Cooper v. School Dist. of Kansas City

• Decision Date: 14 May 1951
• Docket Number: No. 42117,No. 2,42117,2
• Parties: COOPER et al. v. SCHOOL DISTRICT OF KANSAS CITY et al
• Court: Missouri Supreme Court

Page 509

239 S.W.2d 509

362 Mo. 49

COOPER et al. v. SCHOOL DISTRICT OF KANSAS CITY et al.

No. 42117.

Supreme Court of Missouri, Division No. 2.

May 14, 1951.

Thurman L. McCormick, William I. Potter, Kansas City, for appellants.

Blatchford Downing, Edward T. Matheny, Jr. and Caldwell, Downing, Noble & Garrity, all of Kansas City, for respondents, School District of Kansas City and Members of its Board of Directors.

Hilary A. Bush, County Counselor, August F. Behrendt, Asst. County Counselor, Kansas City, for respondent, Ben Nordberg, County Clerk.

BARRETT, Commissioner.

This is a suit by six voters and taxpayers, 'on their own behalf, and on behalf of all other parties and persons similarly situated,' against the School District of Kansas City, its officers and board of directors and the county clerk of Jackson County. The purpose of the suit is to restrain, by injunction, the school district and its secretary and directors from certifying to the county clerk that two-thirds of the qualified voters of the district, voting at a special election on March 28, 1950, approved a tax increase of thirty-eight cents on the one hundred dollar valuation and to restrain the county clerk from extending the increased tax levy upon the tax books of the county. The defendants filed a motion to dismiss the plaintiffs' petition asserting (a) that the court had no jurisdiction of the subject matter of the action and (b) that the petition 'fails to state facts sufficient to constitute a claim upon which relief can be granted.' Without definite specification of either reason the trial court sustained the motion and dismissed the plaintiffs' petition. Upon this appeal by the voters and taxpayers it is insisted that the court erred in dismissing their petition because, upon the facts alleged, the election was a nullity and void in that 'the school board called and conducted' the election in violation of mandatory, constitutional and statutory limitations and restrictions which required the tax increase to be submitted to qualified voters only. It is the claim of the appellants that the levy was 'submitted to and voted upon by qualified and unqualified voters' and by reason of that fact the election levying the tax is void.

The appellants state that jurisdiction of the appeal is in this court because a 'political subdivision of the state' is a party, because 'the construction of the revenue laws of this state' is involved and because 'the amount in dispute' exceeds the sum of $7500. Const.Mo. Art. 5, Sec. 3. But a county clerk or a clerk of a school district is not a 'state officer' within the meaning of this court's constitutional jurisdiction, Young v. Brassfield, Mo.Sup., 223 S.W.2d 491, and it has been recently decided that a school district as a party is not such a political subdivision of the state as to give this court jurisdiction of an appeal. Hydesburg Common School Dist. v. Rensselaer Common School Dist., Mo.Sup., 214 S.W.2d 4. The essential purpose of the suit is to enjoin the certification of the results of the election and while the revenue laws of the state may be indirectly or incidentally involved the appeal does not primarily and directly concern the construction of the revenue laws of this state in such manner as to give this court jurisdiction. Young v. Brassfield, supra; Hurtgen v. Gasche, Mo.Sup., 223 S.W.2d 493; White v. Boyne, 324 Mo. 176, 23 S.W.2d 107. Compare: State ex rel. De Weese v. Morris, 359 Mo. 194, 221 S.W.2d 206; Salvation Army v. Hoehn, 354 Mo. 107, 188 S.W.2d 826.

