# Beatty v. Metropolitan St. Louis Sewer District > Supreme Court of Missouri · December 21, 1993 · 867 S.W.2d 217 URL: https://www.frixlaw.com/law-library/cases/9770257 ## Case - **Full name:** Richard BEATTY, Et Al., Appellants, v. the METROPOLITAN ST. LOUIS SEWER DISTRICT, Respondent - **Court:** Supreme Court of Missouri - **Decided:** December 21, 1993 - **Citations:** 867 S.W.2d 217; 1993 Mo. LEXIS 119; 1993 WL 525016 - **Precedential status:** Published - **Opinion:** Concurrence by Holstein - **Judges:** Robertson, Benton, Thomas, Price, Limbaugh, Holstein - **Cited by:** 19 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9770257 ## Opinion text HOLSTEIN, Judge, concurring in result. I concur in result with the majority opinion. I add these comments only by way of pointing out that I do not join in the majority’s application of the five-part test taken from the footnote of Keller v. Marion Co. Ambulance Dist., 820 S.W.2d 301 (Mo. banc 1991). I concede that I lacked enthusiasm when this Court adopted the proposition that a “fee,” as used in article X, § 22(a) of the Constitution, only means those fees which are, in reality, a tax. But that is now the law. The very concept of the rule of law requires continuity and respect for precedent which is, by definition, indispensable. Planned Parenthood v. Casey, — U.S. —, —, 112 S.Ct. 2791, 2808 , 120 L.Ed.2d 674 (1992). I do not here suggest abandonment of the fundamental holding in Keller . At the same time, I believe that the five criteria noted in footnote 10 of the Keller opinion are so vague and subject to manipulation that they will necessarily result in repetitive litigation and are unworkable. Careful consideration of the facts of this case according to the five criteria demonstrate how the factors may be manipulated by both government and taxpayer litigants to support their conclusions. 1.When is the fee paid? The first criterion posits two questions regarding when the fee is paid: 1) are the fees paid on a periodic basis, and 2) are the fees paid only on or after the provision of a good or service to the individual paying the fee? If the answer to the first question is “yes” and the second is “no,” then the fee is less likely to require voter approval. With regard to the first question, I agree with the majority that the answer is yes. As with all routinely recurring services, fees come due periodically. But the answer to the second question is also yes. The fees are calculated on the previous year’s cost of operating the sewer system. Thus, under the first criterion, it is unclear whether the charge of MSD is subject to Hancock. In any event, this element may be manipulated so that charges may only occur after the rendering of services. 2.Who pays the fee? The second criterion also is a two-pronged question. The first is, is this blanket billed to all or most all of the residents of the political subdivision? If the answer is “yes,” then the fee is more like a tax. I suggest the answer is “yes” because assessing a fee against all tracts which have sewer service and in excess of 97% of all parcels, including those not having sewer service, is a blanket billing of “all or almost all” residents in the district. The second question posed under the second criterion is whether the charge is made only to those “who actually use the good or service for which the fee is charged.” This question, if answered affirmatively, means the charge is more like a fee. Here again, the answer is a resounding yes. Virtually every property owner uses sewers. In other words, this criterion also is indecisive in determining whether this is a tax or a fee. Again, by simply narrowing the class of persons subject to the fee, this element can be manipulated. 3.Is the amount of the fee to be paid affected by the level of goods or services provided to the fee payer? Under the third Keller test, charges dependent upon the level of goods or services provided are not as likely to be subject to article X, § 22(a). The majority suggests that if MSD based its charges on some method of measuring the quantity of sewage, such as the amount of water usage, rather than based on the type of usage, whether residential or nonresidential, MSD’s charges are more likely to qualify as fees not subject to Hancock. In other words, through the mere expedient of manipulating the method by which the fees are assessed, a charge which is unconstitutional will become constitutional. Here again, I find that neither MSD nor the taxpayer has the better of the argument on this point. *223 4. Is the government providing a service or good? I agree wholeheartedly with the majority on this point. MSD is providing a service. However, I do not believe that proof that a service is being provided is a valid basis for distinguishing between taxes and fees. Assessing a “public safety” fee to each citizen who calls for police or fire protection or a “cross walk” fee to parents who have children of school age does not make those charges any less like a tax. The fourth factor is, I believe, bogus. A governmental agency may always identify some service that it performs for its fee and thereby justify any charge it makes to its citizens. 5. Has the activity been historically and exclusively provided by the government? Here again, the fifth factor is inconclusive given the mix of public and private entities that supply sewer services. In Keller I noted that in much of rural Missouri, ambulance services are exclusively provided by the government. In urban Missouri, sewer services are often provided by local government, and that has been true for many years. This factor will almost always be inconclusive, as it is here, where the charge is deemed a tax, and was in Keller , where the charge was deemed not a tax. This brief analysis demonstrates that the five factors of footnote 10 from Keller are unworkable. Four of the five factors are highly subject to manipulation so that fees charged for a service in one community must have voter approval, but a fee for the same service in another community need not have voter approval. The fifth factor is almost always inconclusive. We should find objective standards by which to distinguish fees from taxes. Only if we are wholly unable to articulate workable standards should overruling Keller be considered. I again predict that we have not seen the last of this type of litigation. We have now taken the five factors from a footnote and elevated them to the basis for analysis of this case. By promoting the factors to ratio decidendi, we have given force to what was heretofore not fully part of the reasoning in Keller . I cannot join m an opinion which enlarges the status of the five factors from the footnote. Nevertheless, the Court reaches a correct result under the law. The majority opinion makes substantial headway by stating that any uncertainty is to be resolved in favor of the voter’s rights guaranteed by the Constitution. The burden is placed squarely on a governmental subdivision to show its charges are permissible without a vote. On that principle alone, this case should be reversed. I concur in that result. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9770257. Public record. Not legal advice.