Opinion
No. WD 62084
May 18, 2004
Appeal from the Circuit Court of Boone County, Missouri, The Honorable Frank Conley, Judge.
Craig S. Johnson, Jefferson City, MO, for Appellants.
John L. Patton, Columbia, MO, for Respondent Lensmeyer.
Alex Bartlett, Jefferson City, MO, Attorney for Respondent Columbia 93 School District.
Before Breckenridge, P.J., and Smith and Howard, JJ.
Henry Lane, Lloyd Haley, Curtis Braschler, Gordon L. Trumbo, Beulah F. Alverson, Ernest W. Greenup, Ronald M. Lucas, and William and Margie Anglen appeal the judgment of the Circuit Court of Boone County for the respondents, the Columbia 93 School District (the District) and Patricia S. Lensmeyer, the Boone County Collector (the Collector), on the appellants' amended petition seeking: (1) in Count I, a declaration of the court that the District's 2001 tax levy was in excess of that permitted by § 67.110.2; and (2) in Count II, a refund from the Collector of the property taxes that were collected from them as a result of the District's alleged erroneous and excessive 2001 tax levy.
All statutory references are to RSMo, 2000, unless otherwise indicated.
The appellants raise three points on appeal. In Point I, they claim that the trial court erred in entering judgment in favor of the respondents on the appellants' amended petition because it misapplied § 67.110.2. In Point II, they claim that the trial court erred in overruling their motion for class certification because, by finding that sovereign immunity prohibited class certification, the court misapplied the law. In Point III, they claim that the trial court erred in sustaining the Collector's motion to join the District as a necessary and indispensable party defendant because, in doing so, the court misapplied § 139.031.5.
We affirm, in part, and reverse, in part.
Facts
On June 11, 2001, the District adopted its "2001-2002 School Year Budget," reflecting declared needs from local property taxes of $56,232,505. On August 15, 2001, the District published a notice announcing that a public hearing would be held August 23, 2001, on the proposed tax levy, which was $4.7544 per $100 assessed valuation. The hearing was held, which Lane attended. Based on its declared needs and the total assessed valuation of $1,281,852,353, the District adopted the proposed levy. In November 2001, the Collector dispersed the 2001 tax bills, including those of the appellants, reflecting taxes due the District based on a levy of $4.7544 per $100 assessed valuation.
On November 6, 2001, Lane filed a two-count petition against the District in the Circuit Court of Boone County, seeking: (1) in Count I, a declaration of the court declaring that the District's 2001 tax rate was in excess of that permitted by § 67.110.2; and (2) in Count II, an injunction requiring the District to revise its 2001 levy to conform to § 67.110.2. Lane and the District were the only named parties. On January 4, 2002, Lane filed a written motion for leave to amend his petition. On January 14, 2002, Lane's motion was taken up and sustained, authorizing the filing of an amended petition, which occurred on the same date. The amended petition named as plaintiffs Lane and the other appellants. The Collector was named as the sole defendant in the amended petition. On April 30, 2002, at the request of the Collector, the District was added as an indispensable party defendant. In their two-count amended petition, the appellants sought: (1) in Count I, a declaration of the court declaring that the District's 2001 tax levy was in excess of that permitted by § 67.110.2; and (2) in Count II, a refund from the Collector of the property taxes that were collected from them as a result of the District's alleged excessive 2001 tax rate. In support of their petition, the appellants alleged that the District's 2001 levy was not "calculated to produce substantially the same revenues as required in the annual budget," as required by § 67.110.2, in that it would produce $57,287,725, $1,055,220 more than the District's declared needs of $56,232,505.
On June 21, 2002, the appellants filed a motion for class certification. They sought certification on behalf of themselves and "[a]ll persons or entities paying property taxes determined by the tax levy rate of the Columbia 93 School District for calendar year 2001 to the Boone County Collector." In their suggestions in opposition, both the District and the Collector asserted that, as a matter of law, class certification was prohibited under the existing circumstances by the doctrine of sovereign immunity. The appellants' motion for class certification was taken up and heard on August 2, 2002, and was denied on August 21, 2002. The trial court "specifically [found] and [determined] that as a matter of law a class action cannot be certified in this case and that the [appellants] should not be appointed as class representatives."
On August 23, 2002, the appellants' amended petition for declaratory judgment and a tax refund was taken up and heard by the court. At trial, the appellants and the District presented evidence; however, the Collector did not. Having taken the cause under advisement, the trial court, on September 27, 2002, entered judgment for the respondents, finding that the District's levy of $4.7544 per $100 assessed valuation did not violate § 67.110.2.
This appeal follows.
Appellate Jurisdiction
In every case, before addressing the merits of the appeal, we first have to determine our jurisdiction, sua sponte. Nicholson Constr. Co. v. Mo. Highway Transp. Comm'n , 112 S.W.3d 6, 9 (Mo.App. 2003) ( citing Comm. for Educ. Equal. v. State , 878 S.W.2d 446, 450 (Mo. banc 1994)). Without jurisdiction, we must dismiss the appeal. Id. ( citing Gibson v. Brewer , 952 S.W.2d 239, 244 (Mo. banc 1997)).
In determining our jurisdiction, here, we first address the issue of whether the trial court should have dismissed, for failing to state a claim upon which relief can be granted, pursuant to Rule 55.27(a)(6), Count I of the appellants' amended petition, in which they sought a declaration of the court that the District's 2001 tax levy was in excess of that permitted by § 67.110.2. Parshall v. Buetzer , 121 S.W.3d 548, 551 (Mo.App. 2003). The issue of whether a claim has been stated upon which relief can be granted is inherent in every appeal and may be raised, sua sponte, by this court. Preferred Physicians Mut. Mgmt. Group, Inc. v. Preferred Physicians Mut. Risk Retention Group , 916 S.W.2d 821, 823 (Mo.App. 1995). "This is because the failure to state a claim on which relief can be granted essentially deprives the trial court of subject matter jurisdiction and, thus, the authority to rule on the plaintiff's petition; and if the trial court lacked subject matter jurisdiction to rule, we necessarily have no jurisdiction to review the court's ruling on the merits." Parshall , 121 S.W.3d at 551-52 (citations omitted). In determining whether Count I of the appellants' amended petition stated a claim upon which relief can be granted, we are to give it its most liberal interpretation and accord it all reasonable inferences from the facts alleged. Id. at 552.
All rule references are to the Missouri Rules of Civil Procedure, 2004, unless otherwise indicated.