If jurisdiction of the appeal is in this court it must be by reason of the fact that 'the amount in dispute' is in excess of $7500. The question has not been considered heretofore in an identical or even in a similar case. There is no amount of money directly in dispute, Jackson v. Merz, 358 Mo. 1212, 219 S.W.2d 320, and the relief sought is not a money judgment but an injunction against the certification and extension of the tax levy and the test of the court's monetary jurisdiction 'when the object of the suit * * * is not to obtain a money judgment, but other relief, the amount involved must be determined by the value in money of the relief to the plaintiff, or of the loss to the defendant, should the relief be granted, or vice versa, should the relief be denied.' Evens & Howard Fire Brick Co. v. St. Louis Smelting & Ref. Co. 48 Mo.App. 634, 635; McGuire v. Hutchison, 356 Mo. 203, 201 S.W.2d 322; Juden v. Houck, Mo.Sup., 228 S.W.2d 668. When relief other than a money judgment is sought the fact of a value in excess of $7500 must affirmatively appear from the record and may not be surmised or conjectured. Fanchon & Marco Enterprises v. Dysart, Mo.Sup., 189 S.W.2d 291; Ewing v. Kansas City, 350 Mo. 1071, 169 S.W.2d 897. Here the sum in dispute does not appear so clearly as it does in the suits to enjoin the issuance or registration of bonds in excess of $7500, or in the instance of the enjoining of the expenditure of the proceeds of a bond issue in excess of $7500. Missouri Power & Light Co. v. City of Bucklin, 349 Mo. 789, 163 S.W.2d 561; Butler v. Board of Education of Consol. School Dist. No. 1, Mo.Sup., 16 S.W.2d 44; Kellams v. Compton, Mo.Sup., 206 S.W.2d 498, 4 A.L.R.2d 612; Aquamsi Land Co. v. City of Cape Girardeau, 346 Mo. 524, 142 S.W.2d 332. On the other hand the case is not comparable to those in which the bonds have not been voted and the suit is to enjoin the holding of the election, Ward v. Consolidated School Dist. No. 146, 320 Mo. 385, 7 S.W.2d 689, and neither is it comparable to those in which some future or contingent liability is involved. National Surety Corp. v. Burger's Estate, Mo.Sup., 183 S.W.2d 93. Here, in this petition, dismissed upon motion, it is alleged that unless the certification and extension of the tax are enjoined the county will 'proceed to assess said increase tax levy against the property, real and personal, of the plaintiffs and all other property owners in said District; that said tax involved in said Certification will total approximately Three Million Dollars; * * *.' While it may not be possible, even in this class action, to accurately estimate in dollars the value or benefit in tax savings to the appellants, Ward v. Consolidated School Dist. No. 146, supra, it would appear, should relief be granted, that the loss in money value to the respondents would approximate the alleged $3,000,000. Aufderheide v. Polar Wave Ice & Fuel Co., 319 Mo. 337, 356-359, 4 S.W.2d 776, 783-785. See also City of St. Louis v. Essex Inv. Co., 356 Mo. 1028, 204 S.W.2d 726; Rombauer v. Compton Heights Christian Church, 328 Mo. 1, 40 S.W.2d 545.

The increased tax levy was carried by a vote of 68,470 to 30,013. The appellants allege that 25,000 to 30,000 'persons were permitted to vote in said Election although they were not qualified voters under the law,' and therefore, the election and increased tax are illegal and void. The appellants' claim that the increased tax levy was submitted to and voted upon by unqualified as well as qualified voters is based upon dual allegations; one having to do with what may be termed the inducing or background charges, and the other having to do with the specific facts relied upon as demonstrating the illegality of the election.

In the first category it is alleged that the election was called for the 'purpose of submitting to and securing approval of a two-thirds majority of the qualified voters in said School District of an increase in the tax levy above the Constitutional limit for school purposes of 38cents on $100.00 assessed valuation on all real and personal property in said School District.' In connection with the calling and conduct of the election it is alleged that it was the duty of the school board, under the constitution and the law, to submit the question to a vote of the qualified voters and none other. It is charged, in this connection, that it was the duty of the board, under the statute, Mo.R.S.1949, Sec. 165.487, to give due and legal notice of the election including a specification of the questions to be submitted to the voters and a designation of the voters to whom said questions would be submitted. It is charged that 'it became and was the duty of the School Board to carry forward, conduct and control said election in strict compliance with the terms and conditions embraced in the aforesaid published notice; * * *.' It is alleged that under the constitution, the laws and the notice only qualified, meaning registered, voters were entitled to vote in the election. In this connection it is alleged that under the statute, Mo.R.S.1949, Sec. 165.473, it was the duty of the board of directors of the school district to obtain from the Board of Election Commissioners of Kansas City a certified list of all qualified voters in each ward, 'which list the Board of Directors shall cause to be delivered to the Judges of Election of the proper polling places for their use in enabling them to determine the qualifications of persons offering to vote; that the aforesaid statutes places the exclusive duty and obligation upon the Board of Election Commissioners to determine and compile the names and addresses of the qualified voters of each ward in said city, which list, when so compiled, shall constitute the exclusive and complete list of the qualified voters; that said statutes excludes and removes any and all discretionary power on the part of the School Board, to set up or create a further or different list than that compiled and furnished by said Board of Election Commissioners, as aforesaid.' It is not alleged in the petition, but in their brief the appellants say that 'The school board, in conducting the election involved herein, did in fact secure, as required by Section 10689, R.S., 1939, (Mo.R.S.1949, Sec. 165.487[165.473]) a list of the registered voters and delivered the same to the respective precincts.'

After setting forth the inducing...