Drury v City of Cape Girardeau, Mo

• Decision Date: 26 June 2001
• Docket Number: ED78831
• Parties: James L. Drury and Midamerica Hotels Corporation, Plaintiffs/Respondents/Cross-Appellants, v. City of Cape Girardeau, Missouri, Defendant/Appellant/Cross-Respondent. ED78614 and ED78831 Missouri Court of Appeals Eastern District 0
• Court: Missouri Court of Appeals

James L. Drury and Midamerica Hotels Corporation, Plaintiffs/Respondents/Cross-Appellants v City of Cape Girardeau, Missouri, Defendant/Appellant/Cross-Respondent

ED78614 and ED78831

Missouri Court of Appeals Eastern District

06/26/2001

Appeal From: Circuit Court of Cape Girardeau County, Hon. Robert C. Stillwell

Counsel for Appellant: Jeffrey Thomas McPherson and James Everett Mello

Counsel for Respondent: Walter S. Drusch, Jr.

Opinion Summary: The City of Cape Girardeau appeals and plaintiffs James L. Drury and Midamerica Hotels Corp. cross-appeal from the judgment entered on plaintiffs' action challenging two Cape Girardeau city ordinances.

Division Two holds: The trial court did not err in finding that one of the ordinances failed to satisfy the requirement under the City of Cape Girardeau's Charter that an ordinance's subject shall be clearly expressed in its title. The trial court erred in entering declaratory judgment as to the other ordinance because there was not a justiciable controversy.

Ahrens, P.J., and J. Dowd, J., concur.

William H. Crandall, Jr., Judge

City of Cape Girardeau (hereafter City) appeals and plaintiffs, James L. Drury and Midamerica Hotels Corp., cross-appeal from the judgment entered on plaintiffs' action challenging two City ordinances. We affirm in part and reverse and render judgment in part.¹

On August 17, 1998, City passed Ordinance 2403.² The ordinance increased from three percent the "license tax on hotels and motels in an amount equal to four (4) percent of gross receipts . . . ." The ordinance further provided that "this license tax is hereby extended from its present expiration date on November 1, 2004, to December 31, 2030." The proceeds of the taxes authorized by the ordinance were to be used by City, "subject to annual appropriation by the City Council," to "pay principal and interest on bonds to be issued for the purpose of paying a portion of the costs of acquiring, constructing, furnishing and equipping a performing arts center, museum, and associated cultural facilities for the City of Cape Girardeau and Southeast Missouri State University to be located at the University's River Campus, and paying costs associated with the normal operations of the Convention and Visitors Bureau as determined by the City Council." The ordinance also provided for a "special election" to be held on November 3, 1998, and on that date fifty-three percent of the voters voted in favor of the ordinance.

On August 17, 1998, City also passed Ordinance 2404 titled, "AN ORDINANCE CALLING A BOND ELECTION IN THE CITY OF CAPE GIRARDEAU, MISSOURI." The ordinance provided for a special election to be held on November 3, 1998, on the following question:

Shall the City of Cape Girardeau, Missouri, issue its general obligation bonds in the amount of $8,900,000 for the purpose of paying a portion of the costs of acquiring, constructing, furnishing and equipping a performing arts center, museum and associated cultural facilities for the City of Cape Girardeau and Southeast Missouri State University to be located at the University's River Campus?

As with Ordinance 2403, fifty-three percent of the voters voted in favor of the ordinance.³

On December 21, 1998, City passed and approved Ordinance 2465 which authorized City's manager to execute an agreement (hereafter Agreement) with Southeast Missouri State University (hereafter University) for the "St. Vincent Seminary Property." This ordinance was to take effect ten days after its passage and approval. The Agreement between City and University was made part of Ordinance 2465. The Agreement provided that in consideration and "after the issuance of the University obligations and subject to annual appropriation by the City Council," City would transfer to University the proceeds of the additional 1% Hotel/Motel tax imposed from January 1, 1999, and all the proceeds of the Hotel/Motel tax and the Restaurant tax imposed from November 1, 2004 through December 31, 2030, "less (c) any costs associated with the normal annual operations of the City's Convention and Visitor's Bureau as determined by the City Council. . . ." Ordinance 2465 was not submitted to the voters for approval.

Plaintiffs brought an action in multiple counts seeking declaratory judgment, injunctive relief and attorneys' fees. Plaintiffs sought a declaration that Ordinances 2403 and 2465 were invalid. City filed a motion for summary judgment and plaintiffs filed four motions for partial summary judgment. The trial court granted summary judgment for plaintiffs on Count V in which plaintiffs alleged that the title of Ordinance 2403 violated City's charter. In addition to finding that Ordinance 2403 violated City's charter, the trial court also found that this ordinance contravened the "clearly expressed" provision of Article III, section 23 of the Missouri Constitution. The trial court granted summary judgment for City on all remaining counts. The trial court found, among other things, that Ordinance 2465 did not create an "indebtedness" incurred by City because any payments would be contingent on annual appropriations by City. The court ruled that Ordinance 2403 was void and enjoined City from collecting the "new" tax. City appeals and plaintiffs cross-appeal.

