Brawley v. McNary

RENDLEN, Judge,

dissenting.

I respectfully dissent.

In 1975 the General Assembly adopted § 66.390, RSMo, which authorized the County to levy a convention and tourism tax. The County, . responding to the prompting of the legislature, promulgated Ordinance 7584, which levied a three percent tax on sales or charges for all rooms *369paid by transient guests of hotels and motels within the county. In 1982, however, the legislature passed Senate Bill 711, which permitted a new set of taxes to provide, upon voter approval, funding for a regional economic development district, including a regional convention and visitor’s commission. The voters disapproved the measure but in 1984 approved Senate Bill 709, which established the present St. Louis Regional Convention and Visitor’s Commission and provided for a new sales tax of up to three and three-quarters percent. The new tax was codified at § 67.619, effective January 1, 1985, subsection 5(2) of which provided that as long as the new tax remains in effect, the former County Convention and Tourism Tax under § 66.390 should no longer be collected. Sections 66.390 through 66.398, however, have not been repealed.

Ordinance 12,362, enacted on November 26, 1985, declared that the $3,388,302 balance remaining in the Convention and Tourism Fund collected under § 66.390 was no longer needed for the purpose for which it was raised. Therefore $1,000,000 of this money was transferred to the General Revenue Fund and in turn transferred to the Special Projects Fund by Ordinance 12,364 to be used for the purchase of land at Riverport to construct the domed stadium. Appellants question the validity of these transfers under the governing statutes.

Section 67.607(9) expressly grants the new Regional Convention and Visitors Commission the power to:

Contract with the county and city, or any convention and visitors bureau thereof, to allow such county or city, or any convention and visitors bureau thereof, to pay over to the commission the proceeds of any convention and tourism tax or gross receipts tax on hotels and motels imposed by such county or city for the purpose of promoting conventions and tourism, or providing and maintaining facilities therefor.

In spite of the explicit statutory provision, this procedure was not employed.

Having failed to follow the statutory procedure specifically made available to it for reallocation of these funds, the County seeks to justify its actions on the basis of §§ 50.020 and 50.030, RSMo, which read as follows:

50.020. Whenever there is a balance in any county treasury in this state to the credit of any special fund, which is no longer needed for the purpose for which it was raised, the county commission may, by order of record, direct that said balance be transferred to the credit of the general revenue fund of the county, or to such other fund as may, in their judgment, be in need of such balance. (Emphasis added.)
50.030. Nothing in § 50.020 RSMo (1986) shall be construed to authorize any county commission to transfer or consolidate any funds not otherwise provided for by law, excepting balances of funds of which the objects of their creation are and have been fully satisfied.

First, the County's contention that the funds were “no longer needed for the purpose for which [they] were raised” is belied by the fact that the following expenditures were made from the fund after the three percent tax under § 66.390 was no longer collected:

06/15/85 $300,000.00 Veiled Prophet Fair
10/07/85 $250,000.00 St. Louis Symphony promotional loan
11/26/85 $1,000,000.00 Transfer to Genera] Revenue Fund as authorized by Ordinance 12,362
05/29/87 $150,000.00 Veiled Prophet Fair Foundation
08/07/87 $50,000.00 1988 World Indoor Short Track Speed Skating Championship

Contrary to the majority, I find instructive the case of Carthage Special Road District of Jasper County v. Ross, 270 Mo. 76, 192 S.W. 976 (1917), in which the predecessor of § 50.020 was held not to control where a later statute made specific provisions for disposition of the funds. “The provisions of a specific statute prevail over a general one.” State ex rel. Tate v. Turner, 789 S.W.2d 240, 241 (Mo.App.1990). The Turner decision construed § 50.020 in conjunction with § 514.480, RSMo Supp. *3701989, which stated that funds collected for a law library fund were to be applied for maintenance and upkeep of the law library and no other purpose was authorized, thus § 50.020 was inapplicable. Id. Further, Section 50.030 refers to “funds not otherwise provided for by law.” Monies in the Convention and Tourism Law were specifically “provided for by law” (§ 66.390) to be applied for convention and tourism purposes, and because § 67.607(9) specifically provides that the County may pay over tourism monies to the Commission by contract, § 50.020 is inapplicable. Under the standards of Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976), the trial court has erroneously applied the law, and its ruling should be reversed. “It is well settled that money raised for a special municipal purpose, under express limitation to a particular use, cannot lawfully be used for another purpose, and if used, the special fund must be reimbursed.” 15 McQuil-lin, Municipal Corporations § 39.50. $1,000,000 should be transferred from General Revenue to the Convention and Visitors’ fund.

