SUPREME COURT OF MISSOURI

en banc

CITY OF DESOTO, A POLITICAL )

SUBDIVISION OF THE STATE OF )

MISSOURI, AND JAMES ACRES, )

)

Appellants, )

)

vs. ) No. SC94746

)

JEREMIAH W. NIXON, GOVERNOR )

OF THE STATE OF MISSOURI, and )

CHRIS KOSTER, ATTORNEY )

GENERAL OF THE STATE OF )

MISSOURI, )

)

Respondents. )

APPEAL FROM THE CIRCUIT COURT OF COLE COUNTY, MISSOURI

The Honorable Patricia Joyce, Judge

Opinion issued January 12, 2016

The City of De Soto and De Soto resident James Acres (collectively “De Soto”) 

appeal the trial court’s grant of summary judgment to the governor and attorney general

on De Soto’s suit seeking a declaratory judgment that section 321.322.41 violates the 

prohibition against special laws contained in article III, section 40 of the Missouri 

Constitution.

 

1 Section 321.322.5 was adopted by House Bill No. 307 in 2013 but due to subsequent 

statutory revisions that section is now subsection 4. All statutory citations refer to RSMo 

2000 and RSMo Supp. 2013, unless otherwise indicated. De Soto’s petition also alleged 

that HB 307 violated the clear title and single subject requirements set out in the Missouri 

Constitution, but on appeal it waives that argument.
This case comes within the scope of this Court’s holding in Jefferson Cnty. Fire 

Protection Districts Ass’n v. Blunt, 205 S.W.3d 866, 870-71 (Mo. banc 2006), that a law 

is presumptively a special law in violation of article III, section 40 if, as here: (1) only a 

single political subdivision falls within its criteria even though (2) there are other political 

subdivisions of comparable size, and (3) the population range is so narrow that the only 

apparent reason for the narrow range is to target a particular political subdivision and to 

exclude all the others. This Court rejects the State’s suggestion that this Court should 

consider the limiting effects of each of the six listed criteria set out in section 321.322.4 

(two of which are population-based and four of which are based on other factors)

individually, so that if any other city reasonably will come within each criterion, 

separately considered, then the statute would not be a special law, even though no other 

city reasonably will come within all six criteria considered together. As the six statutory 

criteria are applied as a whole in determining whether section 321.322.4 applies to a 

particular city, this Court considers them as a whole in determining whether the six 

criteria, as a practical matter, are drawn so narrowly that they will not apply to another 

city and “the only apparent reason for the narrow range is to target a particular political 

subdivision and exclude all others.” Id. at 871. In examining all six criteria together, this 

Court concludes that section 321.322.4 is a special law in violation of article III, section 

40 of the Missouri Constitution.

2

 

2 While De Soto’s brief notes that article III, sections 40(21) and 40(28) prohibit related 

types of special laws, and while the brief paraphrases part of the language of subsection 

40(28) in its conclusion, neither the points relied on nor the argument section of the brief 
3

Because section 321.322.4 under this test is a special law, the State was required 

to provide a substantial justification for enacting it rather than a general law. The State 

offered no such evidence, and the trial court erred in granting summary judgment to the 

State. Moreover, because both parties concede that the identical issues govern the motion 

for summary judgment filed by De Soto and agree as to all facts on which judgment was 

sought by both parties, no purpose would be served by remand for reconsideration of De 

Soto’s motion for summary judgment. This Court reverses the trial court’s judgment and 

enters judgment in favor of De Soto.

I. STATEMENT OF FACTS AND PROCEDURAL HISTORY

Section 321.322 describes how a city is to make post-annexation payments to a 

fire protection district after the city annexes part of the fire protection district. Section 

321.322.1 sets out the payment method for cities generally. Section 321.322.4, added in 

2013, excludes from the procedures set out in subsection 1 any city that meets six specific 

criteria, stating in relevant part:

The provisions of [section 321.322.1] shall not apply where the annexing 

city or town operates a city fire department, is any city of the third 

classification with more than six thousand but fewer than seven thousand 

inhabitants and located in any county with a charter form of government 

and with more than two hundred thousand but fewer than three hundred 

fifty thousand inhabitants, and is entirely surrounded by a single fire 

protection district. 