Under the Declaratory Judgment Act, §§ 527.010-.130, trial courts have the "power to declare rights, status, and other legal relations whether or not further relief is or could be claimed." § 527.010. And, although trial courts have a considerable measure of discretion in determining whether an action for a declaratory judgment should be entertained, Shelter Mut. Ins. Co. v. Vulgamott , 96 S.W.3d 96, 101 (Mo.App. 2003), that discretion is not without limits. Parshall , 121 S.W.3d at 552. Any exercise of that discretion "must be sound, based on good reason, and calculated to serve the purposes for which the legislation was enacted." Id. (quoting Preferred , 916 S.W.2d at 824-25). In order to state a claim for declaratory relief, four requirements must be met: (1) there must be a justiciable controversy; (2) the plaintiff must demonstrate a legally protected pecuniary or personal interest directly at issue and subject to immediate or prospective consequential relief; (3) the issue to be determined must be ripe for judicial determination; and, (4) the plaintiff must demonstrate that he does not have an adequate remedy at law. Kinder v. Holden , 92 S.W.3d 793, 804-05 (Mo.App. 2002). Here, the appellants did not meet all four requirements for declaratory judgment in that, as we discuss, infra, they clearly had an adequate remedy at law in addressing the issue of claimed excessive taxes paid to the District, namely a refund of the taxes that they claim were assessed and paid in excess of what was permitted by § 67.110.2.
In Count II of their amended petition, the appellants sought, pursuant to § 139.031.5, a partial refund of their 2001 taxes paid to the District. Section 139.031.5 provides:
All the county collectors of taxes, and the collector of taxes in any city not within a county, shall, upon written application of a taxpayer, refund or credit against the taxpayer's tax liability in the following taxable year and subsequent consecutive taxable years until the taxpayer has received credit in full for any real or personal property tax mistakenly or erroneously levied against the taxpayer and collected in whole or in part by the collector. Such application shall be filed within three years after the tax is mistakenly or erroneously paid. The governing body, or other appropriate body or official of the county or city not within a county, shall make available to the collector funds necessary to make refunds under this subsection by issuing warrants upon the fund to which the mistaken or erroneous payment has been credited, or otherwise.
As a basis for their refund claim under § 139.031.5, the appellants alleged in their petition that the District's tax levy for 2001 was in excess of that permitted by § 67.110.2, the same issue on which they sought declaratory judgment in Count I. Hence, the very issue on which they sought a declaration of the trial court in Count I was a proof element of their refund claim in Count II.
When an issue can be raised by some other means, an action for a declaratory judgment on that issue is inappropriate. Parshall , 121 S.W.3d at 552. Here, there is no showing that the resolution of appellants' Count II would not fully redress the issue on which they sought a declaratory judgment in Count I and would not be an adequate remedy without recourse to declaratory judgment. King Louie Bowling Corp. of Mo. v. Mo. Ins. Guar. Ass'n , 735 S.W.2d 35, 38-39 (Mo.App. 1987). As such, Count I of the appellants' amended petition for a declaratory judgment failed to state a claim upon which relief could be granted, and, therefore, the trial court lacked jurisdiction to enter judgment thereon. Id. Hence, in our review, we will treat the trial court's judgment on the appellants' amended petition in favor of the respondents as an adjudication as to Count II only, the refund claim. Kesterson v. Wallut , 116 S.W.3d 590, 597 (Mo.App. 2003).
As to our review of our jurisdiction as to Count II, we now turn to the District's motion to dismiss, which was taken with the appeal. In its motion, the District alleged, inter alia, that the appellants' amended petition was barred by Rule 67.01, and, therefore, the trial court's purported judgment on that petition was null and void, depriving this court of jurisdiction. In that regard, the District contends that the appellants' amended petition, which sought relief based on an alleged violation of § 67.110.2, was barred by Rule 67.01 in that Lane's original petition, which also sought relief based on an alleged violation of § 67.110.2, was dismissed by the trial court, at Lane's request, with prejudice.
As noted, supra, on November 6, 2001, Lane filed a two-count petition against the District. Lane and the District were the only named parties. On January 4, 2002, Lane filed, pursuant to Rule 55.33(a), a written motion for leave to amend his petition. Rule 55.33(a) provides, in pertinent part:
A pleading may be amended once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, pleading may be amended at anytime within thirty days after it is served. Otherwise, the pleading may be amended only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.
On January 14, 2002, Lane's motion was taken up and heard. In sustaining that motion, the trial court made the following docket entry:
PLAINTIFF APPEARS PERSONALLY AND BY COUNSEL. DEFENDANT APPEARS BY COUNSEL. AT PLAINTIFF'S REQUEST, COUNTS I AND II DISMISSED WITH PREJUDICE AND PLAINTIFF GIVEN LEAVE TO FILE 1ST AMENDED PETITION. SAME FILED. SUMMONS ORDERED ISSUED.
(Emphasis added.) The amended petition named, as plaintiffs, Lane and the eight other appellants. The Collector was named as the sole defendant in the amended petition. However, on April 30, 2002, on the motion of the collector, the District was added as an indispensable party defendant.
The District contends that because Lane's original petition was dismissed by the trial court "with prejudice," he and the other named plaintiffs in the amended petition were barred, by Rule 67.01, from filing their amended petition. Rule 67.01, provides, in pertinent part, that "[a] dismissal with prejudice bars the assertion of the same cause of action or claim against the same party." While Rule 67.01 would clearly bar Lane and anyone in privity with him from filing the same cause of action after it was dismissed with prejudice, see Williams v. Rape , 990 S.W.2d 55, 61 (stating that res judicata principles "are to be applied to dismissals under Rule 67.01 just as they are applied in cases decided under the common law doctrine itself"), that portion of the trial court's docket entry dismissing Lane's petition with prejudice is clearly at odds with its express grant of leave to file the amended petition. This is so in that once a petition is dismissed with prejudice, the trial court is powerless to reinstate it, Liberman v. Liberman , 844 S.W.2d 79, 80 (Mo.App. 1992), including the filing of an amended petition.
In simultaneously ordering Lane's petition dismissed with prejudice and granting leave to file the first amended petition, the trial court's order was inconsistent and ambiguous, requiring us to interpret it. See State ex rel. Beaird v. Del Muro , 98 S.W.3d 902, 909 (Mo.App. 2003) (stating that a written instrument is ambiguous if it is reasonably susceptible to different constructions). When interpreting an ambiguous order, "this court makes its own independent assessment, because construction of a court order is a question of law." Id. (citations omitted). In making our assessment, we apply the general rules of construction for written instruments in an effort to ascertain the intention of the court in entering the order. Laffey v. Laffey , 72 S.W.3d 143, 152 (Mo.App. 2002). The intention of the court must be determined from the order in its entirety, and words and clauses are to be interpreted according to their natural and legal import. Lombardo v. Lombardo , 120 S.W.3d 232, 244 (Mo.App. 2003). In interpreting an order, "a reviewing court is concerned with the 'sense' of the [order] rather than the 'abstract force' of its language." Woodfill v. Shelter Mut. Ins. Co. , 878 S.W.2d 101, 103-04 (Mo.App. 1994) (citing Jeans v. Jeans , 314 S.W.2d 922, 925 (Mo.App. 1958)). And, "the [order's] meaning should be determined in light of the character and object of the proceeding." Id. at 104 (citing State v. Schieber , 760 S.W.2d 557, 559 (Mo.App. 1988)).
