concurring.
The taxpayers whose lawsuits were dismissed by the trial court at the pleading stage have won this appeal. But even if the taxpayers ultimately prevail on their Hancock Amendment theory, that does not mean that they and the class they seek to represent will be entitled to property tax refunds.
To be eligible for tax refunds, the taxpayers’ lawsuits must be timely filed under the statutory scheme. The issue of timeliness - and hence of eligibility for refunds - is a major issue left open by the principal opinion, and the parties, to be addressed after these cases are remanded to the trial court.
Whether taxpayers have a remedy for refunds is dependent upon statute, not on the constitution. In that regard, the issue of timeliness is critical. When a school district sets its tax rate, and there is no legal action challenging the rate, taxes are collected and the district receives state aid in an amount based upon the tax rate. If, years later, a challenge to the rates is successful and refunds are required, state aid would need to be retrospectively computed. The impact of such after-the-fact *287adjustments would be devastating to individual school districts.
It is well to interpret and enforce the requirements of the constitution, but it is quite another matter to disrupt settled expectations years after a constitutional violation has purportedly occurred. See Hammerschmidt v. Boone County, 877 S.W.2d 98, 105 (Mo. banc 1994) (Holstein, J., concurring).
Ordinarily we should not address issues left open and not briefed by the parties. But these lawsuits are being paid for, at least in part, with school district funds that would otherwise be spent on educating schoolchildren. Addressing the ultimate issues of timeliness and remedy here may be helpful in bringing these actions to a swift and correct conclusion after they are remanded to the trial court.
If, as it appears,1 plaintiffs’ lawsuits were not filed before the taxes became payable - December 31 of the tax year - refunds are not available. A brief review of the Hancock Amendment and statutory scheme will support this conclusion.
The Hancock Framework
The Hancock Amendment “aspires to erect a comprehensive, constitutionally-rooted shield ... to protect taxpayers from government’s ability to increase the tax burden above that borne by the taxpayers on November 4, 1980” unless a tax increase is approved by voters. Fort Zumwalt School Dist. v. State, 896 S.W.2d 918, 921 (Mo. banc 1995).
But the manner of enforcement of Hancock’s mandates is subject to the orderly procedures established by statute. “The enforcement of the right to be free of increases in taxes that the voters do not approve in advance may be accomplished in two ways.” Ring v. Metropolitan St. Louis Sewer Dist., 969 S.W.2d 716, 718 (Mo. banc 1998). The two ways are:
First, taxpayers may seek an injunction to enjoin the collection of a tax until its constitutionality is finally determined. Second, if a political subdivision increases a tax in violation of article X, section 22(a), and collects that tax prior to a final, appellate, judicial opinion approving the collection of the increase without voter approval, the constitutional right established by article X, section 22(a), may be enforced only by a timely action to seek a refund of the amount of the constitutionally-imposed increase.
Id. at 718-19 (emphasis added).
Section 23 of article X of the state constitution, a part of the Hancock Amendment, gives taxpayers standing to bring “actions for interpretation” of the Hancock Amendment and includes a provision for “reasonable attorneys’ fees.” Except for the provision relating to attorneys’ fees, the enforcement provision of the Hancock Amendment, section 23, is not a consent to suit for money judgment. Fort Zumwalt, 896 S.W.2d at 923.
Thus, an action for property tax refunds must conform to statutory requirements, and, specifically, the action must be timely.
The Statutory Scheme
The local school district board sets the levy rate for the district by September 1, after at least one public hearing where the proposed rates are discussed. Section 67.110, RSMo 1994.
After receiving the rate from the school district,2 the county clerk delivers the tax book with the current year’s tax rates to the county collector by October 31, which is when the tax rates become official for the tax year ending December 31 of the same year. Section 137.075, RSMo 1994; section 137.290, RSMo Supp.1999.
*288Section 137.073.8, RSMo Supp.1999, allows a taxpayer to challenge the tax levy by making a formal complaint with the prosecuting attorney of the county. If the prosecutor fails to bring an action within ten days of the filing of the complaint, the taxpayer may bring a class action under that section.
