Curchin v. Missouri Industrial Development Board

722 S.W.2d 930, 1987 Mo. LEXIS 256

• Court: Supreme Court of Missouri
• Decided: January 8, 1987
• Docket: 68784
• Status: Published

Opinions

WELLIVER, Judge.

Appellant, Alexander Curchin, appeals the Jasper County Circuit Court’s November 3, 1986, order upholding the constitutionality of § 100.297, RSMo Supp.1985, and allowing respondent, the Missouri Industrial Development Board, to issue revenue bonds containing a clause providing a state tax credit for losses on default of the bonds.

In oral argument, many questions were raised, including, among others:

(1) the impropriety of filing the original action in Jasper County when the defendant is a state board, generally suable only in Cole County;

(2) whether, in view of our holding in State ex inf Ashcroft, ex rel. Plaza Properties v. Kansas City, 687 S.W.2d 875 (Mo. banc 1985), the filing, purported hearing, and appeal of this case in a single day constitutes a sham proceeding to reach our original appellate jurisdiction in a single day, as was possible prior to Plaza Properties;

(3) whether a sham proceeding exists when the President-elect of the Chamber of Commerce, who ordinarily works to bring business to his area, here purports to hire a large St. Louis law firm to attempt to block the expansion of business in his area;

(4) whether a sham proceeding exists when the same attorneys who failed in State ex inf. Webster, ex rel. Horstman v. Missouri Industrial Development Board, No. 68762 (Mo. banc Oct. 29,1986) (involving the issuance of bonds to support the St. Louis Globe-Democrat) now purportedly represent this client from across the state, raising the same issues that were requested to be determined in Horstman;

(5) whether this is, in fact, an adversarial proceeding constituting a justiciable controversy; and

(6) whether the public is being adequately represented in this proceeding.

In the Court’s view, there are three classes of persons having a legitimate, vital interest in promoting the issuance and sale of industrial revenue bonds with state tax credits upon default, which are authorized by § 100.297, RSMo Supp.1985. They are persons interested in establishing new businesses, persons interested in expanding existing businesses, and persons interested in saving failing businesses. Other vitally interested persons include those considering purchase of such bonds, and, last but not least, the taxpayers of the state, who have an interest in preventing the improper disposition of tax revenues.

In our view, disposition of this case on procedural or justiciability issues would leave all those who do have a legitimate interest in resolving the ultimate controversy hanging in midair. If § 100.297 is unconstitutional, the sooner we face up to it, the sooner the state can get on with other methods of developing its economic resources.

Despite the question of justiciability, the constitutional issues are fully briefed and argued and the rights of all interested persons appear to be adequately represented and can be protected. We conclude that the economic importance and the general public interest justify both our expedited review¹ and our determination of the case on the merits and it is in the best interests of judicial economy and of the continued economic development of our state that we finally resolve this issue. We have original appellate jurisdiction. Mo. Const, art. V, § 3. We reverse the trial court.

I

The facts in this case are not in dispute. Respondent, the Missouri Industrial Development Board (the Board), was created as a body corporate and politic by § 100.265, RSMo Supp.1985. The Board is authorized to include in its industrial revenue bonds a provision allowing a state tax credit for the amount of any unpaid principal and accrued interest in default. §§ 100.270(2), 100.297, RSMo Supp.1985.

On June 2, 1986, the Board approved a Jasper County project concerning Missouri Specialty Castings, Inc. (Specialty) and proposed to issue $5,000,000 in revenue bonds in support thereof. On July 21, 1986, the Board approved a project concerning Kuhl-man Diecasting Company, Inc. (Kuhlman) and proposed to issue up to $15,000,000 in revenue bonds in support thereof. On September 8, 1986, the Board proposed to authorize inclusion of the tax credit provision in $2.8 million of Specialty bonds and it is alleged that the Board will authorize a tax credit on some or all of the Kuhlman bonds.

