Stamper v. Roberts

• Decision Date: 14 February 1887
• Parties: Stamper, Appellant, v. Roberts, Collector, et al
• Court: Missouri Supreme Court

3 S.W. 214

90 Mo. 683

Stamper, Appellant, v. Roberts, Collector, et al

Supreme Court of Missouri

February 14, 1887

Appeal from Randolph Circuit Court. -- Hon. G. H. Burckhartt, Judge.

Affirmed.

Thos B. Reed for appellant.

(1) The court erred in refusing to grant the injunction and in dismissing complainant's bill. Our statutes make school districts corporations with limited powers, and in the formation of such statutory corporations the laws of their creation must be closely followed, and such acts strictly construed. Ohio, etc., v. The Treasurer of Lib. Tp., 22 Ohio 144; The Dist., etc., v. The Dist. of Burr Oak, 34 Iowa 306, and cases there cited; 32 N.H. 118; 8 Foster, 58, 61; 10 Foster, 305; 11 Foster, 304; 31 Ga. 225. (2) Section 7023, Revised Statutes, 1879, makes it obligatory ("shall") upon the directors of each school district, on receipt of the proper petition, to "post notices of such desired change in at least three (this has been changed to five) public places in each district interested twenty days prior to the time of the annual school meeting." The sixth subdivision of section 7031 together with the first clause of that section, is as follows: "Section 7031. The qualified voters assembled at the annual meeting shall have power to decide in favor of or against any proposed change of boundaries, notice of such change having been posted in at least five public places in each district affected thereby twenty days previous to the date of holding the annual meeting." This section has been construed by our Supreme Court. State ex rel Schmutzler et al. v. Young, 84 Mo. 90. "The warrant of authority for the vote therein at the annual meeting is the proposition for the change posted by the school directors." No notice having been posted for the change voted on, there was no authority in law for the vote taken on the sixth day of April, 1880, and the same was, therefore, of no force and effect. State ex rel. School District No. 6 v. Riley, 85 Mo. 156; Perryman v. Bethune, 89 Mo. 158. Injunction is the proper remedy. Overall v. Ruenzi, 67 Mo. 203; State ex rel. Brown v. Railroad, 83 Mo. 395.

T. P. Kimbrough and W. T. Austin for respondents.

(1) Where there is any evidence to sustain a verdict the testimony will not be weighed by the Supreme Court. Carver v. Thornhill, 53 Mo. 283; Brown v. Railroad, 50 Mo. 461. (2) The motion for new trial fails to make specifications of reasons upon which it is founded. R. S., sec. 3557; Fox v. Young, 22 Mo. 386. (3) The appeal was not asked nor granted until the September term, 1884, one term after the judgment was rendered, and the affidavit for appeal was made at the same term, which could not be done. R. S., sec. 3712; Stavely v. Kunkel, 29 Mo. 422; State ex rel. v. Keuchler, 83 Mo. 193; Brown v. Railroad, 83 Mo. 478; Randolph v. Mauck, 78 Mo. 468; Lengle v. Smith, 48 Mo. 276; Clelland v. Shaw, 51 Mo. 440; McPike v. Pew, 48 Mo. 525. (4) The court did not err in refusing to grant the injunction and in dismissing the bill. Sayer v. Thompkins, 23 Mo. 443; Lockwood v. St. Louis, 24 Mo. 20; Leslie v. St. Louis, 47 Mo. 474; Barrow v. Davis, 46 Mo. 394. (5) Injunction will lie to prevent threatened illegal action, or the threatened doing of an unauthorized act or thing, but is not the proper remedy for relief against the assessment and levy of a school tax, the assessment and levy of which is illegal and void. (6) Revised Statutes, section 2722, does not authorize resort to injunction in this case. (7) Complainant should have acted in the matter promptly. No community should be deprived of a school for four years. Sayre v. Thompkins, 23 Mo. 446; Stevens v. Newcomb, 4 Denio, 438. (8) Appellant is not injured by leaving all of his lands except seven acres in the old district. (9) The school meeting had a right to make the boundary less than called for in notice, but not greater. The greater includes the less. Conceding that the assessment and levy of the tax was illegal and void, as appellant's petition alleges, a court of equity would not interpose. McPike v. Pew, 48 Mo. 525; Railroad v. Reynolds, 89 Mo. 146. Appellant's petition alleges that he paid his taxes in new school district under protest. This is of no avail to appellant. He should have refused to pay.

Norton, C. J. Brace, J., absent.

OPINION

Norton, C. J.

This is a proceeding by injunction to restrain the collection of a school tax for school dis trict number 5, township 54, ranges 15 and 16, in Randolph county, on the ground that said school district was never legally organized, and that there is, in fact, no such school district. Notice was given that the petition would be presented to the Randolph circuit court on the twenty-ninth of March, 1884. Defendant appeared and the cause was submitted to the court on the petition, and the bill was dismissed and final judgment rendered against plaintiff for costs, from which he prosecutes his appeal to this court.

It appears from complainant's bill that on the twelfth of March, 1880, a petition was presented to the school directors of district number 4, township 54, range 16, saying that the petitioners wished to form a new district out of territory to be taken from school district number 4, township 54, range 16, and from school district number 2, township 54, range 15. This petition set forth with particularity the territory to be taken from said districts numbered 4 and 2; on the reception of the petition said directors had notices of election for said purpose posted as required by law, in exact conformity with said petition, the boundaries of the contemplated new district being described in said notices exactly as in the petition; that the boundaries as described in said petition and notices embraced one hundred and sixty-four acres of land of plaintiff on which he then resided and now resides, and that one McCrary also owned and now owns two hundred and sixteen acres of land within said boundaries. It also appears that, at the annual...