Black v. Early

• Decision Date: 27 November 1907
• Parties: BLACK et al. v. EARLY, Revenue Collector, et al.
• Court: Missouri Supreme Court

106 S.W. 1014

208 Mo. 281

BLACK et al. v. EARLY, Revenue Collector, et al.

Supreme Court of Missouri, Division No. 1.

November 27, 1907.

1. SCHOOLS AND SCHOOL DISTRICTS—DE FACTO SCHOOL DISTRICTS—COLLATERAL ATTACK.

The validity of a de facto school district, acting under color of law and legal right in conducting a school, cannot be attacked collaterally in a suit to restrain the collection of taxes levied by it for school purposes, and to pay interest on and to create a sinking fund for the payment of bonds, but the validity must be determined by quo warranto.

2. SAME.

A school district voluntarily becoming a party to a suit to restrain the collection of taxes levied by it for school purposes, and tendering the issue of its corporate existence, may avail itself of the defense that its corporate existence cannot be collaterally attacked.

3. SAME—TAXATION—ASSESSMENT—VALIDITY.

A school district estimate of the funds necessary to sustain its public school contained items for teachers' fund and for incidental fund, aggregating a specified sum, and recited that a levy of a specified sum on the valuation was sufficient to raise the amount. The estimate contained items for a sinking fund and for annual interest, and stated that an additional levy was necessary. Held that, though the interest and sinking fund items were erroneous, there remained a valid tax due the district for the maintenance of its schools, and a taxpayer failing to tender the amount of the tax for the latter purpose could not restrain the collection of the entire tax.

4. SAME.

Const. art. 10, § 12 [Ann. St. 1906, p. 287], provides that any school district incurring any indebtedness "shall before or at the time of doing so" provide for the collection of an annual tax to pay the interest thereon and to provide a sinking fund. A school district voted to issue bonds, which were not sold. The estimate of the funds necessary to be raised by taxation for a year contained items for interest on the bonds and a sinking fund. The bonds were thereafter sold. Held, that the estimate was properly made, and the taxes properly levied in accordance therewith.

5. JUDGMENT—CONFORMITY TO PLEADINGS.

A judgment must be responsive to the pleadings, and one not within the pleadings will not be sustained.

Appeal and Cross-Appeal from Circuit Court, Marion County; D. H. Eby, Judge.

Action by John H. Black and others against Henry Early, collector of the revenue of Knox county, and others. From a judgment granting insufficient relief, both parties appeal. Reversed, with directions to dismiss.

O. D. Jones, George A. Mahan, and W. N. Doyle, for plaintiffs. L. F. Cottey, F. H. McCullough, and James C. Dorian, for defendants.

LAMM, J.

Plaintiffs, Black, Buhl, and Delaney, resident taxpayers of the district, for themselves and 40 others unnamed (designated in the petition and the briefs as the "Forty"), on June 2, 1906, sued in the circuit court of Knox county to enjoin the collection of taxes levied against their properties for the year 1905, and about to be levied for the year 1906, for the support of the public school of the school district of the town of Hurdland, and to pay the interest on certain bonds of said district, and to create a sinking fund to pay the principal. A preliminary writ went. Thereat the venue of the cause was changed to the Hannibal court of common pleas on plaintiffs' application. At a hearing there the chancellor made the preliminary writ permanent as to the taxes for the year 1905. As to the taxes of 1906 it was dissolved. The decree, having split the relief, proceeded to halve the burden of costs, taxing one modicum against plaintiffs, and the other against defendants, and from that decree the parties litigant prosecute cross-appeals.

