Bogaard v. Independent Dist. of Plain View

• Decision Date: 18 January 1895
• Citation: 61 N.W. 859,93 Iowa 269
• Parties: BOGAARD ET AL. v. INDEPENDENT DIST. OF PLAIN VIEW ET AL.
• Court: Iowa Supreme Court

93 Iowa 269

61 N.W. 859

BOGAARD ET AL.

v.INDEPENDENT DIST. OF PLAIN VIEW ET AL.

Supreme Court of Iowa.

Jan. 18, 1895.

Appeal from district court, Marion county; A. W. Wilkinson, Judge.

Action in equity to enjoin defendants from collecting and appropriating a certain tax to the establishment of a highway. Defendants demurred upon the ground that the facts stated in the petition do not entitle the plaintiffs to the relief prayed for. The demurrer was sustained, and, plaintiffs electing to stand on their petition, judgment was entered dismissing the same, from which they appeal. Affirmed.Warren Bros., Liston McMillen, and G. W. Crozier, for appellants.

P. H. Bousquet, Hays Bros., and C. H. Robinson, for appellees.

GIVEN, C. J.

1. The petition shows as ground for the relief asked, in substance, this: That the board of directors of the defendant independent district adopted a resolution applying and appropriating $250 to pay for establishing and opening a certain highway in the district; that the schoolhouse is situated on a north and south highway, and that the proposed highway is east and west, intersecting said existing highway about three-quarters of a mile from said schoolhouse; wherefore it is alleged that said board had no jurisdiction to appropriate said money for said purpose. In an amendment plaintiffs allege that said proposed highway is not required for school purposes; that there are no scholars to pass over it except the children of the plaintiffs, and that for more than 20 years the landowners on which said highway is proposed to be laid have permitted the free use of the same, whether by team or otherwise, by school children and others wishing to travel thereon; that the establishment of and payment for said highway for school purposes is a pretext to avoid payment therefor by the real parties in interest. Plaintiffs allege that, unless enjoined, the county treasurer “will collect the tax described in the original petition,” and ask that he and the board of said independent district be enjoined.

2. Appellants' first contention is that the action of the defendant board is unauthorized. We understand from the petition that the resolution mentioned was adopted in pursuance of a vote of the electors of the district. By subdivision 2 of section 1717 of the Code authority is given to the electors of district townships to direct, at annual meetings, as to certain matters specified. Section 1, c. 51, Acts 19th Gen. Assem., added as follows: “And to authorize the board of directors to obtain, at the expense of the district township, such highways as such board may deem necessary for proper access to the school-houses of their districts.” Subdivision 3 of said section 1717 authorizes the electors at the annual meeting “to vote a tax, not exceeding ten mills on the dollar in any one year, on the taxable property of the district township,” for certain purposes named. Section 2 of said chapter 51 added to the purposes named as follows: “And for obtaining highways for access to...