State ex rel. Bd. of Educ. v. Tiedemann

• Citation: 69 Mo. 306
• Parties: THE STATE to use of the BOARD OF EDUCATION v. TIEDEMANN, Plaintiff in Error.
• Decision Date: 30 April 1879
• Court: United States State Supreme Court of Missouri

69 Mo. 306

THE STATE to use of the BOARD OF EDUCATION

v.TIEDEMANN, Plaintiff in Error.

Supreme Court of Missouri.

April Term, 1879.

Error to Madison Circuit Court.--HON. LOUIS F. DINNING, Judge.

Tiedemann having obtained a judgment against the Board of Education of the city of Cape Girardeau, caused an execution to be issued and levied on the school building and the land on which it was situate, together with the school furniture, belonging to the board. Thereupon the board applied for and obtained an injunction against a sale under the execution. Upon a final hearing the injunction was perpetuated, and Tiedemann sued out this writ of error.

Louis Houck and Sam. M. Greene for plaintiff in error.

1. The board had an adequate remedy at law, and, therefore, equity had no jurisdiction to enjoin the sale. Wag. Stat., p. 1066; Kerr on Injunction, 205, 206, 298, 349, 406, 551; Duncan v. Gibson, 45 Mo. 352; Head v. Pitzer, 1 Mo. 548; Matson v. Field, 10 Mo. 100; George v. Tutt, 36 Mo. 141; Reed v. Hansard, 37 Mo. 199; March v. Bast, 41 Mo. 493; 2 Story Eq. Jur., (6 Ed.) 887; Hilliard on Inj., §§ 24, 28, 43, 165. 2. The judgment is a lien on the realty of plaintiff. Wag. Stat., 790. “An execution is the end and front of the law.” Power to sue carries with it a right to enforce a judgment obtained, by execution. Allen v. School Trustees, 23 Mo. 418.

Wilson Cramer for defendant in error.

1. The Board of Education is a public corporation, and the property it holds, as such, is vested in it for the use and benefit of the public schools of the city. Gen. Stat., p. 275, § 6; Sess. Acts 1867, p. 160, § 6; Heller v. Stremmel, 52 Mo. 311; State v. Leffingwell, 54 Mo. 471; Dillon on Munic. Corp., pp. 30, 33. 2. Judgments against the board cannot be enforced by execution. There is no statute providing for such process against a public corporation. Constitution 1865, art. 8, § 6; Wag. Stat., § 31, p. 294; § 36, p. 295. The only remedy is by mandamus. Dillon on Munic. Corp., p. 432, § 446.3. Popular education is a matter of public concern, fostered by the constitution and laws of Missouri, and it certainly could not have been intended, and would be against public policy that the property of the public school corporations of the State should be subject to seizure and sale upon execution. 4. Injunction is a proper remedy. Holland v. Baltimore, 11 Md. 186; Baltimore v. Porter, 18 Md. 284; Damschroeder v. Thias, 51 Mo. 105; McPike v. Pen, 51 Mo. 63; Vogler v. Montgomery, 54 Mo. 585; Holthaus v. Hornbostle, 60 Mo. 439.

1. PUBLIC SCHOOL PROPERTY EXEMPT FROM EXECUTION.

SHERWOOD, C. J.

We are all agreed that the beneficial plaintiff in this action is a public corporation. Gen. Stat., 275, § 6; Sess. Acts 1867, 160, § 6; Dillon on Munic. Corp., § 10. Heller v. Stremmel, 52 Mo. 309, and, therefore, not subject to the process of execution, at least so far as any school building or property is concerned. 1 Wag. Stat., § 36, p. 295. And this idea finds further support in the avowed policy of this State, evinced in the most decided manner in our organic as well as statutory provisions, to favor and foster popular and promiscuous education, by applying, for that purpose, a large portion of the revenues of the State, as well as authorizing local and burdensome taxation for the erection of school buildings and the maintenance of schools. It would greatly tend to frustrate the design and purpose of the law in respect to common schools, were school buildings and property liable to sale under the hammer, as attempted in the present instance. And besides, nothing would be gained by such proceeding; for supposing the school house sold, it would immediately become the duty of the “board of education” to levy taxes for the erection of a new school house, and, therefore, nothing would be gained. As the board, as just seen, is authorized to levy taxes, it would seem that the appropriate method of procedure, in such cases, would be by mandamus to compel the levy of a sufficient tax to pay the indebtedness. Dillon on Munic. Corp., § 446. Such a course would certainly avoid all difficulty, and oftentimes prevent the sacrifice of valuable property. But however this may be, whatever may be the proper course to pursue, we are confident that it would contravene the evident policy of our laws to permit school property to go to sale under fi. fa., either general or special. In addition to the foregoing observations, it has been expressly decided by this court, that a school house and lot, title whereof is vested in a board of education, is not the subject of a mechanics' lien. Abercrombie v. Ely, 60 Mo. 23. If not subject to the lien, then not subject to a sale to enforce such lien.

2. INJUNCTION AGAINST EXECUTION.

But it is insisted that the beneficial plaintiff had an adequate remedy...