I. Introduction
"Regardless of an action's merits, unless the parties to the action have proper standing, a court may not entertain the action. Standing requires that a party seeking relief have a legally cognizable interest in the subject matter and that he has a threatened or actual injury."1 "A taxpayer has a direct interest in the proper use and allocation of tax receipts. That interest gives the taxpayer a sufficient stake in the outcome of the suit to allow him to challenge improper uses of tax funds."2 In those few sentences, the Supreme Court of Missouri in Eastern Missouri Laborers Dist. Council v. St. Louis County summarized the principles behind taxpayer standing, an idea Missouri has supported since the nineteenth century.3 Eastern Missouri Laborers called taxpayer standing the "door through which taxpayers may enter the courts" to enforce the law.4
It is important for practitioners to realize, however, that merely invoking the principal of taxpayer standing is insufficient to secure it in Missouri courts.5 For example, in a recently decided case, a retired Missouri highway patrolman sued the superintendent of the patrol and other public officials charged with its administration, alleging the patrol was exceeding its statutory powers by working on gambling boats.6 The Missouri Court of Appeals, Eastern District ("Eastern District") pointed out the limits of taxpayer standing, noting "[w]hile Appellant's principled stance on this issue may be admirable, the rules of standing exist to conserve scarce judicial resources and cannot yield to such an argument."7 Because the plaintiff conceded at oral argument that the activity he protested did not involve the expenditure of public funds, the court held he lacked standing to bring his lawsuit in the first place.8
This article will generally discuss the principle of taxpayer standing in Missouri. Part II will discuss the development of the doctrine until its last significant reconsideration in Eastern Missouri Laborers. Part III will attempt to synthesize analysis set out in Eastern Missouri Laborers and suggest some important rules that have since emerged. Part IV will discuss some policy implications of Eastern Missouri Laborers and its progeny.
II. Taxpayer Standing in Missouri
The right of a taxpayer to sue to enjoin the improper use of public funds has been recognized in Missouri since the nineteenth century.9 In Newmeyer v. Missouri & Mississippi R.R., the Supreme Court of Missouri allowed taxpayers of Macon County to proceed with their suit opposing the use of county funds to purchase railroad stock. After reviewing the foreign authorities on each side of the question, the Court concluded that those supporting the idea of taxpayer standing rested "upon a more solid foundation of principle and reason than those holding the contrary doctrine."10 Newmeyer went on to describe the "private injury" suffered by those county taxpayers, distinguishing it from a general public injury.11 "The injury charged as the result of the acts complained of is a private injury in which the tax-payers of the county of Macon are the individual sufferers, rather than the public."12
By the 1920s the Supreme Court of Missouri seemed more willing to embrace the public interests symbolized by individual taxpayers bringing suit to enjoin illegally spent public moneys. In Civic League of St. Louis v. City of St. Louis, a single corporation was permitted to protest the payment of an allegedly illegal salary because the suit was "brought for the benefit of plaintiff and all other taxpayers of said city."13 Civic League, unlike Newmeyer, went on to note "where public interests are involved, and public funds are about to be dissipated for an illegal purpose, a single taxpayer may maintain an action . . . without being required to show, at trial, the extent of the damages which it may sustain."14 The idea of taxpayer standing had become so established by the 1950s that the Supreme Court of Missouri acknowledged "taxpayers have always had the remedy of injunction at common law, without aid of statutory authority, to enjoin the illegal expenditure of public moneys."15
Something of a limitation on the taxpayer standing rules that had emerged throughout the early to middle twentieth century arose after the Missouri Court of Appeals for the Southern District decided Absher v. Cooper.16 The taxpayer-plaintiffs in Absher sued municipal officials for their alleged failure to properly account for the finances of the City of Dexter and for paying out municipal moneys despite the absence of a proper accounting.17 The court in Absher found the taxpayers did not have standing despite their allegation that public moneys had been illegally paid out because "[t]hey did not undertake to show how the alleged conduct of the defendants invaded or will invade a private substantive legally protected interest. . . ."18
The Missouri Court of Appeals for the Western District ("Western District") in Missourians for Separation of Church and State v. Robertson seemed to contradict Absher's assessment of taxpayer standing rights.19 Although Robertson distinguished Absher because "the text of [the Southern District's] opinion does not suggest that the claim was an illegal expenditure of public funds, but only a failure of office to render an account", the difference in tone of the two opinions is striking.20 Absher required the taxpayer-plaintiffs to demonstrate a private substantive interest that the allegedly illegal public act threatened to invade.21 Robertson, on the other hand, disagreed with the defendant's contention that a taxpayer-plaintiff was required to allege a particular, direct injury.22 Such an argument, Robertson continued, "misunderstands the fundamental nature of the proceeding."23 Taxpayer standing, according to Robertson, is "a privilege recognizable and exercisable only in a public capacity, and the result to be accomplished must be of benefit to the public within the taxing district."24
