Zahner v. City of Perryville, 73136

• Decision Date: 23 July 1991
• Docket Number: No. 73136,73136
• Citation: 813 S.W.2d 855
• Parties: Clarence L. ZAHNER, Respondent, v. CITY OF PERRYVILLE, Missouri, Appellant.
• Court: Missouri Supreme Court

Page 855

813 S.W.2d 855

Clarence L. ZAHNER, Respondent, v. CITY OF PERRYVILLE, Missouri, Appellant.

No. 73136.

Supreme Court of Missouri,

En Banc.

July 23, 1991.

Rehearing Denied Sept. 10, 1991.

David G. Beeson, Stephen Wilson, Jackson, for appellant.

Tom K. O'Loughlin II, Kathleen A. Wolz, Cape Girardeau, for respondent.

COVINGTON, Judge.

The City of Perryville appeals from a judgment ordering the City to refund assessments against certain properties for improvements, maintenance, or upkeep of existing paved streets abutting the properties, and restraining the City from further assessments without submission of the City's street policy to a vote of the citizens. The judgment is reversed and the cause is remanded.

This case involves construction of section 22(a) of article X of the Missouri Constitution. Sections 16-24 of article X were adopted on November 4, 1980. As pertinent to the questions presented here, section 22(a) provides:

(a) Counties and other political subdivisions are hereby prohibited from levying any tax, license or fees, not authorized by law, charter or self-enforcing provisions of the constitution when this section is adopted or from increasing the current levy of an existing tax, license or fees, above that current levy authorized by law or charter when this section is adopted without the approval of the required majority of the qualified voters of that county or other political subdivision voting thereon.

Clarence L. Zahner, resident and taxpayer of the City of Perryville, filed a petition in the circuit court on June 3, 1988. He alleged that certain portions of the City's street improvement policy offended article X, section 22(a), of the Missouri Constitution, in that the City levied or increased the current levy of a tax, license or fee without approval of a majority of voters of the City.

Each party sought summary judgment upon submission of stipulated facts. The City of Perryville is a fourth class city. Prior to and after adoption of section 22(a), the City has effected street construction, improvement and repair under authority of Chapter 88, RSMo 1986. ¹ Until November 6, 1980, the City was without written or standard "street policy." The City employed various methods and percentages of contribution from the general revenue and from abutting property owners. As a general practice, the City assessed against the abutting property the initial cost of paving an unpaved street but maintained streets at city expense. Curb and gutter work was not a regular part of the street work performed by the City.

On November 6, 1980, the City, through its mayor and board of aldermen, adopted its first written street policy. Three revisions followed, the last adopted June 1, 1988. The City adopted the first policy and all the revisions without voter approval.

Between 1985 and 1989 the City undertook numerous construction, maintenance or improvement projects. One involved Pine Street, an existing paved street without curbs, gutters or storm water control, which was improved under the third revised policy. Deeming the improvements necessary, the City assessed against the abutting property 100% of the cost for curbs, gutters and storm water control. See §§ 88.680, .700. Zahner paid under protest a "special tax assessment bill" of $1,629.59 for improvements under this project. Zahner claimed the City increased existing fees and charges for street improvements without approval of the required majority of the qualified voters of the political subdivision and without submitting the matter to the voters of the City of Perryville, in violation of article X, section 22(a), of the Missouri Constitution. Zahner further contended that the City undertook to tax residents under its street policy.

Entering judgment in favor of Zahner, ² the trial court concluded that the special assessments levied by the City in the form of tax bills for street improvements could be characterized as either a tax or a fee within the meaning of article X, section 22(a). The court also concluded that the assessments made by the City of Perryville under its first written street policy and under its subsequent and revised policies violated the constitutional provision in that they impermissibly increased the percentage of contribution required of the taxpayers of the City above the percentage of contribution required of the taxpayers on November 4, 1980, without the required voter approval. The court ordered the City to refund the $1,629.59 paid by Zahner and to pay his attorney fees, and restrained the City from further assessments under any street policy without approval of the voters.

