Bopp v. Spainhower

• Decision Date: 10 February 1975
• Docket Number: No. 58750,58750
• Citation: 519 S.W.2d 281
• Parties: R. Jon BOPP et al., Plaintiff-Appellant, v. James I. SPAINHOWER et al., Defendants-Respondents.
• Court: Missouri Supreme Court

Page 281

519 S.W.2d 281

R. Jon BOPP et al., Plaintiff-Appellant, v. James I. SPAINHOWER et al., Defendants-Respondents.

No. 58750.

Supreme Court of Missouri, En Banc.

Feb. 10, 1975.

Richard F. Provaznik, Richmond Heights, for plaintiff-appellant R. J. bopp.

John C. Danforth, Atty. Gen., Mark D. Mittleman, Asst. Atty. Gen., Robert H. House, Asst. Atty. Gen., Jefferson City, for defendants-respondents.

HOLMAN, Judge.

Plaintiffs, R. Jon Bopp and Patrick E. Payne, residents of St. Louis County, filed this taxpayer suit seeking a declaration that H.S. for H.B. 65 (now Sections 94.600 to 94.655 inclusive, V.A.M.S.) is unconstitutional and invalid. The Act in question authorizes the imposition of a local sales tax for transportation purposes. The defendants are the state treasurer and the director of revenue. The trial court found in favor of defendants. Plaintiff Bopp (hereinafter referred to as plaintiff or appellant) has appealed. The parties have filed an 'Agreed Statement of the Case.' We have jurisdiction because the appeal involves a construction of constitutional provisions as well as construction of a revenue law of this state. Art. V, Sec. 3, Mo.Const., V.A.M.S. We affirm.

The Act in question became effective on June 13, 1973. It authorized certain cities and counties to impose a sales tax not exceeding one-half of one percent on such sales and services as are subject to the state sales tax. The section we are particularly concerned with is 94.605(1) which provides that 'Any city not within a county, any first class county operating under a charter form of government and not containing a city or part of a city of over four hundred thousand inhabitants, and any city of over four hundred thousand inhabitants wholly or partially within a first class county, may by a majority vote of its governing body impose a sales tax for transportation purposes enumerated herein.' It is conceded that St. Louis County, St. Louis City and Kansas City were the only political subdivisions that were qualified to levy the tax under said subsection at the time this suit was filed and that each has done so.

Under other provisions of the law any other city with a population of 500 or more could levy a tax by majority vote of its governing body with the further provision that such be approved by a majority of the voters voting on the proposal at a regular or special election. An exception provided for that authorization is that in the classification to which St. Louis county belongs cities were prohibited from adopting the tax before January 1, 1974, and not at all in the event the county imposed the tax. At the time this suit was filed no city had levied a tax under the authorization specified in this paragraph.

In their petition plaintiffs alleged that the Act under consideration was unconstitutional because '1. Plaintiffs were denied equal rights under the law, guaranteed to them under the provisions of Article I Section 2 of the Constitution of Missouri 1945 in that said bill denied to plaintiffs the opportunity to vote upon a proposal to impose said sales tax for transportation purposes in St. Louis County. 2. Said bill denied to plaintiffs due process of law guaranteed to them under the provisions of Article I Section 10 of the Constitution of Missouri 1945 in that H.S.H.B. No. 65 was arbitrary, discriminatory and unreasonable in its attempt to classify the county and the cities in which said sales tax might be imposed by majority vote of the legislative body. 3. Said bill was a special and local law in violation of Article III Section 40 Clauses (21) and (30) of the Constitution of Missouri 1945 in that it authorized the legislative body of the County of St. Louis to impose said tax by a majority vote without submitting it to approval of the voters.'

Plaintiff Bopp resided in the city of Ballwin and plaintiff Payne resided in Ellisville, both of which have populations exceeding 500 inhabitants.

The Agreed Statement further provides that 'At the time the lawsuit was commenced, St. Louis County was the only first class county in Missouri operating under a charter form of government and not containing a city or a part of a city of over 400,000 inhabitants. The population of St. Louis County according to the 1970 Federal Decennial Census was 951,353 inhabitants.

'At the time the lawsuit was commenced, Jackson County was the only other first class county operating under a charter form of government, but did contain a city or part of a city of over 400,000 inhabitants.

