StopAquila.Org, Formerly Known as Neighbors Against The Peculiar Annexation, An Unincorporated Association, Della January, Gary Crabtree, Nancy Manning, Mark Andrews, Steve Vincent and Max January, For Themselves as Individuals and as Representatives Of,

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Western District Case Style: StopAquila.Org, Formerly Known as Neighbors Against The Peculiar Annexation, An Unincorporated Association, Della January, Gary Crabtree, Nancy Manning, Mark Andrews, Steve Vincent and Max January, For Themselves as Individuals and as Representatives Of, StopAquila.Org, Formerly Known as The Neighbors Against Peculiar Annexation, Appellants v. City of Peculiar, Missouri, Respondent. Case Number: WD65000 Handdown Date: 10/04/2005 Appeal From: Circuit Court of Cass County, Honorable Joseph P. Dandurand Counsel for Appellant: Gerard Eftink Counsel for Respondent: James Thompson Opinion Summary:

StopAquila.Org and individual landowners in Cass County appeal a circuit court judgment finding that the Missouri constitution did not require the city of Peculiar to submit a $140 million revenue bond issue involving an electric power plant construction project to Peculiar voters for approval. REVERSED. Division One holds: StopAquila.Org claims that article VI, section 27 of the Missouri constitution applies to the case and requires that the city seek voter approval for the issuance of revenue bonds to build a power plant that involves a lease-purchase agreement with a public utility. Peculiar intended to issue the revenue bonds on a majority vote of the city's Board of Aldermen and claims that article VI, section 27(b) gives it authority to do so. The circuit court agreed, finding that section 27 only applies where the power plant project is owned jointly with one or more cooperating municipalities or a joint commission. Finding that the plaintiffs had standing to bring the action and that the issues were not moot following Peculiar's issuance of the bonds, we hold that the circuit court incorrectly interpreted the relevant constitutional provisions. Citation: Opinion Author: Thomas H. Newton, Judge

Opinion Vote: REVERSED. Victor C. Howard, P.J. and James M. Smart, J. concur. Opinion:

StopAquila.Org and individual landowners in Cass County appeal from a Cass County Circuit Court judgment denying their request for injunctive and declaratory relief and granting the counter-claim for declaratory judgment filed by the City of Peculiar (Peculiar). At issue is whether the circuit court erred in finding that Peculiar was not required by the Missouri Constitution to submit a $140 million revenue bond issue involving an electric power plant construction project to Peculiar voters for approval. Because we find that the circuit court erroneously interpreted and applied article VI, section 27 of the Missouri Constitution, we reverse.(FN1) I . F ACTUAL AND P ROCEDURAL B ACKGROUND In December 2004, Peculiar, a fourth class city with a population of about 2,604 residents, notified the Raymore- Peculiar School District, the West Peculiar Fire Protection District, Cass County, the Cass County Library District, and others that a public meeting would be held later in the month to consider the plan for a project that had been developed with Aquila, Inc. The project consists of (i) the construction of electric power generating facilities on property located two miles south of city limits in an unincorporated section of Cass County, (ii) the construction of a transmission substation facility on property lying northwest of the city, also located in an unincorporated section of Cass County, and (iii) the improvement of certain transmission lines in Cass County and Peculiar that will transmit electricity from the power plant to the substation.(FN2) Aquila already held title to the property on which the facilities would be built. Plans for Peculiar to annex the properties without a vote were allegedly abandoned after StopAquila.Org and others filed petitions in protest. The project was to be financed by revenue bonds, issued by Peculiar, in an amount not to exceed $140 million. Under the terms of an "Economic Development Agreement" (agreement) and upon issuance of the bonds, Aquila intended to convey legal title to the power plant and the property on which it and the transmission substation were to be located to Peculiar which would then lease back the facility and property under a lease-purchase agreement for the thirty-year term of the bonds. Aquila was responsible for customer billings and the project's construction, operation, insurance, and maintenance. Lease payments were tied to the debt service on the bonds and, after payment in full under the lease, Aquila would have the option to purchase the project for $1,000. Aquila was to retain legal title to the transmission lines under the agreement. Peculiar took the position that the entire project, except the transmission lines, would be exempt from real or personal

