City of Bridgeton v. Gilstrap, 55634

• Decision Date: 08 March 1971
• Docket Number: No. 55634,55634
• Citation: 463 S.W.2d 908
• Parties: CITY OF BRIDGETON, a Municipal Corporation, Plaintiff Appellant, v. Thomas C. GILSTRAP, Collector of Revenue, Defendant Cross-Plaintiff,Respondent, v. ST. LOUIS COUNTY et al., Cross-Defendants, Respondents, and City of Dellwood, City of Florissant, City of Hazelwood, Cross Defendants, Appellants.
• Court: Missouri Supreme Court

Page 908

463 S.W.2d 908

CITY OF BRIDGETON, a Municipal Corporation, Plaintiff Appellant, v. Thomas C. GILSTRAP, Collector of Revenue, Defendant Cross-Plaintiff,Respondent, v. ST. LOUIS COUNTY et al., Cross-Defendants, Respondents, and City of Dellwood, City of Florissant, City of Hazelwood,

Cross Defendants, Appellants.

No. 55634.

Supreme Court of Missouri, En Banc.

March 8, 1971.

William A. Richter, St. Louis, for appellant, City of Bridgeton.

James L. Sullivan, St. Louis, for appellant, City of Dellwood.

Jack Muehlenkamp, St. Louis, for appellant, City of Florissant.

R. J. Slater, St. Louis, for appellant, City of Hazelwood.

Joseph B. Moore, St. Louis County Counselor, Thomas W. Wehrle, Deputy County Counselor, Clayton, for respondent, St. Louis County.

William R. Dorsey, Clayton, for respondent, City of St. Ann.

John J. Morris, University City, for University City.

Raymond I. Harris, Harris, Fortus & Anderson, Clayton, for City of Bel-Ridge, City of Pine Lawn and the City of Wellston.

Frank P. Motherway, St. Louis, for the City of Overland.

A. E. Nick, Ferguson, for City of Ferguson.

G. F. Gunn, Brentwood, for City of Brentwood.

Edgar G. Boedeker, Clayton, for City of Clayton.

Richard F. Provaznik, Richmond Heights, for the City of Richmond Heights.

John F. Mullingan, St. Louis, for the City of Northwoods.

MORGAN, Judge.

The basic question in this suit for declaratory judgment is whether the revenue from the St. Louis County cigarette tax, authorized by Section 66.340, V.A.M.S., is to be allocated among the county (the unincorporated area) and the municipalities in the county solely on the basis of decennial census population figures, or whether the revenue may be allocated on the basis of population figures shown by special municipal censuses taken pursuant to Sections 71.160 through 71.180. The trial court, after making certain findings of fact and conclusions of law, entered judgment: '* * * that Thomas C. Gilstrap, Collector of Revenue of the Missouri Department of Revenue, State of Missouri, make distribution of the cigarette tax moneys imposed by the County Council of the County of St. Louis, Missouri, in accordance with the provisions of Section 66.350 V.A.M.S., and that after deducting the one percent (1%) collection fee and an amount equal to the net revenue in 1967 for those cities that are within the exception provided for in Section 66.350, and then to disburse the balance of said tax moneys based on the populations of St. Louis County and the cities, towns and villages therein, in accordance with the 1960 Federal decennial census, with adjustments for increases in population of cities, towns and villages by reason of consolidations and annexation.'

We affirm the judgment entered by the trial court with one modification, which is: after the words '1960 Federal decennial census,' that the words 'or the latest census that determines the total population of the county and all political subdivisions therein' be added.

Initially, we point out that there are ninety-eight (98) parties to this suit, and we would only add to the present confusion if we sought to identify the specific pleadings, suggestions and arguments of each of the parties. Several defendants, by cross-claims against the collector, have joined plaintiff in challenging the present method of allocating such funds, which is in compliance with Opinion No. 425 of the Attorney General; some contend that the formula used prior to that opinion is proper; others submit that the judgment of the trial court is correct; and, some express no opinion as long as they receive their proper share.