Appellant, Alexander Curchin, is a citizen and taxpayer of Missouri and, according to his counsel, is President or President-elect of the Joplin Chamber of Commerce.² On November 3, 1983, appellant filed suit as a taxpayer in the Circuit Court of Jasper County, ostensibly to obtain a declaration of the unconstitutionality of § 100.297 and of the Board’s resultant lack of authority to issue revenue bonds with the tax credit feature in support of the Specialty and Kuhlman projects. Also on November 3, resondent filed its answer, the case was tried upon stipulated facts, the Jasper County Circuit Court upheld the constitutionality of § 100.297 in a written opinion, appellant’s motion for a new trial was made and overruled, and appellant filed his notice of appeal to this Court, all utilizing admittedly pre-prepared instruments which now constitute the legal file.

On November 10, 1986, we sustained respondent’s motion to expedite. On December 3,1986, this Court sat in special session to hear the oral argument in the case.

II

Appellant argues that § 100.297 constitutes a grant of public money or property and a lending of public credit in violation of the Missouri Constitution, Article III, Section 38(a),³ which prohibits the grant of public money or property to a private person, association or corporation.⁴

Section 100.297 provides:

Tax credit for owner of revenue bonds or notes, when, amount, limitations. — 1. The board may authorize a tax credit, as described in this section, to the owner of any revenue bonds or notes issued by the board under the provisions of sections 100.250 to 100.297, if prior to the issuance of such bonds or notes, the board determines that:

(1) The availability of such tax credit is a material inducement to the undertaking of the project in the state of Missouri and to the sale of the bonds or notes;

(2) The loan with respect to the project is adequately secured by a first deed of trust or mortgage or comparable lien, or other security satisfactory to the board.

2. Upon making the determinations specified in subsection 1 of this section, the board may declare that each owner of an issue of revenue bonds or notes shall be entitled, in lieu of any other deduction with respect to such bonds or notes, to a tax credit against any tax otherwise due by such owner under the provisions of chapter 143, RSMo, in the amount of one hundred percent of the unpaid principal of and accrued interest on such bonds or notes held by such owner in the taxable year of such owner following the taxable year of the default of the loan by the borrower with respect to the project and the final application of all amounts available from the project for the payment of such principal and accrued interest. The tax credit allowed under this section shall be available to the original owners of the bonds or notes or any subsequent owner or owners thereof. Notwithstanding any provision of Missouri law to the contrary, any portion of the tax credit to which any owner of a revenue bond or note is entitled under this section which exceeds the total income tax liability of such owner of a revenue bond or note shall be carried forward and allowed as a credit against any future taxes imposed on such owner within the next ten years under the provisions of chapter 143, RSMo. The eligibility of the owner of any revenue bond or note issued under the provisions of sections 100.250 to 100.-297 for the tax credit provided by this section shall be expressly stated on the face of each such bond or note.

3. The aggregate principal amount of revenue bonds or notes outstanding at any time with respect to which the tax credit provided in this section shall be available shall not exceed fifty million dollars.

(Emphasis added.)

Respondent argues that the tax credit authorized by § 100.297 is not a grant of public money or property or a lending of public credit since no payment is required of the state. During oral argument, the parties agreed that there are no reported cases where a court has been called upon to decide whether the allowance of a tax credit constitutes a grant of public funds. This is true, we believe, since the answer is so obvious.

The tax credit is available to the original bondholder and all subsequent bondholders. A bondholder who does not have sufficient state tax liabilities to take advantage of the credit may sell the bond to one who is able to utilize that credit. § 100.-297.2. Any unused portion of the credit may be carried forward undimished for ten years. § 100.297.2. The transferability of the bends, the availability of the tax credit to subsequent bondholders, the issuance of the bonds to failing or risky businesses, and the ten-year carry forward provision make the utilization of the tax credit a near certainty.

