Henry v. Dulle

• Citation: 74 Mo. 443
• Parties: HENRY v. DULLE, Plaintiff in Error.
• Decision Date: 31 October 1881
• Court: United States State Supreme Court of Missouri

74 Mo. 443

HENRY

v.DULLE, Plaintiff in Error.

Supreme Court of Missouri.

October Term, 1881.

Error to Cole Circuit Court.--HON. G. H. BURCKHARTT, Judge, presiding in the case.

REVERSED.

M. J. Leaming and Belch & Silver for plaintiff in error.

The onus was on plaintiff to sustain the allegations of the petition as to the illegality of the tax sought to be restrained, and to show that their property was outside of the school district. Hilliard on Taxation, p. 295, § 15; C. B. & Q. R. R. Co. v. Paddock, 75 Ill. 616; Mills v. Thornton, 26 Ill. 300; O'Kane v. Treat, 25 Ill. 557; Pillsbury v. Humphrey, 26 Mich. 245; Harrison v. Vines, 46 Tex. 15; Bailey v. Buell, 59 Barb. 168; Macomber v. Center, 44 Vt. 235; Briggs v. Whipple, 7 Vt. 15; Warden v. Supervisors, 14 Wis. 618; Matter of Farmers' Bank, 1 Thomp. & C. (N. Y.) 383; Hutchins v. Hope, 7 Gill (Md.) 119; State v. Melton, 8 Mo. 418; Walton v. Walton, 17 Mo. 376; Sauer v. Kansas City, 69 Mo. 47. The finding is wholly without evidence to support it, and for that reason should be reversed. Cadwallader v. Cadwallader, 26 Mo. 76; Darrier v. Darrier, 58 Mo. 222; Nesbitt v. Neill, 67 Mo. 275. If the out-lots, at the time of and prior to the organization under chapter 47, were attached to the city for school purposes, they were necessarily included in that organization. 60 Mo. 540; 64 Mo. 56. If so included, they will be presumed to have remained as originally organized. The notice, by its terms, shows that there was at the time of its publication and prior thereto, territory attached to the City of Jefferson for school purposes. The maps were competent evidence. 1 Phillips Ev., p. 236; 1 Dillon Munic. Corp., (3 Ed.) § 304; 2 Wag. Stat., p. 1248, § 30. Officers are presumed to perform their duties. Hilts v. Colvin, 14 Johns. 182; 1 Phillips Ev., p. 604. Even if the out-lots were not included in the original organization, still the resolution of July 22nd, 1869, conclusively fixes them in the city district. The law of 1868, (Acts 1868, p. 164,) is constitutional. Sharp v. Miller, 65 Mo. 50. The secretary of the board is presumed to have done his duty. Long v. Joplin M. Co., 68 Mo. 431; School Directors v. School Directors, 73 Ill. 249, 255. The board had no authority to detach territory once attached. 1 Dillon Munic. Corp., § 24.

L. C. Krauthoff and J. R. Edwards for defendants in error.

School districts are by the law regarded as quasi municipal corporations of the most limited powers known to the law, having only such powers as are specially conferred; and such powers must be exercised precisely as given. Harris v. School Dist., 28 N. H. 58, 61; Rapelye v. Van Sickler, 1 Edm. Sel. Cas. (N. Y.) 175; 2 Dillon Munic. Corp., (2 Ed.) § 610; Sedg. Stat. and Const. Law, pp. 299, 397; Potter's Dwarris, pp. 146, 257; Trumpler v. Bemerly, 39 Cal. 490; Nichol v. Nashville, 9 Humph. 252, 261; Fowler v. St. Joseph, 37 Mo. 228, 238; Cist v. State, 21 Ohio St. 339. The act of 1868, evidently contemplates that before the territory described in the resolution of the city or town board of education shall be held to be attached to such city or town, it shall be first detached from the township or county district to which it naturally belongs. Otherwise the same property might be in two districts at one and the same time. Some action on the part of the township district authorities is necessary in order to complete the transfer of the territory. And the necessary action is clearly defined by this act; it is, first, that a copy of the resolution shall be transmitted to the township districts affected, and second, that the clerk of such townships shall cause maps of their townships to be changed accordingly. Until these steps are taken, the process of detaching territory from one and attaching it to another district, is not complete. In this case, there is no pretense of a compliance with these requirements. Butterfield v. School Dist., 61 Me. 583; Downing v. Rugar, 21 Wend. 178; Powell v. Tuttle, 3 N. Y. 396. Besides, the resolution was repealed the year after its passage and long before the levy of the taxes complained of. The repeal of the resolution obliterated it as completely as if it had never been passed. Key v. Goodwin, 4 Moore & Payne 341; 1 Dillon Munic. Corp., § 314; Ogden v. Blackledge, 2 Cranch 272; Musgrove v. R. R. Co., 50 Miss. 677, 681; Bank v. Snelling 35 Mo. 190; Kansas City v. Clark, 68 Mo. 588; Sedg. Const. and Stat., p. 108 et seq.