De Soto brought this suit seeking a declaratory judgment that section 321.322.4 

 

explain how these sections might apply nor do they cite or discuss any case interpreting 

or applying these subsections. Instead, the brief exclusively discusses Jefferson County

and other cases applying subsection 40(30). This Court’s analysis, therefore, will be 

limited to a discussion of the latter subsection of article III, section 40.
4

violates Missouri’s constitutional prohibition of local or special laws. The record shows 

that De Soto operates a city fire department; De Soto is a third-class city with an 

estimated population of 6,421 located in Jefferson County; Jefferson County is a charter 

county and has a population of 218,733; and De Soto is completely surrounded by a 

single fire protection district, the De Soto Rural Fire Protection District. De Soto, 

therefore, meets all six criteria set out in the exclusion contained in section 321.322.4. 

De Soto argues that these six criteria are so narrowly drawn that the law’s only

apparent purpose is to target the City of De Soto and that, as a practical matter, no other 

city or town will fall within the exclusion. Although census data show that many 

Missouri cities are of comparable size to De Soto, the record indicates that no other 

Missouri city meets the six criteria set out in section 321.322.4. On this basis, De Soto 

filed a motion for summary judgment. 

The State filed a cross-motion for summary judgment, arguing that the criteria in 

the statute are open-ended because they are all subject to change through population 

growth or political decisions. The trial court granted the State’s motion and overruled De 

Soto’s, finding that the criteria were open-ended because “other political subdivisions ... 

could be included [under section 321.322.4] based on political decisions made ... by the 

people of particular Missouri cities and counties.” De Soto appeals. 

II. STANDARD OF REVIEW

The propriety of summary judgment is solely an issue of law. City of St. Louis v. 

State, 382 S.W.3d 905, 910 (Mo. banc 2012). Appellate courts review a grant of 

summary judgment de novo. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply 
5

Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). “When considering appeals from summary 

judgments, this Court will review the record in the light most favorable to the party 

against whom judgment was entered.” Id. Under Rule 84.14 an appellate court may 

reverse the judgment of the trial court and “give such judgment as the court ought to 

give.” Rule 84.14.

III. SECTION 321.322.4 IS FACIALLY A SPECIAL LAW 

A. History of Special Laws Prohibition

The Missouri Constitution prohibits the legislature from passing “any local or 

special law ... where a general law can be made applicable, and whether a general law 

could have been made applicable is a judicial question to be judicially determined 

without regard to any legislative assertion on that subject.” MO. CONST. art. III, § 40. A 

comparable constitutional ban on special or local legislation has been a part of the 

Missouri Constitution since the first such ban was adopted by Missouri voters in 1875. 

Jefferson Cnty., 205 S.W.3d at 870. 

Although recent cases use the terms “local law” and “special law” almost 

interchangeably, historically these terms referred to different but related types of nongeneral laws. “Local law” traditionally was the term used to describe a law “which 

relates or operates over a particular locality instead of over the whole territory of the 

state.” BLACK’S LAW DICTIONARY 939 (6th ed. 1990). By contrast, a “special law” 

referred to a law “relating to particular persons or things; one made for individual cases 

or for particular places or districts; one operating upon a selected class, rather than upon 

the public generally.” Id. at 1397–98. A special law was also sometimes called a 
6

“private law,” that is, a law relating to a particular individual, association or corporation, 

rather than a particular locale. Id. at 1398, 1196. 

Black’s second definition for local laws is for all practical purposes, however, the 

same as that for special laws, for both definitions state that they refer to laws that relate to 

“certain persons or things of a class ... instead of all of the class.” Id. at 939, 1397. It 

may not be not surprising, therefore, that, over time, the two terms came to be used 

interchangeably, so that the framers of Missouri’s 1875 and 1945 Constitutions chose to 

limit local and special laws together in the same section of the Missouri Constitution 

(“No local or special law may be adopted ...”) when drafting what is now article III, 

section 40.3 Many cases, including this Court’s most recent two opinions addressing 

article III, section 40, have effectively merged the terms, referring to both local and 

special laws simply as “special laws.” See, e.g., Jefferson Cnty., 205 S.W.3d at 870 and

City of St. Louis, 382 S.W.3d at 914. For consistency, in this opinion this Court also will 

refer to this law as a “special” law although it has aspects of what historically would have 

been considered a local law as well. 

B. Section 321.322.4 is a Special Law

The most often applied test for determining whether a law qualifies as a special 

law is whether the law is based on open-ended or closed-ended characteristics. City of St. 

