Hurtgen v. Gasche
| Decision Date | 21 February 1950 |
| Docket Number | No. 27900,27900 |
| Citation | 227 S.W.2d 494 |
| Parties | HURTGEN et al. v. GASCHE et al. |
| Court | Missouri Court of Appeals |
Redick O'Bryan, St. Louis, R. E. Kleinschmidt, Hillsboro, for appellants.
Dearing & Matthes, Hillsboro, M. C. Matthes, Hillsboro, for respondents.
This suit was brought by appellants as plaintiffs against respondents as defendants for an injunction to restrain and enjoin defendants from levying and collecting an increase of school taxes of 50cents on the $100.00 valuation in Consolidated School District No. Three of Jefferson County, Missouri. The trial court sustained the separate motions of the individual defendants to dismiss the petition of plaintiffs on the ground that the petition did 'not state facts entitling plaintiffs to injunctive relief or to any relief' against the defendants. The defendant School District did not file any motion or pleading. Plaintiffs having refused to plead further, the court rendered final judgment and dismissed the proceedings. After an unavailing motion for a new trial plaintiffs appealed to the Supreme Court, but that court held that it did not have jurisdiction and transferred the cause to this court.
Plaintiffs, sixty-three in number, alleged in their petition that they are all resident taxpaying citizens of Consolidated School District No. Three of Jefferson County, Missouri, and bring this action on behalf of themselves and all others similarly situated who desire to join. Six of the named defendants are alleged to be the members of the Board of Directors of said School District. The three other individual defendants named in the petition are alleged to be the duly elected, qualified and acting Clerk of the County Court, Collector of Revenue, and Superintendent of Schools, respectively, of said County. The School District is also named as a defendant.
Plaintiffs' petition further alleged that under Section 10347; page 1630, Laws of Missouri 1945, Mo.R.S.A. Sec. 10347, it will be the duty of said Board of Directors on or before the 15th day of May, 1948, to 'forward to the County Superintendent of Schools an estimate of the amount of money to be raised by taxation for the ensuing school year, and the rate required to produce said amount, specifying by funds the amount and rate necessary to sustain the school or schools of said district for the time required by law or authorized by the qualified voters of the district, to meet principal and interest payments on the bonded debt of the district, and to provide such funds as may have been ordered by the qualified voters of the district for other legitimate district purposes, including the purchase of school building sites, buying or erecting school buildings, repairing and furnishing such buildings, and providing foot bridges across running streams'; that on receipt of the estimates of said School District it will become the duty of said County Clerk, unless restrained by law, to assess the amount so returned on all taxable property, real and personal, in said District, as provided by Section 10395, page 1631, Laws of Missouri, 1945, Mo.R.S.A. 10395, and it will become the duty of said Collector of Revenue, unless restrained by law, to collect said taxes on real and personal property in said School District, including property of plaintiffs.
The petition of plaintiffs further alleged that the defendant Directors of said School District have threatened to and are about to certify to said Superintendent of Schools and to said County Clerk a tax rate of 50cents in excess of $1.00 on the $100.00 valuation on all taxable property in said School District on account of an irregular and void election held at the school building in said School District on Thursday, April 29th, 1948, which said purported election was void and of no effect because legal notice thereof was not given as provided by Section 10358, pages 1630 and 1631, Laws of Missouri, 1945, Mo.R.S.A. 10358, and Section 10418, R.S.Mo.1939, Mo.R.S.A.; that the only purported notice of said special election was published in the Jefferson County Record, a weekly newspaper published in said School District in the issues of April 8th, 15th and 22nd, 1948, and was as follows:
'Notice of Special School Election
'In compliance with Section 10843, R.S.Mo., 1939 [Mo.R.S.A.], notice is hereby given to the qualified voters of Consolidated School District No. 3 of Jefferson County, Hillsboro, Mo., that a special election of said district will be held at the Hillsboro School Building, Hillsboro, Mo., within said district, on Thursday, the 29th day of April, 1948, beginning at 7 o'clock a. m., and closing at 6:00 o'clock p. m. of said day, to vote upon the following proposition:
'To vote a tax rate of 50cents in excess of $1.00 on the $100.00 valuation.
'Done by order of the Board of Education of Consolidated School District No. 3, this 7th day of April, 1948.
Plaintiffs further alleged in their petition that said purported election was void because said notice did not specify, as required by said Section 10358, the purpose or purposes for which said increase of taxes was required and also for the reason that it did not specify the number of years for which each proposed excess rate is to be effective; that said notice was void for the further reason that it did not recite that said increase became necessary in the judgment of the Board of Directors of said School District or that a number equal to 10% or more of the qualified voters of said District had petitioned said Board in writing for said increase as provided in said Section 10358.
Plaintiffs further alleged in their petition that said purported notice and special election were void for the further reason that the same proposition was voted on at the annual election in said School District held on April 6, 1948, at which time more than one-third of the qualified voters of said District voting on the proposition voted against said proposed increase, and that said Board of Directors were without authority to call said election for the same purpose within twenty-three days of said annual meeting, particularly without a petition therefor being presented by 10% or more of the qualified voters, as provided for in said Section 10358, and without specifying the particular purpose for which said tax increase was needed and desired.
The petition of plaintiffs further alleged that said special election was void for the further reason that 50cents increase on the $100.00 valuation would exceed the amount allowed by the Constitution of Missouri, to-wit: 'five per centum of the value of taxable tangible property,' as provided in Article VI, Section 26(b), Constitution of Missouri, 1945, Mo.R.S.A.; that it was unnecessary to have said tax increased in said District for said year, even if permitted by the Constitution, as the same would cast an unnecessary burden on plaintiffs and other taxpayers of said District; that the existing rate of taxation for school purposes, to-wit: $1.05 on the $100.00 valuation, if properly managed, would provide sufficient funds for the proper operation of said school.
Plaintiffs' petition further alleged that said Board of Directors in August 1946 and July 1947, 'knowingly, unlawfully and wrongfully caused and permitted the school grounds and premises to be used for horse show purposes, at which time a large number of gambling devices were operated and permitted to be operated on said school grounds and an admission fee was charged these plaintiffs and other taxpayers of said District and none of the proceeds derived therefrom, or even the admission to said school grounds, was used for school purposes in any respect whatsoever, all in violation of law'; that in April 1948, and shortly after the proposition to increase said tax rate, as aforesaid, was defeated at the regular school election and before said April 29, 1948, the defendant Directors deliberately, wilfully, wrongfully and unlawfully destroyed or caused to be destroyed about 35 cases of condensed milk belonging to said School District and purchased with school funds for the purpose of supplying lunches to the students of said School District; that the purported notice for said special election recited that said notice was given in compliance with Section 10843, R.S.Mo.1939, Mo.R.S.A., which section pertains solely to the Missouri State Military School.
The petition prayed that the defendants and each of them be restrained and enjoined from certifying said tax increase, from assessing the same and from collecting or attempting to collect said tax against the property of plaintiffs, and for such other relief as to the court might seem just and proper.
Defendants did not file any answer but, as heretofore stated, filed separate motions to dismiss plaintiffs' petition. No evidence was introduced. On September 16, 1948, plaintiffs filed a motion for judgment on the pleadings, which was overruled by the court on that date. On the same day the motions of defendants to dismiss were submitted to the court and taken under advisement. On October 25, 1948, defendants' motions to dismiss were sustained by the court.
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