Russell v. Callaway County
| Decision Date | 29 December 1978 |
| Docket Number | No. 61119,61119 |
| Citation | 575 S.W.2d 193 |
| Parties | Vicki RUSSELL, Respondent, v. CALLAWAY COUNTY, Missouri, Honorable George H. Carrington, Clerk of the County Court of Callaway County, Missouri, and John Ashcroft, Attorney General of Missouri, Appellants, and Jefferson County, Missouri, Intervenor-Appellant. |
| Court | Missouri Supreme Court |
C. E. Hamilton, Jr., Fulton, John D. Ashcroft, Atty. Gen., Larry Marshall, Asst. Atty. Gen., Jefferson City, for defendants-appellants.
Terence C. Porter, Columbia, for respondent.
John W. Hammon, Asst. Pros. Atty., Hillsboro, for intervenor-appellant.
This case is in this court on direct appeal pursuant to Mo.Const. art. V, § 3 because it involves construction of the constitution, Mo.Const. art. VI, § 8. Specifically, we are asked to determine whether § 48.020.2, RSMo Supp.1977, violates article VI, section 8's requirement that the number of classes of counties not exceed four. Section 48.020.2 provides that the people of a county of the second or third class may vote whether or not to move to the next higher classification of county, despite the fact that their assessed valuation would otherwise make them move automatically to the next higher class. Shortly before the date of the proposed election, respondent, a resident, taxpayer and citizen of Callaway County, filed a writ of prohibition in this court asking us to declare section 48.020.2 unconstitutional. Because of inadequate time, we denied the writ without prejudice to respondent's right to file a declaratory judgment action to test the constitutionality of the statute. Respondent did so on October 13, 1978. On October 30, 1978 the circuit court held that respondent had standing to sue and that section 48.020.2 was unconstitutional, but refused injunctive relief and thus permitted the residents of Callaway County to vote whether or not to move from a third to a second class county. On November 7, 1978 the electorate voted to remain a third class county.
On November 22, 1978 appellants filed their notice of appeal. On November 30, 1978, following its request that it be permitted to intervene and be bound by our decision herein, we granted Jefferson County leave to intervene as an intervening appellant. The voters of Jefferson County also voted, on November 7, 1978, pursuant to § 48.020.2, not to change their county's designated classification. If the statute is unconstitutional, Jefferson County will become a first class rather than a second class county on January 1, 1979. 1
Because of the importance of determining the validity of the statute before that date, this cause has been expedited on appeal and will be decided on the briefs without oral argument. We must determine (1) whether respondent had standing to sue for declaratory relief and (2) whether § 48.020.2 is constitutional in light of Mo.Const. art. VI, § 8. For the reasons gone into below, we determine that respondent is a proper party, that § 48.020.2 is unconstitutional because it creates more than four classes of counties, and thus that Callaway County will automatically become a second-class county, and Jefferson County a first-class county, on January 1, 1979.
Appellants assert that respondent, despite her status as a resident, citizen and taxpayer of Callaway County, does not have standing to bring this cause of action because she alleges no special injury due to either the statute, § 48.020.2, or to the holding of the election, or that her tax burden will be increased as a result of the expenditure of public funds for the latter, and thus that she has no legally protectable interest at stake, citing Spencer v. Village of DeKalb, 408 S.W.2d 78 (Mo.1966); Moseley v. City of Mountain Grove, 524 S.W.2d 444, 448 (Mo.App.1975); Collins v. Vernon, 512 S.W.2d 470, 473 (Mo.App.1974); Glick v. Allstate Insurance Co., 435 S.W.2d 17, 20 (Mo.App.1968).
Appellants' reliance on these cases is misplaced. Glick Was dismissed because it dealt with a situation in which there was no justiciable controversy and thus no specific relief could be afforded. See Waterman v. City of Independence, 446 S.W.2d 471, 474 (Mo.App.1969).
