had opportunity to observe Faircloth in sunlight standing on his patio. Chin positively identified Faircloth at trial without objection. Here there was a source of identification independent of the line-up. In that situation the independent source of identification is enough to overcome a claim of unnecessary suggestiveness in a line-up. State v. Jordan, 506 S.W.2d 74, 81[11 — 14] (Mo.App.1974).

In his final argument the prosecutor made reference to a campaign slogan of a recently elected sheriff of Boone County to the effect that the candidate for sheriff would be the last person a burglar in Boone County would want to meet. Faircloth’s counsel objected but made no motion for a mistrial. When the motion was overruled the prosecutor continued that he would like to see a message go out of the courtroom to the effect that the last people a burglar in Boone County would want to come in contact with would be a jury. Faircloth makes some contention the argument was designed to appeal to the political preference of the jurors. However, a fair reading of the argument reveals it was not a political appeal but rather an appeal for the jury to send a message that burglars were punished in Boone County. An appeal to the jury to send out a message that criminal conduct would be punished was approved in State v. Blumer, 546 S.W.2d 790, 792[4] (Mo.App.1977). That was the situation in this case.

Faircloth next contends the court erred in admitting the garden spade, a pair of trousers and shirt worn by Faircloth at the time of his arrest, and the fingerprint cards bearing the latent prints found on the patio door. All of these items were positively identified and introduced at trial. Faircloth’s objection is based on relevancy and a failure of proof as to their chain of custody. There could be no doubt of the relevancy of any of the items. The spade was shown to have made the marks found on the door. The pants and shirt were identified as those being worn by Faircloth at the time of his arrest which matched the description of the clothing given by Chin and the fingerprints were those found on the door which had been broken into. Since all of these items were positively identified at trial, chain of custody becomes an irrelevant issue. State v. Russ, 537 S.W.2d 216, 218[l-3] (Mo.App.1976).

Faircloth finally contends the court erred in failing to strike for cause the entire jury panel. Faircloth contends a number of veniremen were shown to have relatives who were or had been in law enforcement work. All of the veniremen were questioned concerning this matter and all of them stated they could return a verdict based only on the evidence. No effort has been made to show the veniremen were in fact biased. Absent some showing that a venireman would give greater weight to the testimony of a police officer or would not impartially weigh a policeman’s testimony, the mere fact a venireman is related to a police officer would not work an automatic disqualification. The question of the qualification of a venireman is vested largely in the discretion of the trial court. No abuse of that discretion was shown here. State v. Drake, 518 S.W.2d 335, 337[6] (Mo.App.1975).

Faircloth contends a number of veniremen should have been excused for cause because they had previously served on juries which had found criminal defendants guilty. Likewise, no prejudice on the part of these veniremen was shown to exist. The fact a venireman has previously served on a jury during the same year does not disqualify him. State v. Thompson, 472 S.W.2d 351, 353[2, 3] (Mo.1971). Faircloth has not demonstrated any prejudice nor any abuse of discretion on the part of the trial court.

The judgment is affirmed.

All concur.


author: DOWD, Presiding Judge.

text:
    CITY OF O’FALLON, Missouri, a Municipal Corporation, Plaintiff-Appellant, v. Leonard BETHMAN et al., Defendants-Respondents.
    No. 38819.
    Missouri Court of Appeals, St. Louis District, Division Four.
    June 13, 1978.
    Motion for Rehearing and/or Transfer Denied July 14, 1978.
    Application to Transfer Denied Sept. 12, 1978.

      Robert M. Wohler, St. Charles, Louis S. Czech, Clayton, for plaintiff-appellant.

      Robert V. Niedner, Niedner, Niedner, Ah-leim & Bodeux, St. Charles, Fordyce & Mayne, Leo V. Garvin, Jr., Clayton, for defendants-respondents.
   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. 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, 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” 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 seeking 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 fact 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. It does not indicate how those facts should be stated. The purpose of this provision is that property owners and others with an interest in the action receive notice and be able to determine the land proposed to be annexed and that the court know the area on which it must decide the issues of reasonableness and ability to provide municipal services. Young v. Mayor, Council & Citizens, 531 S.W.2d 732, 737 (Mo. banc 1976); City of Cape Girardeau v. Armstrong, 417 S.W.2d 661, 674 (Mo.App.1967); Waller v. City of Macon, 277 S.W.2d 886, 890 (Mo.App.1955).

The city’s petition does describe the area sought to be annexed with the use of degrees, arc lengths, “centerline stations” and references to deeds located in the county recorder’s office. It is conceded that it would require professional training and much effort to fully understand and verify all parts of the description which covers eleven pages of the trial record. We note, however, that the technical description is supplemented throughout by reference to many of the owners of the property being described and to standard points of reference. O’Fallon provided a detailed map of the area at trial divided into individually-owned parcels of land that was prepared by an engineering firm based upon the legal description contained in the city’s petition. The exhibit demonstrated that the proposed area was essentially enclosed within such well recognized boundaries as two state highways and the present O’Fallon city limits. Another exhibit contained numbered references to the owners of the properties depicted on the map. The majority of property owners not named as defendants demonstrated they did have knowledge of the affected area by intervening in the cause. This point must also be ruled against respondents.

Respondents also allege that appellant’s brief failed to comply with Rule 84.04(c) and (d) because it did not fairly state the facts of the case and because the points relied on constituted mere abstract statements of law. A motion to dismiss appellant’s appeal was filed. On September 12, 1977, this court ordered appellant’s brief stricken, denied the motion to dismiss, and ordered appellant to resubmit in compliance with Rule 84.04. On the briefs now submitted this appeal will be decided and the motion to dismiss denied.

The determining issue here and the essential consideration in most annexation cases is thus whether the city has sufficiently established the reasonableness of its proposed plan.

Appellant’s primary contention on appeal is that the issue of reasonableness was “debatable” and thus should have been resolved in favor of the resolution adopted by the board of aldermen. Appellant emphasized that annexation will help make the boundaries of the city regular, that the city does provide water, police and other municipal services to the area, and that the city needs the area for growth. Respondents’ arguments emphasize that the governmental services O’Fallon would provide residents of the area are either not needed or adequately provided by St. Charles County, that the area to be annexed is too large relative to O’Fallon’s existing size, that the area is primarily used for agricultural purposes and its population density is low, that there is no present demand in O’Fallon for additional industrial property and that vacant land for residential, commercial and industrial development existed in O’Fallon at the time the suit was instituted, that O’Fallon’s population, while increasing, has been doing so at a declining rate, and that the natural movement in population outside of O’Fallon has been to the south, away from the proposed area.

Before reaching the merits of these contentions it is first necessary to determine our scope of review and the standards to be applied. The authority granted to cities to extend their corporate limits constitutes a broad grant of discretionary power. While the judiciary plays an important role in the annexation process, as contemplated by § 71.015, case law makes clear that the role is a limited one. Annexation is a legislative function. Young v. Mayor, Council & Citizens, 531 S.W.2d 732, 737 (Mo. banc 1976); City of Lexington v. Shepard, 344 S.W.2d 308, 311 (Mo.App.1961). It is not for the court to determine in the first instance whether the weight of the evidence supports a finding of reasonableness. The initial determination was made in favor of reasonableness when the governing body of the city adopted its annexation resolution. The scope of judicial review is to determine whether the reasonableness of the municipal resolution is fairly debatable; if so, it is conclusive on the courts; if not, the city has abused its legislative discretion and the declaratory judgment will not issue. City of Jefferson v. Smith, 543 S.W.2d 547, 549 (Mo.App.1976); City of Cape Girardeau v. Armstrong, 417 S.W.2d 661, 675 (Mo.App.1967); Johnson v. Parkville, 269 S.W.2d 775, 777 (Mo.App.1954); State ex rel. Eagleton v. Champ, 393 S.W.2d 516, 532 (Mo. banc 1965); City of St. Peters v. Kuester, 402 S.W.2d 70, 75 (Mo.App.1966). Under the “fairly debatable” standard the extent of judicial inquiry is whether substantial evidence has been presented by the city to support the determination of its governing body such that reasonable men could differ as to the necessity of the extension. City of Olivette v. Graeler, 369 S.W.2d 85, 96 (Mo.1968); State ex inf. Mallett ex rel. Womack v. City of Joplin, 332 Mo. 1193, 1205, 62 S.W.2d 393, 398 (1933); City of Des Peres v. Stapleton, 524 S.W.2d 203, 207 (Mo.App.1975).

