State ex rel. City of Crestwood v. Lohman, No. WD

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: Before FENNER; FENNER; HANNA; LAURA DENVIR STITH; LAURA DENVIR STITH
• Citation: 895 S.W.2d 22
• Docket Number: No. WD
• Decision Date: 13 December 1994
• Parties: STATE ex rel. CITY OF CRESTWOOD, Respondent, v. Janette LOHMAN, Director of Revenue, et al., Appellants. 49350.

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895 S.W.2d 22 STATE ex rel. CITY OF CRESTWOOD, Respondent,
v.
Janette LOHMAN, Director of Revenue, et al., Appellants. No. WD 49350. Missouri Court of Appeals,
Western District. Dec. 13, 1994.
As Modified Feb. 28, 1995.
Motion for Rehearing and/or Transfer to
Supreme Court Denied Feb. 28, 1995.
Application to Transfer Denied
April 25, 1995.

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Jeremiah W. (Jay) Nixon, Atty. Gen., Gretchen Garrison, Asst. Atty. Gen., Jefferson City, for appellants.

Harvey M. Tettlebaum, Jefferson City, Shulamith Simon, St. Louis, for respondent.

Before FENNER, C.J., P.J., and HANNA and LAURA DENVIR STITH, JJ.

FENNER, Chief Judge.

Appellants, Janette Lohman, Director of Revenue, and Department of Revenue, appeal the peremptory writ of mandamus issued by the Circuit Court of Cole County, Missouri, on March 22, 1994. The writ ordered appellants to perform their statutory functions incident to the administration, collection, enforcement and operation of the Capital Improvements Sales Tax enacted by the City of Crestwood, respondent herein, under section 94.577, RSMo Supp.1993, as that statute is construed in the court's order. ¹

The City of Crestwood (the City) is a municipal corporation located in St. Louis County, Missouri. On July 27, 1993, the Board of Aldermen of the City of Crestwood duly adopted Ordinance 3276 which established a sales tax in the amount of one-half of one percent on all retail sales made in the City for the purpose of funding capital improvements, including the operation and maintenance of capital improvements. This Capital Improvements Sales Tax was to become effective upon approval by a majority of the votes cast by qualified voters of the City at an election to be held on November 2, 1993.

The City submitted to the Board of Election Commissioners of St. Louis County (the Board) a certification of the propositions to be voted on at the November 2, 1993 election, including the proposal for the Capital Improvements Sales Tax. The City notified counsel for the Board that the proposition to be submitted to the voters was authorized by section 94.577, that section 94.577 authorized any city to submit for voter approval a proposition to levy a sales tax to fund capital improvements, except cities in St. Louis County, and that the exclusionary language was in violation of the provisions of the Missouri

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Constitution dealing with special legislation, Article III, Section 40(30). ²

On August 31, 1993, the Board filed a Petition for Declaratory Judgment against the City in the Circuit Court of St. Louis County (hereinafter referred to as the St. Louis County action), seeking a declaratory judgment as to the rights, duties and responsibilities of the Board and the City with respect to the ballot proposition. In its petition, the Board alleged that the City is within the excluded class of municipalities set forth in section 94.577, that the City contends that section 94.577 violates the Missouri Constitution insofar as it excludes the City from its authorizing terms, and that the direction of the court is needed in resolving the Board's duties and responsibilities under sections 115.125, RSMo1986, and 115.127, RSMo Supp.1993, on the one hand, and section 94.577 on the other hand. The Board asked the court to enter its order, judgment, and decree, declaring the rights, duties and responsibilities of the Board and the City in connection with the City's notice of election and ballot proposal, whether the Board should place the proposal on the ballot, and that section 94.577 is valid and constitutional. ³

In its answer to the Board's petition, the City alleged that the exclusion of cities in St. Louis County from section 94.577 is unconstitutional and violates Article III, section 40(30), of the Missouri Constitution in that "such exclusion is a special law where a general law can be made applicable and is neither open-ended nor rationally related to a legitimate legislative purpose." The City further alleged that the exclusionary provision is severable and that the remaining provisions of the statute authorize the City to adopt a sales tax for the funding of capital improvements with the approval of the voters of the City.

The office of the Attorney General of Missouri did not intervene in the action, stating in a letter (dated September 20, 1993) to the judge in the St. Louis County action:

This will advise of our position, inter alia, that a determination of the constitutionality of RSMo. § 94.577 is not directly at issue in this case, and need not be addressed at this juncture....