property taxes levied by any taxing authority, including the city, Cass County, the West Peculiar Fire Protection District, the Cass County Library District, and the Raymore-Peculiar R-II School District, for as long as Peculiar holds legal title to the project. Aquila agreed to make payments in lieu of taxes (PILOTs) to Peculiar that the city would divide among the local taxing jurisdictions. The net result of the PILOTs would be to increase the amount of revenues going to local taxing jurisdictions from $1.6 million to $7.3 million, but the overall tax savings to Aquila was projected to be $17 million. Under a deed of trust, the project was to be encumbered as security for the bonds and the PILOTs, and Peculiar would not include any of the project as an asset for its reporting purposes. Peculiar did not intend to bring the project to the voters for approval. It was expected that Peculiar's Board of Aldermen, which had approved the agreement on first reading on December 7 by a 4-2 vote, would approve the plan. StopAquila.Org and individual plaintiffs who either live in Peculiar or near to the project sites filed a petition for declaratory and injunctive relief, claiming they would be damaged in several respects, including lowered property values and a loss of tax revenue from the tax abatement, without a vote of Peculiar citizens in violation of article VI, sections 27 and 27(a) of the Missouri Constitution. They sought a declaration that, among other matters, (i) Peculiar's actions to date were invalid; (ii) Peculiar cannot issue bonds without a public vote; (iii) Peculiar's actions were void because they were not for a public purpose, but were committing public funds for private benefit and using public credit for the aid of a corporation; and (iv) Peculiar's actions in attempting to issue bonds outside the scope of its powers and other than as expressly authorized by law were void. StopAquila.Org also sought a permanent injunction against Peculiar essentially to enjoin the city from issuing bonds without voter approval. Peculiar's answer set forth a counter-claim for declaratory judgment contending that the revenue bonds could be issued by a majority vote of the Board of Aldermen under article VI, section 27(b) and sections 100.010 to 100.200 of the Revised Statutes of Missouri.(FN3) Peculiar sought a declaration that it was authorized by these constitutional and statutory sections to issue revenue bonds for the Aquila project without a public vote. The dispute was submitted to the Cass County Circuit Court on a joint stipulation of facts, and on December 27 the court issued its findings of fact, conclusions of law and judgment, (i) denying the relief sought by StopAquila.Org and (ii) declaring that Peculiar was authorized by article VI, section 27(b) and sections 100.010 to 100.200 to issue the revenue bonds upon a majority vote of the Board of Aldermen. According to Peculiar's motion to dismiss this appeal, StopAquila.Org did not post a supersedeas bond, and the revenue bonds were issued on or about December 31. On appeal, StopAquila.Org claims that article VI, section 27 or article VI, section 27(a)(FN4) applies to the case and requires that the city seek voter approval for the issuance of revenue bonds to build a power plant. StopAquila.Org further

claims that the circuit court erred in declaring that the project was free from taxation by the county and other taxing authorities because a leasehold interest is not tax exempt, no party sought such declaration, and taxing authorities other than the city of Peculiar are not parties to the litigation and cannot, therefore, be bound by the judgment. II . S TANDING Although not raised by the litigants, we have an obligation to address whether StopAquila.Org and the other plaintiffs have standing to enjoin the issuance of the revenue bonds in this case. To establish standing in the context of a declaratory judgment action, plaintiffs are required to have "a legally protectable interest at stake in the outcome of the litigation." Kinder v. Holden , 92 S.W.3d 793, 803 (Mo. App. W.D. 2002) (citation omitted). "A legally protectable interest exists if the plaintiff is directly and adversely affected by the action in question or if the plaintiff's interest is conferred by statute." Id. Standing thus focuses on the party rather than the issues he or she wishes to have adjudicated, Buchanan v. Kirkpatrick , 615 S.W.2d 6, 13 n.8 (Mo. banc 1981), although the issues have at least minor relevance to the inquiry. Flast v. Cohen , 392 U.S. 83, 102, 88 S. Ct. 1942, 1953, 20 L.Ed.2d 947, 963 (1968) (in ruling on standing, courts must "determine whether there is a logical nexus between the status asserted and the claim sought to be adjudicated."). Standing may be raised at any time in the litigation by a party or sua sponte by the court. State ex rel. Mink, v. Wallace , 84 S.W.3d 127, 129 (Mo. App. E.D. 2002). If the plaintiffs lack standing, we lack jurisdiction to consider the matter. Id. "Whether a person has a legally protectable interest so as to confer standing is a matter for ad hoc determination by the courts under the given circumstances." Schweig v. City of St. Louis , 569 S.W.2d 215, 220 (Mo. App. 1978) (citation omitted). We will look to the pleadings and to any non-contested facts accepted as true by the parties to make our determination. Inman v. Mo. Dep't of Corr ., 139 S.W.3d 180, 184 (Mo. App. W.D. 2004). Further, in determining whether StopAquila.Org and the individually named plaintiffs have standing to challenge the validity of the bonds, we must treat their properly pleaded facts as true, give their allegations a liberal construction, and make reasonable inferences fairly deductible from the facts stated. Dodson v. City of Wentzville , 133 S.W.3d 528, 533-34 (Mo. App. E.D. 2004) (citation omitted); see also section 509.250 RSMo (2000) (requiring that all pleadings be construed "as to do substantial justice"). In their petition, the individual plaintiffs state that they either reside in Peculiar or reside outside the city limits in close proximity to the facilities that will be constructed with proceeds from the revenue bonds. StopAquila.Org is simply an unincorporated association of these and other similarly situated individuals. In relation to their status as neighbors of the project, an electric generating facility, they allege the potential for air and noise pollution, health problems, additional traffic, safety concerns, diminution of property values, nuisance, additional expense, loss of tax revenue, and other unspecified damage to property rights. There is nothing in the stipulation submitted to the circuit court regarding any of