Louis, 382 S.W.3d at 914, citing, Jefferson Cnty., 205 S.W.3d at 866. A law based on 

 

3 During the 1945 Constitutional Convention, a debate arose regarding whether the 

prohibition against special or local laws would remain in the Constitution, but in the 

debate both terms were used with little to no distinction between them. See DEBATES OF 

THE MISSOURI CONSTITUTION 1945, Vol. 16, 5068–94 (Dec. 20, 1974).
7

closed-ended (non-changing) characteristics, such as historical or physical facts, 

geography or constitutional status, is facially special because others cannot come into the 

group nor can its members leave the group. Tillis v. City of Branson, 945 S.W.2d 447, 

449 (Mo. banc 1997). If a law is facially special, the party defending the facially special 

law must demonstrate a substantial justification for the failure to adopt a general law 

instead. Id.

A law based on open-ended characteristics is not facially special and ordinarily is 

presumed to be constitutional. O’Reilly v. City of Hazelwood, 850 S.W.2d 96, 99 (Mo. 

banc 1993). Normally, population classifications are open-ended in that others may fall 

into the classification and members of the classification may leave it. Tillis, 945 S.W.2d 

at 449. When population classifications are open-ended, laws based on them are not 

special laws and do not violate article III, section 40 if the classification is made on a 

reasonable basis. Jefferson Cnty., 205 S.W.3d at 870. 

But, the legislature may not defeat the purpose of the prohibition against special 

laws by adopting a provision that on its face appears general and open-ended, but which 

realistically applies only to a specific or narrow group of subjects. For that reason, “[t]he 

rationale for holding that population classifications are open-ended fails ... where the 

classification is so narrow that as a practical matter others could not fall into that 

classification.” Id. 

Jefferson County set out a three-part test for determining when the "presumption 

that a population-based classification is constitutional is overcome”, id., because, as a 

practical matter, other political subdivisions will not fall within the classification:
8

(1) a statute contains a population classification that includes only one 

political subdivision, (2) other political subdivisions are similar in size to 

the targeted political subdivision, yet are not included, and (3) the 

population range is so narrow that the only apparent reason for the narrow 

range is to target a particular political subdivision and to exclude all the 

others. 

Id. at 870-71. When a nominally open-ended law meets these three criteria it will be 

considered a special law because, as a practical matter, no other political subdivision can

meet those criteria. Jefferson Cnty., 205 S.W.3d at 870. 

Applying the principles set out in Jefferson County and similar cases here,

4 the 

exclusion in section 321.322.4 excepts from the reach of section 321.322.1 those cities 

that meet each of its six geographic and political criteria – the city must: (1) operate a 

city fire department, (2) be a third-class city, (3) have more than 6,000 but fewer than 

7,000 inhabitants, (4) be located in any county with a charter form of government with 

 

4 The holding in Jefferson County provided an important clarification of the law 

regarding when population-based characteristics do not preclude a law being a special 

law even though nominally open-ended. Jefferson County was not a break with prior 

law, however, for earlier cases similarly had held that this Court must look to the real 

effect of statutory criteria rather than to their nominal generality to determine whether the 

law is a general or special one. McKaig v. Kansas City, 256 S.W.2d 815, 817 (Mo. banc 

1953), provides a good example. In invalidating a law that prohibited car dealerships 

from being open on Sundays because other merchants could not come within its 

operation, this Court noted, “The test of a special law is the appropriateness of its 

provisions to the objects that it excludes. It is not, therefore, what a law includes, that 

makes it special, but what it excludes.” Id. (citations omitted). McKaig then continued by 

stating that even when the characteristics are ostensibly general:

If in fact the act is by its terms or ‘in its practical operation [...] can only 

apply to particular persons or things of a class, then it will be a special or 

local law, however carefully its character may be concealed by form of 

words.’ Laclede Power & Light Co. v. City of St. Louis, supra, 182 S.W.2d 

loc. cit. 72.

Id. (Emphasis added). 
9

(5) more than 200,000 but fewer than 350,000 inhabitants, and (6) be entirely surrounded 

by a single fire protection district. 

It is uncontested that section 321.322.4 contains both a city and county population 

classification, and both De Soto and the State rely on 2010 census data showing that no 

city other than De Soto meets both population requirements as set out in the provision. 

This is so despite the fact, discussed further below, that these same statistics show that 

other cities and towns are similar in size to De Soto. The first two elements set out in 

Jefferson County, therefore, are satisfied.

