The city of Jackson won another small victory in the road and bridge tax lawsuit against the county last week when Judge Byron Luber denied the county's motions for a new trial and for the court to receive additional evidence.

County Commissioner Larry Bock said the motion for a new trial was little more than a formality.

"Our attorney is going to appeal to the Court of Appeals," Bock said. "We'll want this to go, I'm guessing, to the Supreme Court. Now maybe the Appellate Court will side with us. If so, then I'm guessing Jackson will want it to go to the Supreme Court."

The lawsuit revolves around a state statute which requires first-class counties like Cape Girardeau to take 25 percent of all road and bridge tax revenue it collects from a city and spend that amount on roads and bridges within the city limits.

In Jackson's case, Luber ruled in August that the county owed the city $471,904 going back to 1997 when the county achieved first-class status based on increased property values.

The county argues that it does not owe the money because of a phrase "in addition to other levies authorized by law" in the statute. The county's attorney, William McCullah, argues that the phrase, put in its historical context, means the county would only owe the money if it created a new road and bridge tax.

The argument is different than the county's original argument two years ago when it claimed the county did not own the money because the statute only applied to "special" taxes that need voter approval.

When the city and county petitioned an opinion from the attorney general, he sided with Jackson on that issue.

When the county appealed to Judge Luber for a new trial, it did so for a handful of reasons, according to court documents.

First, it said the court ignored the "in addition to other levies" phrase.

Second, it said the claim couldn't lawfully be "set aside and placed to the credit" of Jackson because the court made no finding of funds that remained in the county treasury from the years 1997 through 2004. The court, the county argued, can't order a claim if there is no money in the treasury. The county cited several cases to support its claim, including one which said a "mandamus will not lie to compel payment from funds already exhausted."

The county bolstered that claim by saying the court ignored the state's "zero-based budget" law, which says cash surplus is carried over to the next year. Under that law, the county commission's duties can only operate prospectively, not retroactively.

Furthermore, the county filed a motion to modify the writ of mandamus because the figures provided in court -- and verified by the county -- were based on tax bills and not actual revenue.

Jackson's response to the motion basically called these arguments hogwash.

As far as the motion for additional evidence, the city said the county "briefed this issue extensively throughout this litigation and at the trial. The Missouri Municipal League provided this court with an excellent brief. The Attorney General of Missouri rendered his opinion which has been an aid to the court. Any further legal analysis would be redundant."

The city said the county's argument on zero-based budgeting is not supported by the law or the facts.

"The respondents make the impossible argument that, by allegedly spending all or part of the money due to the city of Jackson, they have avoided" Missouri statutes, the city said in court documents to Luber. "Counties cannot use the county budget law to get around statutory obligation. If local government entities could avoid all legal and financial obligation by exhausting their revenues prior to the conclusion of potential or pending litigation, much of the laws would be rendered useless and ineffective."

The city also argued that no new evidence should be permitted.

"Where a party knows of evidence in or before a trial but fails to pursue it, the party's lack of diligence cannot be the basis of a new trial," the city's response said.

bmiller@semissourian.com

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