these potential problems. The parties do agree in the joint stipulation that the project will enhance the electric service provided to customers, including customers in Peculiar. The plaintiffs do not specifically allege that they are electors or that they are authorized or registered to vote, although they allege that the city's intention to issue revenue bonds without a vote will disenfranchise the citizens and otherwise violate their civil rights. The petition does provide, "The 'electors' are the people in the City of Peculiar who are authorized to vote or registered to vote." But it is unclear whether this statement refers to the plaintiffs, who claim that Peculiar has violated the Missouri Constitution by refusing to allow a vote of the people before issuing the bonds under article VI, section 27, which requires a vote of the majority of the municipality's "qualified electors." In the joint stipulation submitted to the circuit court, the parties agreed that the plaintiffs "are each landowners within Cass County, some of whom reside in Peculiar," and that if they have the right to vote and are not permitted to vote, there would be irreparable harm to them. The parties have also stipulated that "the people who live in the City who are eligible to vote are the 'electors' as that term is used in the statutes and the Missouri Constitution for issues required to be voted in the City." While StopAquila.Org and the individual plaintiffs do not allege their status as taxpayers, in either the petition or the stipulation, they have stipulated that the tax abatement provided in the agreement between Aquila and Peculiar recognizes an overall loss of $17 million in tax revenues. There is no allegation or stipulation that issuance of the revenue bonds in itself will result in a loss of tax revenue, nor could it, as the bonds will be paid only out of the revenues generated by the project. Thus, standing in the case is premised on residence, real property ownership, and the right to vote as a general principle. And the injuries stipulated to involve a tax abatement and the abridgement of voting rights. We asked the parties to address whether (i) "residents" and "landowners" have standing as "qualified electors" to challenge the authority of a municipality to issue revenue bonds that will finance an electric power plant project without a vote of the qualified electors; and (ii) "residents" and "landowners" have standing as "taxpayers" to challenge municipal action that will result in tax abatement. Peculiar claims that the Missouri Supreme Court has determined that a plaintiff who is a taxpayer, landowner and resident lacks standing to challenge the issuance of revenue bonds. See Spencer v. Village of DeKalb , 408 S.W.2d 78 (Mo. 1966). In that case, however, the plaintiff, who testified that he owned real and personal property in DeKalb, paid taxes to DeKalb, and voted in village elections, failed to identify any harm he had suffered as a result of the bond issue and subsequent, related events. Id. at 80-81. The court based its ruling on the plaintiff's failure to show that he had been adversely affected by DeKalb's actions and thus lacked a legally protected interest sufficient to maintain the suit. According to the court, "the fact that plaintiff is a taxpayer is not sufficient of itself to show plaintiff could have been