Another line of cases decided during the 1970s and 1980s limited taxpayer standing in Missouri in a way different from Absher. The limitation expressed in Absher centered on the particular plaintiff's connection to the allegedly illegal public act. Collins v. Vernon and subsequent cases focused on the effect the allegedly illegal expenditure had on all taxpayers.25
In Collins, taxpayers challenged the sale of municipal property by certain officials serving the City of Eldon, but their suit failed for lack of standing.26 Collins discussed two grounds for its holding. First, the court noted the plaintiffs failed to show their interests, such as an increased tax burden, were injuriously affected by the sale of property.27 The court went on to discuss the plaintiffs' failure to demonstrate the expenditure of public funds.28 Collins, therefore, could have been interpreted to allow for taxpayer standing based on either an increased tax burden or an illegal expenditure of public funds.29 After all, depending on economic and political factors, one does not necessitate the other. Nonetheless, both increased taxes and consumed public funds represent a colorable injury to taxpayers' interests. The former burdens the taxpayer by adding to her tax bill, the latter burdens the taxpayer by improperly consuming the taxes she has already paid.
The Eastern District appeared to embrace such an equation in Sommer v. City of St. Louis when it stated "[a] taxpayer who alleges that public funds are expended for an illegal or unconstitutional purpose by so doing describes an injury sufficient to maintain a declaratory judgment and injunction against the illicit action."30 In contrast, Brock v. City of St. Louis held that a public entity or official whose actions were challenged by a taxpayer could defeat the challenger's standing to sue so long as the allegedly illicit act could possibly result in a net gain for the public body.31 Such a showing sufficiently proved that the allegedly illegal acts would not "necessarily result in a loss of revenue to the [public entity] or an increased tax burden to the taxpayers."32 After Brock, the government no longer needed to show the ends justified their allegedly illegal means of consuming public moneys, merely that such a justification was possible. The expenditure of public funds was not emphasized.
In Pace Const. Co. v. Missouri Hwy. and Transp. Comm'n, the Western District seemed to stretch the limitation established in Sommer and Brock even further.33 Pace Constr. Co. denied the plaintiff-taxpayer's right to contest the allegedly illegal payment of more than one million dollars for building contracts based on the allegedly erroneous interpretation of public bids.34 Pace Contr. Co. reasoned that the award of the building contracts to the lowest bidders resulted in "some savings to the taxpayer as the corrected bids were lower."35 This conclusion significantly varied the analysis employed in Sommer and Brock. Before Pace Constr. Co., a taxpayer could establish standing by showing that the allegedly illegal public act would necessarily result in an expenditure of public funds through a net loss of revenue. Pace Constr. Co. interpreted the notion of an expenditure not by comparing expenditures to revenues but by comparing expenditures to other potential expenditures.36 There was no dispute that the funds allocated for buildings in Pace Constr. Co. were straight expenditures with no chance of ultimate economic savings, unlike the tax abatement contested in Sommer or the health care scheme in Brock.37 Nevertheless, the taxpayer-plaintiff still had no standing to contest the allegedly illegal act.38
From this relatively uncertain caselaw matrix, Eastern Mo. Laborers produced the current rule on taxpayer standing.39 Eastern Mo. Laborers involved two separate taxpayer cases brought against St. Louis County.40 One case challenged the illegal expenditure of funds for the renovation of a county building without the proper notification and wage scale determinations.41 The other involved the allegedly improper designation of money for the purchase and improvement of land needed to build a sports stadium.42
In deciding "the proper test for conferring taxpayer standing," Eastern Mo. Laborers first looked to the "two-part test found in Brock and its progeny."43 The Court found that the Brock test required the showing of (1) illegal spending of public funds and (2) special injury.44 Eastern Mo. Laborers decided that, in light of the fundamental principles providing for taxpayer standing, the previous decisions of the Supreme Court of Missouri, and the public policy of taxpayer lawsuits, the test for whether such standing exists should not be the one found in Brock.45
Instead, the Court stated:
[a]bsent fraud or other compelling circumstances, to have standing a taxpayer must be able to demonstrate a direct expenditure of funds generated through taxation, or an increased levy in taxes, or a pecuniary loss attributable to the challenged transaction.