Courts have assessed the reasonableness of numerous proposed annexations and have articulated many factors relevant to a determination of reasonableness. It has been uniformly recognized, however, that past cases can only serve as general guides and that each proposed annexation must be viewed on its own unique facts, and that no single factor is determinative. City of St. Ann v. Buschard, 356 S.W.2d 567, 570 (Mo.App.1962); City of St. Peters v. Kuester, 402 S.W.2d 70, 74 (Mo.App.1966). It was held in City of Houston v. Duff, 338 S.W.2d 373, 382 (Mo.App.1960) that “[i]n no other class of suits is it settled more firmly or with better reason that each case must stand on its own facts.”

A case of reasonableness is made when it appears that the land to be annexed is so situated as to be adaptable to urban purposes and necessary or convenient to a reasonable exercise of the city government. City of Perryville v. Brewer, 557 S.W.2d 457, 462 (Mo.App.1977); City of St. Joseph v. Hankinson, 312 S.W.2d 4, 18 (Mo.1958); City of Jefferson v. Smith, 543 S.W.2d 547, 550 (Mo.App.1976); City of Salisbury v. Nagel, 420 S.W.2d 37, 46 (Mo.App.1967); Dressel v. City of Grestwood, 257 S.W.2d 236, 249 (Mo.App.1953). The city and the proposed area are both entitled to the test of reasonableness and the need of the area for the city’s services should be considered. City of Olivette v. Graeler, 338 S.W.2d 827, 838 (Mo.1960).

We feel that the evidence presented by the city of O’Fallon created a fairly debatable issue (1) as to its need within the reasonably foreseeable future for additional land to accommodate its natural expansion and growth, (2) that the proposed area is so situated as to be adaptable to urban purposes and that development will occur there within the reasonably foreseeable future, and (3) that annexation would be necessary and convenient to the exercise of municipal area governmental functions and be beneficial from the standpoint of the proposed area as well as O’Fallon. Having sustained its burden of proof with respect to these general issues, O’Fallon must prevail with respect to the ultimate issue of the reasonableness of its annexation plan.

O’Fallon’s “comprehensive plan,” a study prepared for the city by George Butler and Associates, its engineering and consulting firm, indicated that in 1974 about 800 of O’Fallon’s 2700 acres were vacant even after allowances were made for severe topographic features and future right of ways. The amount of usable vacant property under each general zoning classification was 92.8 for single family and 114.9 for multifamily residential development, 72 for commercial and 528 for industrial development, with no vacant property available for public use. Richard Metts, a landscaper and real estate agent, testified that he had recently been involved in the development of as many as 50 residential acres in O’Fal-lon and that while there may have been 92 usable acres for subdivision development in 1974 he knew of only 50 acres not being developed or in the planning process. May- or Peters of O’Fallon agreed that only 50 acres were suitable for subdivision development and Michael Whitaker, his assistant, indicated the city was in discussion with developers as to the remaining acres. Following a high level of building permits for single family residences issued for the years 1965-67 (86, 54 and 70), an average of only 18 permits were issued in 1972-74. While 7 multifamily permits were issued in 1971, none were issued in 1972-74. Commercial and industrial permits for the five-year period 1970-74 averaged 11.6 compared to 5.4 for the period 1965-69. A developer who had constructed two shopping centers in O’Fallon testified for the city that, in his opinion, only 7 acres remained for good commercial development. O’Fallon’s population more than doubled from 1960-1974 as indicated by two census reports and water meter estimates for intervening years. While the population increased each year, the rate of increase declined for the years 1968 to 1974.

The concepts of “reasonableness” and “necessity” as used in § 71.015 have been recognized as closely related, though separate. City of Olivette v. Graeler, 338 S.W.2d 827, 836-837 (Mo.1960). In City of St. Joseph v. Hankinson, 312 S.W.2d 4, 9 (Mo.1958), the supreme court held that “[i]n annexation cases, generally, the necessity [of annexation] actually seems to become a part of the ‘reasonableness.’ ” Accord, City of Aurora v. Empire District Electric Co., 354 S.W.2d 45, 48 (Mo.App.1962), adding that the necessity of annexation “applies not only to the present but also to such future needs as are reasonably foreseeable . ,” While the present need of a city for additional land is a relevant consideration a court should look to the future and be cautious in denying an annexation on the sole basis that the municipality still has some undeveloped land. There is no requirement that a city utilize all vacant land before it is able to extend its city limits. Mauzy v. City of Pagedale, 260 S.W.2d 860, 865 (Mo.App.1953); City of Fulton v. Dawson, 325 S.W.2d 505, 517 (Mo.App.1959); Dressel v. City of Crestwood, 257 S.W.2d 236, 249 (Mo.App.1953); City of St. Joseph, 312 S.W.2d at 18.

We believe that O’Fallon certainly raised a fairly debatable issue as to its need for additional land as an alternative to having its growth as a city stagnate. The city argued convincingly that a growing city needs to offer prospective developers a choice of desirable land on which to build as opposed to only certain tracts that the developer may not perceive as desirable. Vacant land in a city can vary greatly in its desirability for building lots. A decreasing amount of available land could well be the reason O’Fallon’s population had been increasing only at a declining rate.

Respondents further argue that if O’Fallon does need more land for growth the more logical area for it to expend would be to the south, not the north and northeast, where six new subdivisions had developed within two miles of O’Fallon’s southern border. It is true that a city should not attempt to dictate the direction of its growth by an annexation inconsistent with reasonable growth projection, City of Aurora v. Empire District Electric Co., 354 S.W.2d 45, 54 (Mo.App.1962), and an attempt to do so can reflect on the element of reasonableness. See, generally, City of St. Joseph, 312 S.W.2d at 20. The fact an area in one direction of a city is currently developing in terms of population and a proposed area is not does not, however, preclude an inquiry into the reasonableness of the proposed annexation. A finding that a city is attempting to force itself into an unnatural growth pattern is more a conclusion to be reached after other factors have been considered rather than a factor in itself on the ultimate issue of reasonableness. On the related issue of whether it was unreasonable to include certain area within an annexation the court in City of Fulton stated that courts should not say that a city council “might have more reasonably exercised its discretion if it had proposed to annex less, or more, land; or had excluded, or included, certain areas.” 325 S.W.2d at 518.

Respondents emphasized in their direct and cross-examination that any population growth in the annexation area in the past decade had been nominal, that no subdivisions had developed, that many planned utilities and roads would not be built until residential development warranted it, and that most of the land in the area was at least owned agriculturally and put to such agricultural use as growing crops, timber or raising cattle. Two of the residents testified as to a private survey they conducted that revealed the existence of only 30 homes and 113 persons in the area. Some area residents who testified in opposition to annexation feared that city ordinances would prevent or restrict their present use of their land. There was testimony that firearms were used in varmint control.

There was also testimony that sufficient water for their needs was provided by a deep well on their own property, that sewage disposal was accomplished with the use of septic tanks, that they provided for private garbage collection and that they called the county sheriff’s office when they needed assistance and were satisfied with their police protection. All stated they had no • plans to sell their land for development.