The dispositive question is whether the assessments at issue are taxes or fees within the meaning of article X, sections 16-24. If the special assessment is a tax or fee, the voters of the political subdivision must give prior approval to the assessment. The City contends that the special assessments are neither taxes nor fees within the meaning of section 22(a). Zahner proffers arguments in support of the assessment's being, in the alternative, a fee or a tax. In so arguing he acknowledges Tax Increment Fin. Comm'n v. Dunn Constr., 781 S.W.2d 70, 77 (Mo. banc 1989), in which this Court found certain payments in lieu of taxes to be special assessments rather than taxes, but asks the Court to reconsider the question of special assessments.

Insofar as it reaches, Zahner's assertion that a special assessment may be a tax or fee is not incorrect. Mere denomination of a charge as a "special assessment" does not per se insulate the charge from application of section 22(a). This Court must determine whether the language of section 22(a) encompasses the assessment at issue. In making that determination, the court must undertake to ascribe to the words the meaning the people understood the words to have when they adopted the provision. Boone County Ct. v. State, 631 S.W.2d 321, 324 (Mo. banc 1982). The meaning conveyed to the voters is presumed to be the ordinary and usual meaning, which is derived from the dictionary. Id.

While the words "special assessment," "fee," and "tax" may sometimes be used interchangeably, the term "special assessment" is generally understood to be related either to a specific property or a specific purpose. Webster's Third New International Dictionary 131 (1965). The special assessment levied in this case comports with the general understanding of a special assessment and does not comport with the definition of either tax or fee as the meanings of those words derive from the dictionary and from previous interpretation by this Court.

The initial inquiry presented is whether the special assessment against abutting properties is a fee. This Court first defined "fee," in the context of article X, sections 16-24, in Roberts v. McNary, 636 S.W.2d 332, 335 (Mo. banc 1982). A fee is "a fixed charge for admission; a charge fixed by law or by an institution for certain privileges or services; a charge fixed by law for services of a public officer." From the commonly understood meaning recognized in Roberts, it is apparent that the assessments at issue are not fees. Zahner nevertheless sets forth a novel assertion that the assessment for curb and gutter installation is a fee charged property owners for the privilege of having their streets maintained by the City. Under the scheme set up by the City, he suggests, maintenance of public streets became contingent upon the street's having curbs and gutters. In support of this proposition, Zahner refers to the street policy provision that the City will overlay an existing street only when there are existing curbs and gutters. As a result, Zahner maintains, payment of the assessment for curbs and gutters "purchased" the "privilege" of street maintenance--a "service" which had been provided to the City residents for many years. Zahner's argument disregards, however, other provisions in the policy under which the City provides routine maintenance to streets without curbs and gutters. As a consequence, Zahner's contention in this regard fails. The special assessments made by the City under authority of Chapter 88 are not fees.

It remains to determine whether the special assessment at issue is a tax. This Court has previously considered the definition, both prior to and since the adoption of article X, sections 16-24. See, e.g., Roberts v. McNary, 636 S.W.2d 332; Craig v. City of Macon, 543 S.W.2d 772 (Mo. banc 1976); Leggett v. Missouri State Life Ins. Co., 342 S.W.2d 833 (Mo. banc 1960). Taxes, as well as fees, have been defined not only by what they are but also by what they are not. In Roberts this Court noted the dictionary definition of tax as " 'a pecuniary charge imposed by legislative or other public authority upon persons or property for public purposes: a forced contribution of wealth to meet the public needs of a government.' " 636 S.W.2d at 335 (quoting Webster's Third New International Dictionary 2345 (1965)). In Roberts the Court also cited Craig, which in turn quoted Leggett:

'Taxes are "proportional contributions imposed by the state upon individuals for the support of government and for all public needs" ... Taxes are not payments for a special privilege or a special service rendered ... Fees or charges prescribed by law to be paid by certain individuals to public officers for services rendered in connection with a specific purpose ordinarily are not taxes ... unless the object of the requirement is to raise revenue to be paid into the general fund of the government to defray customary governmental expenditures ... rather than compensation of public officers for particular services rendered....'

Roberts, 636 S.W.2d at 335-36. In Tax Increment Fin. Comm'n v. Dunn Constr., 781 S.W.2d at 77, this Court noted that Roberts is not inconsistent with Leggett, and stated that an exaction demanded by the government for specific purposes and not intended to be paid into the...