Inasmuch as the trial court is presumed to know the law, Harrison v. Coomber Realty Inv. Co. , 224 S.W.2d 63, 64 (Mo. 1949); Dorman v. Dorman , 91 S.W.3d 167, 171 n. 4 (Mo.App. 2002), we can infer that the trial court here understood that it could not both dismiss with prejudice Lane's petition and grant leave to amend. Thus, the trial court had to have intended to either dismiss Lane's original petition, with prejudice, or grant leave to file an amended petition. Common sense and logic tell us that in granting leave to file the amended petition and proceeding thereon, the trial court never intended to dismiss the petition, with prejudice, which would have precluded the very filing of the amended petition it authorized. Hence, in interpreting the trial court's contradictory and ambiguous docket order of January 14, 2002, we find that it intended that Lane's motion for leave to file an amended petition be sustained and that the dismissal language was superfluous and without effect.
In its motion to dismiss, the District also alleges that this appeal should be dismissed because the appellants are not "aggrieved" by the trial court's judgment and, therefore, lack standing to appeal, in accordance with § 512.020. Specifically, it contends that because the "total of all of the tax refund claims does not exceed the filing fee for this appeal . . . [t]he respective tax refund claims, both individually and collectively, are insufficient for the Appellants to be 'aggrieved' within the meaning of Section 512.020." We disagree.
The right to appeal is governed by § 512.020, which states, in relevant part, that "[a]ny party to a suit aggrieved by any judgment of any trial court in any civil cause from which an appeal is not prohibited . . . may take his appeal to a court having appellate jurisdiction from any . . . final judgment[.]" Thus, a party must be "aggrieved" by the judgment below to have any right to appeal. Schroff v. Smart , 120 S.W.3d 751, 754 (Mo.App. 2003). "An aggrieved party is one who suffers from an infringement or denial of legal rights." Id. (citing Jackson County Bd. of Election Comm'rs v. Paluka , 13 S.W.3d 684, 687-88 (Mo.App. 2000)). "The judgment in question must operate directly and prejudicially on the party's personal or property rights or interests and such effect must be immediate and not merely a possible remote consequence." Id. (citing Calarosa v. Stowell , 32 S.W.3d 138, 143 (Mo.App. 2000)).
In support of its contention that the appellants are not aggrieved by the trial court's judgment from which they appeal, the District relies solely on Koehr v. Emmons , 55 S.W.3d 859 (Mo.App. 2001). In that regard, the District contends that Koehr stands for the proposition that where the amount of the tax refund claimed is significantly less than the filing fee for the appeal, the appellants are not "aggrieved" within the meaning of § 512.020. The District's reliance on Koehr is misplaced.
In Koehr , the plaintiffs, individually and as representatives of a class of ad valorem taxpayers of Franklin County, filed a petition seeking a refund of taxes allegedly levied in excess of the limits set forth in the Hancock Amendment. 55 S.W.3d at 861. Count I sought a refund of $323.80, the amount the plaintiffs had individually paid under protest. Id. Count II sought a refund of all 1997 taxes allegedly wrongfully levied against all taxpayers as a class. Id. After a trial on the merits, the trial court entered judgment against the plaintiffs. On appeal, the Eastern District of this court found that the class action claims were not timely filed. Id. at 864. Accordingly, the court reversed the trial court's certification of the class to maintain the class action, remanding the case back to the trial court so that all claims for class action relief could be dismissed. Id. The court then addressed the Koehrs' individual tax refund claim, which was timely filed. In that regard, the court explained:
the amount allegedly overpaid to District is just $4.04, or less than ten percent of the filing fee for this appeal. Particularly where the disputed method of computation has changed in the interim, such an insubstantial sum does not provide a proper foundation for finding a Hancock violation. As the Missouri Supreme Court observed in Missourians for Tax Justice Educ. Project v. Holden, 959 S.W.2d 100, 107 (Mo. banc 1997), '[t]he purpose of the tax and spending limitations contained in the Hancock Amendment is not thwarted if the calculation of the revenue limit is not accurate to the mill.'
Id. This language makes clear that the court was not refusing review because the appellant was not aggrieved due to the amount in controversy being insubstantial in comparison to the filing fee for appeal, as the respondents contend; rather, it was simply finding that the sum in controversy was so insubstantial that it did not constitute a Hancock violation. The case at bar does not involve a question of whether the tax levy in question violated the Hancock Amendment. As such, Koehr is not controlling, and clearly, the appellants are aggrieved in that the trial court ruled against them on their amended petition seeking a refund of taxes paid under an alleged excessive levy.
For the reasons stated, we overrule the District's motion to dismiss. And, because we have determined that we have jurisdiction to review, we turn to the merits of the appeal.
Standard of Review
In a court-tried case, such as the case at bar, our review is governed by Rule 73.01, as interpreted in Murphy v. Carron , 536 S.W.2d 30, 32 (Mo. banc 1976). Mercantile Bank of Sikeston v. Moore , 935 S.W.2d 762, 766 (Mo.App. 1996). Under that standard, we will affirm the judgment of the trial court unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Id. In determining whether the trial court erroneously declared or applied the law, our review is de novo. Lakin v. Gen. Am. Mut. Holding Co. , 55 S.W.3d 499, 503 (Mo.App. 2001).
I.
In Point I, the appellants claim that the trial court erred in entering judgment in favor of the respondents on the appellants' amended petition for a refund of alleged excessive taxes paid to the District because in doing so it erroneously declared and applied the law with respect to § 67.110.2. Section 67.110.2 provides, in pertinent part, that "tax rates shall be calculated to produce substantially the same revenues as required in the annual budget." Specifically, the appellants claim that the trial court erroneously declared and applied the law in finding that the District's 2001 tax levy did not violate this provision of § 67.110.2 so as to trigger a refund under § 139.031.5.
