Opinion
Nos. ED78614 ED78831
OPINION FILED: June 26, 2001
APPEAL FROM THE CIRCUIT COURT OF CAPE GIRARDEAU COUNTY, HONORABLE ROBERT C. STILLWELL.
Clifford H. Ahrens, Presiding Judge and James R. Dowd, Judge:
City of Cape Girardeau (hereafter City) appeals and plaintiffs, James L. Drury and Midamerica Hotels Corp., cross-appeal from the judgment entered on plaintiffs' action challenging two City ordinances. We affirm in part and reverse and render judgment in part.
Plaintiffs' motion to dismiss City's appeal is denied. We grant, in part, City's motion to strike plaintiffs' reply brief. Pages 22 to 50 of plaintiffs' reply brief are ordered stricken because the "rules do not permit the filing of a brief to respond to a reply brief, or the filing of a second respondent's brief." Clayton Center Associates v. W.R. Grace Co., 861 S.W.2d 686, 688-89 (Mo.App.E.D. 1993).
On August 17, 1998, City passed Ordinance 2403. The ordinance increased from three percent the "license tax on hotels and motels in an amount equal to four (4) percent of gross receipts. . . ." The ordinance further provided that "this license tax is hereby extended from its present expiration date on November 1, 2004, to December 31, 2030." The proceeds of the taxes authorized by the ordinance were to be used by City, "subject to annual appropriation by the City Council," to "pay principal and interest on bonds to be issued for the purpose of paying a portion of the costs of acquiring, constructing, furnishing and equipping a performing arts center, museum, and associated cultural facilities for the City of Cape Girardeau and Southeast Missouri State University to be located at the University's River Campus, and paying costs associated with the normal operations of the Convention and Visitors Bureau as determined by the City Council." The ordinance also provided for a "special election" to be held on November 3, 1998, and on that date fifty-three percent of the voters voted in favor of the ordinance.
Ordinance 2403 is set forth as Appendix A.
On August 17, 1998, City also passed Ordinance 2404 titled, "AN ORDINANCE CALLING A BOND ELECTION IN THE CITY OF CAPE GIRARDEAU, MISSOURI." The ordinance provided for a special election to be held on November 3, 1998, on the following question:
Shall the City of Cape Girardeau, Missouri, issue its general obligation bonds in the amount of $8,900,000 for the purpose of paying a portion of the costs of acquiring, constructing, furnishing and equipping a performing arts center, museum and associated cultural facilities for the City of Cape Girardeau and Southeast Missouri State University to be located at the University's River Campus?
As with Ordinance 2403, fifty-three percent of the voters voted in favor of the ordinance.
Plaintiff alleged and City admitted that Ordinance 2404 was "defeated" because it was approved by only fifty-three percent of the voters. Article VI, section 26(b), of the Missouri Constitution, is titled "Limitation on indebtedness of local government authorized by popular vote," and provides that "Any county, city, incorporated town or village or other political corporation or subdivision of the state, by vote of the qualified electors thereof voting thereon, may become indebted in an amount not to exceed five percent of the value of taxable tangible property therein as shown by the last completed assessment for state or county purposes, except that a school district by a vote of the qualified electors voting thereon may become indebted in an amount not to exceed fifteen percent of the value of such taxable tangible property. For elections referred to in this section the vote required shall be four-sevenths at the general municipal election day, primary or general elections and two-thirds at all other elections."
On December 21, 1998, City passed and approved Ordinance 2465 which authorized City's manager to execute an agreement (hereafter Agreement) with Southeast Missouri State University (hereafter University) for the "St. Vincent Seminary Property." This ordinance was to take effect ten days after its passage and approval. The Agreement between City and University was made part of Ordinance 2465. The Agreement provided that in consideration and "after the issuance of the University obligations and subject to annual appropriation by the City Council," City would transfer to University the proceeds of the additional 1% Hotel/Motel tax imposed from January 1, 1999, and all the proceeds of the Hotel/Motel tax and the Restaurant tax imposed from November 1, 2004 through December 31, 2030, "less (c) any costs associated with the normal annual operations of the City's Convention and Visitor's Bureau as determined by the City Council. . . ." Ordinance 2465 was not submitted to the voters for approval.