. . .
Even though an expenditure might produce a net gain, if the expenditure is not contemplated by the enabling legislation, it is illegal and should be enjoined.46
Because both cases under consideration involved a direct expenditure of St. Louis County funds, Eastern Mo. Laborers held the taxpayer-plaintiffs in each case had standing to sue the county.47 The bidding case was retransferred to the Eastern District for a resolution of the remaining points on appeal.48 The stadium case was remanded to the circuit court for further proceedings.49 After Eastern Mo. Laborers, the test to determine taxpayer standing was no longer in doubt. Taxpayers could establish standing by showing (1) the expenditure of public funds, (2) an increased tax levy, or (3) a pecuniary loss attributable to the challenged transaction.50
III. Development and Refinement of the Eastern Mo. Laborers Doctrine
Although the general rule set out in Eastern Mo. Laborers was straightforward, the process of interpreting what constitutes "a direct expenditure of funds generated through taxation, or an increased levy in taxes, or a pecuniary loss attributable to the challenged transaction of a municipality" after Eastern Mo. Laborers generated some relatively detailed rules.51
The need for a "nexus"
First, even though a taxpayer-plaintiff can demonstrate that public funds were consumed in the course of an allegedly illegal or improper government act, Missouri courts have interpreted Eastern Mo. Laborers to require a direct connection between the alleged illegality and the outlay of public funds. For example, in John T. Finley, Inc. v. Missouri Health Facilities Review Comm., the Western District held that the plaintiff failed to establish taxpayer standing to dispute the award of a certificate of need to a skilled nursing facility.52 Although public funds were consumed in the course of reviewing the certificate of need application, the court noted that "was not the type of expenditure of public funds that confers taxpayer standing."53 The taxpayer-plaintiff did not dispute the legality of the committee's review of the application, but its result. The court rejected plaintiff's argument that public funds would also be spent reimbursing patients of the facility under the Medicaid program for the same reason.54 The legality of the Medicaid program was not at issue, so it would be inappropriate to count the funds spent on that program to establishing standing.55
Missouri Coalition for the Environment v. Joint Committee on Administrative Rules, in which the Supreme Court of Missouri found taxpayer standing, helps demonstrate the nexus requirement when compared to John T. Finley.56 In Missouri Coalition for the Environment, plaintiffs were able to demonstrate taxpayer standing because, rather than disputing an administrative decision as was the case in John T. Finley, they challenged the constitutionality of the process by which the Joint Committee on Legislative Rules (JCAR) reviewed proposed administrative rules.57 Because the review process itself was the allegedly illegal act, the Court could consider the public funds used to operate the JCAR as a basis for taxpayer standing. Consequently, a nexus existed between spending and the alleged illegality.58
Expectations of future profits cannot protect an illegal government act from taxpayer scrutiny, but some limitations exist
Second, the Supreme Court of Missouri has defined "expenditure" broadly enough to include outlays which could be described as start-up costs for government programs that are ultimately expected to earn money for a governmental entity.59 One year before Eastern Mo. Laborers, the Supreme Court of Missouri found an expenditure of public funds sufficient to establish taxpayer standing in Tichenor v. Missouri State Lottery Comm'n.60 In Tichenor, the lottery commission planned to spend as much as $300,000 to "explore, join and participate in [a] multi-state lottery."61 Taxpayer-plaintiff argued that the commission was without legal authority to enter into such an enterprise.62 Judge Blackmar, writing for the majority, concluded:
Even though a net gain from the multi-state lottery is expected and no money will be taken from the state treasury, we believe that the funds of the lottery commission are "state funds" in the broad sense, and that the plaintiff as a citizen and taxpayer of Missouri has standing to challenge the legality of these expenditures in court.63
This rule was endorsed the next year in Eastern Mo. Laborers, which maintained an illegal expenditure should be enjoined "even though [it] might produce a net gain."64
A different notion of an expenditure was presented to the Eastern District in State ex rel. Ryan v. Carnahan.65 In Ryan, the taxpayer-plaintiff objected to the assignment of Missouri Highway Patrol officers to work on gambling boats throughout the state.66 Plaintiff argued such assignments were beyond the statutory authority granted to the patrol.67 The Eastern District, however, noted plaintiff could not properly assert taxpayer standing because, according to statute and regulation, private gambling licensees reimbursed the commission, which in turn reimbursed the highway patrol for any costs associated with the disputed activity.68
In Hinton v. City of St. Joseph, the Western District dealt with another concept of an "expenditure" when taxpayers sought to prohibit the sale of lands that had been dedicated to the city for use as a park.69 Hinton found the sale of public property did not constitute an "expenditure of funds."70 Moreover, the court found no "reason to believe taxes will be increased by virtue of [the disputed] transaction."71 Both Hinton and State ex rel. Ryan refused to accept the idea that any consumption of public assets constituted an "expenditure of public funds" under Eastern Mo. Laborers. Moreover, Hinton did not discuss the notion that the ill-advised sale of a publicly-held benefit could constitute a "pecuniary loss" which would also suffice to establish taxpayer standing.72
IV. Some Policy Implications for Missouri Government
It has been said that the primary basis for taxpayer suits arises from the need to ensure that government officials conform to the law.73 This need rests upon the importance of assiduously faithful and dutiful public service.74 Practical, equitable considerations like the lack of other adequate remedies and the prevention of a multiplicity of lawsuits have also been cited in support of taxpayer standing.75 The ideological and practical underpinnings of taxpayer standing in Missouri have resulted in some important political and social distinctions that effect how taxpayers, the state government, and the courts relate to one another.
There is, of course, the limitation of money. Requiring that plaintiffs be taxpayers narrows the class of people who may challenge allegedly illegal public acts, and requiring pecuniary loss of some kind limits the kind of illegal acts which may be challenged by a taxpayer lawsuit.76 Further, defining pecuniary loss or expenditure of public funds becomes more difficult when public and private entities make arrangements to share and shift costs associated with challenged actions and policies.77
Also, Missouri standing rules implicitly compare taxpayers to other public officials like the Attorney General, State Auditor or members of the General Assembly when choosing who should enforce the law. This is true even though public officials could argue they have superior expertise in specialized areas like public procurement, administering public agencies or law enforcement.78 Moreover, public officials, to the extent they are elected, can claim they better represent all Missouri taxpayers, indeed all citizens, when it comes to deciding what illegal acts should be pursued. If the will of Missourians is to enforce the law differently from the way elected officials are choosing to do so, the reasoning goes, they may demonstrate their will in the next election. No such recourse is available among taxpayers. Of course, the other side of this issue focuses upon the superiority of law to public opinion. The ability of taxpayers to submit their legal challenges to the courts protects unpopular minorities. Further, the popular practices of public officials who administer public programs and enforce the laws deserve little respect if they are not supported by law.