The figures involved here are not in dispute. The District, in its "2001-2002 School Year Budget," adopted on June 11, 2001, declared needs of $56,232,505 in local tax revenues. The total assessed valuation of the taxable property in the District was $1,281,852,353. The tax rate set by the District was $4.7544 per $100 of assessed valuation. Thus, assuming a collection rate of 100%, the rate set would produce revenues of approximately $60,944,388, which was $4,711,883 ($60,944,388 — 56,232,505) more than the budgeted expenditures of local tax revenues. However, the District, in its budget, only assumed a collection rate of 94%, which lowered local property tax revenues to $57,287,725, resulting in an excess of $1,055,220 ($57,287,725 — 56,232,505) of expenditures over revenues. The appellants claim that the $57,287,725 in revenue produced by the levy was not "substantially the same" as the $56,232,505 budgeted by the District such that the levy violated § 67.110.2, triggering a refund under § 139.031.5, which provides, in pertinent part:
There are three factors in taxation: (1) the assessed valuation; (2) the amount of money necessary to be raised (declared needs); and (3) the rate of levy. Southwestern Bell Tel. Co. v. Hogg , 569 S.W.2d 195, 199 (Mo. banc 1978). "The rate of levy is always the last factor to be determined, and to be obtained as a quotient, the assessed valuation being the divisor and the amount of taxes the dividend." Id.
All the county collectors of taxes, and the collector of taxes in any city not within a county, shall, upon written application of a taxpayer, refund or credit against the taxpayer's tax liability in the following taxable year and subsequent consecutive taxable years until the taxpayer has received credit in full for any real or personal property tax mistakenly or erroneously levied against the taxpayer and collected in whole or in part by the collector. Such application shall be filed within three years after the tax is mistakenly or erroneously paid.
As the District points out in its brief, this appeal does not involve an allegation that the District's 2001 levy violated the Hancock Amendment, which limits the authority of political subdivisions, including school districts, to levy a tax, license or fee; an allegation that voter approval was required to adopt its levy; or an allegation that the District was required to roll back its levy because of reassessment, under § 137.073.2. While these are matters restricting the District's ability to levy local property taxes to produce operating revenue, the issue here is whether § 67.110.2 applies to school districts to further restrict their ability to raise such revenues.
The District contends that even assuming, arguendo, that its 2001 levy did not comply with § 67.110.2, as claimed by the appellants, that fact did not warrant a refund in that the setting of its levy complied, in all respects, with § 164.011, which was controlling. In other words, the District contends that the mandate of § 67.110.2, that "tax rates shall be calculated to produce substantially the same revenues as required in the annual budget," does not apply to school districts in setting their local property tax rate. In support of their contention, the District, citing Greenbriar Hills Country Club v. Director of Revenue , 935 S.W.3d 36, 38 (Mo. banc 1996), asserts that compliance with § 164.011 is all that is required of school districts in that § 67.110 is a "general statute," whereas § 164.011 is a "specific statute" and that "[w]hen the same subject matter is addressed in general terms in one statute and in specific terms in another, the more specific controls over the more general." The District's contention is without merit.
By its express terms, § 67.110 applies to "[e]ach political subdivision in the state, except counties, . . . as defined in section 70.120, RSMo[.]" Section 70.120(3) defines political subdivision as "any agency or unit of this state which now is, or hereafter shall be, authorized to levy taxes or empowered to cause taxes to be levied," which definition would include a school district. Further support for the application of § 67.110.2 to school districts can be found in Green v. Lebanon R-III School District , 13 S.W.3d 278, 284 (Mo. banc 2000), where the Missouri Supreme Court cited § 67.110 for the proposition that "[s]chool districts set the levies . . . not later than September 1[.]" Thus, inasmuch as the statutory construction relied upon by the District, that the specific controls over the general, only applies where the two statutes governing the same issue are in conflict and cannot be harmonized, Nichols v. Dir. of Revenue , 116 S.W.3d 583, 586 (Mo.App. 2003), the District's argument, that a violation of § 67.110.2 is irrelevant, must fail, unless § 67.110 and § 164.011 are in conflict with respect to the setting of school district levies and cannot be harmonized. That is not the case.
Section 164.011 provides in pertinent part:
The school board of each district annually shall prepare an estimate of the amount of money to be raised by taxation for the ensuing school year, the rate required to produce the amount, and the rate necessary to sustain the school or schools of the district for the ensuing school year, to meet principal and interest payments on the bonded debt of the district and to provide the funds to meet other legitimate district purposes. In preparing the estimate, the board shall have sole authority in determining what part of the total authorized rate shall be used to provide revenue for each of the funds as authorized by section 165.011, RSMo.
§ 164.011.1 (emphasis added). Thus, § 164.011 "is the statutory mechanism by which school districts must certify the taxes necessary to be produced (estimate of need) to the county clerk." Southwestern Bell Tel. Co. v. Mitchell , 631 S.W.2d 31, 37 (Mo. banc 1982). And, while § 164.011 governs the procedure school districts must use in certifying their estimated needs for the ensuing school year, § 67.110 governs the procedure they must follow in actually fixing their ad valorem property tax rate to meet their estimated needs. Hence, inasmuch as the two sections in question address separate and distinct steps in the taxing procedure of school districts, they cannot be characterized as being general versus specific, much less as being in conflict with each other.
Having determined that the District, in setting its 2001 tax levy, was required to comply with § 67.110.2, the question then becomes whether it did so. The appellants claim that it did not, while the District claims that it did. The resolution of that issue ultimately turns on what the legislature meant in § 67.110.2 by the phrase "substantially the same revenues." The appellants claim that the District's 2001 tax levy violated that section in that it produced revenues that were not substantially the same as the District's declared needs. Section 67.110 does not define the phrase "substantially the same revenues," nor have our appellate courts had an occasion to interpret it, requiring us to do so.
In interpreting statutes, we are to determine the intent of the legislature, giving the language used its plain and ordinary meaning. Heslop v. Sanderson , 123 S.W.3d 214, 222 (Mo.App. 2003). If the intent of the legislature is clear and unambiguous, giving the language used its plain and ordinary meaning, then we do not resort to statutory construction. Id. In determining legislative intent, we are to read the statute as a whole and in pari materia with related sections. Id. And, in interpreting statutes, "it is appropriate to take into consideration statutes involving similar or related subject matter when such statutes shed light upon the meaning of the statute being construed, even though the statutes are found in different chapters and were enacted at different times." Buck v. Leggett , 813 S.W.2d 872, 874-75 (Mo. banc 1991). Statutes involving the assessment, levy and payment of taxes should be construed in context with each other. Id.
Although our courts have not interpreted the phrase "substantially the same revenues," as found in § 67.110.2, the Missouri Supreme Court has interpreted the nearly identical phrase, "substantially the same amount of tax revenue," found in § 137.073.2, commonly referred to as the rollback statute. The present version of that statute provides, in pertinent part: "[a]ll political subdivisions shall immediately revise the rates of levy for each purpose . . . for which taxes are levied to the extent necessary to produce from all taxable property, exclusive of new construction and improvements, substantially the same amount of tax revenue as was produced in the previous year[.]" § 137.073.2 (emphasis added). The prior version provided:
Whenever the assessed valuation of real or personal property within the county has been increased by ten percent or more over the prior year's valuation . . . then such taxing authorities shall immediately revise and lower the rates of levy to the extent necessary to produce from all taxable property substantially the same amount of taxes as previously estimated to be produced by the original levy.