Plaintiffs brought an action in multiple counts seeking declaratory judgment, injunctive relief and attorneys' fees. Plaintiffs sought a declaration that Ordinances 2403 and 2465 were invalid. City filed a motion for summary judgment and plaintiffs filed four motions for partial summary judgment. The trial court granted summary judgment for plaintiffs on Count V in which plaintiffs alleged that the title of Ordinance 2403 violated City's charter. In addition to finding that Ordinance 2403 violated City's charter, the trial court also found that this ordinance contravened the "clearly expressed" provision of Article III, section 23 of the Missouri Constitution. The trial court granted summary judgment for City on all remaining counts. The trial court found, among other things, that Ordinance 2465 did not create an "indebtedness" incurred by City because any payments would be contingent on annual appropriations by City. The court ruled that Ordinance 2403 was void and enjoined City from collecting the "new" tax. City appeals and plaintiffs cross-appeal.
This court's review of the trial court's grant of summary judgment is "essentially de novo." ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo.banc 1993). "The propriety of summary judgment is purely an issue of law." Id. Furthermore, ordinances are presumed to be valid and lawful. McCollum v. Director of Revenue, 906 S.W.2d 368, 369 (Mo. banc 1995). In interpreting ordinances, an appellate court gives words their plain and ordinary meaning, by considering the entire act and its purposes, and by seeking to avoid unjust, absurd, unreasonable, confiscatory or oppressive results. Firemen's Retirement System v. City of St. Louis, 911 S.W.2d 679, 680 (Mo.App.E.D. 1995).
City raises two points on appeal. In its first point, City argues that the trial court erred in entering summary judgment for plaintiffs on Count V based on Ordinance 2403 violating section 3.14 of City's charter and Article III, section 23 of the Missouri Constitution. City contends that section 3.14 does not apply to Ordinance 2403 and this ordinance does not violate the "single subject/clear title" provision of section 3.14.
City also contends that Article III, section 23 does not apply to local ordinances. Plaintiffs did not allege in Count V that Ordinance 2403 violated Article III, section 23. Furthermore, the provision of Missouri's Constitution that "`no bill shall contain more than one subject, which shall be clearly expressed in its title,' (section 28, art. 4 of the constitution,) was intended to apply only to state legislation, and has no application to ordinances of this city." City of Tarkio v. Cook, 120 Mo. 1, 25 S.W. 202 (1894); see Denneny v. Silvey, 302 Mo. 665, 259 S.W. 422, 424 (1924); City of St. Louis v. Liessing, 190 Mo. 464, 89 S.W. 611, 616 (banc 1905). The trial court's finding as to Article III, section 23, however, does not require reversal because as will be discussed the trial court properly found that Ordinance 2403 violated City's charter. See Weil v. Kirn, 952 S.W.2d 399, 401 (Mo.App.E.D. 1997).
We first consider whether Ordinance 2403 violates section 3.14 of City's charter. Section 3.14(a) provides in part that, "[n]o ordinance except those making appropriations of money and those codifying or revising existing ordinances shall contain more than one (1) subject, which shall be clearly expressed in its title." Section 3.14(a) sets forth two distinct procedural requirements for ordinances: (1) the ordinance cannot contain more than one subject, and (2) the subject of the ordinance must be clearly expressed in its title. See C.C. Dillon Co. v. City of Eureka, 12 S.W.3d 322, 328 (Mo.banc 2000). City contends that Ordinance 2403 satisfies both requirements. We first address whether the subject of Ordinance 2403 is clearly expressed in its title.