The case was lodged in this court on the 26th day of June, 1907. On the same day defendants filed a motion to advance. There was no counter showing made on the allegations of that motion. Therefrom it appeared that a proceeding in quo warranto, involving the life of the school district of the town of Hurdland, was pending here for hearing at the October term, 1907. Therefrom it further appeared that because of the nonpayment of taxes by plaintiffs (and the "Forty"), and because one of the plaintiffs, as treasurer of the school district of the town of Hurdland, whose bond was made by his coplaintiffs as sureties, refused to turn over the money of said district then in his hands, without suit, litigation being pending on said bond (see State ex rel. v. Delaney, 122 Mo. App. 239, 99 S. W. 1), the public school in the school district of the town of Hurdland had been first crippled and then closed. The premises considered, the court in banc advanced this case to be heard with the quo warranto, and assigned it to Division 1 to be heard at said October term. At that term both cases were argued and submitted, and the reasons good for use in advancing the case for speedy hearing still existing, justify us in determining it speedily, in advance of the quo warranto; since, whatever may be the outcome in the latter cause, no apparent public good can be furthered by putting the public school of Hurdland in the way of sickening, languishing, and dying of starvation. Such coup de grace as death, if it come at all, should be seemly and at the hands of the law; and a prior state of suspended animation or paralysis ought not to be allowed to come about through drawn-out torture. The pleadings are long, covering 61 pages of print, and need not be reproduced. A summary thereof will be sufficient upon which to predicate and announce our views of their legal intendment, and decide the case.

Counsel are not in accord on the scope and meaning of the charging part of the petition. In its warp and woof there are interwoven, with allegations of ultimate and substantive fact, narrations of coloring matter, recitals of extraneous facts, matter of evidence, matter of inducement, matter of argument, and conclusions of law; thereby making its analysis and a differentiation of the elements constituting the grounds upon which relief is sought to be predicated a nice, a baffling, and an anxious task. Ordinarily it would be wide of the mark to go to the evidence of a lay witness to get at the gist of a pleading. But, in the wilderness of litigation, a case may arise where light may be hailed as welcome through any window, and in this case we may borrow with profit from the testimony of Mr. Delaney, one of the plaintiffs, and a man wielding a hammer of common sense and able to hit the nail on the head. On cross-examination, he testified: "They attempted to organize under the village act." He was then asked: "What do you mean by `attempting to organize under the village act?'" He answered: "I mean that we attempted—some of the folks attempted—to organize under the village act, and now it is in litigation to see whether they have or not. That is my idea of it." His "idea" of the issue tendered by the petition is ours. For, doing the best that in us lies, and liberally construing the pleading, it may be justly said that the gravamen of plaintiffs' complaint is that the school district of the town of Hurdland was illegally organized in 1902 out of a former common school district; that there was a common school district, known as "School District No. 2, township 15, range 13, Knox county," in existence prior to 1902 for 20 years, and it is charged it was abortively attempted to change this district, by a mere colorable following of the statutory path of evolution blazed out in the village act (article 2, c. 154, Rev. St. 1899 [Ann. St. 1906, p. 4519], entitled City, Town and Village Schools), into a village school district in said year. The bundle of things which, in detail and as a whole, go to make up the vice of alleged illegality in the organization of the new district, is charged with a wealth of detail, the pleader (passim) laying stress upon the issuing of $5,700 in bonds by the village district to build a brick schoolhouse, and the taxation incident to that bond issue. It is plain that the taxation arising from the issuing of these bonds is where the shoe pinches. It is plain, too, that the pleader desired the court to understand that the controlling reason for declaring the taxes of 1905 and 1906 to be illegal is because of the pleaded infirmities in the corporate birth and life of the school district of the town of Hurdland, and not otherwise. To these general charges of illegality (split into sundry specifications) there is added an allegation that the levying and spreading of the taxes of 1905 were "without any estimate made or certified by the secretary of the board of directors of the school district of the town of Hurdland, and without any estimate, pretended or claimed to be made in the name or to represent the School District No. 2, township 15, range 13, being then on file in the office of the clerk of the county court of Knox county." The tax levy struck at for 1905 was for 90 cents on the $100 of valuation. As to the year 1906 it is alleged that the "pretended board of the district of the town of Hurdland caused to be made an estimate of taxes to sustain the public school of said pretended district of the town of Hurdland for the next school year, and have caused one G. L. Cockrum, as district clerk, to certify an estimate, and caused the same to be filed in the office of the clerk of the county court of Knox county." This estimate was 90 cents on the $100 of valuation, and it is alleged that a levy is about to be made and spread on the taxbooks for that amount.

It is not charged in the petition or shown in the proof that plaintiffs or either of them actually offered to pay and tendered payment of any part of the 90-cent levy, which levy covered the whole school tax, including 25 cents on the $100 for a sinking fund to pay said bonds, and 25 cents on the $100 to pay the interest thereon. It will be observed that the...