In 1968 the Missouri Legislature enacted Senate Bill 25, authorizing any first class charter county to impose a tax on the sale of cigarettes sold in the county, which is now codified as Sections 66.340 through 66.380 (Laws 1967, 1st Ex. Sess., p. 872, Secs. 1, 2, 3 and 4). Section 66.360 provided that 'In the event such county levies such a tax no incorporated municipality located within such county shall levy a tax on the sale of cigarettes * * *.' By reason of the latter section, enactment by the county of an ordinance imposing a cigarette tax had the effect of repealing the municipal cigarette tax of each of twenty-three cities or towns in St. Louis County. Of immediate interest is Section 66.350 which details the manner of allocation and distribution of the revenue derived from the county tax. It provides: '1. The county cigarette tax shall be collected by the division of collection of the state department of revenue. The division shall each day retain, from the county tax collected, one per cent of the amount collected and deposit that amount in the state general revenue fund to help defray the cost to the state of collecting and distributing this tax.

'2. On the first of each month the division shall distribute the balance of the tax collected during the previous month to the county that levied the tax and the cities, towns and villages located within the county in the following manner: to the county which levied the tax, a percentage of the distributable revenue equal to the percentage ratio that the population of the unincorporated areas of that county bears to the total population of the county and to each city, town or village located wholly within the taxing county; a percentage of the distributable revenue equal to the percentage ratio that the population of such city, town or village bears to the total population of the incorporated area of the taxing county and to each city, town or village located partly within the taxing county; a percentage of the distributable revenue equal to the percentage ratio that the population of that part of the city, town or village located within the taxing county bears to the total population of the incorporated area of the taxing county; except that no city, town or villege shall annually receive not less than an amount equal to the net revenue deprived from its city cigarette tax in the year 1967.' (Emphasis added.)

Of necessity, most of the parties agree that the statutory method of distribution, just quoted, is both clear and easy to follow. Basically, it provides that the one common denominator for division shall be 'the total population of the county.' After that portion (for the unincorporated area) is paid to the county, the statute does provide for distribution among the cities, towns and villages of the balance, based on the percentage ratio that the population of each municipality bears to the 'total population of the incorporated area.' However, as is obvious, the population in the incorporated area could only be that remaining after the population of the unincorporated area had been deducted from 'the total population of the county.' Nevertheless, the real crux of the dispute of the parties is the significance which some of them attach to the use of 'total population of the county' in one instance and 'total population of the incorporated area' in the other.

As shown, the statute does not specifically designate the census upon which the 'total population of the county' will be determined, and other statutes must be considered to provide a basis for consideration of the arguments of any of the parties. They are:

Section 1.100--'The population of any political subdivision of the state for the purpose of representation or other matters * * * is determined on the basis of the last previous decennial census of the United States.' (Emphasis added.) Section 71.160 provides for the taking of a special census 'whenever the council of any incorporated city * * * in this state shall be of the opinion that there has been a substantial increase or decrease of the population of such city * * * since the last preceding census * * *.' Under the statute, the special census is taken by a censues supervisor appointed by the Governor, and the supervisor certifies the results of the census to the Secretary of State. Section 71.170 then provides: '* * * the population of such city or town, as given in such certificate of the supervisor, shall be the legal census and population of such city or town, for all purposes whatsoever, under the constitution and laws of the state.' (Emphasis added.) (Enacted, Laws 1921, p. 181, § 2.)

The Collector of Revenue used decennial census figures from the time of the first distribution in October of 1968 to August, 1969. Subsequently, demands were made for increased percentages of the money collected by numerous cities and towns which had taken a special census pursuant to Sections 71.160 through 71.180 or had annexed territory from the unincorporated area of the county. Others had consolidated or were in the process of taking special censuses at the time of trial. We need not detail all efforts of the collector to meet the many changes requested. It is sufficient to say that from receipt in October, 1969, of Opinion No. 425, until entry of judgment in this cause, he had followed the guidelines of that opinion. After considering each of the statutory provisions quoted herein, it was concluded by the Attorney General '* * * that, in determining the distribution of cigarette tax proceeds in a first class county will a charter form of government, only the federal decennial census can be used to determine what part of the funds will be given to the county for its unincorporated areas, but special censuses conducted pursuant to Sections 71.160--71.180, R.S.Mo. 1959, may be used to determine what part of the remaining fund will be distributed to each incorporated area in the county.' It was further explained that: 'The effect of this opinion can best be illustrated by an example. Assume that the County X was shown to have a population of one million persons in the 1960 federal decennial census. Assume also that the 1960 census showed that of this one million persons, eight hundred thousand lived in incorporated areas and two hundred thousand lived in...