This tax credit is as much a grant of public money or property and is as much a drain on the state’s coffers as would be an outright payment by the state to the bondholder upon default. There is no difference between the state granting a tax credit and foregoing the collection of the tax and the state making an outright payment to the bondholder from revenues already collected. The tax credit authorized in § 100.297 simply shifts the risk of loss upon default from the bondholder to the state. The allowance of such a tax credit constitutes a grant of public money or property within Article III, Section 38(a) of the Missouri Constitution.

There is also a lending of public credit, in violation of Article III, Section 38(a). The state’s tax resources are effectively pledged as the ultimate security for the bonds.

Ill

Respondent next argues that, even if the tax credit constitutes a grant of public money, it is not given to a “private person, association or corporation” within the meaning of Article III, Section 38(a) of the Missouri Constitution. In examining whether the grants of public money are made to private entities, we have required that the grants serve a public purpose. Menorah Medical Center v. Health & Educ. Facilities Auth., 584 S.W.2d 73, 78 (Mo. banc 1979). The constitutionality of the grant

depends on the ultimate use, purpose and object for which the fund is raised and not on the nature or character of the person or corporation whose immediate agency is to be used in applying it. A tax for a private purpose is unconstitutional though it pass through the hands of public officials; and the people may be taxed for a public work though it is under the direction of an individual or private corporation.

State ex rel. City of St. Louis v. Siebert, 24 S.W. 750, 751 (Mo.1894) (quoting Sharpless v. Mayor, 21 Pa. 147, 169 (1853)).

Respondent asserts that the tax credits are designed to promote the public purpose of general economic welfare. In determining whether there is a sufficient public purpose behind a grant of public money, Missouri has used the “primary effect” test. Under this test,

[t]he true distinction drawn in the authorities is this: If the primary object of a public expenditure is to subserve a public municipal purpose, the expenditure is legal, notwithstanding it also involves as an incident an expense, which, standing alone, would not be lawful. But if the primary object is not to sub-serve a public municipal purpose, but to promote some private end, the expense is illegal, even though it may incidentally serve some public purpose.

State ex rel. City of Jefferson v. Smith, 348 Mo. 554, 154 S.W.2d 101, 102 (banc 1941) (emphasis added).

In deciding the primary effect of the tax credit, the stated purpose of the legislature, as pronounced in § 100.275.7, RSMo Supp.1985, is not dispositive. Rather, we must make the determination based upon the history and purpose of Article III, Section 38(a) of the Missouri Constitution and upon cases in which we have applied that constitutional provision.⁵

In connection with [Article III, Section 38(a) of the Missouri Constitution], it might be well to recall very, very briefly the origin of [this] section[]. Along in 1820 and ’30 and ’40[,] it was the custom of the state to give large sums of money to railroads, canals, banks and so forth and the custom became so abused that nearly all the state constitutions wrote such sections as this in their fundamental law

11 Debates of the Missouri Constitution 19J/.5 3215 (debate of May 23, 1944) (statement of Mr. Garten).

Article IV, Section 46 of the Missouri Constitution of 1875, the predecessor to Article III, Section 38(a) of the Missouri Constitution of 1945, was adopted to prevent railroad grants. The provision was adopted despite the significant public benefit provided by the railroads.

Accordingly, in our application of Article III, Section 38(a) of the Missouri Constitution, we have held grants with a primarily private effect to be unconstitutional, despite the possible beneficial impact upon the economy of the locality and of the state. In State ex rel. City of Jefferson v. Smith, 348 Mo. 554, 154 S.W.2d 101 (banc 1941), we held the issuance of municipal bonds to finance the construction of an office building to be occupied by both public and private concerns to be unconstitutional, despite the beneficial impact the construction would have had on Jefferson City and on the state.