The area certainly is not used exclusively for rural purposes. The city of O’Fallon owns over 30 acres, most of it representing property purchased in 1970 lying north of the city on which is located a large sewage treatment plant, the firing range for the O’Fallon police department and a lighted softball diamond and park. The city had also purchased part of defendant Bethman’s property for the construction of a sewage lift station. Defendant Monsanto Chemical Company owned a 67-acre improved industrial tract in the eastern sector of the area. Defendant Sucat, Inc. owned an unimproved tract also located in the eastern sector which at the time of trial was being advertised for sale as an “industrial site.” The improvements on Sucat’s property were located east of highway 79, outside of the area. The county had zoned Sucat’s tract for industrial use. Defendant Fort Zumwalt School District, the district serving O’Fallon, the proposed area, and several surrounding communities, owned a 76-acre site located in the east-central section of the area on which was located Cool Springs School, a junior high school, that in the fall of 1976 was to become the district’s high school for 1,600 students. The parking facility for sixty school district busses was located on the site and the busses used the area’s roads extensively. Defendant Hope Bible Church owned a 7V2-acre tract near O’Fallon’s city limits in the western sector of the area. Respondents did not specify how many acres of the land was actually tillable and used for the production of crops. The landscaper who did survey work in the area for O’Fallon had the opportunity to observe much of the northern boundary of the area along highway 79 and testified that it was primarily used for pasture or agricultural purposes, and was “fairly well wooded and rough” with “quite a bit of pasture and wooded land.”

Edward Runge, whose children went to two different schools in O’Fallon, owned 10 acres bordering on highway 79 of which only one acre was used for farming. The rest of the property was either wooded or used for buildings for the Runge Land Company’s 400-acre farming operation north of highway 79 and outside of the proposed area. Runge’s brother, who worked elsewhere, lived on a 3-acre tract to the south of Runge near the school which was not farmed. His sister, whose husband worked elsewhere, lived on a nearby 3½-acre tract of which Runge farmed the “tillable” 2½ acres. Paul Didion testified to his purchase of a 55-acre tract in the west-central part of the area in 1972 and that he had recently built a home on 9 of the acres and raised beef cattle on the remaining acres. He worked with the Didion Foundry in the city of St. Peters.

There was evidence as to some residential development in the western sector closer to the city limits of O’Fallon. The surveyor who worked for O’Fallon testified that there were “[qjuite a few homes near old 79 and highway M,” although no subdivisions. An intervenor testified that she lived in the area near O’Fallon, had children who went to O’Fallon schools and would go to the high school in the area, and that her husband had been a businessman in O’Fallon since 1951 and had interests in two additional O’Fallon businesses. Another inter-venor was a “part-time” farmer who lived on a 2-acre home in the western sector, worked as a cement mason, and farmed about 30 acres in the area for others. His children went to St. Barnabas School in northern O’Fallon. Another intervenor testified that he lived on 1.8 acres in the western sector but did farm others’ property (about 250 acres) in that sector, largely dairy livestock and grain farming. Several tracts in the western sector were hooked into O’Fallon’s sewer or water line.

It is significant that much of the agricultural land in the area was worked by part-time farmers, often for cattle raising, or by tenants or others hired to work the land while many of the owners had jobs or lived elsewhere. It is probably fair to infer that much of the agricultural production in the area was for private consumption and was not marketed commercially on a large scale. The co-owners of the largest tract in the area (460 acres) both lived in O’Fallon. One served as the principal of a school in the Fort Zumwalt School District and the other was an O’Fallon merchant. A tenant lived on and worked the farm, tending grain and forestry land (they have harvested and marketed some of their trees) and 50-75 head of cattle. Defendant Mispagel’s tract, next to Monsanto’s property, was used for raising 25 head of cattle. A tenant farmed the remaining tillable land.

The annexation of land to a city to accommodate anticipated growth requires a great deal of planning and the city is permitted to look ahead and provide for reasonable development several years in advance. City of Fulton v. Dawson, 325 S.W.2d 505, 517 (Mo.App.1959); Dressel v. City of Crestwood, 257 S.W.2d 236, 249 (Mo.App.1953). The caveat still applies, however, that projected growth and development must have a basis in objective fact and cannot be based on the visions or speculation of city fathers or planners that do not have a firm evidentiary base. City of Mexico v. Hodges, 482 S.W.2d 545, 547 (Mo.App.1972); City of Aurora v. Empire District Electric Co., 354 S.W.2d 45, 48 (Mo.App.1962). In the absence of such an evi-dentiary base the courts must exercise their limited role in annexation matters and not permit the annexation to proceed.

It is our view that projected growth and development in the proposed area does have a sufficient evidentiary base to support the determination of O’Fallon’s board of aldermen. The fact that an area is sparsely populated without significant residential development and that much of it is utilized for purposes of an agricultural or rural nature is an important consideration but is not determinative on the issue of reasonableness. It does not preclude an examination of other evidence indicating the land is in fact adaptable to urban usage. City of St. Joseph v. Hankinson, 312 S.W.2d 4, 19 (Mo.1958); City of Fulton v. Dawson, 325 S.W.2d 505, 517-518 (Mo.App.1959); City of Woodson Terrace v. Herklotz, 349 5.W.2d 446, 452 (Mo.App.1961). In City of Perryville v. Brewer, 557 S.W.2d 457, 468 (Mo.App.1977), this court approved an annexation in which 20% of the land was used for agricultural purposes. In City of Fulton it was indicated that even if approximately one-half of the land was used for farming or grazing purposes that fact “does not of itself mean that the city’s exercise of its legislative decision to annex it is so unreasonable as to be an abuse of its legislative powers. Rather it is but a factor to be considered along with the other pertinent factors comprising the total picture . . . .” 325 S.W.2d at 517-518.

O'Fallon offered testimony from several sources as to projected population growth in the area. A real estate broker testified that growth around O’Fallon and in St. Charles County in general was augmented by its relationship to the St. Louis metropolitan area. Based upon a study conducted for St. Charles County by Harland Bartholomew and Associates the planning director for the county indicated that in his opinion there would be population growth in the proposed area. While indicating that in 1990 the great majority of the land in the county would still be put to non-residential use, largely agricultural, the study stated that “[a] pattern of concentrated population growth in the 1-70 corridor,” the primary interstate access route into St. Louis County, was projected. Such development would serve to augment the population of areas in proximity to such cities as St. Charles, St. Peters, O’Fallon, Lake St. Louis and, to some extent, Wentzville. With reference to the proposed annexation area the study projected that residential development would occur in the western half. George Butler, president of George Butler Associates, O’Fallon’s consulting firm, projected that the population in the proposed area would grow from a reported 262 in 1974 to 606 by 1980 and to over 3,000 by the year 2000.

The generalized county zoning for the area in 1971 did provide for single family residential development in the western quarter, industry in the far eastern sector (including the Monsanto tract) with most of the central territory, including the present school site, zoned agricultural with a 5-acre lot size minimum. A 1973 zoning adjustment placed the entire area under the agricultural classification with the exception of the eastern industrial section.

In accordance with the county’s projected population trend the county’s planning director testified that projected land use for the area was “residential and industrial.” A land use plan was developed in 1972 for the county in which the western half of the area was allocated for low density residences of five units per acre or less and the eastern half for “major industry” with the exception of a corridor planned for agricultural land, parks and open space. The county’s plan, apparently not accounting for the existence of a school, included the present school site within the industrial and open space area. The county director indicated that “as far as the county is concerned, residential development is predicated upon the accessibility of the roads, sewers and water.” Accessibility of the area to existing areas of urban growth including schools and an urban police force are additional factors. With particular reference to industry he noted the ready access to railroad facilities and interstate highway 70. Based upon these factors it was his opinion that the area was adaptable for the development of subdivisions. George Butler, noting the existence of utilities and stating that most of the area does lend itself topographically to development, presented O’Fallon’s projected land use plan for the area. The western half would be zoned for single family development with the exception of 15 commercial acres and the land on which the sewage treatment plant and park are located. One-third of the eastern half would be allocated for public use (the school site) and for multifamily development near the school site that would serve as a buffer to a large industrial park area in the easternmost section.

Alfred Knobbe, a real estate broker and developer in O’Fallon, testified that he was developing an area of approximately 190 acres into 3-acre residential tracts immediately northwest of O’Fallon and within about one mile of the western border of the proposed area — “Today I’m putting down the road.” He stated he had built houses in the development and that it included shopping center facilities as well as the large single family lots.