adversely affected." Id. at 81.(FN5) Our issue is not whether the plaintiffs have alleged that they have a legally protected interest sufficient to maintain the suit. They have, in fact, alleged and stipulated to several ways in which they have been harmed, including (i) an overall loss of taxes from Aquila's tax abatement under the agreement which is part of the overall transaction involving the bond issue, and (ii) impairment of their right to vote. Rather, our issue is whether the plaintiffs have sufficiently pled that they are "qualified electors" and "taxpayers." Peculiar contends that the plaintiffs' failure to plead that they are "qualified electors" of the city and "taxpayers" is fatal to their standing to bring the lawsuit. According to StopAquila.Org, two of the named plaintiffs, Max January and Della January, filed suit " Peculiar contends that the plaintiffs' failure to plead that they are "qualified electors" of the city and "taxpayers" is fatal to their standing to bring the lawsuit. According to StopAquila.Org, two of the named plaintiffs, Max January and Della January, filed suit "as residents of, voters of, and taxpayers of the City of Peculiar." Yet, a close examination of the petition shows that these two individuals each filed suit as "an individual and a resident of the City of Peculiar." Nowhere is it specifically alleged that they are voters of and taxpayers of Peculiar. Regardless, we believe it can be inferred from the petition and joint stipulation that Max and Della January, as Peculiar residents, are voters whose right to vote is a legally protectable interest. If they are correct, and article VI, section 27 applies to the issuance of the bonds herein, they have been disenfranchised by Peculiar's decision to submit the matter to the Board of Alderman for approval. See State ex rel. Mathewson v. Bd. of Election Comm'rs of St. Louis County , 841 S.W.2d 633, 634-35 (Mo. banc 1992) (electors in "old" district had standing to challenge decision that authorized special election in "new" district to fill vacated but unexpired senatorial seat where senator had been elected by voters in "old" district; direct, personal stake in outcome of action shown). StopAquila.Org relies on Russell v. Callaway County , 575 S.W.2d 193 (Mo. banc 1978), to argue that an adverse effect on a taxpayer may be inferred in litigation involving a resident, citizen and taxpayer who sued to stop an election that could change her county's classification. In that case, however, the plaintiff specifically brought suit as a resident, citizen and taxpayer. Where taxpayer status is alleged, standing to challenge the action of a public official does not require a purely personal grievance; rather, the injury alleged may be an injury shared by the public. Kinder , 92 S.W.3d at 803-

1. We have been unable to locate a case where "taxpayer" status can be inferred from a pleading that identifies the

plaintiffs as "individuals" and "residents," or from stipulated facts that describe plaintiffs as "landowners." But we believe that it is reasonable to infer taxpayer status, because landowners as a general rule are taxpayers. This does not end our inquiry, however. The action alleged as the cause of harm to the plaintiffs is the city's approval of a bond issue without a vote of the people. Standing alone, the bonds will not result in a tax abatement, nor will the bonds impose any obligation

on the taxpayers because they are revenue bonds and will be paid for out of revenues from the project's operation. It is only because the bonds are part of an overall transaction which involves PILOTs that there will be a tax abatement. Accordingly, we will consider the merits of the appeal from the perspective of the plaintiffs' standing as city electors. III . M OOTNESS A case is moot if something occurs that makes a court's decision unnecessary. State ex rel. County of Jackson v. Mo. Pub. Serv. Comm'n , 985 S.W.2d 400, 403 (Mo. App. W.D. 1999). In its motion to dismiss, Peculiar argues that the case is moot because the revenue bonds have been issued. Peculiar also suggests that this court's decision in the unrelated proceeding involving a zoning dispute between Cass County and Aquila could moot the case.(FN6) In June 2005 we affirmed a circuit court judgment that Aquila lacked the authority to build the power plant and transmission substation at issue herein and violated Cass County's zoning regulations in starting construction of the electric power plant and transmission substation without seeking or obtaining county approval. Because our decision is not yet final, we do not believe that the case is moot on this basis. As for the fact that the bonds have already issued, StopAquila.Org asserts in its response that the bonds are being held by Aquila and have not yet been sold to the public pending a final judicial determination as to the legality of Aquila's construction activities. The parties are also apparently awaiting a Public Service Commission ruling that Aquila has its permission to enter into the buy, sell and lease-back transaction.(FN7) As well, according to StopAquila.Org, the agreement between Peculiar and Aquila contains provisions allowing the bonds to be cancelled or the deal to be unwound anytime until the end of 2005. Given the haste with which the bonds were issued, i.e., before the circuit court's judgment became final under Rule 81.05(a) and before the time for taking an appeal expired under Rule 81.04(a),(FN8) and relying on StopAquila.org's assertions that the bonds have not yet been sold to the public, we do not believe that the court's decision is no longer necessary in this matter. County of Jackson , 985 S.W.2d at 403. Peculiar's motion to dismiss is denied. IV . S TANDARD OF R EVIEW The standard of review applied in a declaratory judgment action is the same as that applied in any other court-tried case. Commerce Bank, N.A. v. Blasdel , 141 S.W.3d 434, 442 (Mo. App. W.D. 2004). We affirm the circuit court if there is substantial evidence to support its decision, its decision is not against the weight of the evidence, and its decision does not erroneously declare or apply the law. Id. The issues presented herein involve statutory and constitutional construction. This is a matter of law and not one of discretion, and, thus, we are not required to defer to the circuit court's determination. Buttress v. Taylor, 62 S.W.3d 672, 679 (Mo. App. W.D. 2001).