Article III, section 23 of the Missouri Constitution provides that, "[n]o bill shall contain more than one subject which shall be clearly expressed in its title. . . ." In several cases, the Missouri Supreme Court has addressed challenges to statutes brought under Article III, section 23. See, e.g., Missouri State Medical Ass'n. v. Dept. of Health, 39 S.W.3d 837 (Mo.banc 2001); C.C. Dillon Co., 12 S.W.3d 322;Corvera Abatement Technologies, Inc. v. Air Conservation Comm'n., 973 S.W.2d 851 (Mo.banc 1998); St. Louis Health Care Network v. State, 968 S.W.2d 145 (Mo.banc 1998); National Solid Waste Management Ass'n. v. Director of Natural Resources, 964 S.W.2d 818 (Mo.banc 1998); Fust v. Attorney General for Mo., 947 S.W.2d 424 (Mo.banc 1997); Carmack v. Director of Agric., 945 S.W.2d 956 (Mo.banc 1997); Hammerschmidt v. Boone County, 877 S.W.2d 98 (Mo.banc 1994); Westin Crown Plaza Hotel Co. v. King, 664 S.W.2d 2 (Mo.banc 1984); State ex rel. Jardon v. Industrial Dev. Auth., 570 S.W.2d 666 (Mo.banc 1978). Because the clearly expressed language of Article III, section 23 and section 3.14(a) of City's charter are substantially the same, the analysis used for challenges under Article III, section 23 is applicable to the challenge here under section 3.14(a). See 508 Chestnut, Inc. v. City of St. Louis, 389 S.W.2d 823, 828 (Mo. 1965).
"The `clear title' provision, like the `single subject' restriction, was designed to prevent fraudulent, misleading, and improper legislation, by providing that the title should indicate in a general way the kind of legislation that was being enacted." Fust, 947 S.W.2d at 429. The title may omit particular details of a bill, so long as neither the legislature nor the public is misled. Missouri State Medical Ass'n., 39 S.W.3d at 841. One purpose "of requiring that a bill's title clearly express the subject of the bill is to keep individual members of the legislature and the public fairly apprised of the subject matter of pending laws." St. Louis Health Care Network, 968 S.W.2d at 147. "A bill's multiple and diverse topics, absent specific itemization, can only be clearly expressed by their commonality — by stating some broad umbrella category that includes all the topics within its cover."Missouri State Medical Ass'n., 39 S.W.3d at 841. A title may be unclear in two ways: the subject may be too broad and amorphous, or so restrictive and underinclusive that certain provisions fall outside it.Id.
The title of Ordinance 2403 states as follows:
AN ORDINANCE AMENDING CHAPTER 15 OF THE CITY
CODE INCREASING AND EXTENDING
THE HOTEL/MOTEL/RESTAURANT LICENSE TAX AND
CALLING AN ELECTION IN THE CITY OF CAPE
GIRARDEAU, MISSOURI, ON THE QUESTION OF
WHETHER TO APPROVE THOSE AMENDMENTS;
DESIGNATING THE TIME OF HOLDING THE ELECTION;
AUTHORIZING AND DIRECTING THE CITY CLERK TO
GIVE NOTICE OF THE ELECTION
Articles 7 and 8 of Ordinance 2403 state as follows:
Article 7. The proceeds of the taxes authorized pursuant to this Ordinance will, subject to annual appropriation by the City Council, be used by the City to pay principal and interest on bonds to be issued for the purpose of paying a portion of the costs of acquiring, constructing, furnishing and equipping a performing arts center, museum and associated cultural facilities for the City of Cape Girardeau and Southeast Missouri State University to be located at the University's River Campus, and paying costs associated with the normal annual operations of the Convention and Visitors Bureau as determined by the City Council.
Any tax revenues not required for the foregoing purposes will be deposited into an escrow fund established for the sole purpose of paying future principal and interest on the bonds and the early retirement thereof. On early retirement of the bonds, any amounts remaining in the escrow fund shall be used for the operation of the Convention and Visitors Bureau. The taxes authorized under this Ordinance shall terminate when the principal of and interest on the bonds have been paid in full.
The City shall not issue any Bonds for this Project until (1) the City Council determines that the State of Missouri and the University have committed funds in an amount sufficient, in the determination of the City Council, to complete the acquisition, construction, furnishing and equipping of the Project, and (2) the City and the University have entered into an intergovernmental cooperation agreement providing for the establishment of a Board of Managers to provide guidance during the construction and design of the Project and the annual operations thereof.