'At the time of the commencement of the lawsuit, the City of St. Louis was the only city in the State of Missouri that was not within a county.

'At the time the lawsuit was commenced, Kansas City was the only city of over 400,000 inhabitants in the State of Missouri that was wholly or partially within a first class county, to-wit: Jackson County.

'At the time this lawsuit was commenced, St. Louis County and Jackson County were the only first class counties in the State of Missouri.

'In 1970 the counties in Missouri which had an assessed valuation in excess of $300,000,000 were St. Louis County, Jackson County and Clay County.

'In 1971 the counties in Missouri which had an assessed valuation of $300,000,000 or more were St. Louis County, Jackson County, Clay County and Greene County.'

It should also be noted that Section 48.020 ¹ provides that 'All counties now having or which may hereafter have an assessed valuation of three hundred million dollars and over shall be in the first class.' Section 48.030 states that '. . . a county of the second class may become a county of the first class if the assessed valuation of the county is such to place it in the first class for three successive years. The change from one classification to another shall become effective at the beginning of the county fiscal year following the next general election after the certification by the state equalizing agency for the required number of successive years that the county possesses an assessed valuation placing it in another class. If a general election is held between the date of the certification and the end of the current fiscal year, the change of classification shall not become effective until the beginning of the county fiscal year following the next succeeding general election.'

A sales tax of one-half of one percent was imposed by St. Louis County Ordinance No. 6792 effective July 1, 1973, and plaintiffs have been required to pay said tax since said date upon all purchases of taxable goods and services in said county.

The trial court made detailed findings of fact and conclusions of law which covered nine pages in the Agreed Statement. We deem it unnecessary to incorporate those findings herein as it is sufficient to say that all such findings were contrary to the contentions of the plaintiffs.

Plaintiff's first point on this appeal is that 'The court erred in finding that H.S.H.B. No. 65, 77th General Assembly (1973), specifically the provisions now codified as Sections 94.605.1 and 94.605.3 did not violate the provisions of the Constitution of Missouri, 1945, Article III, Section 40, prohibiting the General Assembly from passing any local or special law, Clause (21) regulating the affairs of counties and cities, or Clause (30) where a general law can be made applicable, because the provisions of such subsections did not create a future class into which other counties or cities might fall.' We have heretofore set out subsection 1. Subsection 3 reads as follows: 'Provided, that no incorporated municipality located wholly or partially within any first class county operating under a charter form of government and not containing a city or part of a city of over four hundred thousand inhabitants shall impose such a sales tax prior to January 1, 1974; and provided, further, that in the event such a first class county imposes such a sales tax, no incorporated municipality located wholly or partially within such county shall levy such a sales tax.' Plaintiff advances a number of reasons for this contention. The first is that these subsections are phrased in the present tense so that they apply to St. Louis County alone and no other county could qualify thereunder in the future. We do not agree. We see nothing in the wording of those subsections to preclude a county from later qualifying thereunder. The cases relied upon (State ex inf. Mueller v. Fry, 300 Mo. 541, 254 S.W. 1084 (1923) and State ex inf. Barker v. Southern, 265 Mo. 275, 177 S.W. 640 (1915)) would appear to be distinguishable on the facts and, in any event, are not in accord with the more recent cases on the subject.

The next reason advanced in support of this contention is that subsection 3 requires that a county of the class specified impose the tax before January 1, 1974, and that it was not possible for any county, other than St. Louis County, to attain that class by that date. The provision in question does not say that the county must impose the tax before January 1, 1974, although a reasonable argument could be made for that construction. We do not find it necessary, however, to construe the provision in that respect. This for the reason that even if we assume that the county had to qualify before January 1, 1974, it would have been possible for Jackson County to have so qualified. It is agreed that Jackson County was a first class county operating under a charter. The only other requirement was that it not contain a city of over 400,000 inhabitants. According to the 1970 census Kansas City had a population of 507,330. In the six and one-half months that elapsed between the effective date of this Act and January 1, 1974, it was possible, although concededly not likely, that said population could have been reduced to less than 400,000. This could have occurred by reason of war or an extensive fire or an epidemic of serious proportions or other unforeseen disaster.

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