Ensor, v. Director of Revenue

• Decision Date: 31 August 1999
• Docket Number: 81605
• Citation: 998 S.W.2d 782
• Parties: This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Dale Ensor, in his official capacity as Treasurer of Lafayette County, Missouri, Appellant, v. Director of Revenue, Respondent. Case Number: 81605 Supreme Court of Missouri Handdown Date: 0
• Court: Missouri Supreme Court

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court

Dale Ensor, in his official capacity as Treasurer of Lafayette County, Missouri, Appellant v Director of Revenue, Respondent

Case Number: 81605

Supreme Court of Missouri

Handdown Date: 08/31/99

Appeal From: Circuit Court of Cole County, Hon. Thomas J. Brown III

Counsel for Appellant: Terrence M. Messonnier and William Page Bellamy

Counsel for Respondent: Paul C. Wilson

Opinion Summary:

In 1998, the General Assembly amended section 166.131 to aggregate forfeiture proceeds from around the state into a school building revolving fund for allocation to individual school districts. Formerly, the county treasurer collected the proceeds and deposited them in a county school fund for distribution to the school districts in that county.

The Lafayette County treasurer challenged the new law. The circuit court granted summary judgment in the Director of Revenue's favor, upholding the constitutionality of the statute.

AFFIRMED.

Court en banc holds:

Section 166.131 is constitutional as it relates to the deposit of funds to the school building revolving fund.

Forfeitures--proceeds of property seized by law enforcement--must be "distributed annually to schools of the several counties according to law," under the Missouri Constitution, article IX, section 7. This current constitutional language replaced the language of the 1875 Constitution, including two important changes that must be given effect. The first constitutional change deleted the requirement that forfeitures belong to county school funds. This is consistent with the legislature's constitutional power to provide for public educational funding and with the modern notion that Missouri has a state system of public education, not a federation of county systems.

The second constitutional change added the phrase "according to law," which indicates the current constitutional provision is not self-executing but, rather, subject to the legislature's statutory directive as to how to distribute proceeds. The legislature, in the state aid formula statute, has redirected forfeiture proceeds for many years. The legislature's decision to allocate forfeiture proceeds to a school building revolving fund is within its constitutional prerogative to distribute such proceeds "according to law."

This Court rejects the claim that the phrase "several counties" means each county must maintain a school fund with the proceeds staying in the county in which they originate. The plain and natural meaning of the term the "several counties" means all or more than one of the counties. While no particular school district has any exclusive right to any forfeiture proceeds, these proceeds must be made available generally to the states' schools for educational purposes. After the statutory change, the funds remain dedicated to educating children.

Opinion Author: Michael A. Wolff, Judge

Opinion Vote: AFFIRMED. All concur.

Opinion:

Forfeitures--proceeds of property seized by law enforcement authorities¹ -- must be distributed to schools under the Missouri Constitution, article IX, section 7. The issue in this case is whether forfeiture proceeds can be assigned by statute to a statewide school building fund or whether the Constitution only permits a distribution of such proceeds to school districts in counties where the forfeitures occur.

In 1998, the General Assembly amended section 166.131² to aggregate forfeiture proceeds from around the state into a "school building revolving fund" for allocation to individual school districts. Laws of Mo. 1998, p. 475. Prior to this amendment, section 166.131 provided that proceeds from forfeitures (as well as penalties and fines for breaches of penal laws) were collected by the county treasurer, deposited in the county's school fund, and distributed to school districts in that county.

Appellant Dale Ensor, treasurer of Lafayette County, challenges the constitutionality of the 1998 amendment under article IX, section 7 of the Missouri Constitution. The circuit court for Cole County granted summary judgment in favor of the director of revenue, and Ensor's appeal is within our exclusive jurisdiction because Ensor challenges the constitutionality of the statute. Article V, section 3. We affirm.

Because of his pending challenge, Ensor has not sent Lafayette County's forfeiture proceeds of about $21, 000 (the amount as of January 1999) to the state school building revolving fund. None of the Lafayette County school districts would receive a net benefit from the forfeiture proceeds: under the current state school aid formula, the amount of forfeiture money (as well as locally collected fines and penalties) is deducted from each school district's annual state aid entitlement under section 163.031 (6).³

A statute is presumed valid "unless it clearly contradicts a constitutional provision." Asbury v. Lombardi, 846 S.W.2d 196, 199 (Mo. banc 1993). Because of a statute's presumed validity we inquire as to whether the challenged provision is "clearly and undoubtedly" prohibited. Hammerschmidt v. Boone County, 877 S.W.2d 98, 102 (Mo. banc 1994).