5

Whether section 321.322.4 is a special law therefore depends on whether it meets 

the third element set out in Jefferson County – whether, as a practical matter, the 

population range or other characteristics are “so narrow that the only apparent reason for 

the narrow range is to target a particular political subdivision and to exclude all others.”

205 S.W.3d at 870. In resolving this issue, this Court rejects the State’s suggestion that a 

court should look at each of the six statutory criteria seriatim, asking itself whether any 

 

5 The State argues that this Court modified or clarified Jefferson County in City of St. 

Louis, 382 S.W.3d at 913–15, by ruling that in determining whether the first two elements 

are satisfied a court should look at whether others in the future might fall into the 

classification of the statute, rather than, as stated in Jefferson County, whether other 

generally comparable political subdivisions now fall within its terms. This argument 

inexplicably mixes the first two elements of the Jefferson County test with the third 

element. As just quoted above, it is the third element that addresses whether: “(3) the 

population range is so narrow that the only apparent reason for the narrow range is to 

target a particular political subdivision and to exclude all the others.” The first two 

elements, by contrast, clearly address whether subdivisions other than the subject one fall 

within the population range at the current time. City of St. Louis concerned an entirely 

different kind of ordinance, which affected whether firefighters were required to live in 

the City of St. Louis while its schools were unaccredited. The analysis in that case did not 

and did not purport to modify Jefferson County. 
10

other city someday might meet any particular criterion. The statute requires a city to fall 

within all six criteria to be excepted from the scope of section 321.322.1. The combined 

effect of the six criteria, therefore, must be considered.

No other city even meets both of the population requirements in the statute – the 

city must have between 6,000 and 7,000 residents and the county must have between 

200,000 and 350,000 residents. Both the State and De Soto agree that only Jefferson 

County falls within the 200,000 to 350,000 county population range set out in the statute, 

and neither party has identified any other county that, as a practical matter, is likely to fall 

within the range of 200,000 to 350,000 in the foreseeable future. Additionally, while 

there are many cities with 6,000 to 7,000 residents, those cities either are not in a nonqualifying county, or are not third-class cities, or are not in charter counties, or are not 

surrounded by a single fire protection district, and so forth. 6 Further, the requirement 

that the city be entirely surrounded by a single fire protection district excludes many 

cities that have water or other immutable characteristics on one or more sides or that abut 

 

6 To illustrate this, relying on the 2010 census data on which both the State and De Soto 

rely, the Court notes that Black Jack and Caruthersville are third-class cities with 

populations of 6,924 and 6,127, respectively. Secretary of State Jason Kander, The 

Missouri Roster 2013-2014 at 147, 162 (The Missouri Roster contains the 2010 census 

data and is utilized by De Soto and the State). Both cities, therefore, fall within the citypopulation classification of the statute. Blackjack and Caruthersville, however, are 

located, respectively, in St. Louis County – a first-class county with a charter form of 

government and a population of 998,954 – and Pemiscot County, a third-class county 

without a charter form of government and a population of 18,296; neither comes near the 

200,000 to 350,000 county-population requirement of section 321.322.4. It is at the very 

least highly improbable that either of these two cities will ever meet all six criteria, much 

less the county-population requirement. There are numerous other cities that De Soto 

cites – and with which the State does not disagree – with populations at or near the 

population classifications, but none meet all six criteria.
11

other cities that do not have fire protection districts.

7

Finally, while some of the non-population criteria, such as becoming a third-class 

city or a charter county, are political decisions that might well be considered open-ended 

were they the sole criteria, here three different entities – a city, a county, and a fire 

protection district – would all have to decide to make changes in precisely the manner 

required by the statute for subsection 4 to apply, even assuming the population and other 

requirements somehow could be met. 8 

The likelihood of all of these factors converging and of another city coming within 

 

7 To illustrate this, this Court again uses the 2010 census data on which both the State and 

De Soto rely. Currently, the closest city to meet all six criteria is Crystal City, also 

located in Jefferson County. Jefferson County has a population of 218,733 and has a 

charter form of government, both requirements of section 321.322.4. Crystal City, 

however, is not surrounded by a single fire protection district, and its population is more 

than a thousand residents shy of the city-population classification in the statute. Its 

eastern border abuts the Mississippi River, and abutting its western border is the City of 

Festus, which operates its own fire department. Moreover, from 2010 to 2011, Crystal 

City had only seen a growth of 25 people. Assuming that rate continues consistently, 

Crystal City will not fall within the boundaries of the city-population classification for 

another 45 years. As a practical matter, Crystal City will not fall within all six criteria of 

the statute.