Article 8. If the State of Missouri and Southeast Missouri State University have not committed funds on or before December 31, 2001, in an amount sufficient, in the determination of the City Council, to complete the acquisition, construction, furnishing and equipping of the project, the increase to the hotel/motel tax and the extension of the hotel/motel and restaurant taxes authorized under this ordinance shall terminate.
In that event, all proceeds derived from the increased hotel/motel tax on or before December 31, 2001, shall be used to reduce the City's outstanding general obligation indebtedness on the Show Me Center Bonds.
Under Article 7, proceeds of the tax increase and extension are to be used, subject to two conditions, to pay principal and interest on bonds "for the purpose of paying a portion of the costs of acquiring, constructing, furnishing and equipping a performing arts center, museum and associated cultural facilities" for City and University to be located on University's River Campus. Article 7 also provides for using the proceeds to pay for costs of the Convention and Visitor's Bureau. Article 8 provides that under a certain condition, proceeds of the additional tax derived on or before December 31, 2001, would be used to reduce City's indebtedness on the "Show Me Center Bonds."
The subject of the title of Ordinance 2403 is the increase and extension of the hotel/motel/restaurant license tax. The title also states that it is amending Chapter 15 of the City Code and calls for an election to approve the amendments. The title of Ordinance 2403 does not set forth in any way that if sufficient funds are committed by University and the State of Missouri to complete the "project" and if an agreement is entered between City and University, then the proceeds of the additional taxes "will" be used for a performing arts center, museum and associated cultural facilities. The title also does not discuss proceeds being used for the Convention and Visitor's Bureau. The title also fails to set forth in any way that if sufficient funds were not committed for the "project" by December 31, 2001, then the additional taxes derived by that date "shall" be used to reduce City's indebtedness "on the Show Me Center Bonds." The title is, therefore, underinclusive because certain provisions of the ordinance fall outside it. Accordingly, the subject of the ordinance is not clearly expressed in its title as required by section 3.14(a) of City's charter. Because the title of Ordinance 2403 fails to meet the clearly expressed requirement, we need not address whether the ordinance satisfies the one subject requirement of section 3.14(a). National Solid Waste Management Ass'n., 964 S.W.2d at 820.
We next consider City's contention that section 3.14(a) of City's charter does not apply to Ordinance 2403. In construing city charters, words are given their plain and ordinary meaning and it is presumed that the enacting body intended a logical result. State ex rel. Springfield v. Bonacker, 923 S.W.2d 467, 469 (Mo.App.S.D. 1996).
As previously discussed, section 3.14(a) states in part that, "[n]o ordinance except those . . . codifying or revising existing ordinances shall contain more than one (1) subject, which shall be clearly expressed in its title." (emphasis added). City argues that by its terms Ordinance 2403 amends City's code, amend and revise are synonymous terms, and therefore the exemption under section 3.14(a) for ordinances that revise existing ordinances applies. Plaintiffs contend that, consistent with the definition of codify, the term revising as used in section 3.14(a) should be interpreted as restructuring or renumbering to thereby assist in the codification of an ordinance. Based on this definition, plaintiffs contend the exemption does not apply. Plaintiffs rely on; among other things, the maxim of statutory construction that a word is known by the company it keeps, while not an inescapable rule, it is often wisely applied to avoid giving an unintended breadth to words that are capable of many meanings. Pollard v. Board of Police Commissioners, 665 S.W.2d 333, 341 n. 13 (Mo.banc 1984); Short v. Short, 947 S.W.2d 67, 71 (Mo.App.S.D. 1997). City admits that it is "undisputed" that one meaning of revise "in connection with legislative enactments is to examine them for the purpose of rearranging and codifying them." City states that when section 3.14(a) refers to ordinances codifying or revising existing ordinances, it refers both to ordinances changing or amending existing ordinances and to ordinances rearranging and codifying existing ordinances.