The fact that a city is providing or has the capacity to provide such municipal services as sewer and water facilities to an area is a significant consideration on the issue of reasonableness. It also constitutes part of a required element to be proven under § 71.015. An area will tend to develop more rapidly when such municipal services are available. City of Olivette v. Graeler, 338 S.W.2d 827, 836 (Mo.1960); City of St. Joseph v. Hankinson, 312 S.W.2d 4, 20 (Mo.1958).

Within the two year period before trial O’Fallon acquired easements from area property owners (many of them intervenors in this case) and constructed a 16" forced main outfall sewer line extending from the sewage treatment plant (located at the northwest tip of the proposed area) along most of the northern boundary of the area (highway 79) before turning in a southwest-wardly direction in close proximity to the high school site and Monsanto plant before terminating in the central section of O’Fal-lon. A second outfall line extended from the treatment plant in a southwardly direction serving the western sections of O’Fallon and the proposed area. Several years earlier O’Fallon had purchased land from defendant Bethman at a low elevation point in the eastern section for the construction of a lift station at which sewage could be collected from gravity lines and propelled along the forced main to the treatment plant. Most of the area, including the school and Monsanto, are south of a watershed line that intersects the area and could be connected by existing or proposed gravity lines into the existing lift station on the Bethman property. As development would warrant gravity lines could be installed north of the watershed line to a proposed second lift station that would connect into the existing outfall line leading along highway 79 to the treatment plant. O’Fallon was served by three deep water wells and treatment plants. One additional well and treatment plant not in service at the time of the trial was acquired several years before 1976 to provide additional water as needed. The new treatment plant would provide the greater treatment required for utilization of shallow water wells which would further augment O’Fal-lon’s water supply. With reference to the proposed area one water line extended northward along highway M to highway 79 and the sewage treatment plant and a second line constructed by the school district extended northward from eastern O'Fallon to the school site. At the time of the trial O’Fallon was providing water to the school site, to several fire hydrants near the school and school bus facility, and to two customers and seven fire hydrants in the area along highway M. Both sewer and water service was thus available to some of the area’s residents even at the time of trial, but at a higher rate than residents of O’Fallon paid.

The fact that agricultural land in a proposed area has a value higher than its intrinsic value for farm purposes alone is an important consideration in forecasting future development. There is authority that agricultural land loses its value as such when its value becomes inflated because of its adaptability for prospective urban development and its proximity to existing utilities and municipal services. City of Woodson Terrace v. Herklotz, 349 S.W.2d 446,452 (Mo.App.1961); City of St. Joseph v. Hankinson, 312 S.W.2d 4, 19 (Mo.1958); Ozier v. City of Sheldon, 218 S.W.2d 133, 137 (Mo.App.1949).

While the owners of the agricultural tracts were generally unable to testify as to the value of their land, there was testimony that land in the area for farm utilization alone was valued at between $500 and $700 per acre and no higher than $1500. Alfred Knobbe testified that he paid $1250 an acre for the 190 acres of land he developed northwest of O’Fallon and would expect to pay over $3000 an acre to develop property within the proposed area because much of it is closer to O’Fallon and already has sewer and water facilities available to it. Another real estate broker noted the availability of utilities but would value most of the area land “because of its location . . [t]o a municipality, highways and railroads, and everything else that’s adjoining this property which makes it valuable for industrial and residential and commercial development,” and that “there [comes] a time that the land becomes too valuable to farm.”

One resident-intervenor had testified in a prior court proceeding (to determine the value of his property taken by a sewer easement) that the value of his farmland was $4,000 an acre and conceded that his land was suitable for development and increased in value because of the availability of a sewer. Another resident testified that he purchased 55 acres in the west-central section of the area in 1972 for $2000 an acre and another in the central region testified that several years earlier he had been offered $3000 an acre “[i]f they could take ten acres off the best of my ground where I couldn’t get nowhere. . . . ” He testified that while they planned to develop the property and had drafted contracts he was eventually told they could not “sell enough houses to pay for it.” The land next to him “brought” $1260 an acre.

There is also sufficient evidence that O’Fallon satisfied the general standard that annexation be necessary or convenient to the exercise of municipal area government functions.

The interest of the school in the proposed area is a relevant consideration. Kenneth Brock, president of the school district’s board of education, testified that it was the unanimous sentiment of all members of the school board and of the district’s superintendent that annexation to the city of O’Fallon would inure to the benefit of the school. He noted O’Fallon’s ability to provide better police protection, the need to utilize O’Fallon’s sewer and water facilities, and the expectation that O’Fallon would improve area road conditions.

At the time of trial O’Fallon was well into the planning stages on several roads that would provide better access to O’Fallon for residents of the area and better access for O’Fallon residents to the school. These roads would also help relieve traffic congestion in O’Fallon by providing an additional access route to highway 70 via highway 79 to the east. The designing of the road to the school was completed at the time of trial, application had been made for federal funding, and O’Fallon’s voters had tentatively approved a bond issue for the city’s portion of the funds. The other planned extension would provide area residents with better access to O’Fallon’s downtown area. Other roads were planned for the area as development warranted that would provide a unified system of highways between the two areas.

In many respects residents of the area enjoyed or had available many of the advantages offered by the city of O’Fallon, including shopping areas, parks, larger postal facilities, and places of entertainment. Other social and business ties were testified to. This is a factor to be considered. City of St. Joseph v. Hankinson, 312 S.W.2d 4,19 (Mo.1958). Because of existing watersheds, utilities and thoroughfares there was demonstrated a relationship between the two areas such that it would be desirable that the planning of future utilities, roads and land use emanate from a common source. Such unified coordination of planning would be beneficial to both areas. The development of O’Fallon’s comprehensive plan for the municipal area indicated that extensive planning had taken place for controlled development. Several of O’Fallon’s schools, parks and residential areas border on the proposed area. O’Fallon thus has a legitimate interest in having control over future adjoining development so that it conforms to existing building standards and would not destroy the character of the present land use.

While certainly not determinative on the issue of reasonableness, regularity of boundaries is a positive factor in favor of annexation because it makes possible more efficient administration of such governmental services as police protection and sewer and water lines. City. of Perryviiie v. Brewer, 557 S.W.2d 457, 462 (Mo.App.1977); Johnson v. Parkville, 269 S.W.2d 775, 777 (Mo.App.1954). A major factor in the holding of unreasonableness in City of Mexico v. Hodges was the extent to which annexation would have given the city irregular boundaries. 482 S.W.2d at 547-548. The northeastern boundary of O’Fallon is now jagged and annexation of the area would result in the regularization of that boundary because of the uniform curvature of state highway 79.

The factor of regular boundaries helps to offset respondents’ claim that the area is unreasonably large in relation to O’Fallon’s existing size. The proposed area here is about three-fifths of the size of O’Fallon. In City of Perryville the annexation of an area three times the size of the existing city was approved, the court noting that the inclusion of some of the area was necessary to regularize the boundary. 557 S.W.2d at 468-469. See also City of Lawson v. Cates, 485 S.W.2d 146, 147 (Mo.App.1972), upholding as reasonable a proposal to annex an area much larger than the existing municipality.

The fact that O’Fallon owns property which its police patrol in both the western and eastern sections of the area resulted in O’Fallon’s police cars traveling highway 79 and roads within the area several times on each shift. Their firing range was located at the treatment plant. Several area residents testified that they considered the county sheriff’s patrol adequate and observed them in the area on a regular basis. A former member of the sheriff’s office whose responsibility it had been to patrol the area for the county (but who worked for the O’Fallon police department at the time of the trial) testified that the sheriff’s police served as “report takers” in the proposed area who responded to calls when they could but did not have time to make routine patrols of the area in an adequate manner. He testified that many times the county police had to call on O’Fal-lon to respond to a call when one of its own cars was unable to. Of an average 48 calls in the area per year, he reported that O’Fal-lon handled at least half of them for the sheriff’s department.

