Peter v. Kaufmann

• Decision Date: 21 May 1931
• Docket Number: 28999
• Parties: S. T. Peter, Appellant, v. Emil J. Kaufmann et al
• Court: Missouri Supreme Court

38 S.W.2d 1062

327 Mo. 915

S. T. Peter, Appellant, v. Emil J. Kaufmann et al

No. 28999

Supreme Court of Missouri

May 21, 1931

Appeal from Franklin Circuit Court; Hon. R. A. Breuer Judge.

Affirmed.

W. L Cole and T. P. Hukriede for appellant.

(1) When the minutes of the meeting of the school board at which meeting the board decided to submit the proposition of an increase in the tax levy to the voters showed that the board did not follow the correct procedure, an election held under such procedure and the tax levy voted at such election should be held void. Secs. 11151, 11152, R. S. 1919. (2) The evidence tending to show that the money to be raised by the increased levy was for the purpose of paying an indebtedness on which a bond issue had already been authorized, and not for a building purpose as provided for by law, the act of the school board in submitting the levy, and the act of the voters in passing the levy, was illegal. Sec. 11152, R. S 1919; Jacobs v. Cauthorn, 238 S.W. 443; Harrington v. Hopkins, 231 S.W. 263. (3) The evidence shows that the rate voted at the election was in excess of the amount authorized by the Constitution, and the tax should be held to be illegal and the collection thereof restrained. Sec. 11, Art. X, Constitution of Missouri; authorities cited supra. (4) The ballots, submitted to the voters of the district and upon which it was necessary that they express their desires, were misleading and the resulting election could not show the true intent of the voters, because the ballot required the voter in one instance to vote for a particular levy, and in the other instance required him to vote on the amount of excess levy and not on the amount of the levy itself. (5) The evidence showed that the consolidated school district had a total indebtedness remaining unpaid in the sum of $ 38,000; that the school board found that they had incurred a further indebtedness in the sum of $ 11,790.40, and the tax levy was to be increased to meet the additional sum. The evidence further shows that the county clerk made a statement of the assessed valuation of the school district as of June 1, 1926, and that such valuation was in the amount of $ 836,655. The election by which the tax levy was raised in April, 1927, should not be held legal under that state of facts. Sec. 12, Art. X, Constitution of Missouri. (6) The record shows that the school board attempted to submit an illegal tax levy to the voters, by a method not authorized by law; that the voters authorized the levy, and the resulting tax rate has been certified to the county collector, and the tax is being collected. The evidence further shows that the tax rate is outside the constitutional limits of a tax to raise money for the purpose proposed. The plaintiff as a taxpayer of that district should be granted relief from that taxation.

James Booth, Virginia Booth, Jesse H. Schaper and Randolph H. Schaper for respondents.