Under the current constitutional provision, "the clear proceeds of all penalties, forfeitures and fines collected hereafter for any breach of the penal laws of the state, the net proceeds from the sale of estrays, and all other moneys coming into said funds shall be distributed annually to the schools of the several counties according to law."⁴ Article IX, section 7. This section of the 1945 Constitution replaced the language of the 1875 Constitution providing that "the clear proceeds of all penalties and forfeitures, and of all fines collected in the several counties for any breach of the penal or military laws of the State...shall belong to, and be securely invested, and sacredly preserved in the several counties, as a county public school fund; the income of which fund shall be faithfully appropriated for establishing and maintaining free public schools in the several counties of this State." Missouri Constitution article XI, section 8 (1875).⁵

Changes in the Constitution must be given effect and meaning. "(E)very word in a constitutional provision is assumed to have effect and meaning; their use is not surplusage." Buechner v. Bond, 650 S.W.2d 611, 613 (Mo. banc 1983).

Two important changes must be given effect between the 1875 Constitution and the current 1945 Constitution.

First, the 1875 constitutional requirement that "the clear proceeds of all...forfeitures...shall belong to, and be securely invested, and sacredly preserved in the several counties, as a county school fund" was deleted and not included in the 1945 constitutional provision.

The second important change is the addition of the words "according to law."

The first change we note in the 1945 Constitution is the deletion of the requirement that forfeitures shall belong to the county school funds. Undoubtedly, under the 1875 Constitution the forfeiture proceeds belonged to the county school fund as a matter of constitutional law. The current Constitution contains no requirement that forfeitures "shall belong to" or "be sacredly preserved in" the county school funds.⁶

The current version is consistent with the wide-ranging powers given the General Assembly in article IX of the Constitution to provide for funding of public education. The 1945 Constitution's changes are, as the director of revenue argues, consistent with the modern notion that Missouri has a state system of public education, not a federation of county systems. "No longer are schools administered as separate units," as this Court observed in State ex rel. School District of Fulton v. Davis, 236 S.W.2d 301, 304 (Mo. banc 1951). "Each is a part of a cohesive whole. The properties of each school are vested in the State for the benefit of its entire citizenry." Id. at 305.

The second important change is the addition of the phrase "according to law." The 1875 constitutional provision relating to penalties, forfeitures, and fines was self-executing, that is, funds collected went to the county school fund and could be distributed annually as the constitutional provision directed without the need for legislative direction. See Gross v. Gentry County, 8 S.W.2d 887, 890 (Mo. banc 1928). The current constitutional provision is not self-executing. Therefore it is subject to the statutory directives of the General Assembly because "according to law" is a phrase that contemplates the need for specific legislation to carry out the intent of the provision. See, In Re V_______, 306 S.W.2d 461 (Mo. 1957). Ensor cites a number of statutes passed after the adoption of the 1945 Constitution that directed forfeitures to be distributed as part of the county school fund, arguing that the statutes reflect a contemporaneous understanding of the meaning of the constitutional provision. See, SB 162, section 10376, Laws of Mo. 1945, at p. 1628; section 171.010, RSMo 1959. But it is equally likely, and indeed more plausible, that after the constitutional change, which inserted the phrase "according to law," it became apparent that legislation was necessary in order to provide for the distribution of the proceeds of fines and forfeitures.

The General Assembly in the state aid formula statute, section 163.031, has redirected the forfeiture proceeds for many years indirectly by deducting dollar-for-dollar any locally received money for fines and forfeitures from a school district's entitlement for state aid.⁷ The forfeiture proceeds are continuing to be a source of funding for school purposes but on a statewide basis. Ensor's reliance on Reorganized School District No. 7 Lafayette County v. Douthit, 799 S.W.2d 591 (Mo. banc 1990), and Missouri Gaming Commission v. Missouri Veterans' Commission, 951 S.W.2d 611 (Mo. banc 1997), is misplaced. In Douthit, this Court stated...