On the basis of this evidence we hold that the city of O’Fallon did sustain its burden of proof in creating a fairly debatable issue as to the reasonableness of its proposed annexation plan. Cognizant of the scope of our review under Rule 73.01 as interpreted in Murphy v. Carrón, 536 S.W.2d 30, 32 (Mo. banc 1976), we reverse the judgment of the trial court which denied the declaratory judgment on the ground that the city had not sustained its burden of proof on the issue of reasonableness. We further hold that O’Fallon’s petition did sufficiently describe the area sought to be annexed, that the class action was properly maintained, and that appellant has sustained its burden of proof with respect to all required elements under § 71.015, RSMo.

The judgment is reversed.

SNYDER, J., and STOCKARD, Special Judge, concur.

      . The parties disagreed as to the area’s population. A witness for O’Fallon estimated it to be 270 while several of the area residents testified that an informal survey revealed an actual count of 113.

      . The term “resolution” has been interpreted broadly to include any ministerial direction to city legal officers to institute a declaratory judgment suit or any other manifestation of intent to annex. The city need not adopt an annexation ordinance. City of Hannibal v. Winchester, 391 S.W.2d 279, 283 (Mo. banc 1965); City of Salisbury v. Nagel, 420 S.W.2d 37, 43 (Mo.App.1967). Prior to instituting its declaratory judgment action under § 71.015 the board of aldermen of O’Fallon adopted a resolution, signed by the mayor, stating (1) its belief that the proposed annexation was reasonable and necessary to the proper development of the city, (2) its ability to furnish normal municipal services to the described area within a reasonable time, and (3) directing that counsel for the city file a petition praying for a declaratory judgment authorizing the annexation.

      .This requirement is interpreted by the supreme court to embody the “two separate but closely related concepts” that (a) the annexation is reasonable and (b) the annexation is necessary to the proper development of the city. All parties are thus entitled to the test of reasonableness. City of Olivette v. Graeler, 338 S.W.2d 827, 836-837 (Mo.1960). The Graeler decision is discussed in Note, Annexation by Municipality, etc., 1961 Wash. U.L.Q. 159, 163-168.

      . Forty-two parties, including spouses, were permitted to intervene in this litigation and they joined in defendant Bethman’s and Mispa-gel’s answer to O’Fallon’s petition.

      . Several cases list many of the relevant factors. City of Perryville v. Brewer, 557 S.W.2d 457, 462 (Mo.App.1977); Johnson v. Parkville, 269 S.W.2d 775, 777-778 (Mo.App.1954). The sources of these factors are identified in Note, Annexation by Municipality, etc., 1961 Wash. U.L.Q. 159, 160-162, and in Comment, Change of Boundaries by Missouri Municipal Corporations, 19 U.K.C.L.Rev. 186, 187-190 (1950-51).

      . Without allowance for unusable land the study indicated that 1250 acres of the 2739 total were vacant, 636 in areas zoned for industrial use, 90 for commercial use, 178 for multifamily residential use, and 348 in areas zoned for single family residential use.

      . As an offer of proof an O’Fallon alderman testified that in 1976, up to the date of the trial, 4 multifamily and 20 single family permits for residential development had been issued, as well as 6 permits for commercial building and 23 permits for additions to homes. This testimony was objected to on the ground that reasonableness is to be determined as of the date the city’s declaratory judgment suit is filed. We believe that evidence existing at the time an annexation suit is tried which reflects on the reasonableness of the city’s projections at the time it filed its petition should be admissible. See City of Cape Girardeau v. Armstrong, 417 S.W.2d 661, 672 (Mo.App.1967).

      . The estimated population increments for the years 1961 to 1974, shown in parentheses, were as follows: 1961 (375); 1962 (386); 1963 (325); 1964(415); 1965 (364); 1966(327); 1967(308); 1968 (365); 1969 (226); 1970 (157); 1971 (193); 1972 (100); 1973 (135); and 1974 (162).

      . The element of reasonable growth projection was emphasized in City of Houston v. Duff, 338 S.W.2d 373, 382 (Mo.App.1960), in which the court found the city had much land remaining in which to expand: “commendable as is civic pride (not to be confused with uncontrollable compulsion for, stubborn attachment to, or abject adulation of a city, which are hallmarks of frailty), dreams or hopes thereby inspired are not a sound and sufficient substitute for evidence in a legal action.”

      . Respondents argue that O’Fallon’s projected growth could be accommodated for the foreseeable future within present available acreage. They note that with a population increase of 150 per year, an average household of 4.1 persons and an average of one-third acre needed per house and with 92 single family acres vacant O’Fallon would need only 10-12 acres per year to accommodate its growth.

      . In 1970 O’Fallon annexed an 80-acre rectangular tract of land now zoned industrial which extends northward into the proposed area and which separates the Monsanto tract, to the west, from the Sucat tract, to the east.

      . The land north of highway 79, outside of the area, was comprised of large agricultural tracts including the Runge Land Company tract, much of August Busch’s Belleau Farm, and a large tract owned by Joseph Boland, another intervenor, part of whose land extended into the area.

      . The proposed industrial section would lie directly north of O’Fallon’s existing industrial park area.

      . In accordance with Missouri clean water and federal environmental protection regulations all installed sewer pipes were of sufficient size to accommodate the area as it fully developed.

      . About 33 to 50% more sludge would be generated with additions due to annexation, including the Monsanto property. The cell then operating at the treatment plant handled 750,000 gallons per day, and with annexation a second cell could be added at a cost of $5,000. O’Fallon had submitted application for approval of the second modular cell.

      . Since only 300 acres of the area are north of the watershed line the proposed lift station would cost about $20,000. The mayor of O’Fal-lon testified that if the area were brought within municipal limits a program would apply in which the federal government would pay up to 90% of the cost of sewer construction for residential areas. As to industrial users the grant would still be made but they would have to reimburse the government over a 20-year period.

      . Both sides produced evidence on how well O’Fallon was or was not maintaining its own existing streets. There was testimony that the great majority of its 43 miles of streets was paved, kept in repair and lighted. The assistant to O’Fallon’s mayor and president of the board of education testified as to dangerous road conditions in the proposed area. Whether annexation would result in O’Fallon improving the safety of the area’s roads was certainly a debatable issue.

      . Some of the evidence considered on appeal was part of the record as an offer of proof. The issue on appeal is whether the evidence should have been admitted and considered, or rejected and not considered, and when that issue is determined the next issue is what the judgment should be based upon a consideration of the competent and admissible evidence. Menos v. Hodges, 499 S.W.2d 427, 429 (Mo. 1973).


author: ALDEN A. STOCKARD, Special Judge.

text:
    Rosita RAFAEL, Appellant, v. MERAMEC VALLEY R-III BOARD OF EDUCATION and Melvin McGallagher, David Smith, Fred Brown, Allen Pritchett, Jr., Jean Neri, and Dave Ho ven, members, Respondents.
    No. 38753.
    Missouri Court of Appeals, St. Louis District, Division Four.
    June 20, 1978.

      Melvin D. Benitz, St. Charles, for appellant.
    Robert H. Dierker, Jr., Richard E. Jaudes, Peper, Martin, Jensen, Maichel & Hetlage, St. Louis, for respondents.
   ALDEN A. STOCKARD, Special Judge.

The Board of Education of the Meramec Valley R-III School District, after a hearing, terminated the indefinite contract of employment of tenured teacher Rosita Rafael. The dismissal was based on findings if incompetency, inefficiency and insubordination. The Circuit Court of Franklin County affirmed the action of the Board, and an appeal was taken to this court. We affirm.

Appellant’s first point is that the trial court erred in affirming the action of the Board because (1) the procedure prescribed by § 168.116 RSMo 1969 was not followed in that (a) the warning letter required by § 168.116(2) did not state “specifically the causes which, if not removed, may result in charges,” and (b) the notice of charges appellant received did not specify “with particularity” the grounds alleged to exist for termination of her employment, and (2) the notice of charges contained matters not specified in the warning letter.

Appellant was first employed by the School District in 1965. She taught second and third grade classes at various elementary schools until 1975 when she was assigned to the Sixth Grade Center at Pacific, Missouri. The transfer was by mutual agreement; in fact it was made at the request of appellant who was having difficulty in working harmoniously with her immediate supervisor.