§ 137.073.2, RSMo 1969 (emphasis added).
In St. Louis-Southwestern Railway Co. v. Cooper , 496 S.W.2d 836, 842 (Mo. banc 1973), the Missouri Supreme Court interpreted what the legislature meant by "substantially the same amount of taxes" in § 137.073.2. In interpreting the phrase, the Court stated: "The meaning of the phrase 'substantially the same' is well known. 'Substantially,' as the word is used in the statute, is synonymous with 'practically', 'nearly', 'almost', 'essentially' and 'virtually.'" Id. In Southwestern Bell Telephone Co. v. Hogg , 569 S.W.2d 195, 201 (Mo. banc 1978), the Court, again interpreting the phrase, held that the amount need not be exact, "but it can and should be very close to it." (Emphasis added.) Inasmuch, as the Court was interpreting nearly identical language of a statute that involved the same subject matter as § 67.110.2, we believe logically that the same definition would apply such that in requiring in that section that the District's levy be set at a rate that would "produce substantially the same revenues as required in the annual budget," the legislature intended that the amount of the revenues produced be practically, nearly, almost, essentially, or virtually the same.
The District contends, inter alia, that the practically-nearly-almost-essentially-virtually standard for local property tax revenues was met here because "revenues," in the context of § 67.110.2, "is not limited to 'revenue' from local property taxes, but must and should be interpreted as the 'revenues' produced by the tax levies from all sources, including basic state aid under the school foundation formula," such that in setting its 2001 levy the District was authorized to consider any decrease in state aid that would result from the setting of the levy in accordance with § 67.110.2. In that regard, the District points to evidence in the record that the levy necessary to render the amount of its declared needs would result in a loss of state aid, such that it was authorized, under § 67.110.2, to set a levy that would produce revenues in excess of its declared needs to make up for the loss. In other words, the District is asking us to interpret § 67.110.2 as allowing school districts to consider a loss of state aid when setting its annual tax rate on local property. The statute does not define "revenues." Hence, we must interpret that term in search of the legislature's intended meaning. Heslop , 123 S.W.3d at 222.
Before addressing what the legislature intended by the term "revenues" in § 67.110.2, we would first note that the District's argument, concerning loss of state aid, is based on an assumption, involving a question of law, that has yet to be decided. In that regard, the District's argument is based upon an assumption that in setting its levy below the levy that was set would have constituted a "voluntary" reduction in the local operating tax levy, resulting in a loss of state aid of some $4,000,000, pursuant to § 163.011(13). That section calls for a calculated levy, which does not result in the loss of state aid under the funding formula for a reduction in the local operating levy, provided that any rollback in the previous year's levy was not a "voluntary tax rate rollback." It provides, in pertinent part, that the "tax rate used to determine a district's entitlement shall be adjusted so that any decrease in the entitlement due to a decrease in the tax rate resulting from the reassessment shall equal the decrease in the deduction for the assessed valuation of the district as a result of the change in the tax rate due to reassessment." In other words, under the statute, school districts are not punished in the amount of state aid they receive for any mandated rollback of their operating levies, pursuant to § 137.073 or the Hancock Amendment, due to an increase in total assessed valuation resulting from mandated statewide reassessments.
The present version is found in § 163.011(14) RSMo (Cum. Supp. 2004).
Dr. Chris Straub, at the time the primary lobbyist for the Missouri School Board Association and an expert witness for the District, testified that the purpose of § 163.011(13) was to prevent school districts from taking advantage of the state by voluntarily reducing their operating levies to be eligible for increased state aid to make up the loss in revenues. He further testified that he believed the Department of Elementary and Secondary Education would interpret the District's setting of its 2001 levy, so as to comply with § 67.110.2, as a voluntary reduction in the context of § 163.011(13), resulting in approximately $4,000,000 in lost state aid. While Dr. Straub was considered an expert by the trial court on matters of school finance, he is obviously not considered an expert in interpreting the law. The question of whether the setting of a school district's levy in compliance with § 67.110.2 constitutes a voluntary reduction for purposes of § 163.011(13), is a question of law for us to decide de novo. Lakin , 55 S.W.3d at 503. The District does not cite us to any authority on this issue. It simply relies on the opinion of their expert witness on school finances as to the law, which is of no consequence.
Section 163.011(13) does not define the phrase "voluntary tax rate rollback" as the phrase appears in the statute, and as indicated, supra, no appellate court has interpreted it either. However, giving the language used its plain and ordinary meaning and interpreting it in context, it is clear to us that that phrase was not intended to include the fixing of a school district's levy, pursuant to § 67.110.2. There is nothing voluntary about the requirements of § 67.110.2 in setting a school district's levy. The statute mandates that the levy be set so it will produce substantially the same amount of revenue as the declared needs of the district. Thus, pursuant to § 67.110.2, a school district has no discretion with respect to reducing or increasing its levy. Under § 67.110.2, the setting of the levy is simply a function of the declared needs for the ensuing year and does not constitute a voluntary rollback that would result in the District losing some $4,000,000 in state aid, under § 163.031.
Of course, in setting its levy in accordance with § 67.110.2, the District is still subject to the Hancock Amendment, which restricts the District's ability to raise the maximum levy allowed without voter approval.
Further support for why the setting of the District's levy under § 67.110.2 would not be considered a "voluntary rollback" for purposes of § 163.011(13) can be found in the fact that, given the requirements of § 67.110.2, to lower its levy the District would also have to lower its declared needs. Thus, § 67.110.2 could not be manipulated to accomplish the evil that is sought to be avoided by § 163.011(13), which, according to the District's expert, Dr. Straub, is to prevent school districts from taking advantage of the state by voluntarily reducing their operating levies to be eligible for increased state aid to make up the loss in revenues. Hence, for this reason and the reason discussed, supra, the District's argument, that its 2001 levy was not excessive and in violation of § 67.110.2 because it was authorized to set its levy to reflect a projected loss in state aid, is without merit.