The term revise is susceptible to the two meanings suggested by City and plaintiffs. See Black's Law Dictionary 80, 1321 (7th ed. 1999). We find the maxim set forth in Pollard and Short applies. As previously discussed, the one subject and clearly expressed requirements were designed to prevent fraudulent, misleading, and improper legislation, by providing that the title should indicate in a general way the kind of legislation being enacted. It appears logical that City, notwithstanding its present argument, would want the purposes of the one subject and clearly expressed requirements to apply to amendments that substantively alter or change the law, particularly the one at issue here that increases and extends taxes. There is also not a persuasive basis to apply the one subject and clearly expressed requirements to an original ordinance and not to an ordinance amending an ordinance, again where the law is substantially altered or changed. We hold that the one subject and clearly expressed requirements of section 3.14(a) apply to Ordinance 2403. To hold otherwise, would give an "unintended breadth" to the term "revising," as used in section 3.14(a). The court did not err in finding that Ordinance 2403 violated City's charter.
City argues in its second point that the trial court erred in entering summary judgment for plaintiffs on their claim raised in Count V because plaintiffs did not negate City's affirmative defense of estoppel. City contends that the "undisputed facts" show that plaintiffs are estopped to challenge the validity of Ordinance 2403 because City relied on plaintiffs' "support, concurrence, and encouragement" in enacting the ordinance.
The following three elements must be present for the affirmative defense of equitable estoppel: (1) an admission, statement or act by the person to be estopped that is inconsistent with the claim that is later asserted and sued upon; (2) an action by a second party on the faith of such admission, statement or act; and (3) an injury to the second party that would result if the first party is permitted to contradict or repudiate the admission, statement or act. Tinch v. State Farm Ins. Co., 16 S.W.3d 747, 751 (Mo.App.E.D. 2000). When a defendant has properly raised the affirmative defense of estoppel, a claimant's right to summary judgment depends on the non-viability of that defense in addition to the viability of a claimant's claim. McCain v. Washington, 990 S.W.2d 685, 689 (Mo.App.E.D. 1999).
City relies on a letter from Robert A. Drury and plaintiff, James L. Drury, to City's mayor and council that provided in part:
On behalf of the Midamerica Hotels Corporation and Drury, Inns, Inc. we express our support for the River Campus Project and the one percent tax initiative (Sec. 15-397). Although the time interval has been very short to review and discuss all concerns, we feel that the City and University have made strides to address certain concerns and incorporate some of them in the project ordinance.
City also relies on a copy of the August 17, 1998 proceedings of City's council when the council approved Ordinance 2403. During discussion of the ordinance, one council-member "stated that a group of hotel owners sent a letter indicating they approve of the one percent increase in the hotel tax."
It is elemental that there has to be a relationship between the parties by which one party can induce an action or forebearance in more than just a political manner. Before we reach the issue of whether there was estoppel, we first consider if plaintiffs had opposed the ordinance could they have legally prevented its passage. The answer is no. Plaintiffs' support or lack thereof was only political in nature and subject to change. It is also clear that an invalid ordinance cannot be made proper by raising the affirmative defense of estoppel. It is not suggested or implied that City's mayor or any council-member entered into any agreement with plaintiffs regarding the ordinance. But any agreement would presume a legally enacted ordinance and any agreement to the contrary is void. Plaintiffs were not estopped from challenging Ordinance 2403. The trial court's judgment as to Count V is affirmed.
The case In re Topping Ave., 187 Mo. 146, 86 S.W. 190, 192 (1905), in which the court held that a railway company that had sought a franchise and agreed to the conditions Kansas City imposed was estopped from later claiming the conditions were unreasonable, is distinguishable. Here, there is not a direct relationship between the party challenging the ordinance, the City and the ordinance itself as was present in In re Topping Ave. For these reasons, MCI Metro Access Transmission Services, Inc. v. City of St. Louis, 941 S.W.2d 634, 638-39 (Mo.App.E.D. 1997), is also distinguishable.
