DiCkhaus v. Olderheide

• Decision Date: 04 May 1886
• Citation: 22 Mo.App. 76
• Parties: HENRY DICKHAUS, Appellant, v. E. F. OLDERHEIDE, Respondent.
• Court: Missouri Court of Appeals

22 Mo.App. 76

HENRY DICKHAUS, Appellant,

v.E. F. OLDERHEIDE, Respondent.

St. Louis Court of Appeals, Missouri.

May 4, 1886.

APPEAL from the Warren County Circuit Court, W. W. EDWARDS, Judge.

Affirmed.

DYER, LEE & ELLIS, for the appellant.

PEERS & MORSEY, for the respondent.

ROMBAUER, J., delivered the opinion of the court.

The plaintiff, who is a resident taxpayer of a school district in Warren county, filed, February 24, 1884, his petition for an injunction in the circuit court of said county, praying that the defendant, who is county collector, might be enjoined from collecting a district school tax of seventeen dollars, assessed against the plaintiff, and threatened to be enforced by the seizure and sale of certain personal property of the plaintiff. The petition stated that the tax sought to be enforced was illegal, for the following reasons: That it was levied for the purpose of erecting a new school house, upon a change of site, and such change and erection, and levy of tax, were not authorized by a two-thirds vote of the qualified voters of the district, as the law requires.

Upon this petition a temporary injunction was issued. The defendant appeared, traversed the allegations of the petition, and the cause was sent to a referee, who subsequently reported his finding, in which he stated that the change of school house site was authorized by a two-thirds vote of the qualified voters of the district, and that the tax was authorized by a majority vote of those attending the meeting.

At the April term, 1885, after the referee had filed his report, the plaintiff obtained leave to file an amended petition, in which, in addition to the facts originally set out, he further averred that the meeting of the district, at which such tax was voted, was called upon a notice insufficient, as to time, and, also, insufficient in failing to state the object for which the meeting was called.

The defendant answered, denying the allegation of the amended petition, and stating by way of new matter, in substance, that the tax was voted for the purpose of paying an indebtedness for fifteen hundred dollars, which the school district had incurred by a legal vote, at a meeting properly called, upon due notice, for that purpose.

It appeared in evidence that the change of the school house site was decided upon at a meeting held in April, 1883, and that a tax of seventy-five cents on the one hundred dollars valuation was voted at said meeting, by a majority vote. That April 30, 1883, the clerk of the school district filed the annual estimate with the county clerk, on the basis of seventy-five cents, asking him not to extend it on the books until the voters would authorize a loan of fifteen hundred dollars. That when a meeting of the district was held, in June, authorizing such loan, he, the clerk, extended the tax, reducing it, however, to sixty cents on the one hundred dollars valuation, as he considered that the limit allowed by law.

It further appeared in evidence, and by the stipulation of parties, that the notice for the district meeting, in April, 1883, was insufficient to authorize the tax...