The civil action contemplated by the statute is only for injunctive relief. As section 137.073.9 provides:
If in any action, including a class action, the court issues an order requiring a taxing authority to revise the tax rates as provided in this section or enjoins a taxing authority from the collection of a tax because of its failure to revise the rate of levy as provided in this section, any taxpayer paying his or her taxes when an improper rate is applied has erroneously paid his or her taxes in part, whether or not the taxes are paid under protest as provided in section 139.031, RSMo. The part of the taxes paid erroneously is the difference in the amount produced by the original levy and the amount produced by the revised levy. The township or county collector of taxes or the collector of taxes in any city shall refund the amount of the tax erroneously paid. The taxing authority refusing to revise the rate of levy as provided in this section shall make available to the collector all funds necessary to make refunds under this subsection, (emphasis added).
The class action contemplated in section 137.073.8 provides for notice to the members of the class only by publication “at least once each week for four consecutive weeks in a newspaper of general circulation published in the county where the civil action is commenced and in other counties within the jurisdiction of a taxing authority.” If the action were for refunds, in which the members of the class had an identifiable monetary interest, individual notice to the class members would be required as a matter of due process. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974).
When such an action is pending, a taxpayer who does not know of the pending challenge may in fact pay the tax without protest. But, the pendency of the action puts the taxing authority on notice of the challenge to its tax rate brought on behalf of all taxpayers. Accordingly, the statute waives what ordinarily would be required, i.e., a timely protest by the individual taxpayer.
To require a timely challenge to the tax rate, before the taxes under the rate are due, is the only interpretation consistent with the role of school district tax levy rates with respect to school district financing. The state’s foundation aid formula, section 163.031.6, bases the amount of state aid that a district receives upon the school district’s tax rate, specifically that component of the rate that is the “operating levy for school purposes.” Thus, the tax rate used by the state in calculating state aid is the levy rate used for the prior year’s property tax assessments; i.e., the rate that took effect December 31 when taxes were due. For the districts involved in this litigation, the higher the operating levy for school purposes, the higher the amount of state aid.
Neither chapter 137 nor chapter 163 recognizes that school district tax rates may be revised, or be subject to revision after they have gone in effect, unless there is an action to protest or challenge the rates prior to their becoming effective. Section 163.031.6.2, the foundation aid formula, recognizes and makes adjustment for “payment received the current year of protested taxes due in prior years ... minus the amount of any protested taxes due in the current year and for which notice of protest was received during the current year_” Absent a timely challenge, there is no procedure for making an after-the-fact adjustment of the tax rate or of the district operating levy for school purposes. See Buck v. Leggett, 813 S.W.2d 872, 875 (Mo. banc 1991); Horizons West *289Properties v. Leachman, 548 S.W.2d 550, 558 (Mo. banc 1977).
Finality in taxation is essential to local government. “Government budgets are prepared on an annual cash basis. Therefore, in the absence of a statutory limitation on the time in which a taxpayer may file suit to declare a tax unconstitutional, governments would be subject to substantial liabilities from refunds of those unconstitutional taxes.” Community Fed. Sav. & Loan Ass’n v. Director of Revenue, 752 S.W.2d 794, 797 (Mo. banc 1988) (citations omitted). School districts are an arm of state government, Hughes v. Civil Service Comm’n of City of St. Louis, 537 S.W.2d 814, 815 (Mo.App.1976), and to deny them the same level of finality of taxation would be contrary to the statutory scheme. Moreover to the extent that an after-the-fact financial burden causes a school district to lapse under section 162.081, the district’s financial distress may impose an added burden on the state’s taxpayers. This result would be contrary to the purpose of the Hancock Amendment. Fort Zumwalt, 896 S.W.2d at 923.
