Hardy v. McNary
| Decision Date | 13 November 1961 |
| Docket Number | No. 2,No. 48751,48751,2 |
| Citation | 351 S.W.2d 17 |
| Parties | Tillman HARDY, Appellant, v. James H. J. McNARY, St. Louis County, Missouri, Francis H. Kennedy, Ralph L. Devereaux, Edward Walsh, Lynn Wulfing and Henry J. Deeken, Respondents |
| Court | Missouri Supreme Court |
Tillman Hardy, pro se.
William E. Galagher, County Counselor of St. Louis County, Clayton, Walter H. Smith, First Asst. County Counselor, Ballwin, Robert C. Finot, Asst. County Counselor, Clayton, for respondents James H. J. McNary and St. Louis County.
STOCKARD, Commissioner.
The trial court dismissed plaintiff's second amended petition and he has appealed. Jurisdiction is in this court because St. Louis County is a party to the action. St. Francois County v. Brookshire, Mo.Sup., 302 S.W.2d 1.
From the petition we find the following allegations of fact. Appellant is a resident, taxpayer and voter of St. Louis County. Francis H. Kennedy was elected assessor of St. Louis County on November 8, 1960 for a four-year term commencing September 1, 1961. Ralph L. Devereaux and Edward Walsh, respectively, are collector and clerk of St. Louis County. Each of these officials refused to join in the petition as plaintiffs and have been made defendants. Lynn Wulfing and Henry J. Deeken were cochairmen of the Citizens Committee for Charter Revision and have intervened in the action. At the general election held on November 8, 1960, Propositions A and B to amend the home rule charter of St. Louis County were submitted to the voters. Proposition A proposed to abolish the offices of assessor and collector, to change some of the duties of the county clerk, and to place all the powers and duties of the assessor, collector and county clerk respecting taxes under the direction of a county department of revenue. Proposition B proposed to place all of the employees of the new department of revenue under the county merit system with the exception of the director of revenue. Both propositions were approved by the voters. On December 14, 1960 the St. Louis County Council enacted Ordinance No. 1976 which provided for a director of revenue to be appointed by the county supervisor, and which also provided for and specified the duties of an assessor and a collector to be appointed by the director of revenue under the merit system. The ordinance also provided that the county assessor and collector's office should be abolished on March 1, 1961, and it made provision for the effective dates of various provisions of the ordinance and of the amendments to the county charter.
Plaintiff then alleged that 'the aforesaid purported amendments and the aforesaid ordinances passed pursuant to said amendments are unconstitutional, invalid and void,' and he set forth eight alleged reasons as follows:
(a) The title of the amendment as submitted to the electorate was 'vague, indefinite, inaccurate, uncertain and misleading, in that Proposition A did not indicate from its title that the assessor and collector would not be officers but employees appointed by the director of revenue for indefinite terms under the merit system, did not indicate that the office of assessor and collector would be terminated on any certain date prior to the completion of the terms for which they were elected.'
(b) 'The ballots presenting Propositions A and B at the same election at which the assessor was being elected presented a conflict in the propositions presented to the electorate which conflict was resolved by a larger number of votes being cast for the assessor than were cast for the propositions.'
(c and d) The amendments to the charter proposed by Proposition A and Ordinance 1976 'are in violation of the laws of the State of Missouri respecting the assessment levy, equalization and collection of taxes in the State of Missouri,' and 'respecting the office of county collectors, assessors and county clerks.'
(e through h) The purported amendments are in violation of 'Article 3, Section 40;' 'Article 10, Section 1;' 'Article 10, Section 3;' and 'Article 6, Section 18' of the Constitution of Missouri.
In support of his request for a temporary injunction, plaintiff alleged that the county supervisor 'has indicated his intention to appoint a director of revenue on January 1, 1961,' and that in doing so 'there will then be two officers having concurrent jurisdiction of the assessments in St. Louis County, namely the director of revenue and the assessor of St. Louis County and two officers having concurrent jurisdiction of the collections, namely the director of revenue and the collector of St. Louis County * * * until March 1, 1961 and that a temporary injunction is necessary to retain the status quo until the validity of these amendments and ordinances aforesaid can be determined.' Plaintiff then alleged that 'the status and validity of the assessments and collections under the purported amendment and the aforesaid ordinance will create confusion and controversy among the citizens and taxpayers of St. Louis County,' and irreparable harm will result to the citizens and taxpayers of St. Louis County 'and in particular to this defendant' (sic) unless the county supervisor is restrained from making the appointment of a director of revenue.
In the concluding three paragraphs of his petition plaintiff alleged that 'the aforesaid ordinances and amendments are invalid and as the owner of real and personal property he does not intend to recognize the assessment of the department of revenue nor does he intend to make payment to the collector employed by the director of revenue of any taxes assessed by said department;' the value of his property will be greatly reduced 'by reason of the invalidity of the aforesaid amendments and ordinances;' the sums spent to set up the department of revenue 'will constitute an illegal expenditure of county taxes;' and 'the matters here involved are of great public interest to St. Louis County' and the court should take jurisdiction of the proceedings. In the prayer plaintiff asked that the court declare 'the various rights and status of the parties arising under the Constitution and Laws of the State of Missouri and the charter and ordinances of St. Louis County, Missouri;' that the amendments to county charter submitted by Propositions A and B 'are unconstitutional and void;' that defendants Kennedy and Devereaux are respectively the assessor and collector of St. Louis County; that defendant Walsh as county clerk 'shall perform all of the duties assigned to county clerks respecting the taxes in St. Louis County or in the alternative that said election was void;' and that 'the court issue its temporary restraining order enjoining the county supervisor from appointing the director of revenue.'
St. Louis County and James H. J. McNary, the county supervisor, filed a motion to dismiss the petition on the grounds, among others, that the court is without jurisdiction of the subject matter of the action; there exists no justiciable controversy between plaintiff and defendants; plaintiff has no legal capacity to bring the action; plaintiff has no legally protectible interest in the outcome of the action; and the petition fails to state a cause of action. Interveners Wulfing and Deeken filed a somewhat similar motion to dismiss. The trial court sustained both motions without assigning his reasons therefor, and this appeal resulted.
Plaintiff-appellant's single point in his brief is in its entirety as follows:
Supreme Court Rule 83.05(a), V.A.M.R., requires that the brief of an appellant contain 'The points relied on, which shall show what actions or rulings of the Court are sought to be reviewed and wherein and why they are claimed to be erroneous.' This Rule contemplates and provides for an orderly and easily understood procedure whereby a party aggrieved by an appealable order or judgment may obtain appellate review of asserted errors. In the absence of plain error...
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