State ex rel. State Tax Commission v. Luten, 55538

• Decision Date: 09 November 1970
• Docket Number: No. 55538,55538
• Citation: 459 S.W.2d 375
• Parties: STATE of Missouri ex rel. STATE TAX COMMISSION et al., Relators, v. Honorable Drew W. LUTEN, Jr., Judge, Respondent.
• Court: Missouri Supreme Court

Page 375

459 S.W.2d 375

STATE of Missouri ex rel. STATE TAX COMMISSION et al., Relators, v. Honorable Drew W. LUTEN, Jr., Judge, Respondent.

No. 55538.

Supreme Court of Missouri, En Banc.

Nov. 9, 1970.

John C. Danforth, Atty. Gen., Richard L. Wieler, Asst. Atty. Gen., Jefferson City, for relators.

Francis A. Casserly, Biggs, Hensley, Curtis & Biggs, St. Louis, for respondent.

MORGAN, Judge.

In this original proceeding in prohibition, the State Tax Commission, relator, seeks to prohibit respondent, a Circuit Judge of St. Louis County, from judicially reviewing a decision of relator approving an increased assessment placed on certain real estate.

It is agreed that the real estate involved is located in Dent County, and that the owners thereof are residents of St. Louis County. Thus, the ultimate question requires a determination as to whether judicial review of the assessment entered by the particular agency--the State Tax Commission--must be in the county where the real estate is located or may be in the county where the owners reside.

Relator contends that Section 138.470, V.A.M.S., in paragraph (4) specifically limits review to the county wherein the real estate is located, while respondent submits that Supreme Court Rule 100.04, V.A.M.R., which superseded Section 536.110 on April 1, 1960, provides such review is to be had in the county of an owner's residence.

Prior to adoption of Rule 100.04, this court considered a similar question in Warnecke v. State Tax Commission, Mo., 340 S.W.2d 615, and ruled that Section 138.470 controlled over the general provisions for review found in Section 536.110. Admittedly, the wording of Rule 100.04 differs from that of Section 536.110 and we have the question anew, unless it be determined that the reasoning found in the Warnecke case is also applicable to the instant question.

It is established by precedents that when a legislative body creates a board, commission or other administrative agency, and gives it a legal entity, that it may also designate which courts may initially review decisions of such agencies. Due process only demands such judicial review be available and not that it be in all courts of comparable general jurisdiction. Ward v. Public Service Commission, 341 Mo. 227, 108 S.W.2d 136.

Section 138.470 is found in those statutory provisions pertaining specifically to taxation and revenue, and particularly those outlining the duties and powers of the State Tax Commission, and in paragraph (4) thereof provides: 'The action of the commission, or member or agent thereof, when done as provided in this section, shall be final, subject, however, to review in the manner provided in sections 536.100 to 536.140, RSMo, except that the venue of proceedings for review involving the assessment of real property is in the county where the real property is situated.'

Chapter 536 was captioned 'Administrative Procedure and Review,' and in Section 536.100 provided that its provisions for 'judicial review' would be controlling 'unless some other provision for judicial review is provided by statute * * *.' In Section 536.110 it was further provided in paragraph (1) that, 'Proceedings for review may be instituted by filing a petition in the circuit court or court of common pleas of the county of proper venue * * *.' Paragraph (3) of the same section provided other alternatives.

Such was the state of the law at the time the Warnecke case considered the question. Recognition was first given to the principle, 340 S.W.2d loc.cit. 618, '* * * that the legislature has the right to say that particular circuit courts have exclusive jurisdiction on appeals from the orders of an administrative agency * * *,' as was held in the Ward case, supra. It was further held, 340 S.W.2d loc.cit. 618, that venue in this instance had a jurisdictional connotation, e.g., 'In our view, however, the pertinent provisions of sections 138.470 and 536.110 prescribe not only 'the venue' but confer exclusive appellate jurisdiction to review a decision of the State Tax Commission involving the assessment of real estate upon the circuit court of the county in which the real estate is located.

'The decisive question here involves the appellate jurisdiction of a particular circuit court to review a particular administrative decision; 'venue' in the usual sense is not involved.'

It should be mentioned at this point that respondent argues the Warnecke case was decided solely upon the fact the words 'of the county of proper venue' in Section 536.110 were vague and of necessity the court had to look elsewhere for Section 138.470. It is true the court further buttressed its opinion by a similar comment, but from those portions of the opinion above quoted it is clear the opinion was actually bottomed on recognition of the fact the legislature had exercised its prerogative of designating a particular court for the particular task at hand. Respondent further argues that, 'After the enactment of Rule 100.04 it was no longer necessary for an appellant or plaintiff to search the numerous statutes to find out what would be the appropriate venue.' Such a utopian thought can not be criticized and hopefully, with the continued creation and growth of administrative agencies, will someday be realized. However, our immediate task is to construe the law as we find it.

When Rule 100.03 superseded Section 536.100, as a general provision for administrative review, the words 'unless some other provision for judicial review is provided by statute' were retained. This fact, perhaps unfortunately, refutes respondents' argument that Rule 100.04 takes precedence over any other statutory provisions pertaining to 'venue....