Even assuming, arguendo, that the District would lose some state aid in setting its levy in compliance with § 67.110.2, the respondents' argument that § 67.110.2 authorizes districts to set a levy sufficient to meet its declared needs plus any loss of state aid still must fail in that, giving the language of that section its plain and ordinary meaning and reading it in context, it is clear that the revenues referenced were intended to be limited to revenues substantially in the same amount as the District's declared needs. In setting its local tax rate, pursuant to § 67.110.2, the District must determine its needs, then set its rate such that when multiplied by the total assessed valuation, it would render an amount substantially equal to its declared needs. In other words, the levy is solely a function of declared needs and total assessed valuation. There is nothing in the statute to suggest that the legislature intended for the rate to be figured and then re-figured if the rate calculated would result in a loss of state aid, as provided in § 163.011(13). Obviously, the legislature could have provided in § 67.110.2 for consideration of lost state aid by including similar language to that found in § 137.073.3(1), providing that "the tax rate ceiling may be adjusted to offset [the] district's reduction in the apportionment of state school moneys due to its reduced tax rate." The legislature chose not to do that, from which it can be inferred that it did not intend the reduction in state school aid to be a consideration in setting its levy, pursuant to § 67.110.2. It is well settled that the legislature is presumed to have acted intentionally when it includes language in one section of a statute, but omits it from another. State v. Bass , 81 S.W.3d 595, 604 (Mo.App. 2002). "A disparate inclusion or exclusion of particular language in another section of the same act is 'powerful evidence' of legislative intent." Id. (quoting Jantz v. Brewer , 30 S.W.3d 915, 918 (Mo.App. 2000)). Although § 67.110 and § 137.073 are not part of the same act, they are both part of the overall tax scheme, and as such should be construed in context with each other. Buck , 813 S.W.2d at 874. Thus, by expressly granting school districts the ability to consider the "reduction in the apportionment of state school moneys" under § 137.073, and failing to do so under § 67.110, we can assume that the legislature did not intend to grant school districts the ability to consider the "reduction in the apportionment of state school moneys" in setting their levies under § 67.110.
Additional support for interpreting § 67.110.2 as we do, concerning what is meant by "revenues," can be found in the fact that its application is not confined to school districts, but applies equally to the fixing of ad valorem property tax rates for "[e]ach political subdivision in the state, except counties." From this it is only logical to conclude that if the legislature had intended for the consideration of lost state aid to be a factor in setting the rate for school districts, it would have expressly said so and did not.
Finally, further support for a narrow interpretation of "revenues" under § 67.110 can be found in Southwestern Bell Telephone Co. v. Bond , 595 S.W.2d 365 (Mo.App. 1980). In that case, Southwestern Bell claimed that the Miller County Reorganized School District No. 2 set its tax rate in violation of § 137.073.2. The District argued that the requirement of § 137.073.2 that it rollback its levy to "produce from all taxable property substantially the same amount of taxes as previously estimated to be produced by the original levy," meant that "a school district takes into account all sources of revenue not only from the levy on local property but also from the levy on the state assessed railroad and utility distributable property." Id. at 368. In rejecting this argument, the court explained that:
137.073 calls for the rate of levy of a school district to be reduced to a level which yields 'substantially the same amount of taxes as previously estimated to be produced by the original levy.' The original levy . . . did not produce any taxes other than local taxes and the reduction, therefore, concerns nothing other than local taxes.
Id. Logically, the same would hold true in the case of § 67.110.2. Section 67.110 produces only local property taxes, and, therefore, concerns nothing other than local property taxes. As such, the relevant "revenues" under § 67.110 are limited to those generated by local property taxes. Hence, the District's argument that its 2001 levy did not produce "revenues" that were excessive in light of § 67.110.2 because the excess of § 67.110 revenues over declared needs was necessary in order to offset an alleged loss of state aid, is without merit.
The District next contends that its levy did not violate § 67.110.2 in that the excess of $1,055,220, determined by using a 94% collection rate, was only ".7007% of the total of all projected revenues of $150,592,377." We disagree on several grounds.
We first take note of the fact that the comparison suggested by the District in determining the percentage of the excess is not proper. In contending as it does, the District compares the excess of revenues over declared needs to "total revenues" of the district, not just those revenues addressed in § 67.110.2. It cites no authority for such a comparison in determining the § 67.110.2 tax rate, and we can find none. Common sense, however, would dictate that the proper comparison of any excess would be to the revenues generated by the levy set in accordance with § 67.110.2 inasmuch as the comparison is being done in order to determine compliance with that statute. Hence, in determining the percentage of the excess, the proper comparison is to § 67.110.2 revenues.
Here, depending on whether a 100% or 94% collection ratio is used, the District's 2001 levy would produce revenues of $60,944,388 or $57,287,725, the former resulting in an excess over declared needs of $4,711,883, and the latter resulting in an excess of $1,055,220. Using the excess figure of $4,711,883, the percentage of the excess, as a function of the revenues generated by the levy, would be 7.73144% ($4,711,883/$60,944,388). Using the figure of $1,055,220, the percentage of excess would be 1.84196% ($1,055,220/$57,287,725). Obviously, the District would argue for the lesser percentage, using the 94% collection rate. However, that raises the question as to the District's authority for using less than a 100% collection rate in setting its levy in accordance with § 67.110.2.
In Southwestern Bell Telephone Co. v. Feuerstein , 529 S.W.2d 371 (Mo. 1975), the Missouri Supreme Court was asked to determine whether the trial court had erred in ordering a refund to certain taxpayers from their school district, pursuant to § 137.073, RSMo 1969, requiring a reduction in the local tax rate levied by the district where the "assessed valuation of real or personal property within the county has been increased by ten percent or more over the prior year's valuation, either by an order of the state tax commission or by other action." Having resolved that issue in favor of the taxpayers and the trial court's judgment, ordering a reduction in the district's levy, the Court then addressed the district's argument that the reduction ordered by the trial court was incorrect in that it was based on a 100% collection rate of the levy, rather than the lesser collection rate employed by the district. In ruling against the district on that issue, the Court stated that: "there is no statutory authority which allows a school district to estimate and assume a rate of collection and state their needs on that basis[.]" Feuerstein , 529 S.W.2d at 374. Thus, here, employing the required 100% collection rate would yield an excess of $4,711,883, or stated as a percentage of the revenues produced by the levy, an excess of 7.73144%. The District makes no argument that such a percentage of excess would meet the practically-nearly-almost-essentially-virtually standard of § 67.110.2 for generating local property tax revenues.
In addition to pointing out the lack of statutory authority for using a collection rate, other than 100%, the Court in Feuerstein also noted the lack of any evidentiary support for the use of the lesser rate. 529 S.W.2d at 374. Such is the case here. The record does not disclose any evidentiary basis for the 94% collection rate employed by the District in setting its levy.
In a further attempt to justify its 2001 levy, the District argues that its formal adoption of its levy on August 23, 2001, effectively amended, pursuant to § 67.030, its budget that was formally adopted on June 11, 2001, such that the budget of declared needs called for the amount of revenues that the levy would produce. To accept the District's interpretation of the law with respect to the amendment of its budget so as to comply with § 67.110.2 would eviscerate the statute and clearly be contrary to the legislature's intent. The legislature obviously intended that the levy be a function of the school district's declared needs, not vice versa, as the District's interpretation would render.
Section 67.030, in pertinent part, provides:
The governing body of each political subdivision may revise, alter, increase or decrease the items contained in the proposed budget, subject to such limitations as may be provided by law or charter; provided, that in no event shall the total authorized expenditures from any fund exceed the estimated revenues to be received plus any unencumbered balance or less any deficit estimated for the beginning of the budget year.