At issue is the duty of the Board ... to prepare ballots for submission to the voters of the City of Crestwood Ordinance 3276, which proposes a 'capital improvements' tax. In our view, such duties are ministerial only. The constitutionality of § 94.577 becomes material only upon submission to vote, or thereafter, in regard to the validity of the ordinance if passed.

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Assuming, arguendo, that the constitutionality of § 94.577 is deemed to be directly at issue, it is not properly determinable in this case. Rule 87.04 provides that the Attorney General is to be served in any action for declaratory judgment in which a statute or ordinance is alleged to be unconstitutional. While a copy of the Petition was mailed to this office by the Board ..., the same was not in accordance with Rule 87.04 for the reason that the petition alleges that § 94.577 is constitutional, not unconstitutional. To the extent the Answer asserts a counterclaim challenging constitutionality, the Attorney General has not been named as a party or served as required by Rule 87.04. ⁴

For reasons including that the Attorney General has not been made a party to this action, it is further our position that any declaration regarding the issues in this case do not prejudice the rights of this office (or any other person or agency not a party to the action).

The only issue framed by the pleadings of the Board and the City and the only real issue in question was the constitutionality of section 94.577. The Board took the position that if section 94.577 was constitutional, the Board should not go forward with the ballot proposal. The City argued that section 94.577 was unconstitutional and therefore the Board should place the proposal on the ballot. ⁵

The cause was heard in the St. Louis County Circuit Court on September 20, 1993. Both parties introduced evidence and orally argued the issues. In its order and judgment, the court found that the exclusionary language of section 94.577 was unconstitutional, in violation of Article III, Section 40(30), of the Missouri Constitution, that the constitutionally offensive classification is severable, and that the remainder of the statute was a law complete in all respects and susceptible of enforcement. The court ordered that the exclusionary language of section 94.577 "is void and is stricken" from the statute. The court directed the Board to place the proposition on the ballot for the November 2, 1993 election. No appeal was taken from this order.

The ballot proposition was approved by the voters of the City at the November 2, 1993 election. The City sent a copy of Ordinance 3276, a copy of the certification of the election results, and a letter requesting confirmation that the sales tax would become effective

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as of April 1, 1994 to the Office of the Director of Revenue. Thereafter, the City made demand on appellants to perform their statutory functions incident to the administration, collection, enforcement and operation of the Capital Improvements Sales Tax.

On March 3, 1994, the City filed a Petition in Mandamus in the Circuit Court of Cole County seeking the issuance of a Writ of Mandamus directing appellants to perform their statutory functions so as to assure the collection of the Capital Improvements Sales Tax as of April 1, 1994. The City alleged that the duties of appellants with respect to the tax are non-discretionary ministerial functions. The City further alleged that the failure of appellants to perform their ministerial functions so as to assure the collection of the tax as of April 1, 1994 is a breach of the appellants' obligations and will cause substantial damage and irreparable harm to the City.

The Circuit Court of Cole County issued a Preliminary Order in Mandamus on March 4, 1994, directing appellants to perform their statutory functions with respect to the Capital Improvements Sales Tax so that the tax is collected as of April 1, 1994 and further directing appellants to escrow said proceeds pending further order of the court.

On March 10, 1994, appellants filed a Motion to Dismiss the Petition in Mandamus and to Quash the Preliminary Order. Appellants argued that the judgment on which the City relies for its claim of "right" to collection of the tax was entered without jurisdiction and is therefore void, the Director, who was not a party to the action in which judgment was entered, is not bound thereby, and an adequate alternate remedy is available to the City.

On March 22, 1994, the Circuit Court of Cole County issued a Peremptory Writ of Mandamus, adopting the order entered in the St. Louis County action to the effect that the exclusionary language of section 94.577 is unconstitutional and that the remainder of the statute is a law complete in all respects and susceptible of enforcement. The court found the order in the St. Louis County action to be valid and binding on appellants and directed appellants to perform their statutory functions incident to the administration, collection, enforcement and operation of the Capital Improvements Sales Tax. This appeal followed.

Appellants raise five points on appeal. In their first point, appellants argue that to the extent the court made an independent finding regarding the constitutionality of section 94.577, such finding was erroneous as an improper subject of a mandamus action. It is not entirely...