In regard to the monies from the Transportation Trust Fund, the majority opinion overlooks vital, undisputed evidence regarding the history of the Riverport Project. In June 1984, the St. Louis County Council, acting upon the application of Sverdrup Corporation, d/b/a Riverport Associates, enacted two ordinances rezoning 518 acres to Flood Plain Planned Commercial and Flood Plain Planned Industrial. Each ordinance referred to the levee and other flood control measures, which required approval from the Army Corps of Engineers, and provided that “[t]he developer will be required to operate and maintain the levee, pump station and interior stormwater control system.” The zoning ordinances also required the developer to make certain improvements to the Earth City Expressway. As provided in the ordinances, Riverport Incorporated (a sub-subsidiary and later a successor to Sverdrup Corporation) applied for and obtained a permit from the Corps of Engineers to construct the levee. Though the County acknowledges that in its negotiations with Sverdrup Corporation the developer agreed to construct the levee, the County adopted Ordinances 12,364 and 12,365 and thus allowed the appropriation of up to $3,000,000 from the Transportation Trust Fund to pay part of the construction costs.

Section 94.645, RSMo 1986, provides that all monies collected under the transportation tax shall be deposited:

in a special fund to be known as the “Transportation Trust Fund.” All moneys in such transportation trust fund shall be appropriated and disbursed only for transportation purposes as enumerated herein. (Emphasis added.)

As applied to St. Louis County, § 94.600(9) provides that “transportation purposes” shall include “repair and maintenance of streets, roads and bridges.” Earth City Expressway is a road maintained by St. Louis County and adjacent to the Riverport Project, and paragraph 1 of the parties’ stipulations provides that the Riverport development “consists of 522 acres which includes land upon which a levee, relief wells and pumping station have been built to protect the adjacent roadways and the property from flooding from the Missouri River (emphasis supplied).”

I would hold that this appropriation of Transportation Trust Fund monies for protection of the roadway and the property is unauthorized by the statute and Ordinance 12,364 is thus invalid. It is well stated that:

A fund that is derived from a special levy or one created for a specific purpose is a special fund and is in the hands of municipal officers in trust. In such case the municipality is merely a custodian, and its duties relative to special funds are purely ministerial. It may not use or divert them for other than the special purpose for which they were collected.

56 Am.Jur.2d Municipal Corporations, § 582 (1971). See also 15 McQuillin, Municipal Corporations §§ 39.45, 39.50 (3rd *371ed. rev. 1985); 4 Sands and Libonati, Local Government Law § 26.07 (1982).1

In Missouri, a local government may “for its own purposes lawfully divide its funds or allocate them in any manner it sees fit or subject its general revenue funds to particular public purposes, so long as it does not do so contrary to statute or its charter.” Automobile Club of Missouri v. City of St. Louis, 334 S.W.2d 355, 364 (Mo.1960); State ex rel. Spink v. Kemp, 365 Mo. 368, 283 S.W.2d 502, 514 (banc 1955) (emphasis supplied). In the present case the parties have stipulated that the levee was constructed for protection of the property and the roadway; use of trust funds for this purpose goes beyond the specific “transportation purposes” enumerated in the statute, which include construction and maintenance of roads. The appropriation runs afoul the provision of § 94.-645 which states that “moneys in such transportation trust fund shall be appropriated and disbursed only for transportation purposes as enumerated herein (emphasis supplied).” Under no reasonable construction of the statute can it be said the appropriation for the levee was only for transportation purposes. Though the levee protected the 522-acre Riverport site, the County occupied only 102.62 acres, yet proposed to bear approximately half of the levee costs. Under Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976), this Court may reverse the trial court’s judgment in a court-tried case when it is not supported by substantial evidence, is against the weight of the evidence, erroneously declares the law, or erroneously applies the law. The trial court here has misapplied the law, and its judgment should be reversed. As I would reverse on the statutory grounds, I do not reach the constitutional issue whether the appropriation of county funds for the levee was a grant of public money to a private corporation in violation of Mo. Const, art. VI, §§ 23 and 25.

. Numerous cases support this general proposition. Particularly analogous is City of Birmingham v. Wood, 243 Ala. 480, 10 So.2d 666, 669-70 (1942), where the court reversed the lower court’s ruling that expenditures for a war memorial entrance outside a public stadium could be paid from a trust fund established for maintenance, repair or operation of the stadium. See also, e.g., Lakewood v. Rees, 132 Ohio St. 399, 8 N.E.2d 250, 251-52 (1937) (revenues derived from municipal waterworks may not be transferred to general revenue fund and used to meet governmental expenses and municipal obligations); City of Hollywood v. Hollywood Lodge #21, Fraternal Order of Police, 329 So.2d 366, 369-70 (Fla.App. 1976) (proceeds of tax for firemen and policemen’s pension funds may not be used for city employees’ general pension fund).