V . L EGAL A NALYSIS Article VI, section 27 of the Missouri Constitution provides in relevant part: Any city or incorporated town or village in this state, by vote of a majority of the qualified electors thereof voting thereon, and any joint board or commission, established by a joint contract between municipalities or political subdivisions in this state, by compliance with then applicable requirements of law, may issue and sell its negotiable interest bearing revenue bonds for the purpose of paying all or part of the cost of purchasing, construction, extending or improving any of the following projects :

(1) Revenue producing water, sewer, gas or electric light works, heating or power plants;

. . . .

The project shall be owned by the municipality or by the cooperating municipalities or political subdivisions or the joint board or commission, either exclusively or jointly or by participation with cooperatives or municipally owned or public utilities, the cost of operation and maintenance and the principal and interest of the bonds to be payable solely from the revenues derived by the municipality or by the cooperating municipalities or political subdivisions or the joint board or commission from the operation of the utility or the lease or operation of the project. The bonds shall not constitute an indebtedness of the state, or of any political subdivision thereof....

(emphasis added to highlight applicable provisions). According to the circuit court, this section "does not apply to the project and revenue bonds . . . because the project is not owned exclusively or jointly by one or more cooperating municipalities or jointly by one or more cooperating municipalities or a joint commission formed by cooperating municipalities." Such limitation, however, does not comport with a plain reading of this section. As we read the section, municipalities are not required to own the project jointly or in cooperation with other municipalities. While the reference to such joint ventures is linked in section 27 to individual municipalities with the conjunctive "and," such reference appears simply to designate alternative entities covered by the section. If the section applied only to circumstances where two or more municipalities contract to cooperate or form a joint board or commission for the purpose of issuing revenue bonds for a public utility project, the constitution would not then

refer to " its negotiable interest bearing revenue bonds," because there would be a plural and not a singular subject for this possessive pronoun to refer back to.(FN9) Under our reading, it is simply the joint boards or commissions that are established by joint contract and not that such contracts are required for the section to apply, an interpretation reinforced by the "or" connectors in the latter part of the section. In this case, Peculiar will hold legal title to the property exclusively, upon issuance of the revenue bonds, and Aquila, as lessee, will be participating in the project with the municipality by assuming responsibility for construction, operation, insurance, maintenance, and billing. The bonds will be payable from the lease, and they will not constitute an indebtedness of the state or any of its political subdivisions. Thus, the project, as planned and proposed, fits squarely within article VI, section 27. Some may argue that the drafters and voters who approved article VI, section 27 did not intend for city voters to have the right to approve the issuance of revenue bonds for public utility projects that impose no financial obligation on the city. Such an interpretation does not accord, however, with the natural and ordinary meaning of the words used. See State ex rel. Keystone Laundry & Dry Cleaners, Inc. v. McDonnell , 426 S.W.2d 11, 17 (Mo. 1968) ("In construing a constitutional provision, nontechnical words are to be taken in their natural and ordinary meaning. And the understanding of the people who adopted the Constitution (or amendment) is a vital consideration.") (internal citations omitted). In contrast, the constitutional section on which the circuit court and Peculiar rely provides as follows: Any county, city or incorporated town or village in this state, by a majority vote of the governing body thereof, may issue and sell its negotiable interest bearing revenue bonds for the purpose of paying all or part of the cost of purchasing, constructing, extending or improving any facility to be leased or otherwise disposed of pursuant to law to private persons or corporations for manufacturing, commercial, warehousing and industrial development purposes , including the real estate, buildings, fixtures and machinery. The cost of operation and maintenance and the principal and interest of the bonds shall be payable solely from the revenues derived by the county, city, or incorporated town or village from the lease or other disposal of the facility. M O. C ONST. art. VI, section 27(b) (emphasis added). While the parties do not refer to the project as a "commercial" project in the joint stipulation of facts, the circuit court so characterizes it, presumably to bring it within the parameters of article VI, section 27(b) as a facility with a commercial purpose.(FN10) Yet, this is a particular kind of project, which is addressed specifically by name in article VI, section 27 as a "project" involving "[r]evenue producing water, sewer, gas or electric light works, heating or power plants." Clearly the drafters of these constitutional provisions and the voters who approved them understood that, under the natural and ordinary meaning of the words used, there is a distinction between specifically named public utility projects in article VI,