8 For example, section 321.322.4’s non-population criteria are much more complex than 

the residency requirement at issue in City of St. Louis. First, to change the class of a city 

– e.g. from fourth-class to third-class or from a village to fourth class – the city must fall 

within the population requirement and the change must be approved by a majority of all

voters in the city or town. §§ 72.070, 72.030. Second, a city has even less control over 

whether it is surrounded by a single fire protection district. The boundaries of such 

districts are changed by a public vote not of city residents but of residents of the entire 

district. § 321.120.1. Although some of these voters will be residents of the city, the 

majority may not be. Finally, a city has the least control over the type of county in which 

it is located; whether a county has a charter form of government is entirely outside the 

power of any individual city located within. A vote by all members of the county, not 

city, decides whether a county will adopt or maintain a charter form of government. MO.

CONST. art. VI, § 18(a). Assuming a city or town meets all of these requirements, it still 

must satisfy both the city and county population requirements. 
12

the scope of section 321.322.4 is sufficiently unlikely that, in the words of Jefferson 

County, “the only apparent reason for the narrow range is to target a particular political 

subdivision and to exclude all the others.” Id. at 871.

Where, as here, the three Jefferson County elements are satisfied, a law is 

presumptively special and the burden shifts to the State to show a substantial justification 

for the special law. The State offered no evidence of such a justification in response to 

De Soto’s motion for summary judgment or in support of its own motion for summary 

judgment. Entry of judgment for the State, therefore, was error.

IV. JUDGMENT IS ENTERED IN FAVOR OF DE SOTO

In the usual case, this Court simply would reverse the grant of summary judgment 

to the State and remand for further proceedings. De Soto asks, however, that this Court 

grant its cross-motion for summary judgment, the overruling of which it also appealed. 

“Ordinarily, denial of a motion for summary judgment is an interlocutory order and is not 

a proper point on appeal.” James v. Paul, 49 S.W.3d 678, 682 (Mo. banc 2001). But, the 

State acknowledges in its brief that “the overruling of a party’s motion for summary 

judgment can be reviewed when its merits are intertwined completely with a grant of 

summary judgment in favor of an opposing party.” Bob DeGeorge Assoc.’s, Inc. v. 

Hawthorn Bank, 377 S.W.3d 592, 596–97 (Mo. banc 2012). 

The State recognizes that the issues here are intertwined. The State admits in its 

brief that both the State and De Soto sought summary judgment based on official 

publications of the population of cities and counties, relying on the 2010 census and a 

map of fire protection district boundaries and that the issues regarding whether the law is 
13

a special law are questions of law.

9 Moreover, the State had the opportunity and 

obligation when bringing its own motion for summary judgment and when responding to 

De Soto’s to attempt to show substantial justification once the law was shown to be a 

special law, but it failed to do so.

In such a case, because the State agrees that the two summary judgment motions

are based on the same facts and law, and because this Court has held that the trial court’s 

grant of judgment in favor of the State was in error because the law is a special one, no 

purpose would be served by remand. The trial court erred in failing to grant summary 

judgment to De Soto. Under Rule 84.14, this Court may enter the judgment the trial 

court should have entered.

V. CONCLUSION

Section 321.322.4 is a special law and the State has not offered a substantial

justification for its enactment when a general law will do, in violation of article III, 

 

9 The State does argue that if this Court agrees that a plaintiff is required to show that no 

city will fall into the statutory criteria in the future, then it should have a chance to 

determine on remand whether some city might have done so since this case was appealed. 

It was the State’s obligation to present evidence in support of its own motion and in 

opposition to De Soto’s motion for summary judgment, however, and the failure to do so 

cannot be avoided by speculation that at some future point it might find some evidence if 

the court just waits to see what the future might bring. 

Equally, the State’s reasoning would support leaving this or any case challenged 

as closed-ended open indefinitely to see if by chance another political subdivision could 

someday fit the statutory criteria. This is neither necessary nor proper. Moreover, De 

Soto already has shown that, as a practical matter, another city will not fall within the 

scope of the statute. The State has failed to provide substantial justification for a special 

law; there is no issue to remand.
14

section 40 of the Missouri Constitution. The judgment of the trial court is reversed and 

this Court enters judgment in favor of De Soto.

_________________________________

 LAURA DENVIR STITH, JUDGE

All concur.