While § 67.030 authorizes the District to amend its budget, it does not authorize an amendment of the District's budget by the setting of the District's levy, pursuant to § 67.110.2. Section 67.110.2 provides that "[t]he tax rates shall be calculated to produce substantially the same revenues as required in the annual budget adopted as provided in this chapter." (Emphasis added.) Thus, the clear language of the statute indicates that the setting of the levy is a function of the declared needs of the school district, such that the District's contention that the setting of the levy effectively amended its declared needs, is contrary to the statute. The record reflects that the District adopted its budget on June 11, 2001, which reflected the District's declared needs to be $56,232,505. Thus, the District was mandated by § 67.110.2 to set its levy accordingly. However, rather than following that mandate, the District set a levy that produced revenues in excess of the District's declared needs, as we discuss, supra.
The District next contends that its 2001 levy did not violate § 67.110.2 in that in setting its levy, it was "acting legislatively and no action will lie to challenge a tax levy which produces revenues in excess of the budgeted amount." In that regard, the District argues in its brief that "actions by the governing bodies of local governmental entities in making budget determinations and acting to assure that there are sufficient revenues to cover projected expenditures are not subject to judicial review." In other words, the District is contending that its budgeting process, pursuant to § 67.110.2, is not subject to challenge in that it is a legislative act. However, this appeal does not involve a challenge to the District's budgeting process, as the appellants do not question the District's authority to budget $56,232,505 in needs from local property taxes. Rather, this appeal involves a challenge to the District's ability to set its tax rate to meet its declared needs, in accordance with § 67.110.2.
Finally, the District contends that even if its 2001 levy violated § 67.110.2, as claimed by the appellants, no refund was authorized "[b]ecause Section 67.110, RSMo, does not direct that a political subdivision reduce its tax levies when the tax levies reach a certain point, it is clear that the General Assembly did not intend that a taxpayer would have a legal right to require a reduction in the tax rates and therefore be entitled to a tax refund." This argument is wholly without merit in that it ignores the express mandate of § 139.031.5 that: "[a]ll the county collectors of taxes . . . shall . . . refund . . . any real or personal property tax mistakenly or erroneously levied against the taxpayer and collected in whole or in part by the collector." By its express terms, § 139.031.5 provides for a refund of taxes "mistakenly or erroneously" levied against the taxpayer and collected by the Collector. Here, there is no dispute that the taxes in question were levied against the appellants and were collected by the Collector. The only question, concerning the application of § 139.031.5, is whether the 2001 taxes paid by the appellants were "mistakenly or erroneously" levied and collected due to a violation of § 67.110.2.
"'Mistakenly or erroneously paid' means taxes that were not owed at the time they were paid, as compared to taxes 'lawfully and properly assessed.'" Mo. Am. Water Co. v. Collector of St. Charles County, Mo. , 103 S.W.3d 266, 271 ( Mo. App. 2003) (citing Crest Communications v. Kuehle , 754 S.W.2d 563, 567 (Mo. banc 1988)). In other words, taxes paid under an illegal tax are considered to be "erroneously" paid for purposes of § 139.031.5. Quaker Oats Co. v. Stanton , 96 S.W.3d 133, 140 (Mo.App. 2003) (discussing Buck v. Leggett , 813 S.W.2d 872, 878 (Mo. banc 1991)). An illegal tax is one levied without statutory authority. Cmty. Fed. Sav. Loan Ass'n v. Dir. of Revenue , 752 S.W.2d 794, 798 (Mo. banc 1988). As we conclude, supra, the District violated its statutory authority, pursuant to § 67.110.2, in establishing a 2001 tax rate of $4.7544 per $100 of assessed valuation, which resulted in taxes being mistakenly and erroneously levied against and collected from the appellants, triggering a partial refund of their 2001 taxes, pursuant to § 139.031.5.
For the reasons stated, we find that the trial court, in entering its judgment denying the appellants' claim for a refund based on a violation of § 67.110.2, misapplied the law, requiring us to reverse.
II.
In Point II, the appellants claim that the trial court erred in overruling their motion for class certification because, by finding that sovereign immunity prohibited class certification in this case, the trial court misapplied the law. Specifically, they claim that the trial court erred in finding that sovereign immunity prohibited class certification in this case in that § 139.031.5 serves as a waiver of the State's sovereign immunity.
On June 21, 2002, the appellants filed a motion for class certification. They sought certification on behalf of themselves and "[a]ll persons or entities paying property taxes determined by the tax levy rate of the Columbia 93 School District for calendar year 2001 to the Boone County Collector." The appellants claimed that class certification was appropriate because the requirements of Rule 52.08, which lists the prerequisites for class certification, had been met. In their suggestions in opposition, both the District and the Collector asserted that, as a matter of law, class certification was prohibited under these circumstances by the doctrine of sovereign immunity. On August 21, 2002, the trial court issued an order denying the appellants' motion for class certification. The trial court found that "as a matter of law a class action cannot be certified in this case and that the [appellants] should not be appointed as class representatives," without addressing the requirements set forth in Rule 52.08.
The respondents contend that the trial court was correct in refusing to grant class certification in that "class actions for tax refunds are not permitted, unless the refund statute in question specifically provides that a taxpayer may bring a class action on behalf of the class." The appellants, however, claim that § 139.031.5, the refund statute in question, does specifically provide for class certification. They claim that § 139.031.5 "create[s] a refund or credit procedure that [does] not require individual protest payment and suit for refund[,]" and, thus, "this subsection allow[s] class actions, and thus constituted a statutory 'waiver of sovereign immunity' to class actions." Hence, the issue in this point, as framed by the parties, is whether § 139.031.5 serves as a waiver of the State's sovereign immunity such that class action certification is authorized.
The appellate courts of this state have consistently held that the state may not be sued without its consent. H.S. Constr. Co. v. Lohman , 950 S.W.2d 331, 332 (Mo.App. 1997) ( citing Kleban v. Morris , 247 S.W.2d 832, 836 (1952)). Consequently, statutory provisions that allegedly waive sovereign immunity must be strictly construed. McNeill Trucking Co., Inc. v. Mo. State Highway Transp. Comm'n , 35 S.W.3d 846, 848 (Mo. banc 2001). And, when a state does consent to be sued, "it may be sued only in the manner and to the extent provided by the statute; and the state may prescribe the procedure to be followed and such other terms and conditions as it sees fit." City of Hazelwood v. Peterson , 48 S.W.3d 36, 41 (Mo. banc 2001) (quoting Charles v. Spradling , 524 S.W.2d 820, 823 (Mo. banc 1975)). This is the aspect of sovereign immunity, which balances "the interest of the [government] in being able to rely on its unencumbered collections against the interest of the taxpayer in paying only the lawful taxes." Ackerman Buick, Inc. v. St. Louis County , 771 S.W.2d 343, 346 (Mo. banc 1989). Missouri's statutory tax refund provisions operate as a limited waiver of the state's sovereign immunity. City of Hazelwood , 48 S.W.3d at 41. Thus, the issue is whether § 139.031.5 waives sovereign immunity to the extent that class actions are authorized there under.