Ultimately, it falls to the courts to resolve the conflicts that arise between officials charged with complex administration of our state government and any one of the millions of constituents who may question the legality of their actions because they pay taxes each year. Eastern Mo. Laborers has resolved these questions with a reasonably clear and fair rule to determine, at least, who may have access to the courts. The resolution of each taxpayer's grievance once standing has been established depends on the applicable facts and law of the case.
Endnotes
1 Eastern Mo. Laborers Dist. Council v. St. Louis County, 781 S.W.2d 43, 45-46 (Mo. banc 1989).
2 Id. at 47 (quoting City of Wilmington v. Lord, 378 A.2d 635, 637 (Del. 1977).
3 See Hooper v. Ely, 46 Mo. 505, 506 (1870); Newmeyer v. Missouri & Mississippi R.R., 52 Mo. 81, 89 (1873).
4 Eastern Mo. Laborers, 781 S.W.2d at 47.
5 Bopp v. Spainhower, 519 S.W.2d 281, 286 (Mo. banc 1975).
6 State ex rel. Ryan v. Carnahan, 960 S.W.2d 549, 550 (Mo. App. E.D. 1998).
7 Id. at 550-51.
8 Id. at 551.
9 See Newmeyer v. Missouri & Mississippi R.R., 52 Mo. 81 (1873); citing Hooper v. Ely, 46 Mo. 505 (1870) and Steines v. Franklin County, 48 Mo. 167 (1871).
10 52 Mo. at 88-89.
11 Id. at 89.
12 Id.
13 223 S.W. 891, 893 (Mo. 1920) For a discussion of organizational assertion of taxpayer standing, see Missouri Growth Ass'n v. Metropolitan St. Louis Sewer Dist., 941 S.W.2d 615, 621-22 (Mo. App. E.D. 1997).
14 Id.
15 Everett v. County of Clinton, 282 S.W.2d 30, 34 (Mo. 1955) (allegedly illegal expenditure was to purchase and operate a quarry) citing Watson v. Kerr, 287 S.W. 337 (Mo. banc 1926). Cf. Mo. Const. art. X, § 23 (1980) (reserving the right of taxpayers to enforce the provisions of the tax limitation amendment at Mo. Const. art. X, §§ 16-22 and receive costs and attorneys' fees for a successful suit).
16 495 S.W.2d 696 (Mo. App. S.D. 1973) (It is interesting to note that Judge Billings, the author of Eastern Mo. Laborers, dismissed this case while a circuit judge in Stoddard County some 16 years before restating the law of taxpayer standing as a Supreme Court judge). Cf. Mo. Const. art. X, § 23 (taxpayers empowered by the constitution to bring lawsuits to enforce the provisions of Missouri's tax limitation amendment).
17 Id. at 697-98; see also § 79.165, RSMo 1969.
18 Id.
19 592 S.W.2d 825 (Mo. App. W.D. 1979).
20 592 S.W.2d at 840.
21 495 S.W.2d at 699.
22 592 S.W.2d at 839.
23 Id.
24 Id. see also Newmeyer 52 Mo. at 86, 88 (only those taxpayers within the appropriate taxing district have standing to sue as taxpayers).
25 512 S.W.2d 470 (Mo. App. W.D. 1974).
26 Id. at 472-73.
27 Id. at 473 (emphasis added).
28 Id. at 474 see also Miller v. City of St. Joseph, 485 S.W.2d 688, 692 (Mo. App. W.D. 1972) (cited in Collins, Miller held that taxpayer-plaintiffs failed to allege the income from the city's agreement with outlying communities to provide fire protection would result in a net loss and, thus, an "expenditure of public money"). Cf. Tichenor v. Missouri State Lottery Comm'n, 742 S.W.2d 170, 172 (Mo. banc 1988).
29 See Castilo v. State Hwy. Comm'n, 279 S.W. 673 (Mo. banc 1925) (cited in Collins for the proposition that a court may infer an allegation of increased taxes from facts necessarily giving rise to this conclusion).