section 27, and the more generalized facilities for manufacturing, commercial, warehousing and industrial development purposes in article VI, section 27(b). Keystone Laundry , 426 S.W.2d at 17. In addition, while we have been unable to locate a case interpreting the terms "any facility" for "commercial . . . purposes" in the context of their use in article VI, section 27(b), there is case law discussing the meaning of a "commercial purpose" that provides some guidance. The term "commercial," used in a broad sense, encompasses all business. Reiser v. Meyer , 323 S.W.2d 514, 521 (Mo. App. 1959). And in a more restricted sense, such as a building with a "commercial purpose" in a zoning ordinance, it means a place where goods and commodities are purchased, sold, and exchanged. Id. We believe, because article VI, section 27(b) lists several activities, i.e., manufacturing, warehousing, and industrial development, which are commercial in the broad sense of the word, that the term "commercial" is being used in its narrower sense. To the extent that electricity can be characterized as a commodity, the place where it is generated is not a place where consumers come to buy it. Similarly, the parties did not stipulate that the facilities in question are "distribution facilities." In finding that sections 100.010 to 100.200 were applicable to the case, the circuit court was apparently compelled, in its findings, to refer to the purpose of the project as the construction and operation of "distribution facilities."(FN11) These statutory sections, which have been placed in a chapter specifically dealing with "industrial development," permit municipalities to carry out a project for industrial development on a majority vote of their governing bodies, section 100.050, and to issue revenue bonds to finance the project. Section 100.100. An industrial development project is defined as "the purchase, construction, extension and improvement of warehouses, distribution facilities , research and development facilities, office industries, agricultural processing industries, service facilities which provide interstate commerce, and industrial plants, including the real estate either within or without the limits of such municipalities . . . ." Section 100.010(6) (emphasis added). The circuit court's attempt to fit this project within the parameters of industrial development or commercial purposes strains credulity. Under the maxim noscitur a sociis, words are known by the company they keep. Pollard v. Bd. of Police Comm'rs , 665 S.W.2d 333, 341 n.13 (Mo. banc 1984). Unlike article VI, section 27, there is nothing in article VI, section 27(b) or section 100.010(6) that addresses the generation of electricity by a public utility. In fact, section 100.010(6), by sandwiching "distribution facilities" between "warehouses" and "research and development facilities," plainly appears instead to be focusing on facilities used for distribution of tangible goods. See Keystone Laundry , 426 S.W.2d at 18 ("plants for industrial development" viewed as projects that enhance the community's economic development by employing a large number of people and affecting commerce generally). According to Peculiar's Web site, the power plant herein will employ only two or three people when operational.(FN12) In any event, the parties agreed by stipulation that the outcome of the project would be the enhancement of electric service to utility customers and not overall industrial or

economic development for the city. Accordingly, by allowing Peculiar to issue its revenue bonds without a majority vote of the qualified electors, the circuit court erred as a matter of law, and we declare that the revenue bonds are void. Commerce Bank, N.A. , 141 S.W.3d at