Plaintiffs raise one point in their cross-appeal, arguing that the trial court erred in granting summary judgment for City on Count III of their petition. In Count III, plaintiffs argued that under Ordinance 2465 City incurred an indebtedness and because the ordinance was not submitted to the voters for approval this violated Article VI, section 26(b) of the Missouri Constitution. The trial court found that Ordinance 2465 did not create an indebtedness incurred by City because any payments were contingent upon annual appropriations by City. Ordinance 2465 states as follows:
AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE AN AMENDED AND RESTATED COOPERATION AGREEMENT FOR ST. VINCENT SEMINARY PROPERTY, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF CAPE GIRARDEAU, MISSOURI, AS FOLLOWS:
ARTICLE 1. The City Manager, for and on behalf of the City of Cape Girardeau, Missouri, is hereby authorized to execute an Amended and Restated Cooperation Agreement For St. Vincent Seminary Property with Southeast Missouri State University. A copy of said Agreement is attached to this Ordinance and made a part hereof.
ARTICLE 2. That the Agreement approved hereby is subject to the provisions of the Inter Governmental Cooperation Act (Section 70.210, et. seq.) and the Deputy City Clerk is hereby authorized to file a copy hereof with the Office of the Secretary of State and Recorder of Deeds, Cape Girardeau County.
ARTICLE 3. This ordinance shall be in full force and effect ten days after its passage and approval.
The "Agreement" between City and University that is attached to Ordinance 2465 provides in part:
In consideration of the issuance of the University Obligations, the City agrees that, from and after the issuance of the University Obligations and subject to annual appropriation by the City Council, it will transfer to the University (a) the proceeds of the additional 1% Hotel/Motel Tax imposed from January 1, 1999 through October 31, 2004, plus (b) all of the proceeds of the Hotel/Motel Tax and the Restaurant Tax imposed from November 1, 2004 through December 31, 2030, less (c) any costs associated with the normal annual operations of the City's Convention and Visitor's Bureau as determined by the City Council (currently approximately $350,000 per year).
The University agrees to deposit all amounts transferred to it pursuant to Paragraph 3 into a special fund and to apply the moneys in such fund solely to the payment of principal and interest on the obligations referred to in Paragraph 3 and payment of any rebatable arbitrage with respect thereto. Furthermore, the University agrees to (a) provide the City with copies of all statements of accounts the University receives from any trustee or paying agent for the University Obligations, and (b) annually, within 90 days following the end of each fiscal year of the University, send the City a statement of the receipts and disbursements from such special fund, and (c) grant the City access to all financial and accounting records relating to such fund.
The City agrees, to the fullest extent permitted by law, that (a) the City will continue to levy the Hotel/Motel Tax and the Restaurant Tax, (b) the City will not submit any proposition to the voters of the City to amend, repeal or reduce the Hotel/Motel Tax or the Restaurant Tax nor to cause the Hotel/Motel Tax or the Restaurant Tax to expire prior to expiration dates established in Ordinance 2403, and (c) the City will not permit the proceeds of the Hotel/Motel Tax or the Restaurant Tax to be applied for any purpose not expressly set forth in this Agreement.
. . .
This Agreement shall be in effect from and after its execution and shall remain in effect through the life of the Joint Facilities; provided, however, that (a) this Agreement shall terminate and be of no force and effect if the City Council has not made the determination required by Paragraph 1 hereof prior to December 31, 2001, and (b) the agreements contained in Paragraphs 3, 4 and 5 shall terminate upon the earlier to occur of (i) the final payment of the University obligations or (ii) the remission to the University of the Hotel/Motel Tax and the Restaurant Tax imposed pursuant to Ordinance No. 2403, to the extent required by Paragraphs 3, 4 and 5, and, at such time, the University shall transfer to the City any funds then remaining in the special fund described in Paragraph 4 hereof, which the City shall use for the operation of the Convention and Visitor's Bureau.