At the Sixth Grade Center appellant was assigned to teach five classes; four of mathematics and one of English and spelling. Shortly after the beginning of the school term difficulties in appellant’s performance as to discipline and as to testing and grading came to the attention of school officials, and this resulted in steps being taken by school authorities which ultimately brought about the termination of her employment contract.

In order to consider part (1) of appellant’s first point, we must examine the applicable statutory requirements.

Section 168.116(2) provides that at least 30 days before service of notice of incompetency, inefficiency, or insubordination in line of duty, the school board or the superintendent of schools shall give the teacher warning in writing “stating specifically the causes which, if not removed, may result in charges.” It is further provided that thereafter the superintendent, or his representative, and the teacher shall meet and confer in an effort to resolve the matter. In Blue Springs Reorganized School District IV v. Landuyt, 499 S.W.2d 33, 36 (Mo.App.1973), it was stated that the purpose of this 30 day provision “is to give the teacher an opportunity to know exactly what the complaints against her are and to afford her a chance to cure the situation.”

On December 22,1975 the superintendent sent appellant a letter which without the formal caption and closing was as follows:

In spite of efforts on the part of numerous district personnel, deficiencies in the performance of your duties remains. In the past several months, meetings have been held between you and your Principal, between you and the Assistant Superintendent, among staff members at your school, and with members of the Professional Rights and Responsibilities Committee. During these conferences, numerous suggestions have been made for performance improvement, but to this point, improvement has not occurred. This letter, therefore, is a warning that, unless satisfactory improvement is made by April 1, 1976 in the deficient areas, your employment may be discontinued. Areas of deficiency include:
1. Incompetence
a. student evaluation — grading procedures show little, if any correlation between student work and grade received.
b. grading — gross error in grading of student work.
c. testing — inability to provide an atmosphere in which student achievement can be measured.
d. classroom control — inability to control classroom behavior to provide an environment for learning.
2. Insubordination
a. grade cards that were requested were destroyed and a substitute card falsified.
b. falsification and changes in grade book to deceive superiors.
c. providing inaccurate information to parents and superiors with the intent to mis-lead and deceive.
Although the deficiencies noted above are of the gravest nature, it is our hope that the deficiencies may be removed. To that extent, we are willing to make available the continued services of district teachers and administrators for your assistance. Please contact Mr. Mickes to arrange a conference, at your convenience, to discuss methods for improvement. If I may be of assistance in this matter, please contact me.

We note that in the point appellant asserts that the warning letter did not state specifically the “causes,” but nowhere in the point nor in the argument under the point does she assert in what respects the statement was deficient, except to argue that “all the causes * * * are susceptible to such a wide variety of interpretation as to violate the general prohibition against proceedings to terminate a teacher upon non-informative allegations.” We do not agree with this assertion. We consider the statement of causes to be reasonably specific and in compliance with the requirements of § 168.116(2).

Appellant cites and relies on cases such as Blue Springs Reorganized School District IV v. Landuyt, supra, and Merideth v. Board of Education of Rockwood R-6 School District, 513 S.W.2d 740 (Mo.App.1974). Neither case supports appellant’s contention. In the Blue Springs case the deficiency was not with the warning letter but that the statement of charges incorporated new and unrelated charges. In the Merideth case the warning letter was found to be sufficient. There is nothing in either case to support the contention that the statement of causes in the warning letter in this case was not sufficient.

Following receipt of the warning letter conferences between appellant and representatives of the superintendent did occur, and appellant makes no contention that at these required conferences she was not adequately informed of the details concerning her deficiencies.

We turn now to part (l)(b) of appellant’s first point. The statement of charges are .quite lengthy, and we do not consider it necessary to set them out here. They demonstrate the dilemma in which a school board is placed. If the board sets forth the charges, as was done in this case, at length and in detail including a recital of incidents to support the charges, it is contended that new and different charges have been made. If it states them in a cryptic way, it is contended they are not set forth with particularity. It is clear that it was not the intention of the ' Legislature that the charges should be worded precisely as the causes in the warning letter. In that event the statute would have provided that the hearing, if held, would be on the causes related in the warning letter. If the statement of charges are subject to any criticism it is because they are in too much detail. As we have noted, they recited numerous incidents which constituted evidence of the charges.

In part (2) of appellant’s first point she asserts that the statement of charges “contained matters not specified in the warning letter,” and she contends that for that reason she had no way of knowing the causes which, if not removed, could result in charges, and therefore she had no opportunity to correct the alleged deficiencies.

We do not in any way disagree with the ruling in Blue Springs Reorganized School District IV v. Landuyt, supra, where it was held it was not permissible for the charges of which the teacher is found guilty to be “new and different” from the causes set forth in the warning letter. But it was there recognized that charges may be “so closely akin as to constitute a continuation of the alleged original offense.”

The manner of presentation of the charges in this case was to first state the substance of the charges; for example, “that student achievement shows little, if any, relationship to grades given to the students.” We consider this to be a reasonably clear statement that appellant was being charged with awarding grades to students that did not correctly reflect the student’s achievement. As to this charge there then followed six specifically stated instances, and under one of these there are 18 examples. These instances and examples constituted statements of the evidence by which the Board intended to prove the charges. One of the problems is that appellant apparently considers each statement of an incident which the Board alleged as proof of the charge to constitute as separate and distinct charge. This is evidenced by the fact that in argument appellant asserts the charges “reveal many new matters” in “cancerous proportions,” and that none is so closely akin as to constitute a continuation of the alleged original offenses. But, nowhere in the argument under this point, much less in the point, has appellant pointed out what charges are contended to be new matter or which are not closely akin to the causes set forth in the warning letter. She also asserts that “nowhere in the warning letter * * * does the word ‘inefficiency’ appear, but it appears numerous times in the statement of charges.” Inefficiency and incompetence are closely related, and an incident or occurrence could constitute proof of both. In the absence of demonstrated prejudice we do not consider it of particular importance that in the warning letter certain acts were listed as demonstrating “ineompetency,” and that in the charges certain acts were listed as demonstrating “inefficiency and incompetence.”

We conclude that the charges were set forth with particularity, and that the matters which appellant contends to constitute new and different charges, insofar as we can identify the allegations referred to, were statements of incidents which, if proved, would establish the charge.

There is another equally impelling reason why this point is of no merit. At the commencement of the hearing before the Board appellant moved that “all charges be dismissed * * * for the School District’s failure” to comply with § 168.116 RSMo 1969 because the “charges must be the same as those set forth in the written warning, and new charges may not be brought up without first giving a written warning as to those charges, and at least 30 days to make up the deficiencies alleged therein.” Appellant then pointed to several allegations, most of which were statements of incidents constituting evidence of a charge. The Board ruled that it would take “the motion [to dismiss all the charges] under advisement.” In its findings the Board found there was insufficient evidence to prove the occurrence of eight of the incidents, and that a ninth was “unclear and repetitive.” At no time did appellant request the dismissal of any particular charge because it was new or different from the causes in the warning letter. She expressly limited her motion to the dismissal of all charges. Also, appellant made no objection to any evidence on the basis that it pertained to a new and different charge. Instead she limited her objections to the ground of hearsay. By thus proceeding, appellant waived any objection that any particular allegation in the statement of charges of which she was found guilty was outside the allegations in the warning letter.

Appellant’s second point is that the court erred in affirming the Board’s action to terminate appellant’s employment because (a) the “evidence did not support the charges after the December 22, 1975 warning letter,” (b) the warning letter designated April 1, 1976, as the date for improvement but she was suspended on March 15 (or 16), 1976; (c) the Board erred in admitting hearsay evidence over objection; and (d) the Board’s findings of fact and conclusions of law are “insufficient in form and substance and wholly unsupported by any competent and substantial evidence upon the whole record.”

