Waris v. Carnes

760 S.W.2d 573, 1988 Mo. App. LEXIS 1563, 1988 WL 121219
CourtMissouri Court of Appeals
DecidedNovember 15, 1988
DocketNo. WD 40828
StatusPublished
Cited by1 cases

This text of 760 S.W.2d 573 (Waris v. Carnes) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Waris v. Carnes, 760 S.W.2d 573, 1988 Mo. App. LEXIS 1563, 1988 WL 121219 (Mo. Ct. App. 1988).

Opinion

COVINGTON, Judge.

This is an appeal from an entry of judgment in favor of John Carnes, Carol Coe, Fred Arbanas, Roger Cunningham, James D. Tindall, Dennis Waits, Ed Growney, Robert Beaird, and Robert E. Hertzog, Jackson County legislators, and Governor John D. Ashcroft on the petition of Jackson County Executive Bill Waris for declaratory judgment, from judgment in favor of the legislators against the county executive on the legislators’ counterclaim for declaratory judgment, and from judgment in favor of the legislators and against John D. Ashcroft on the legislators’ cross-claim for declaratory judgment. The judgments are affirmed.

This action arose from a dispute over whether the county executive of Jackson County or the county legislature has the authority to submit to Governor Ashcroft a panel of three names from which to appoint an individual to fill a vacancy on the Jackson County Sports Complex Authority.

Enabling legislation for the Authority was passed in 1965. The Authority was termed “a body corporate and politic and a political subdivision of the state of Missouri.” § 64.920, RSMo 1965. The five commissioners of the Authority were to be appointed by the governor from candidates submitted by a majority vote of the county court. § 64.930.4, RSMo 1965.

At the time the Authority was created, Jackson County was operating under a three judge county court form of government. When the Constitutional Home Rule Charter of Jackson County took effect in January of 1973, the county court was replaced by a county executive and a county legislature.

In 1986, the General Assembly amended section 64.930.4 to provide that, in the event of a vacancy, a new panel of three names shall be submitted by a majority vote of the county commission to the governor for appointment. The amendment simply substituted the word “commission” for “court.”

From the inception of the Authority until October, 1985, the county legislature submitted panels to the governor when a vacancy on the Authority occurred. On October 14, 1985, Mr. Waris, as county executive, appointed two panels for submission to the governor. The county legislature did not disapprove either panel, and the governor made his selections from those panels.

On November 7, 1986, Mr. Waris issued an executive order nominating three individuals for appointment by the governor to fill a vacancy on the Authority. On January 20, 1987, the county legislature, by unanimous vote, adopted a resolution nominating three other individuals for appoint[575]*575ment to fill the same vacancy. On February 4, 1987, the governor issued a statement indicating that he would not appoint from either panel until the matter was resolved by the courts.

Mr. Waris relies upon section 6.1 of article III of the Jackson County Charter which gives the county executive the power to:

1. Appoint, subject to the legislature’s power of disapproval, directors of departments, officers not otherwise provided for, members of boards and commissions, and acting officers to fill any vacancy in any appointive or elective office, except that of county legislator; he shall file written notice of such appointment with the clerk of the county legislature.

Mr. Waris contends that the members of the Authority are county officers or, in the alternative, that the Authority is a county board or commission. He further cites section 2 of article XI which provides:

The legislature shall by ordinance create a county plan commission, a board of zoning adjustment and such other boards and commissions as it may deem necessary. The legislature shall in each case prescribe the number, length of term, and duties and functions of the members of such boards and commissions, and establish duties and procedures for each board and commission. Members of all such boards and commissions shall be appointed by the executive, as provided in this chapter.

According to Mr. Waris, the county executive holds an all-encompassing appointment power.1

There are two imperfections in Mr. War-is’ argument that the county executive has the power to nominate the panel. First, the sports authority is not a county board, or commission, and its commissioners are not county officers. The Authority is an entity separate from the county, and, as such, the appointment power of the county executive does not apply.

In State ex rel. Jardon v. Industrial Development Authority, 570 S.W.2d 666 (Mo.banc 1978), the Missouri Supreme Court examined the question of whether a county industrial development authority created pursuant to chapter 349, RSMo Supp.1977, was a separate and distinct legal entity from the city or county in which it was established. Id. at 669. The court noted that the industrial development authority is independent of the local government in its operation, its incurment of debt, and its ownership of property. Id. at 672. Although some state control existed over the organization and operation of the authority, the court found the authority to be a “separate entity” where the special purpose authority was established as a “body corporate” and was solely responsible for the issuance of its bonds. Id. at 670. The authority was a distinct legal entity established to perform the public purpose designated by the legislature. Id. at 672.

Following the reasoning of Jardon, the Missouri Supreme Court later found the St. Louis County Port Authority to be a separate entity under Missouri law for purposes of the issuance of, and liability for, its revenue bonds. State ex rel. Wagner v. St. Louis County Port Auth., 604 S.W.2d 592 (Mo.banc 1980). Although the Wagner court determined that a port authority was not a political subdivision under article X, section 15 of the Missouri Constitution for the limited purpose of local government tax exemption under article X, section 6, the court nevertheless followed the Jardon reasoning and found the local port authority to be a legal entity separate and distinct from both the state and the city or county in which it might be established. Wagner, 604 S.W.2d at 604.

The Jackson County Sports Authority is a separate entity within the reasoning of Jardon and Wagner. Although the Authority is not tax exempt under article X, section 6, it is a separate and distinct legal entity from the county for purposes of its operation, its incurment of debt, and its ownership of property. The Authority’s [576]*576general powers include: the authority to enter into contracts with counties and other political subdivisions, § 64.940.1(3), RSMo 1986; the authority to borrow money and issue bonds, § 64.940.1(6), RSMo 1986; and the authority to condemn any and all rights or property necessary for purposes of the sports authority, § 64.940.1(7), RSMo 1986. The Authority is authorized to exercise additional powers as may be conferred by the general assembly or by act of congress. § 64.940.1(8), RSMo 1986.

The sports authority possesses other in-dicia of the special entity status. The authority receives funding from neither Jackson County nor the State of Missouri. Its primary source of revenue is derived from rentals from Kansas City’s professional football and baseball franchises.

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Related

Rice v. Ashcroft
831 S.W.2d 206 (Missouri Court of Appeals, 1991)

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Bluebook (online)
760 S.W.2d 573, 1988 Mo. App. LEXIS 1563, 1988 WL 121219, Counsel Stack Legal Research, https://law.counselstack.com/opinion/waris-v-carnes-moctapp-1988.