(1) The board of education, having made the necessary orders in relation to the tax levy and the submission thereof to the qualified voters of the district at the election, and the secretary of the board having failed to record all the facts, had the authority to correct its records to speak the truth by an order nunc pro tunc after the election was held. If, through inadvertence or misapprehension, the record has been defectively made, it is competent to complete it according to the truth. 2 McQuillin on Municipal Corporation 1379, sec. 626; State ex rel. School District v. Hackmann, 277 Mo. 63. (2) The notice of the election and the ballots used sufficiently comply with the law in that it does not appear that any one participating in the election was deceived by the notice or confused in the matter of casting an intelligent ballot. Jacobs v. Cauthorn, 293 Mo. 154; Nance v. Kearby, 251 Mo. 383. The election was held under Secs. 11151, 11152, R. S. 1919, and there was nothing contained in the statute itself requiring the ballot to be used by the voter, to be in any particular form, nor did the statute itself specify any irregularity in the form of the ballot to be used by the voter, to be fatal. Horsefall v. School District, 143 Mo.App. 545; Nance v. Kearby, 251 Mo. 383. (3) The tax levy made by the board of education was an annual rate of one hundred cents on the one hundred dollars' assessed valuation of property in the district for the erection of a school building, and was also an annual rate of thirty-five cents in excess of forty cents on the one hundred dollars' assessed valuation of property in the district for school purposes, with the assent of the requisite number of the qualified voters of the district voting at the election held for that purpose pursuant to notice duly given and pursuant to the powers conferred upon the board and the voters under Secs. 11151, 11152, R. S. 1919, and within the maximum rates prescribed by Sec. 11, Art. 10, of the Constitution of Missouri. (a) The language of the Constitution limits the collection of all taxes in a district such as this, to one dollar on the one hundred dollars' valuation for all school purposes, that is to say, the rate cannot be increased in such a district for all school purposes in a sum in excess "of one dollar on the one hundred dollars except for the purpose of erecting public buildings," etc. Harrington v. Hopkins, 288 Mo. 1; Jacobs v. Cauthorn, 293 Mo. 154. The maximum annual rates allowed for school purposes under Sec. 11, Art. 10, of the Constitution for city or town district is one dollar on the one hundred dollars' valuation. A further maximum annual rate in excess of that amount, not exceeding one dollar on the one hundred dollar valuation, is allowed for the purpose of erecting public buildings in said districts. Lyons v. School District, 311 Mo. 349; Jacobs v. Cauthorn, 293 Mo. 154; Harrington v. Hopkins, 288 Mo. 1. The constitutional limitation in Section 11 as applied to a levy of taxes by school districts, has reference to the annual rate of such levy for school purposes for that year. By "school purposes" as the term is used in the Constitution, is meant such annual expenditures as are necessary to the conduct or maintenance of the school during the year. The fixed annual rate in city or town school district, as in the case at bar, for school purposes, is forty cents on the one hundred dollars' valuation of the property of the district. This rate may be increased for the same purpose by a majority of the vote of the people to one hundred cents on the one hundred dollars' valuation. These limitations, however, have no application to the creation of a debt for building purposes and the equipment of such buildings as may be erected. The Constitution, in effect, so declares in providing that "for the purpose of erecting public buildings . . . in school districts the rate of taxation herein limited may be increased when the rate of such increase and the purposes for which it is intended, shall have been submitted to a vote of the people, and two-thirds of the qualified voters of such . . . school district voting at such election, shall vote therefor." Hudgins v. Consolidated School District, 312 Mo. 1. (b) Said tax levy of one hundred cents on the one hundred dollars' assessed valuation for building purposes in the district was not made by the board of education and by the vote of the qualified voters of the district voting at said election for that purpose, to incur any indebtedness of the district under Section 12, Article 10, of the Constitution, and Sections 11127 and 11128, Revised Statutes 1919.

Sturgis, C. Ferguson and Hyde, CC., concur.

OPINION

STURGIS

This is a suit to enjoin the collection of school taxes. St. Clair Consolidated School District No. 1, Franklin County, at the annual school meeting on April 5, 1927, voted to levy 35 cents in excess of 40 cents on the $ 100 assessed valuation for school purposes, and 100 cents on the $ 100 assessed valuation for building purposes. The plaintiff, claiming these tax levies to be void, alleges that same have been certified to the county clerk and by him extended on the county tax books and same turned over to the county collector for collection; that such illegal taxes are thereby made an apparent lien on plaintiff's lands situated in such school district, of which he is a resident taxpayer. The defendants are the county clerk, county collector, the school district and its board of directors.

As his grounds for injunctive relief against enforcing the lien of these taxes against his land, plaintiff alleges that said school district was already indebted to the extent permitted by law and the Constitution of this State, Section 12, Article X, that is, five per centum of its assessed valuation, by reason of previous and yet outstanding bond issues; that the defendants had spent all the money so borrowed on the bond issues in erecting a school building, and "after spending the proceeds of the sale of said bonds they illegally incurred an indebtedness of approximately $ 12,000 for the completion of the building started by them and for equipping same."

Such being the financial condition of the school district at the time of the annual school election in April, 1927, plaintiff in his petition further alleges:

"This on the 5th day of April, 1927, the said board of directors, at the annual meeting of said school district, at the schoolhouse in said district, and the election held thereat, undertook to submit to the qualified voters of said district (no proper notice having been given as provided by Section 11153, Revised Statutes 1919), among other propositions, the following: 'For $ 1.00 building levy,' intending thereby to vote a levy of 100 cents on the $ 100 valuation for building purposes; and the following ...