1. Because we have determined that the bonds are void, we will not address the second point raised in

StopAquila.Org's appeal. For these reasons, we reverse. Footnotes: FN1. Peculiar has filed a motion to dismiss claiming that because the bonds have already been issued following a majority vote of the city's aldermen, the issue is moot. We will address the issues raised by the motion infra. FN2. Aquila's authority to construct the power plant and transmission substation was questioned by Cass County in a zoning dispute with the public utility. StopAquila.Org v. Aquila, Inc. , No. W.D. 64985, 2005 WL 1430320 (Mo. App. W.D. June 21, 2005). This court determined that such authority was lacking. The matter is currently pending before this court, however, on a motion for rehearing, which we have granted. In the meantime, because Aquila posted a supersedeas bond, construction of the plant and substation continued. FN3. Unless otherwise indicated, all statutory references are to RSMo. (2000) and the Cumulative Supplement (2004). FN4. Article VI, section 27(a) applies to the issuance of revenue bonds for the construction of a power plant where the municipality or other political subdivision of the state owns the project exclusively. In this case, the project involves the participation of a public utility in the project as lessee, and, thus, this section does not apply. FN5. Peculiar cites Moseley v. City of Mountain Grove , 524 S.W.2d 444 (Mo. App. 1975), as additional support on this point. That case is also distinguishable because the plaintiffs, who were alleged to be "residents, property owners and taxpaying citizens" of the City of Mountain Grove, failed to plead a "litigable interest in the bonds." Id . at 446. The only allegation of harm was "[t]hat plaintiffs will suffer irreparable injury, harm and damage if the aforesaid action now contemplated and threatened by the defendant City of Mountain Grove is carried out and that plaintiffs have no adequate remedy at law." Id. This bare allegation was not, said the court, "standing alone, a sufficient allegation of an inadequacy of a remedy at law," and did not "state facts showing irreparable injury to plaintiffs by reason of the conduct sought to be enjoined." Id. at 449 (emphasis in original). Because the plaintiffs in this case have alleged harm with somewhat more specificity, we do not find Moseley to be controlling. FN6. As we noted in StopAquila.Org v. Aquila, Inc. , these cases were initially consolidated, but later severed by the

circuit court before disposition. 2005 WL 1430320, at *1 n.5. FN7. By order dated August 9, 2005, a divided Public Service Commission granted Aquila's motion for reconsideration in Case No. EO-2005-0156, relating to Aquila's application for authority to enter the agreement with Peculiar. Hearings originally scheduled for July 13-14 on the value of the turbines involved in the project had been postponed due to this court's ruling on Aquila's lack of authority to build a power plant in Cass County, but the Commission has apparently decided to let the hearings proceed. On August 30 the Commission established a briefing schedule that will culminate in a hearing on the matter in late September. FN8. References to rules are to the Missouri Rules of Civil Procedure (2005), unless otherwise indicated. FN9. Nor is this a typographical error. Before the constitution was amended in 2002 to eliminate the requirement that joint commissions must also submit public utility projects to a vote of the electors, the same pronoun was used before the phrase "negotiable interest bearing revenue bonds." M O. C ONST. art. VI, section 27 RSMo (2000). The amendment was apparently considered necessary because the statute regulating joint municipal utility commissions no longer gives such commissions the authority to order elections for the issuance of revenue bonds. Section 393.760.1 RSMo Supp. (2004). Moreover, under the 2002 constitutional amendment, joint commissions must comply with then applicable requirements of law, which require more than just a vote of the affected electors for the issuance of revenue bonds for public utility projects and also give joint commissions the authority to bypass the electorate, but only as to the issuance of bonds related to waterworks. Sections 393.745 & 393.760.6 RSMo Supp. (2004). FN10. The circuit court in its conclusions of law states that the "project is a distribution facility operated as a commercial project." Other than the affected transmission lines, which actually distribute the electric current, the bulk of the project is electrical power generation and a facility, the transmission substation, which changes the power of the current to allow it to flow into an adjacent, higher voltage transmission line. StopAquila.Org v. Aquila, Inc., 2005 WL 1430320, at *1 n.4. FN11. In their joint stipulation, the parties never refer to the electric power plant or the transmission substation as "distribution facilities." Instead the project is characterized in terms of the generation of electricity and the construction of electric power generating facilities and a transmission substation facility. FN12. Frequently Asked Questions, Aquila's South Harper Peaking Facility, http://www.cityofpeculiar.com/hottopics.cfm. Separate Opinion: None

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.