Section 527.020 RSMo. 2000 provides that any person whose rights, status or other legal relations are affected by a municipal ordinance may have determined any question of construction or validity arising under the ordinance "and obtain a declaration of rights, status or other legal relations thereunder." See City of St. Louis v. Milentz, 887 S.W.2d 709, 711 (Mo.App.E.D. 1994). But to grant declaratory judgment, a court must have before it a justiciable controversy. Akin, 934 S.W.2d at 298. A fundamental requirement for jurisdiction in a declaratory judgment action is the presence of an actual, justiciable controversy between the parties as to their respective rights and duties and where relief by judgment will be conclusive and determinative of the issues involved. Willis v. Most Worshipful Prince Hall Grand Lodge, 866 S.W.2d 875, 878 (Mo.App.E.D. 1993). Justiciability contemplates a real, substantial and presently existing controversy that is admitting of specific relief. Id. "The plaintiff must present a case in which specific relief can be given in a decision which will be res judicata as to the issues presented."Ferguson Police Officers Ass'n. v. City of Ferguson, 670 S.W.2d 921, 924 (Mo.App. 1984). The trial court had jurisdiction to consider Ordinance 2403. The issue remains, however, whether after declaring Ordinance 2403 invalid the court should have rendered a judgment as to Ordinance 2465. Under paragraph 3 of the Agreement, City agreed to transfer to University the additional tax imposed under Ordinance 2403 in consideration and issuance of University's obligations. Further, paragraph 17 provides that the agreements under paragraph 3, 4 and 5 terminate upon remission of the taxes imposed under Ordinance 2403. Given the language of the Agreement and the declaration that Ordinance 2403 was invalid, there was not a justiciable controversy as to Ordinance 2465. What action, if any, that may hereafter occur regarding Ordinance 2403 is speculative and therefore any opinion as to Ordinance 2465 is also speculative. Declaratory judgment should not be used to adjudicate hypothetical or speculative situations. Willis, 866 S.W.2d at 878.
The University's obligations included issuing or causing to be issued bonds or other obligations in an amount sufficient to finance $8,900,000 of the costs of the performing arts center, museum and associated cultural facilities.
Accordingly, the portion of the trial court's judgment entered as to Ordinance 2465 is reversed and pursuant to Rule 84.14, judgment is rendered dismissing Count III of plaintiffs' petition. The portion of the trial court's judgment declaring Ordinance 2403 void and enjoining collection of the tax imposed under this ordinance is affirmed.
APPENDIX A
AN ORDINANCE AMENDING CHAPTER 15 OF THE CITY
CODE INCREASING AND EXTENDING
THE HOTEL/MOTEL/RESTAURANT LICENSE TAX AND
CALLING AN ELECTION IN THE CITY OF CAPE
GIRARDEAU, MISSOURI, ON THE QUESTION OF WHETHER TO APPROVE THOSE AMENDMENTS; DESIGNATING THE TIME OF HOLDING THE ELECTION;
AUTHORIZING AND DIRECTING THE CITY CLERK TO
GIVE NOTICE OF THE ELECTION
BE IT ORDAINED BY THE COUNCIL OF THE CITY OF CAPE GIRARDEAU, MISSOURI, AS FOLLOWS;
ARTICLE 1. The existing hotel/motel/restaurant license tax contained in Chapter 15 of the Code of Ordinances of the City of Cape Girardeau, Missouri, is hereby amended as set out in this ordinance.
ARTICLE 2. Section 15-397 of the Code of Ordinances of the City of Cape Girardeau, Missouri, entitled "Levy of Tax", reading as follows:Sec. 15-397. Levy of tax.
There is hereby levied a license tax on hotels and motels in an amount equal to three (3) percent of gross receipts derived from transient guests for sleeping accommodations, and on caterers serving one hundred (100) or more people at any one (1) function and on restaurants in an amount equal to one (1) percent of gross receipts derived from the retail sale of food prepared by the restaurant, or by using the restaurant's facilities, on or off the premises and sold for immediate consumption within or away from the premises. This license tax shall be in addition to all other license taxes which are applicable to hotels, motels and restaurants, but shall not apply to gross receipts derived from sales made to individuals or entities showing proof of their exemption from Missouri or Federal sales taxes.
is hereby repealed in its entirety, and a new Section 15-397 entitled "Levy of Tax", is hereby enacted in lieu thereof, in words and figures, to read as follows:Sec. 15-397. Levy of tax.