In Spencer the plaintiffs sought a declaratory judgment that an ordinance authorizing a revenue bond election, issuance and sale to finance construction of a water works system was void, 408 S.W.2d 79. In Moseley, plaintiffs sought an injunction against the sale or negotiation of revenue bonds authorized to be issued by vote of the electorate. 524 S.W.2d 446. In both cases the court found that, because the revenue bonds specifically provided that neither they nor the interest thereon should be paid by taxes in whole or in part, the fact that plaintiff was a taxpayer was not in itself sufficient to show a litigable interest. Spencer, 408 S.W.2d at 80-81; Moseley, 524 S.W.2d at 447-49. Cf. Smith v. Hendricks, 136 S.W.2d 449, 454 (Mo.App.1939). Here there is no dispute that the election caused the expenditure of public funds.
Collins, 512 S.W.2d at 473, does not support appellants' position. While it does require that a taxpayer qua taxpayer must allege some injury and specify some damage to herself in her posture as a taxpayer in order to gain standing to sue a governmental unit, it also states "(s)uch interests may be in the form of an increased tax burden on a plaintiff to replenish the public funds illegally dissipated," Id. at 473. The court quotes from Castilo v. State Hwy. Commission of Missouri, 312 Mo. 244, 279 S.W. 673 (banc 1925) the principle that " '(f)ailure to allege the ultimate fact that plaintiffs' taxes will be increased when this conclusion Necessarily arises from facts sufficiently pleaded is not material.' " (emphasis added in Collins, 512 S.W.2d at 474).
In this case, respondent alleged that she was a resident, citizen and taxpayer of Callaway County, Missouri, pleaded the statute, § 48.020, RSMo Supp.1977, and the constitution, Mo.Const. art. VI, § 8, and alleged in paragraph eleven of her amended petition that the statute perverts the scheme of classification of counties and creates a fifth class of county in violation of the state constitution and that "an election under § 48.020.2 would be a nullity and the expenses of said election would be an unlawful expenditure of public funds."
We think that the necessary inference can be made from these pleadings that the unlawful expenditure would increase respondent's burden as a taxpayer since the additional expense of the election would necessarily come from public funds supplied by the taxpayer. Collins Is thus not apposite.
Additionally, we agree with the trial court that this case is controlled by Preisler v. Doherty, 364 Mo. 596, 265 S.W.2d 404 (1954). In that case plaintiff sued for a declaratory judgment, after a state senatorial election, as a resident, citizen, taxpayer and qualified voter of the city of St. Louis, alleging that the senatorial redistricting scheme effected by the act of the Board of Election Commissioners pursuant to Mo.Const. art. III, § 8 was void because it violated that section in that the districts were not divided by population as evenly as possible. The court concluded that plaintiff had standing to sue. It adopted the conclusion and reasoning of Stiglitz v. Schardien, 239 Ky. 799, 40 S.W.2d 315, 317 (App.1931) that:
"It is the primary rights of citizens that are violated by invalid statutes, which the court, in a proper case, may protect by injunction or other process." Preisler, 265 S.W.2d at 409.
Stiglitz also stated:
"It is settled that the courts, in a proper case, may interpose for the protection of political rights, and the right to be equally represented in the legislative bodies of the state is not only a political but a constitutional right. If an act of the Legislature infringes the constitutional rights of a citizen, taxpayer, and voter, he may invoke the processes of the courts to prevent the performance of a duty attempted to be imposed by such void act.
"The citizen possesses political as well as pecuniary and personal rights which may be the subject of an action to prevent the operation of unconstitutional legislation." Id.
In this case, respondent sued as a resident, citizen and taxpayer of Callaway County, and alleged that the classification of that county was violative of Mo.Const. art. VI, § 8. If her contention is correct, her rights as a citizen residing in Callaway County will be violated beginning January 1, 1979 because she will be governed by an improper form of county government. 2 As such, she may sue to vindicate her state constitutional right to live in a county with the powers and responsibilities of a county of the second class.
We now reach the substantive question whether § 48.020.2 is unconstitutional because it provides for the creation of more than four classes of counties in violation of Mo.Const. art. VI, § 8. Section 8 provides:
Section 48.020.2, RSMo 1969, had provided:
Class 1. 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.
Class 2. All counties now...
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