State ex rel. Mantle v. McCuskey

• Decision Date: 12 April 1977
• Citation: State ex rel. Mantle v. McCuskey, 548 S.W.2d 580 (Mo. App. 1977)
• Parties: STATE ex rel. Theron MANTLE et al., Appellants, v. Joseph M. McCUSKEY et al., Respondents. 38234 . Louis District, Division Three
• Court: Missouri Court of Appeals

Page 580

548 S.W.2d 580

STATE ex rel. Theron MANTLE et al., Appellants, v. Joseph M. McCUSKEY et al., Respondents 38234

Missouri Court of Appeals, St. Louis District, Division Three.

April 12, 1977.

Inglish & Calhoun, John W. Inglish, Jefferson City for appellants.

Robert L. Hyder, Hyder & McHenry, Jefferson City, Lowell R. McCuskey, Pros. Atty. Osage County, Linn, for respondents.

GUNN, Judge.

Relators-taxpayers filed a mandamus action against Respondents, members of the Board of Education of Osage County Reorganized School District No. 2, to require Respondents to revise and lower the school district tax rate. The trial court initially executed an alternative writ of mandamus against Respondents but on motion quashed the writ on the basis that the Relators by payment of the school tax under protest had adequate remedy available to them. Relators have appealed the order quashing the alternative writ and on appeal raise as the sole issue whether payment of the school tax under protest is an adequate remedy for Relators. We find no error in the trial court's quashing the alternative writ and affirm the judgment.

The basic thrust of Relator's petition for writ of mandamus is that on July 15, 1975, according to § 164.011 RSMo Supp.1975, ¹ Respondents adopted an operating budget for the ensuing year prepared from estimates of tax revenues to be received based upon the assessed valuation of real and personal property in Osage County for the previous year. Relators alleged that after July 15, 1975, ² the State Tax Commission increased the assessed valuation of the real and personal property in Osage County by more than ten percent; That by reason of the increased assessment, Respondents were required under § 137.073 RSMo 1969 to revise and lower the rate to take the increased tax assessment into consideration. Therefore, Relators brought a mandamus action to compel Respondents to revise and lower the tax rate by reason of the over ten percent increase in assessments.

The trial court initially issued an alternative writ of mandamus commanding Respondents to revise and lower the tax rate to comport with § 137.073. Subsequently, Respondents filed their return to the alternative writ specifically denying, inter alia, that the assessed valuation was increased by ten percent or more ³ and that Relators had adequate remedy by way of paying the tax under protest.

Thereafter, upon motion of Relators, the trial court issued an order restraining Osage Counry and school district officials from distributing funds received based on the July 15, 1975 levy. The restraining order was subsequently dissolved, and Relators do not challenge that action and, in fact, ask that it "be ignored."

Finally, the trial court issued its order quashing the alternative writ and finding that the Relators "have a specific, adequate and efficient remedy at law to obtain substantially the relief sought in their Petition for Writ of Mandamus". Relators have appealed from that order and raise the issue that payment of the taxes under protest is not an adequate remedy.

Limited to the specific facts of this case, we believe that the provisions of § 139.031 RSMo Supp.1975, allowing payment of the tax under protest, gives Relators adequate remedy at law. ⁴ As stated in John Calvin Manor, Inc. v. Aylward, 517 S.W.2d 59, 62 (Mo.1974): "Sec. 139.031 provides the taxpayer with a procedure whereby he can obtain an adjudication of the legality of a tax imposed upon him". The court in John Calvin Manor v. Aylward, supra specifically recited that § 139.031 provides adequate remedy for adjudication of certain challenges to tax assessments, including the type of challenge before the court here. ⁵ State ex rel. State Tax Commission v. Briscoe, 451 S.W.2d 1 (Mo. banc 1970), and State ex rel Riney v. Anderson, 536 S.W.2d 161 (Mo. banc 1976), also note that if the individual taxpayer is overcharged by reason of a tax rate based on a higher assessment, "he can have his day in court if he so desires by resort to the payment of taxes under protest procedure prescribed in" § 139.031. State ex rel. State Tax Commission v. Briscoe, supra at 5.

A writ of mandamus will be granted only upon the Relators showing a clear and specific right thereto. State ex rel. Dyke v. Spradling, 536 S.W.2d 839 (Mo.App.1976). It does not lie where there is another adequate remedy available at law. State ex rel. Crites v. West, 509 S.W.2d 482 (Mo.App.1974); State ex rel. Coffman v. Crain, 308 S.W.2d 451 (Mo.App.1958). And, of course, the issuance of an alternative writ of mandamus is always within the court's discretion. Yefremnko v. Lauf, 450 S.W.2d 462 (Mo.App.1970). If adequate legal remedy exists for Relators through § 139.031, which it does, the trial...