This court's review of the trial court's grant of summary judgment is "essentially de novo." ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). "The propriety of summary judgment is purely an issue of law." Id. Furthermore, ordinances are presumed to be valid and lawful. McCollum v. Director of Revenue, 906 S.W.2d 368, 369 (Mo. banc 1995). In interpreting ordinances, an appellate court gives words their plain and ordinary meaning, by considering the entire act and its purposes, and by seeking to avoid unjust, absurd, unreasonable, confiscatory or oppressive results. Firemen's Retirement System v. City of St. Louis, 911 S.W.2d 679, 680 (Mo. App. E.D. 1995).

City raises two points on appeal. In its first point, City argues that the trial court erred in entering summary judgment for plaintiffs on Count V based on Ordinance 2403 violating section 3.14 of City's charter and Article III, section 23 of the Missouri Constitution. City contends that section 3.14 does not apply to Ordinance 2403 and this ordinance does not violate the "single subject/clear title" provision of section 3.14.⁴

We first consider whether Ordinance 2403 violates section 3.14 of City's charter. Section 3.14(a) provides in part that, "[n]o ordinance except those making appropriations of money and those codifying or revising existing ordinances shall contain more than one (1) subject, which shall be clearly expressed in its title." Section 3.14(a) sets forth two distinct procedural requirements for ordinances: (1) the ordinance cannot contain more than one subject, and (2) the subject of the ordinance must be clearly expressed in its title. See C.C. Dillon Co. v. City of Eureka, 12 S.W.3d 322, 328 (Mo. banc 2000). City contends that Ordinance 2403 satisfies both requirements. We first address whether the subject of Ordinance 2403 is clearly expressed in its title.⁵

"The 'clear title' provision, like the 'single subject' restriction, was designed to prevent fraudulent, misleading, and improper legislation, by providing that the title should indicate in a general way the kind of legislation that was being enacted." Fust, 947 S.W.2d at 429. The title may omit particular details of a bill, so long as neither the legislature nor the public is misled. Missouri State Medical Ass'n., 39 S.W.3d at 841. One purpose "of requiring that a bill's title clearly express the subject of the bill is to keep individual members of the legislature and the public fairly apprised of the subject matter of pending laws." St. Louis Health Care Network, 968 S.W.2d at 147. "A bill's multiple and diverse topics, absent specific itemization, can only be clearly expressed by their commonality--by stating some broad umbrella category that includes all the topics within its cover." Missouri State Medical Ass'n., 39 S.W.3d at 841. A title may be unclear in two ways: the subject may be too broad and amorphous, or so restrictive and underinclusive that certain provisions fall outside it. Id.

The title of Ordinance 2403 states as follows:

AN ORDINANCE AMENDING CHAPTER 15 OF THE CITY

CODE INCREASING AND EXTENDING

THE HOTEL/MOTEL/RESTAURANT LICENSE TAX AND

CALLING AN ELECTION IN THE CITY OF CAPE

GIRARDEAU, MISSOURI, ON THE QUESTION OF

WHETHER TO APPROVE THOSE AMENDMENTS;

DESIGNATING THE TIME OF HOLDING THE ELECTION;

AUTHORIZING AND DIRECTING THE CITY CLERK TO

GIVE NOTICE OF THE ELECTION

Articles 7 and 8 of Ordinance 2403 state as follows:

Article 7. The proceeds of the taxes authorized pursuant to this Ordinance will, subject to annual appropriation by the City Council, be used by the City to pay principal and interest on bonds to be issued for the purpose of paying a portion of the costs of acquiring, constructing, furnishing and equipping a performing arts center, museum and associated cultural facilities for the City of Cape Girardeau and Southeast Missouri State University to be located at the University's River Campus, and paying costs associated with the normal annual operations of the Convention and Visitors Bureau as determined by the City Council.

Any tax revenues not required for the foregoing purposes will be deposited into an escrow fund established for the sole purpose of paying future principal and interest on the bonds and the early retirement thereof. On early retirement of the bonds, any amounts remaining in the escrow fund shall be used for the operation of the Convention and Visitors Bureau. The taxes authorized under this Ordinance shall terminate when the principal of and interest on the bonds have been paid in full.

The City shall not issue any Bonds for this Project until (1) the City Council...