In reviewing this administrative decision on evidentiary grounds, this court is to consider all competent evidence before the Board, but our inquiry is limited. We may only determine whether the Board reasonably could have made its findings and reached the decision it did, Merideth v. Board of Education of Rockwood R-6 School District, supra. We may not substitute our judgment on the evidence, and we may not set aside the Board’s decision unless it is not supported by competent and substantial evidence on the whole record, or it is contrary to the overwhelming weight of the evidence. Also we are to consider the evidence in a light most favorable to the Board’s decision, together with all reasonable inferences which support it. Moore v. Board of Education of the Special School District of St. Louis County, 547 S.W.2d 188 (Mo.App.1977).

We find no merit to the contention that “the evidence did not support the charges after the * * * warning letter.” In the point appellant does not set forth the charges of which she contends the proof is deficient, but in argument she asserts that “there was no showing of a continuation of the charges in the warning letter as to insubordination * * We shall consider that contention.

One of the causes in the warning letter was that appellant was guilty of insubordination in that grade cards requested by her superiors were destroyed and a substitute card was falsified. One of the charges was that appellant was guilty of insubordination. We gather the impression from appellant’s argument that it is her position that in order to sustain a finding of continued insubordination there must be evidence that she continued to falsify student grade cards. We do not agree. There was adequate proof of continued insubordination. Based upon competent and substantial evidence the Board found that after the date of the warning letter appellant continued, contrary to instructions, to have grading done by students or teacher aides; that she failed or refused to notify a superior as to the time of major testing for evaluation purposes; and that she failed or refused to contact designated staff members to discuss discipline problems. It is true that in the charges these acts were classified as demonstrating “Inefficiency” or “Inefficiency and Incompetency,” but the Board was not, and this court is not, bound by a label. The important factors are that there was competent and substantial evidence of these acts by appellant, and that the Board found that they constituted insubordination, which it expressly did.

Appellant also argues that “much of the evidence [against her] was given by five school officials and teachers, most of which was refuted” by her. She then asserts that since the Board made no findings or determination of the credibility of the witnesses, “all admissible testimony must be considered by the reviewing court.” This argument implies that this court should make its own findings of fact, but as previously noted, this is not our function. When the Board made its findings of fact based on conflicting testimony, those findings carried with them a finding of credibility. In making our review we shall consider all competent testimony, but it will be for the purpose of determining whether, based on the whole record, the Board could reasonably have made its findings and reached the decision it did.

In the warning letter appellant was notified that “unless satisfactory improvement is made by April 1, 1976 in the deficient areas, your employment may be discontinued.” Section 168.116(2) requires that there be a period of “at least thirty days” after the warning letter and before the service charges. Appellant was suspended, with pay, on March 15 (or 16), 1976, approximately 83 days after service of the warning letter. Appellant contends that the Board’s decision to terminate appellant’s employment cannot be sustained because she was not permitted to remain teaching until April 1.

The purpose of the minimum period of thirty days is to guarantee to a teacher accused of incompetency, inefficiency, or insubordination at least that much time to correct the deficiencies. In its discretion, a school board may allow a greater period of time, but it cannot reduce that period.

The assistant superintendent of schools testified that appellant was not allowed to teach until April 1 because “it was my opinion that the continuation of [appellant] in charge of her classroom represented not only a deficient learning situation, but it also represented a physical danger to the students from each other. It has already been testified to that there were a number of fist fights between individual students, a student had his eye poked with a pencil by another student, and generally it was felt that the students were not being controlled and were a danger to each other in the present situation. That’s why an action was taken prior to the April 1st date.” He also testified that in his opinion an adequate time had been provided for appellant to demonstrate improvement, and “if there was going to be improvement it would have been made prior to [March 16] and not in the approximately two weeks [remaining].” The Board found as a fact that “The quality of the learning environment in [appellant’s] classes decreased and deteriorated during the period after December 22, 1975 to her suspension on or about March 16,1976,” and in her brief appellant admits there was testimony to that effect.

In Saunders v. Reorganized School District No. 2 of Osage County, 520 S.W.2d 29, 35 (Mo.1957), it is stated that “School authorities are vested with wide discretion in all matters affecting school management, and a court may not ordinarily interfere unless the power is exercised in an arbitrary, unreasonable and unlawful manner.” The evidence discloses that subsequent to December 22, 1975, there occurred classroom fights and disturbances, and that other teachers and supervisory personnel were required to enter the room on several occasions to restore order. These occurrences and the deteriorating learning environment clearly demonstrate a reasonable justification for the action taken. The suspension was with pay, it did not reduce the period for improvement below that required by law, appellant has demonstrated no prejudice, and the action of the Board was a reasonable exercise of discretion.

Appellant next asserts that the Board erred in admitting hearsay evidence over her objection “as to what children and parents had told members of the [school] administration when they [the children and parents] were not under oath or subject to cross-examination.” In her brief she states that this evidence was admitted “in regard to [her] alleged mistreatment of certain students,” and that the Board made “no findings” in regard to these “charges.” This later contention is not correct. As to each of the incidents referred to under this point the Board found “There [was] insufficient competent and/or substantial evidence” to prove any of the “charges” referred to. As a result they were all dismissed. We note here that the Board improperly referred to the alleged incidents as “charges.” They were in fact specifications of incidents in support of the charges.

Appellant makes no claim that any charge of which she was found guilty was based on only hearsay evidence. However, she makes the unique argument that to permit the admission of the hearsay testimony was “highly prejudicial” because it “inevitably planted fertile seeds of doubt in the minds of the Board members as to her teaching capabilities.” This contention is based purely on supposition and conjecture. She cites State ex rel. Bond v. Simmons, 299 S.W.2d 540 (Mo.App.1957), and State ex rel. Horn v. Randall, 275 S.W.2d 758 (Mo.App.1955). These two cases hold that a decision of an administrative agency must be based on competent and substantial evidence, and that hearsay evidence does not meet that criteria. Neither case supports her contention that under the circumstances this decision, which was not based on hearsay, is invalid. We find this point to be without merit.

Appellant’s final contention is that the Board’s findings of fact and conclusions of law are “insufficient in form and substance and are wholly unsupported by any competent and substantial evidence upon the whole record.” The allegation of insufficiency of the evidence is not developed. It stands as an unsupported conclusion. From our review of the entire record we find ample support for the decision of the School Board, but we need not further develop this matter.

In the argument portion of her brief appellant sets forth eight alleged deficiencies. We consider this contention to border on the frivolous. For example, the first three items are that the Board made no finding that “the requirement^] prescribed by §§ 168.114-168.118 were fully complied with at the hearing before the Board; ” or that “the hearing was conducted according to law: ” or that “proper notice in warning was given as required by statute.” These are questions of law, not fact. We also note that in the fourth item it is asserted that there was no finding that “appellant did not improve in any of the areas in which she was alleged to be deficient.” The Board expressly found that “The quality of the learning environment in [appellant’s] classes decreased and deteriorated during the period after December 22, 1975 to her suspension.” We decline to unduly lengthen this opinion by commenting on each of the remaining equally un-meritorious items.

Section 536.090 RSMo 1969, states that “The findings of fact shall be stated separately from the conclusions of law and shall include a concise statement of the findings on which the agency bases its order.” In this case there were twenty-four findings of fact. They are amply sufficient to have enabled the circuit court on review and to enable this court on appeal, “to ascertain the basis of the decision and how the controlling issues were decided,” Jacobs v. Bob Eldridge Construction Co., 393 S.W.2d 33 (Mo.App.1965), and “to show whether the basis of [the agency’s] decision was an issue of fact or a question of law.” Michler v. Krey Packing Co., 363 Mo. 707, 253 S.W.2d 136 (banc 1952).

The decision of the Board is supported by competent and substantial evidence, and we find no merit to appellant’s contentions of error based on procedural grounds.

The judgment is affirmed.

DOWD, P. J., and SNYDER, J., concur.


author: REINHARD, Judge.

text:
    QUEEN OF DIAMONDS, INC., a corp., and Gary Dean Bollinger, its Managing Officer, Respondent, v. The Honorable John J. QUINN, Excise Commissioner of the City of St. Louis, State of Missouri, Appellant.
    No. 39477.
    Missouri Court of Appeals, St. Louis District, Division Two.
    June 27, 1978.