30 631 S.W.2d 676, 679 (Mo. App. E.D. 1982) citing Robertson, 592 S.W.2d at 837 (Sommer went on to hold that plaintiffs had no standing because they did not sufficiently demonstrate an "expenditure" of public funds because the allegedly illegal tax abatement about which they complained could possibly, but not necessarily cause a net loss in revenue to the city). Id. at 680.
31 724 S.W.2d 721, 725-26 (Mo. App. E.D. 1987).
32 Id. at 725.
33 759 S.W.2d 272 (Mo. App. W.D. 1988).
34 Id. at 275.
35 Id.
36 Id. (Moreover, the court assumed that the substance of plaintiff's allegations were false by assuming that the successful bidder submitted the lowest bid. The crux of plaintiff's case was that, because the bids were erroneously interpreted, the successful bidder did not, in fact, submit the lowest bid).
37 Id.; see also Sommer, 631 S.W.2d at 677-78; Brock, 724 S.W.2d at 722-25.
38 Id. (The opinion nowhere mentions the recently handed down Tichenor, which called into question the holdings of both Sommer and Brock when it noted that "even though a net gain [from the contested outlay of public funds] is expected . . . the plaintiff as a citizen and taxpayer of Missouri had standing to challenge the legality of these expenditures in court." 742 S.W.2d at 172.
39 781 S.W.2d 43.
40 Id. at 44-45.
41 Id. at 44.
42 Id. at 45.
43 Id. at 46-47.
44 Id. at 46.
45 Id. at 47.
46 Id.
47 Id.
48 Id.
49 Id. (The bidding case had been decided on a "motion to dismiss" while the stadium case was specifically dismissed for lack of standing.).
50 Id. see also State ex rel. Mid-Mo. Limestone, Inc. v. County of Callaway, 962 S.W.2d 438 (Mo. App. W.D. 1998) (taxpayers can abandon taxpayer standing); Ryan, 960 S.W.2d 549 (taxpayer conceded the absence of standing at oral argument).
51 781 S.W.2d at 47. In one of the consolidated cases before the court, taxpayers objected to two contracts relating to the remodeling of county offices allegedly entered into in violation of competitive bidding rules. In the other, taxpayers objected to the purchase of land. The direct expenditure of public funds was, therefore, obvious in both instances once the rule had been established. Id. See also State ex rel. Stricker v. Hanson, 858 S.W.2d 771, 775 (Mo. App. W.D. 1993) (taxpayer clearly had standing to dispute an alleged violation of public bidding processes for a lease of helicopters).
52 904 S.W.2d 1, 3 (Mo. App. W.D. 1995).
53 Id. Cf. Frene Valley Corp. v. Missouri Health Facilities Review Comm., 818 S.W.2d 665 (Mo. App. W.D. 1991) (taxpayer-plaintiffs did have standing to contest the award of a certificate of need for a skilled nursing facility, the construction of which was to be financed by public funds); National Solid Waste Management Ass'n v. Director of the Dep't of Natural Resources, 964 S.W.2d 818 (Mo. banc 1998) (challenged program will cost the state funds for salaries and costs that would not otherwise be made, thus constituting an expenditure of public funds).
54 Id. See also Mid-America Georgian Gardens, Inc. v. Missouri Health Facilities Review Comm., 908 S.W.2d 715 (Mo. App. W.D. 1995) (taxpayer unable to establish standing to attack the award of a certificate of need for substantially the same reasons as discussed in John T. Finley). See also Medical Management of Osage Beach, Inc. v. Missouri Health Facilities Review Comm., 904 S.W.2d 291, 297-98 (Mo. App. W.D. 1995) (court rejects plaintiff's allegation of taxpayer standing by analysis similar to that of John T. Finley and further discusses that "the tenor" of plaintiff's participation in the case was as private competitors of the certificate of need recipients rather than "as vindicators of a larger public interest." This dicta leaves unresolved whether a taxpayer who sufficiently demonstrates a nexus between an allegedly illegal government act and the expenditure of public funds could be denied standing because the "tenor" of his participation in the lawsuit was private rather than public. Cf. Eastern Missouri Laborers in which members of the construction industry challenged the award of a construction contract to a competitor based on taxpayer status); Harry H. Houf & Sons Contractors, Inc. v. City of Wellsville, 796 S.W.2d 435, 436 (Mo. App. E.D. 1990).
