State ex info. Ashcroft v. Kielhofner , 587 S.W.2d 647 ( 1979 )

PREWITT, Judge.

Relators filed an information in the nature of quo warranto asking this court to declare the consolidation election held on June 5,1979, in the cities of Illmo and Scott City, to be null and void and that we order respondent Bob Kielhofner to decertify the results of the election and oust the respondents-commissioners as members of the Charter Commission provided for in § 72.-185.¹ Relators contend that the election is a nullity because the consolidation election ballot did not list the separate bonded indebtedness of each municipality and indicate whether the tax necessary to retire each separate bond issue would be levied generally or locally as provided in § 72.195. Respondents-commissioners filed a motion to dismiss the information, contending that the election was proper, because the ballot followed exactly the form provided in § 72.170, and that the additional information as contended by relators did not have to be included and at that time submitted to the voters. The form of ballot used is not disputed. We believe the motion is well taken and sustain the motion and dissolve our preliminary order.

Sections 72.150 through 72.220 provide for consolidation of municipalities. Under these sections there may be one election required or as many as three. Section 72.195 provides that where bonded indebtedness was incurred by a municipality for facilities which are to be used generally by the consolidated municipality, the bonds shall become the indebtedness of the consolidated municipality, but where the facilities are to be used only by the residents in the area of a former municipality, then a special tax shall be levied upon the property within the area of that municipality. It lastly provides: “The question as originally submitted shall list each separate bonded indebtedness of the municipalities and shall clearly indicate whether the tax necessary to retire it is to be levied generally or locally.” The question here is whether information regarding the bonded indebtedness and the tax necessary to retire it is required to be on the ballot at the original consolidation election, § 72.170, or if it can be voted on with other transition details, as provided in § 72.185.

The consolidation election was initiated pursuant to petition as provided in §§ 72.-160 and 72.163. Section 72.163 requires the petition to contain: (1) the names of the municipalities, (2) the effective date of consolidation, (3) the votes cast in the last municipal election, and (4) a statement that the signers are registered voters in the affected municipality. Such a petition may, but is not required to, contain transitional details such as “what taxes will be collected”. § 72.163.1(5). The petitions here contained the required information but no transitional details. The form of ballot provided by § 72.170 is “shall . and . consolidate?”

Section 72.185 provides that if the original question does not contain the name and form of the government and the details of transition, such as “what taxes will be collected,” then a commission shall be appointed and they will submit these questions to the voters. It provides for two elections, if necessary. There may be cases where all details of a transition are proposed in advance, either by ordinance by the governing bodies of the municipalities as provided in § 72.155 or by petition pursuant to § 72.163.1(5). In such event, then perhaps only one election would be required. However, here transition details were not proposed in advance of the consolidation election and it became the duty of the charter commission to submit these details to the voters. § 72.185. The use of the facilities or improvements for which the debt was incurred determines whether the tax is to be levied in the area of a former municipality or over the entire area of the new municipality. The use of the facilities and the taxes for their payment cannot be proposed in such situations as here until the commission meets. Neither the governing bodies nor the petitioning voters are required to propose such uses or taxes. The commission is not authorized until after the initial election. It would not be possible here to submit such questions to the voters at the first election. We believe that the “question as originally submitted” stated in § 72.195 refers to the first election where the bonded indebtedness is considered, which is not necessarily the consolidation election. It may in a proper case, as here, be the election provided for in § 72.185.

The consolidation ballot complied with § 72.170. We should not add to that section any additional requirements. Nor should we require the governing bodies, under § 72.155, or the petitioning voters, under § 72.163, to set forth the proposed use of bond financed improvements and how the indebtedness shall be paid when the legislature did not require it. Had the legislature intended the additional information to be on the ballot at the first election, they could have clearly so provided. They provided for subsequent elections. As these may require a more detailed ballot, they did not set forth a required form. The manner of retiring the bonded indebtedness could be determined at the second or, if necessary, third election.

The motion to dismiss the information is sustained. The preliminary order in quo warranto is dissolved. All other motions are overruled as being moot.

All concur, excepting Judge MAUS dissented and files dissenting opinion; Judge FLANIGAN dissents, and joins in dissenting opinion filed by Judge MAUS.

1 . All references are to RSMo 1978.