      John J. Morton, Asst. City Counselor, St. Louis, for appellant.
    Susan Block, St. Louis, for respondent.
   REINHARD, Judge.

The Honorable John J. Quinn, Excise Commissioner of the City of St. Louis, appeals from the judgment of the Circuit Court reversing the appellant’s decision to revoke the City of St. Louis Full Drink Intoxicating Liquor License of respondent, Queen of Diamonds, Inc.

On December 28, 1976, a hearing was held before appellant in regard to a citation issued by the City of St. Louis against respondent. The citation charged respon- . dent with violating the following two sections of the Revised Code of the City of St. Louis, Missouri, 1960: Section 372.100, for failing to keep an orderly house, and Section 372.140, for permitting immoral dancing or lewd or indecent conduct. Although the citation referred to the ordinances by section number, it did not contain the ordinances in haec verba nor did it set out their substance other than through a description of the alleged violation.

The evidence offered at the hearing by the City in support of the charges consisted primarily of the testimony of Detective Roy Joachimstaler of the St. Louis Police Department. Detective Joachimstaler testified that on October 7, 1976, while at the Queen of Diamonds, Inc. tavern at 3900 Gravois Avenue in the City of St. Louis, he observed a dancer, employed by the respondent corporation, dressed only in a long blouse or “tee-shirt” and pantyhose. The woman was wearing nothing under the pantyhose. The detective testified that during her “dance” the woman raised the bottom of her blouse to expose her pubic hair through the pantyhose. The witness also stated that this woman, while dancing in a two piece bathing suit later that same evening, twice unhooked the top of her bathing suit to expose her breasts to certain patrons of the tavern. This woman and the manager of the tavern were then arrested by the detective and his partner. Respondent offered evidence that the dancer never purposely exposed herself as asserted by the City. There was also evidence at the hearing that respondent had earlier plead guilty to a previous charge of violating Section 372.140. On the basis of the evidence adduced at the hearing, Commissioner Quinn found that respondent had violated Sections 372.100 and 372.140 of the Revised Code of the City of St. Louis and issued an order revoking the St. Louis Full Drink Liquor License of respondent.

Queen of Diamonds, Inc. then filed a transcript of the evidence and a petition for review in the Circuit Court pursuant to § 536.150, RSMo 1969. Upon review of the transcript and the record of the administrative hearing, the Circuit Court found that the Commissioner’s decision to revoke was not supported by substantial evidence, and the Court reversed. The opinion letter by Judge Hart of the Circuit Court stated “. . . under all of the circumstances and attitudes of society today the acts observed by Officer Joaehimstaler [sic] are not substantial evidence of ‘lewd and indecent conduct’ ”, under Section 372.-140 of the Revised Code of the City of St. Louis, Missouri, 1960. From this decision of the Circuit Court the Commissioner appeals.

At no time during the hearing before the Commissioner or during the proceedings in the Circuit Court did the City offer into evidence the ordinances allegedly violated by respondent.

Pursuant to respondents’ motion to dismiss the appeal due to appellant’s failure to comply with Supreme Court Rule 84.04, we have reviewed the appellant’s brief and find it adequate. The motion is denied.

The scope of judicial review of administrative decisions is limited to a determination of whether there was substantial and competent evidence on the whole record to support the agency determination. Aubuchon v. Gasconade Cty. R-l School District, 541 S.W.2d 322, 326 (Mo.App.1976); Baker & Theodore, Inc. v. Quinn, 400 S.W.2d 477, 480 (Mo.App.1966). The reviewing court, whether it be the Circuit Court or the Court of Appeals, may not substitute its own judgment on the evidence for that of the administrative agency. Aubuchon v. Gasconade Cty. R-l School District, supra. We hold that there was not substantial and competent evidence to support the decision and order of the Commissioner because of the failure by the City to offer into evidence the ordinances allegedly violated by respondent. Neither the Commissioner, the Circuit Court nor this Court had before it the ordinances and no determination could be made as to whether they were violated.

The courts of Missouri have repeatedly held that neither trial nor appellate courts will take judicial notice of municipal ordinances and that such ordinances may be recognized by the Court only if admitted into evidence or stipulated to by the parties. Playboy Club, Inc. v. Myers, 431 S.W.2d 228, 230 (Mo.1968); City of Kansas City v. Narron, 493 S.W.2d 394, 401 (Mo.App.1973); City of Rolla v. Riden, 349 S.W.2d 255, 258 (Mo.App.1961). The revocation of respondents’ license was based on the violation of two ordinances; without the introduction of these ordinances into evidence a crucial element of proof of respondents’ allegedly improper conduct is missing. That the ordinance was cited by section number in the citation filed by the City is not sufficient. City of Rolla v. Riden, supra. The ordinance should at least have been introduced into evidence or agreed upon. City of St. Joseph v. Roller, 363 S.W.2d 609, 611 (Mo.1963); City of Riverside v. Weddle, 544 S.W.2d 328, 330 (Mo.App.1976). Appellant’s counsel has filed in this Court certified copies of these ordinances. We cannot consider them because they are not part of the record. City of Rolla v. Riden, supra. The absence of the ordinances from the record not only prevents both the Circuit Court and this Court from reviewing the application or constitutionality of those ordinances, but also renders insubstantial and incompetent the evidence on which the license revocation was based.

The fact that the initial proceeding herein was a license revocation hearing rather than a criminal prosecution and the general characterization of the revocation proceeding as a civil rather than a strictly criminal proceeding do not relieve the City from carrying its burden of proof as to a basis for revocation. Although it is not necessary that violation of the ordinance be shown beyond a reasonable doubt, nevertheless, if revocation of the license is to be based on a violation of the ordinance, that ordinance must be a part of the record.

Appellant relies on State ex rel. Bruno v. Johnson, 270 S.W.2d 99 (Mo.App.1954) in asserting that the ordinances in question need not have been offered into evidence. The facts of Bruno are distinguishable from those of the present case. Bruno involved the denial by the Director of Liquor Control for Kansas City of an application for a liquor license. The appellant, Ms. Bruno, then obtained review of the Director’s decision before the Liquor Control Board of Review, which affirmed the Director’s decision. The appellant then sought review in the Circuit Court by writ of certiorari, and the Circuit Court found the denial of the application to be unsupported by the necessary substantial and competent evidence. In reversing the Circuit Court, the Kansas City Court of Appeals rejected Ms. Bruno’s contention that the ordinances regulating the issuance of licenses had not been offered into and therefore were not in evidence. The Court held that in her petition for writ of certiorari Ms. Bruno admitted the authority of the Director, that she recognized the ordinances in her application and in her petition that she never objected that the ordinance was not formally introduced, and that she “. . . tried her case as if the ordinance in question were in evidence and by so doing admitted its provisions.” State ex rel. Bruno v. Johnson, supra at 101.

The crucial difference between Bruno and the instant case is that in Bruno, in applying for the license and in seeking review of the denial, Ms. Bruno was the moving party and as such was relying on the ordinances as the basis of her actions; her initial action was the application for the licenses, an application necessarily filed pursuant to the ordinances “admitted” by her. In the instant case, the initial action was the revocation action instituted by the City and the City was the movant. The respondent-licensee was merely defending against the citation served upon it. The City as movant had the burden of proof of respondent’s improper conduct and, as noted above, an element of that proof was the ordinances allegedly violated. The City was relying on the ordinance sections in its action against the respondent, who cannot be held to have admitted or stipulated to those ordinance sections for the purpose of making them a part of the record.

As to the preservation of this point for review, in both their petition for review to the Circuit Court and in their brief for this court, the respondent averred that there was not substantial and competent evidence on the whole record to support the finding that it had violated the ordinances. The failure to offer the ordinances into evidence or stipulate to them renders the record inadequate to support the decision of the Commissioner.

Albeit for a different reason than our finding, the Circuit Court found that the decision of the Commissioner was not supported by competent and substantial evidence. We affirm.

STEWART, P. J., and STEPHAN, J., concur.