55 Id.
56 948 S.W.2d 125 (Mo. banc 1997).
57 Id at 132. See also Duvall v. Coordinating Bd. for Higher Educ., 873 S.W.2d 856 (Mo. App. W.D. 1994) (taxpayer-plaintiff alleged the practice of the administrative agency itself was illegal, not merely that the agency came to an illogical or legally unsupported result).
58 See Ours v. City of Rolla, ___ S.W.2d ___ (Mo. App. S.D. 1998) (expenditure of general operating expenses which would be incurred whether or not the challenged transaction took place).
59 See Tichenor v. Missouri State Lottery Comm'n, 742 S.W.2d 170, 172 (Mo. banc 1988); Harris v. Missouri Gaming Comm'n, 869 S.W.2d 58, 60 (Mo. banc 1994).
60 742 S.W.2d 170 (Mo. banc 1988).
61 Id. at 172.
62 Id.
63 Id. (This holding raises two other interesting issues regarding standing. Did Judge Blackmar assume a plaintiff must be a taxpayer and a citizen of the appropriate taxing district to properly assert taxpayer standing? Also, "what are 'state funds'"?).
64 781 S.W.2d at 47.
65 960 S.W.2d 549.
66 Id.
67 Id. see §§ 43.010, RSMo 1994, et seq.
68 Id. citing § 313.004(9), RSMo 1994; 11 CSR 45-7.145 (1996).
69 889 S.W.2d 854 (Mo. App. W.D. 1994).
70 Id. at 858.
71 Id. (More specifically, the "public land" was land conveyed to the city by a trust. The court discussed the agreement between the trustees and the city that the proceeds of the trustee's sale would be returned to the city and earmarked for the development of park facilities elsewhere in the city).
72 Eastern Mo. Laborers, 781 S.W.2d at 47 (perhaps Hinton intended to differentiate between cash or liquid assets and real property for the opinion; it is unclear if the issue was even briefed or argued to the court).
73 Id. at 46 Cf. Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 475-482 (1982) (Powell, J. concurring) (discussing in detail the two-part federal test which requires (1) the challenged governmental action be an unconstitutional exercise of the taxing and spending clause of art. I, § 8 of the U.S. Constitution and (2) the challenged enactment violates a specific limitation upon the taxing and spending power).
74 Id. see also Berghorn v. Reorganized School Dist. No. 8 Franklin County, 260 S.W.2d 573 (Mo. 1953); Haddock v. Board of Public Educ. v. Wilmington, 84 A.2d 157 (Del. Ch. 1951) (wherein taxpayer status is discussed as arising out of principles of equitable ownership and trust relationship between public and public servants).
75 See generally 74 Am. Jur. 2d, Taxpayers' Actions, § 1 (1974).
76 Cf. Van Eaton v. Thon, 764 S.W.2d 674, 676 (Mo. App. W.D. 1988); Bradley v. Ray, 904 S.W.2d 302, 306 (Mo. App. W.D. 1995) (damages are a required element of an action for negligence but not for an action for assault).
77 See Ryan, 960 S.W.2d 549.
78 See respectively Eastern Mo. Laborers, 781 S.W.2d at 44-45; Tichenor, 742
S.W.2d at 171-72; Ryan, 960 S.W.2d 549.
Mr. Albus is a law clerk to the Honorable John C. Holstein of the Supreme Court of Missouri. He graduated from the University of Missouri-Collumbia School of Law in 1997. He would like to thank his colleagues Bryan Bacon, Matt Darrough, Marisa Harman, Reachel Jennings and Alicia Carpenter for their helpful comments on a previous draft.