Section 139.031.5 provides that:
All the court collectors of taxes, and the collector of taxes in any city not within a county, shall, upon written application of a taxpayer, refund or credit against the taxpayer's tax liability in the following taxable year and subsequent consecutive taxable years until the taxpayer has received credit in full for any real or personal property tax mistakenly or erroneously levied against the taxpayer and collected in whole or in part by the collector. Such application shall be filed within three years after the tax is mistakenly or erroneously paid. The governing body, or other appropriate body or official of the county or city not within a county, shall make available to the collector funds necessary to make refunds under this subsection by issuing warrants upon the fund to which the mistaken or erroneous payment has been credited, or otherwise.
Section 139.031.5 provides an avenue by which a taxpayer, upon written application, can seek the refund of taxes mistakenly or erroneously paid. Section 139.031.5 contains no provision for refunds of property taxes to be claimed on behalf of a class of taxpayers. Without such a provision, strictly construing the statute, it cannot be said that the legislature has waived the State's sovereign immunity to the extent of permitting such a procedure. See Spradling , 524 S.W.2d at 823 (explaining that § 144.190 contains "no provision for refunds of sales tax to be claimed on behalf of a class of taxpayers," and, thus, "[t]he legislature has not waived the State's sovereign immunity to the extent of permitting such procedure"). By claiming that, because § 139.031.5 does not require individual protests of suits for refund, it therefore allows class actions, the appellants are essentially claiming that because § 139.031.5 does not expressly prohibit class actions, it therefore allows them. This, however, is not the law, as Missouri law does not permit the certification of class actions in statutory tax refund claims, unless expressly authorized. Spradling , 524 S.W.2d at 823; Hazelwood , 48 S.W.3d at 40-41.
As the Hazelwood case explains, Missouri law does allow for class action certification when the underlying claim is a violation of the Hancock Amendment. 48 S.W.3d at 41. We, however, are not faced with such a claim here.
Although not included in their points relied on, the appellants argue that if class certification is not permitted, Article X, Section 3, of the Missouri Constitution, will be violated, as they will be taxed at a lower rate than the rest of the class of taxpayers. Claims "not raised in the point relied on and advanced for the first time in the argument portion of an appellant's brief are not preserved for appellate review." Hoover v. Hoover , 892 S.W.2d 818, 819 (Mo.App. 1995). In any event, ex gratia review of this claim discloses no constitutional violation.
The appellants appear to be claiming that if they are not allowed to represent the class of taxpayers subject to the taxing authority of the District, they would, if successful on this appeal, effectively be taxed at a lower rate than the rest of the class of taxpayers, which would lead to a violation of Article X, Section 3, of the Missouri Constitution. They argue that "[i]t is now too late for any taxpayer who timely paid his or her taxes by December 31, 2001 to file a statutory application for refund of a tax paid pursuant to a mistaken or erroneous belief the tax rate was legal within one year of that payment," and, therefore, "[t]he amended petition, seeking inclusion of all taxpayers paying the tax in question, is the only vehicle left to assure that the law will be uniformly applied to all taxpayers." In other words, the appellants are claiming that the State, by failing to waive its sovereign immunity in § 139.031.5, which requires a claim be brought "within three years after the tax is mistakenly or erroneously paid," has unlawfully created two classes of taxpayers. The appellants would make up one class, while everyone else would make up the other. Even assuming, arguendo, that the appellants are correct, and no other taxpayers would be able to receive a refund of taxes paid under the District's illegal 2001 levy, this would not lead to a violation of Article X, Section 3, of the Missouri Constitution. Article X, Section 3, of the Missouri Constitution provides that "[t]axes may be levied and collected for public purposes only, and shall be uniform upon the same class or subclass of subjects within the territorial limits of the authority levying the tax." However, the Constitution's uniformity requirement does not require absolute uniformity. Dean Taylor Cadillac-Olds, Inc. v. Thompson , 871 S.W.2d 5, 7 (Mo.App. 1993) (citing 508 Chestnut, Inc. v. City of St. Louis , 389 S.W.2d 823, 830 (Mo. 1965)). It "does not prohibit tax subclassifications[;] [i]nstead, it prohibits tax subclassifications that are arbitrary, unreasonable or without substantial justification." Bert v. Dir. of Revenue , 935 S.W.2d 319, 321 (Mo. banc 1996). Thus, the test for uniformity is the same as the test to determine whether a tax violates equal protection. Id. "A statute will be upheld and a classification sustained if the classification is rationally related to a legitimate state interest." Id. (quoting Blaske v. Smith Entzeroth, Inc. , 821 S.W.2d 822, 829 (Mo. banc 1991)).
In this case, the two classes created by the State's refusal to waive its sovereign immunity through § 139.031.5 are: (1) taxpayers who properly followed the statutory procedures established for obtaining a refund of mistakenly or erroneously paid taxes; and (2) taxpayers who did not. This classification is rationally related to the State's obvious and legitimate interest of "certainty for taxpaying entities and the ability of the collector to disburse the taxes." Quaker Oats Co. , 96 S.W.3d at 143. As such, § 139.031.5 does not violate the Constitution's uniformity requirement. And, while this outcome may seem unjust to some, it is well settled that the State need not refund taxes voluntarily paid, but illegally collected, even though "it shocks the equitable conscience." Id. ( quoting Ring v. Metro. St. Louis Sewer Dist. , 969 S.W.2d 716, 718 (Mo. banc 1998)).
Point denied.
III.
In Point IV, the appellants claim that the trial court erred in sustaining the Collector's motion to join the District as a necessary and indispensable party defendant because the only proper parties to a tax refund claim brought pursuant to § 139.031.5 are the taxpayer and collector.
Given the fact that we have already concluded the trial court's judgment denying the appellants' claim for a refund must be reversed, and that class certification is prohibited under § 139.031.5, resolution of the issue presented in this point would have no practical effect upon the ultimate outcome of this appeal. As such, the point is moot, and we will not address it. Mo. Consol. Health Care Plan v. Cmty. Health Plan , 81 S.W.3d 34, 50 (Mo.App. 2002).
Conclusion
We affirm the trial court's judgment denying class certification, but reverse its judgment denying the appellants' claim for a refund based on a violation of § 67.110.2, and remand the case to the court to enter judgment for the appellants, after calculating the refund due them in accordance with § 139.031.5.
Breckenridge, P.J., and Howard, J., concur.