A timely challenge to the rate, even though not fully adjudicated before the end of the calendar year, would at least provide notice to the school districts and allow them to prepare for what could be an otherwise crushing financial blow.3 A timely challenge would provide such notice at least six months before a district’s tax rate is used in the calculation of state aid under the formula in section 163.031, which operates on the state’s July 1 to June 30 fiscal year. This timing may also make possible a judicial decision on the district’s tax rate, or a voluntary revision of the rate, prior to its use in the state school aid formula.
As noted, finality in state aid to schools is embodied in the statutes. State aid is based in large part on the tax monies generated by local school districts. Section 163.031.6, RSMo Supp.1999. Erroneous state aid payments to school districts may only be corrected by adjustments in the following year. Section 163.091, RSMo 1994. State aid payments are final for the year in which they are paid, as penalties and other adjustments are to be paid in the next school year. Section 163.031.9, RSMo Supp.1999.4 The penalties may either be paid by the district or withheld from the following year’s state aid. See also Section 163.021.5-7, RSMo Supp.1999 (prohibiting or limiting state aid in the following year for failure to comply with statutes in the preceding year).
Lawsuits Challenging Property Tax Rates
Section 137.073.8 authorizes a taxpayer to bring a class action to force a revision of the tax rate and provides for attorneys’ fees and other costs in bringing the action. The section also provides: “Any action brought pursuant to this section shall be set for hearing as soon as practicable after the cause is at issue.” When these provisions are read together, it is clear that the legal action challenging the rates, brought by and on behalf of taxpayers, is part of the statutory scheme for establishing the correct rate of taxation either prior to the date on which the rate of tax is to go into effect, or at least with the commencement of an action to give notice to the school district that its tax rate might be in error before the tax rate goes into effect. Section 137.073.9 provides that the taxing au*290thority will refund the tax erroneously paid, and a “taxing authority refusing to revise the rate of levy ... shall make available to the collector all funds necessary to make refunds.... No taxpayer shall receive any interest on any money erroneously paid by him or her pursuant to this subsection.” The section also provides that nothing in the law “shall be construed to require a taxing authority to refund any tax erroneously paid prior to or during the third tax year preceding the current tax year.”
These sections do not, however, authorize an action for refunds, only for an injunction or order revising the tax rate. The last part of this section, just quoted, sets a time limit for when the judicial action is to be completed. It is not a statute of limitations, nor does it enable lawsuits to be commenced years after the tax year in question. Taxes erroneously collected are not subject to refund without specific statutory authority, and the statute can and does set a specific limitation. Community Federal Savings & Loan Ass’n, 752 S.W.2d at 797.
We should not construe these subsections as authority for bringing class actions for refunds years after the taxes have been set, and collected, and used in the determination of state school aid. The statute authorizes a class action, and attorneys’ fees if the action is successful, as part of the scheme for making sure that local governments set correct levy rates. The filing of a class action reheves individual taxpayers from having to file timely protests before the December 31 due date. The class action authorized by statute should not be read as an invitation for litigants to challenge tax rate decisions for a period of years after a tax rate has been in place to obtain class wide refund relief and attorney fees.
Conclusion
The principal opinion provides an important clarification on the setting of school tax rates. Our decision leaves open whether any remedy, on remand, would include refunds for prior years where no timely challenge has been filed. It is doubtful that such relief is available. That said, I concur in the decision.
. These cases challenge the rates for 1995, 1996, 1997, and 1998. The lawsuits were initially filed in 1998, challenging the tax rates for the years 1995, 1996, and 1997. The lawsuits were amended in 1999, challenging the tax rate for 1998.
. In these cases, the school districts set their rates in July or August in the years at issue.
. In these cases, the appellants assert that Morgan County school district collected excess taxes totaling approximately $3,093,388 from 1994 to 1998 (or about 22% of the total taxes collected for the district) while the Lebanon school district collected an excess of about $4,212,276 during the same period (roughly 21% of the total taxes collected for the district).
. The section deals with state audits of lunch aid for students. If discrepancies cannot be resolved, “the department of elementary and secondary education shall require that the amount ... be repaid by the district in the next school year and shall additionally impose a penalty ... which penalty shall also be paid within the next school year.” Section 163.031.9, RSMo Supp.1999.