There is hereby levied a license tax on hotels and motels in an amount equal to four (4) percent of gross receipts derived from transient guests for sleeping accommodations, and on caterers serving one hundred (100) or more people at any one (1) function and on restaurants in an amount equal to one (1) percent of gross receipts derived from the retail sale of food prepared by the restaurant, or by using the restaurant's facilities, on or off the premises and sold for immediate consumption within or away from the premises. This license tax shall be in addition to all other license taxes which are applicable to hotels, motels and restaurants, but shall not apply to gross receipts derived from sales made to individuals or entities showing proof of their exemption from Missouri or Federal sales taxes. Further, this license tax is hereby extended from its present expiration date on November 1, 2004, to December 31, 2030.
Article 3. The amendments contained in articles 2, 7 and 8 hereof shall become effective as provided by law upon January 1, 1999, upon approval thereof by a majority of the votes cast on the question by the qualified voters of the City voting thereon.
Article 4. A special election is hereby ordered to be held in the City of Cape Girardeau, Missouri, on Tuesday, November 3, 1998, on the following questions:QUESTION
Shall the license tax on hotels and motels set out in Section 15-397 of the Code of Ordinances of the City of Cape Girardeau, Missouri, be increased from three (3) percent to four (4) percent of gross receipts derived from transient guests for sleeping accommodations, and shall the license tax on hotels, motels and restaurants set out in that section be extended to expire on December 31, 2030, for the purpose of paying a portion of the costs of acquiring, constructing, furnishing and equipping a performing arts center, museum and associated cultural facilities for the City of Cape Girardeau and Southeast Missouri State University to be located at the University's River Campus?
Article 5. The form of the Notice of Election for said election, a copy of which is attached hereto and made a part hereof, is hereby approved.
Article 6. The City Clerk is hereby authorized and directed to notify the County Clerk of Cape Girardeau County, Missouri, of the adoption of this ordinance no later than 5:00 P.M. on Tuesday, August 25, 1998, and to include in said notification all of the terms and provisions required by Chapter 115 of the Revised Statutes of Missouri, as amended.
Article 7. The proceeds of the taxes authorized pursuant to this Ordinance will, subject to annual appropriation by the City Council, be used by the City to pay principal and interest on bonds to be issued for the purpose of paying a portion of the costs of acquiring, constructing, furnishing and equipping a performing arts center, museum and associated cultural facilities for the City of Cape Girardeau and Southeast Missouri State University to be located at the University's River Campus, and paying costs associated with the normal annual operations of the Convention and Visitors Bureau as determined by the City Council. Any tax revenues not required for the foregoing purposes will be deposited into an escrow fund established for the sole purpose of paying future principal and interest on the bonds and the early retirement thereof. On early retirement of the bonds, any amounts remaining in the escrow fund shall be used for the operation of the Convention and Visitors Bureau. The taxes authorized under this Ordinance shall terminate when the principal of and interest on the bonds have been paid in full. The City shall not issue any Bonds for this Project until (1) the City Council determines that the State of Missouri and the University have committed funds in an amount sufficient, in the determination of the City Council, to complete the acquisition, construction, furnishing and equipping of the Project, and (2) the City and the University have entered into an intergovernmental cooperation agreement providing for the establishment of a Board of Managers to provide guidance during the construction and design of the Project and the annual operations thereof.
Article 8. If the State of Missouri and Southeast Missouri State University have not committed funds on or before December 31, 2001, in an amount sufficient, in the determination of the City Council, to complete the acquisition, construction, furnishing and equipping of the project, the increase to the hotel/motel tax and the extension of the hotel/motel and restaurant taxes authorized under this ordinance shall terminate. In that event, all proceeds derived from the increased hotel/motel tax on or before December 31, 2001, shall be used to reduce the City's outstanding general obligation indebtedness on the Show Me Center Bonds.
Article 9. It is hereby found and declared that an emergency exists as provided for in Section 3.15 of the City Charter for the City of Cape Girardeau, Missouri, in that the Election Authority, under the time of notice provision set forth in Section 115.125 of the Revised Statutes of Missouri, must be notified not later than 5:00 o'clock P.M. on August 25, 1998, of an election to be held on November 3, 1998. It is hereby further found and declared that calling an election and providing for the submission of a proposal of the people is an emergency measure as provided for in Section 3.15(d) of the City Charter of the City of Cape Girardeau, Missouri.
Article 10. This ordinance shall be in full force and effect from and after its passage and approval.