Some objection was also made by counsel below to the ruling of the court putting the burden of proof, under the pleadings, upon the defendant; but the correctness of this ruling is unimportant, as we do not suppose defendant has thereby been prevented from producing any evidence favorable to his theory of the case. The location of the property outside of the corporate limits of the city, being admitted by the answer, such property was prima facie outside of the school district of said city. If it had been in anywise attached thereto, that was a fact peculiarly within the knowledge of the officers of such district, and a familiar and elementary rule of evidence made it incumbent upon them to show the fact if it existed. State v. Lipscomb, 52 Mo. 32; State v Van Winkle, 1 Dutch. (N. J.) 73.

NORTON, J.

This is a proceeding by injunction instituted by John W. Henry, E. L. Edwards, H. Clay Ewing and J. L. Smith in the circuit court of Cole county, to enjoin the defendant, who is the collector of the revenue of said county, from collecting and enforcing the payment of certain school taxes directed to be extended on certain out-lots of the City of Jefferson, belonging to the plaintiffs, by the board of education of the Jefferson City school district. The question involved is whether or not the out-lots of said city are a portion of the school district of said city. It was not denied that such out lots were outside of the corporate limits of the city, but it was insisted that they had been attached thereto for school purposes. The court below held that it did not appear that they were so attached, and granted the injunction prayed for. The defendant then sued out this writ. The only question for our determination is, whether the evidence warranted the finding and judgment rendered by the circuit court.

1. SCHOOLS: city, town and village districts.

It is admitted by the pleadings that in 1867 the inhabitants of the City of Jefferson, under the provisions of chapter 47 of the General Statutes of 1865, organized the said City of Jefferson into a separate or single school district. The first section of the above chapter provides “that any incorporated city or town in this State, plat as laid out and recorded, with the territory attached, or hereafter to be attached, to said city or town or village for school purposes, may be organized into a single school district.”^a1 This section, owing to its phraseology, is somewhat obscure as to its meaning, but whatever of uncertainty arises upon the face of it, has been removed by the construction put upon it, in the cases of State ex rel. v. Heiser, 60 Mo. 540, and State ex rel. v. Board, etc., 64 Mo. 56, in which it was held that any incorporated city or town which had already attached to it for school purposes territory lying outside of its corporate limits, could organize itself into a single school district, embracing within such district such attached territory; and that such district when so organized might thereafter attach other territory under the provisions of section 17 of the act of March 21st, 1870, (2 Wag. Stat., p. 1267, § 17). It was also held that under said act any incorporated city or town, the school district of which only included the territory within the corporate limits of such city or town, might also organize itself into a single school district, and that after such organization it might also attach territory outside of its corporate limits to such district by complying with the provisions of said section 17.

2. _____: Jefferson City out-lots.

The question as to whether previous to the time the City of Jefferson was organized into a single school district, territory lying outside of its corporate limits had been attached to, or was within the Jefferson City school district, is left in doubt by the evidence. The only evidence tending to establish this fact was a notice dated September 4th, 1867, and signed by fourteen persons, to the following effect: “The undersigned freeholders and residents of the City of Jefferson, and the territory attached thereto for school purposes, request the qualified electors of the aforesaid school district to assemble on September 14th next, between the hours of ten and twelve in the forenoon, at the mayor's office, in the market house, then and there to vote for the organization of an independent school district under the act of March 15th, 1866, amended by the act of March 13th, 1867.”

From this notice an inference might be drawn that the school district of Jefferson City, at the time this initiatory step was taken to organize it into a single school district, embraced territory outside of the corporate limits; but whether the land of plaintiffs, upon which the tax complained of was imposed, was within the said territory, is not shown. We could not, therefore, supply by inference what the evidence fails to show, viz: That the property of plaintiffs was embraced in the territory attached to the Jefferson City school district at the time it was organized in 1867 into a separate school district.

The only remaining question is, did the evidence adduced on the trial show that the board of education of the city of Jefferson, after its organization into a single district, attach territory for school purposes which included the lands of plaintiffs, such lands being out-lots of Jefferson City. To establish this fact, defendant put in evidence a resolution of date August 31st, 1868, which is as follows:

“ Resolved, That the territory lying east, south and west of...