Pope v. Lock-Hart

• Decision Date: 08 June 1923
• Citation: 252 S.W. 375,299 Mo. 141
• Parties: J. RALPH POPE et al., Appellants, v. EVAN LOCK-HART et al
• Court: Missouri Supreme Court

252 S.W. 375

299 Mo. 141

J. RALPH POPE et al., Appellants, v. EVAN LOCK-HART et al

Supreme Court of Missouri, First Division

June 8, 1923

Appeal from Nodaway Circuit Court. -- Hon. John M. Dawson, Judge.

Affirmed.

Cook & Cummins for appellants.

(1) The last estimate filed by the two members of the school board is a palpable fraud, and so purposely designed. The assessed valuation of the district was $ 36,087. The legitimate incidental expenses of the district for fuel, repairs and school supplies, is conclusively shown not to exceed $ 120. This, in fact, had been sufficient in the preceding years and no one contends that more was needed. (2) The note at the bank, to pay which this tax is sought to be collected, is not a lawful debt against the school district, because every step in its creation was a positive violation of the law. Sec. 12 Art. 10, Mo. Constitution. This was a common country school district. It had no money on hand with which to make extensive repairs on its school building, and no action had been taken by the voters to provide funds for that purpose. No expression of the will of the taxpayers and voters had been had. No election had been called, and the people had in no manner given their consent to the creation of a heavy debt against them. With matters in that condition, these two members of the board, without as much as consulting their co-member, and even without a pretended meeting of the board, took the reins in their own hands, and made improvements and additions to the school building, costing about $ 1700. They then paid the bills by borrowing the money at the bank, attempting to involve the district by signing its name to the note. An obligation created in this manner is without authority, a plain violation of the Constitution and law, and constitutes no debt against the district. Kane v. School District, 48 Mo.App. 408; Johnston v. School District, 67 Mo. 319. (3) The collection of a tax, levied in violation of the Constitution, will be restrained by injunction. Harrington v. Hopkins, 231 S.W. 263.

Wright & Ford for respondents.

(1) An injunction will not be granted to restrain the collection of a school tax merely because it is proposed to divert the money when raised, since a court of equity may prevent a misappropriation of the fund after the tax is collected. 35 Cyc. 1039; Lawrence v. Traner, 136 Ill. 474; Cleveland Railroad Co. v. People, 208 Ill. 9; People v. Peoria Railroad Co., 216 Ill. 221. (2) The school district is the beneficiary of the tax and is a necessary party defendant to a bill to enjoin the collection of school taxes. 35 Cyc. 1039-1040; 37 Cyc. 1274; School Dist. v. Smith, 90 Mo.App. 215, 225; State ex rel. v. Sanderson, 54 Mo. 203. (3) Even if the pleadings had raised the question of the payment of the note or the liability thereon, the Citizens Bank of Graham would be a necessary party defendant. 35 Cyc. 1040; 37 Cyc. 1274; State ex rel. v. Sanderson, 54 Mo. 203, 206. (4) It is essential, before an injunction will be granted restraining the collection of a school tax, that the complaint state and the proof show: (a) The amount of tax assessed against relators or demanded of them. 37 Cyc. 1275; Fugate v. McManama, 50 Mo.App. 39; Robins v. Latham, 134 Mo. 466, 472; Williams v. School District, 167 Mo.App. 476. (b) The specific amount of the tax admitted to be legal and proper. 37 Cyc. 1275. (c) That so much of the tax as is admitted to be legal has been paid or payment tendered. 35 Cyc. 1039; 37 Cyc. 1276; Johnson v. Duer, 115 Mo. 379; Black v. Early, 208 Mo. 281, 311; Porter v. Paving & Construction Co., 214 Mo. 22. (d) That the necessary authority to collect the tax is in the hands of the proper officer and that proceedings against relators or their property are imminent. 37 Cyc. 1275; St. Louis & S. F. Ry. Co. v. Apperson, 97 Mo. 305. (5) Even if the liability, if any, incurred by the note mentioned in evidence had been made an issue, Gex and Smith are not personally liable under the facts here, even though the district be not liable. Humphrey v. Jones, 71 Mo. 62; Hodges v. Runyan, 30 Mo. 491; 35 Cyc. 910; Jerkuermin & Shenker v. Andrews, 40 Mo.App. 510; Breid v. Mintrup, 219 S.W. 705.

OPINION

JAMES T. BLAIR, J.

This is a suit to enjoin the collection and reception of school taxes in School District 143 in Nodaway County. The trial court dismissed the bill, and this appeal followed.

Appellants are alleged to be resident taxpayers of the district, and state that they bring the suit for themselves and all other persons similarly situated. Respondents are the township collector of Hughes Township, the county clerk, and Gex and Shambarger, two members of the district school board. In addition to the description of the parties, the petition alleges:

"Relators further say that the respondent county clerk has extended upon the tax books of Hughes Township, Nodaway County Missouri, in extending the taxes of School District Number 143 in said township, a levy of twenty cents upon the one hundred dollar valuation of the property of said school district; that such levy so extended upon said tax books was extended thereon contrary to the laws of the State of Missouri and without any authority of law therefor; that it was so extended not for the purpose of paying the expenses of operation of the school in said district or for any other of its legitimate expenses, but on the contrary it was so extended for the purpose of paying certain obligations and debts owed by the respondent W. B. Gex and Oliver K. Smith and for which the said school district was in no wise legally obligated; that the said W. B. Gex and Oliver K. Smith were members of the board of directors of said school district at the time of the attempted levy of such illegal tax, and conspiring together for the purpose of paying their said personal indebtedness caused the said county clerk to extend the said taxes upon the tax books of said township and school district so that their said personal obligations would and should be paid by means of the said taxes so gathered from the taxpayers of said district; that the said Lockhart, as such tax collector, is now proceeding and is about to attempt...