Missouri has demonstrated its encouragement of the growth and revitalization of its industries by upholding the constitutionality of industrial revenue bonds not incorporating the tax credit. Menorah Medical Center v. Health and Educ. Facilities Auth., 584 S.W.2d 73 (Mo. banc 1979); State ex rel. Jardon v. Industrial Dev. Auth. of Jasper County, 570 S.W.2d 666 (Mo. banc 1978); State ex rel. Atkinson v. Planned Indus. Expansion Auth. of St. Louis, 517 S.W.2d 36 (Mo. banc 1975). Some states have held the issuance of industrial revenue bonds to be unconstitutional.⁶ No state has upheld the constitutionality of industrial revenue bonds which provide for state tax credits upon default.

Section 100.297 allows the Board to choose the companies which it will support with the tax credit. Providing the tax credits to only a select few companies lends itself to abuse and is analogous to the railroad grants of yesteryear, which prompted the adoption of Article III, Section 38(a) of the Missouri Constitution.

While it is possible that the projects to be supported by the tax credit-bearing revenue bonds could have a beneficial impact on the economy of the state, the grant of public money to these businesses’ bondholders is unconstitutional just as railroad grants were.

“We may think that we are getting something for nothing, but there is always a payday. We have to pay for it in the long run, and I am also trying to preserve the rights of the state, the freedom of the people. If we want to sell our liberties for a little free money and then be put under government control, it won’t be long until we are slaves.” 11 Debates of the Missouri Constitution 1945 3209 (debates of May 23, 1944) (statement of Mr. Opie).

We hold the authorization of the tax credits under § 100.297 to be unconstitutional in violation of Article III, Section 38(a) of the Missouri Constitution. We need not address appellant’s other constitutional challenges to the statute.

We reverse the judgment of the circuit court.

HIGGINS, C.J., BILLINGS, BLACKMAR, DONNELLY, JJ., and FLANIGAN, Special Judge, concur. RENDLEN, J., dissents in separate opinion filed. ROBERTSON, J., not sitting.

1 . Curchin v. Missouri Industrial Development Board, No. 68784 (Mo. banc order dated Nov. 10, 1986).

2 . The Missouri Specialty Castings project would be undertaken in Joplin. The Missouri Department of Economic Development anticipates that the project would directly create 150 jobs and would have a total economic impact of $18,238,-980. The project would indirectly cause eleven new retail establishments, ninety-six new non-manufacturing jobs, a population increase of 303, an influx of 153 families, and an increase in school enrollment of ninety-two.

3 . Appellant does not raise and we do not decide the constitutionality of § 100.297 in light of the Due Process Clause of the Fourteenth Amendment of the United States Constitution. See generally Jones v. City of Portland, 245 U.S. 217, 38 S.Ct. 112, 62 L.Ed. 252 (1917); Carmichael v. Southern Coal Co., 301 U.S. 495, 57 S.Ct. 868, 81 L.Ed. 1245 (1937).

4 . Section 38(a). Limitation on use of state funds and credit — exceptions—public calamity — blind pensions — old age assistance — aid to children — direct relief — adjusted compensation for veterans — rehabilitation—participation In federal aid. The general assembly shall have no power to grant public money or property, or lend or authorize the lending of .public credit, to any private person, association or corporation, excepting aid in public calamity, and general laws providing for pensions for the blind, for old age assistance, for aid to dependent or crippled children or the blind, for direct relief, for adjusted compensation, bonus or rehabilitation for discharged members of the armed services of the United States who were bona fide residents of this state during their service, and for the rehabilitation of other persons. Money or property may also be received from the United States and be redistributed together with public money of this state for any public purpose designated by the United States.

5 . For an informative historical overview, see Comment, Missouri’s Changing Public Purpose Doctrine, 16 St. Louis U.LJ. 658 (1972).

6 . See McClelland v. Mayor of Wilmington, 39 Del.Ch. 114, 159 A.2d 596 (1960); Village of Moyie Springs v. Aurora Mfg. Co., 82 Idaho 337, 353 P.2d 767 (1960). State ex rel. Beck v. City of York, 164 Neb. 223, 82 N.W.2d 269 (1957).