State ex rel. Marlowe v. Himmelberger-Harrison Lumber Co.

• Decision Date: 16 March 1933
• Docket Number: 30517
• Citation: 58 S.W.2d 750,332 Mo. 379
• Parties: State ex rel. L. D. Marlowe, Collector of Revenue for New Madrid County, v. Himmelberger-Harrison Lumber Company et al., Appellants
• Court: Missouri Supreme Court

58 S.W.2d 750

332 Mo. 379

State ex rel. L. D. Marlowe, Collector of Revenue for New Madrid County, v. Himmelberger-Harrison Lumber Company et al., Appellants

No. 30517

Supreme Court of Missouri

March 16, 1933

Appeal from New Madrid Circuit Court; Hon. John E. Duncan Judge.

Reversed and remanded.

Oliver & Oliver and Elmer A. Strom for appellants.

(1) This is an attack on the levy of school taxes, based on a fraudulent and void assessment, and is therefore a question involving the construction of the revenue laws, and jurisdiction of such cases is vested in the Supreme Court of this State. White v. Boyne, 11 S.W.2d 1083; State ex rel. v. Adkins, 221 Mo. 112, 19 S.W. 1091; Harrington v. Hopkins, 231 S.W. 263; State ex rel. v. Johnson, 316 Mo. 21, 296 S.W. 896; Mo. Const Art. VI, Sec. 12; Lyons v. School District, 311 Mo 349, 278 S.W. 74. (2) The levy of one dollar (60 cents in excess of 40 cents) on the $ 100 valuation for school purposes was invalid and illegal, since no discrimination was made by the school election judges between unqualified voters of the school district and qualified voters of the school district who were taxpayers. Mo. Const., Art. X, sec. 11; R. S. 1919, secs. 11,151, 11,243; Board of Commissioners v. Peter, 253 Mo. 537. (3) Section 11 of Article X of the Missouri Constitution, limiting the tax rate for school purposes, is self-enforcing and does not require legislation to make it effective. The provisions of this section having been disregarded and the rate fixed at one dollar, it was void. State ex rel. v. Van Every, 75 Mo. 537; Arnold v. Hawkins, 95 Mo. 572; McGrew v. Railroad, 230 Mo. 496. (4) Payment of taxes is a condition precedent to voting on question of raising tax levy for school purposes. No such requirement having been exacted of the voters, the election was void. Mo. Const., Sec. 11, Art. 10; R. S. 1919, sec. 11,151; 15 Cyc. 296; 20 Cyc. 76. (5) The general school laws govern in city, town and consolidated school districts in all cases where the act creating the district does not make a contrary provision. R. S. 1919, secs. 11,236, 11,238, 11,240, 11,243. (6) All money arising from taxation in town school districts can only be paid out for the purpose for which it was collected and it is therefore unlawful to transfer funds raised by taxation for building purposes to a teacher's fund to pay teachers and a levy made for the purpose of so transferring funds is illegal and void. R. S. 1919, secs. 11,159, 11,236, 11,243, 11,223; Consolidated School Dist. v. Shawhan, 273 S.W. 182; State v. Thompson, 64 Mo. 26; Cleveland Village School Dist. v. Zion, 195 Mo.App. 299; Horsefall v. School Dist., 143 Mo.App. 541; Martin v. Bennett, 139 Mo.App. 237; School Districts, 35 Cyc. 1048. (7) A levy of fifty cents on the $ 100 valuation for purpose of raising a "building fund" when there is sufficient money in such building fund for then present needs and when no buildings were required or necessary, as was the case here presented, constituted such constructive fraud on the taxpayers as to make the tax invalid and illegal. State ex rel. Johnson v. Railroad Co., 315 Mo. 437, 10 S.W.2d 918. (8) The election was illegal and wrongful since the notice of the election was void in that the school board at its meeting did not designate the time nor place for holding the school election and the provisions of the statute are mandatory in that respect. R. S. 1919, sec. 11,251; Martin v. Bennett, 139 Mo.App. 243; Thornburg v. School Dist., 175 Mo. 12; State ex rel. v. Martin, 83 Mo.App. 55; Harrington v. Hopkins, 231 S.W. 263. (9) When the validity of an assessment levied by an assessment board is questioned in a tax suit on the ground of fraud, or want of jurisdiction of the board, it is a direct attack on such an assessment. State ex rel. v. Cunningham, 153 Mo. 651; State ex rel. v. Vaile, 122 Mo. 47; Blalk v. McGonigle, 103 Mo. 193; State ex rel. Kersey v. Western Union Tel. Co., 304 Mo. 217; State ex rel. v. Railway Co., 149 Mo. 639; Boonville Bank v. Schlolzhauer, 317 Mo. 1309; 37 Cyc. 1110; 15 R. C. L. sec. 312, p. 839. (10) Fraud is proven, when in fixing a tax rate or assessment, the assessment levied is so excessive as to be entirely inconsistent with an honest exercise of judgment, as was done in this case in fixing a rate of fifty cents for building purposes, when there was then in that fund $ 5,870.13. S. L. Elec. Bridge Co. v. Colen, 317 Mo. 429; Hamilton v. Rosenblat, 8 Mo.App. 237. (11) The circuit court loses its jurisdiction of a cause after the granting of an appeal and until the appeal is determined. Any attempt to correct a judgment after the granting of an appeal, is void and of no effect. The attempt "to correct" the judgment in this case was unavailing. State v. Hall, 12 S.W.2d 94; Finley v. United Railways Co., 238 Mo. 19, 141 S.W. 866; Reid v. Bright, 232 Mo. 415, 134 S.W. 653; In re Grading Bledsoe Hill v. Bledsoe, 222 Mo. 609, 120 S.W. 1184; State ex rel. v. Gates, 143 Mo. 68, 44 S.W. 739; Burgess v. O'Donoghue, 90 Mo. 299, 2 S.W. 303; 3 C. J. 1252.

Gallivan & Finch and Bailey & Bailey for respondent.

(1) In Point No. 1, appellant takes the position that a school election involved was illegal because no discrimination was made by the election judges as to taxpayers and non-taxpayers. The evidence in this case does not support the appellant in this case. The record shows that this was the annual school election at which school directors were elected and several other matters were submitted to the voters. Those who were not taxpayers were permitted to vote at this election the same as taxpayers, except on the one proposition of raising the levy for school purposes sixty cents in excess of forty cents on the one hundred dollars. On this point the Constitution, as well as the statute, requires the voters to be taxpayers. It seems that no discrimination was made and no questions asked as to whether those offering to vote were taxpayers or not on any proposition submitted at the election in question. (2) In this point appellant charges that Section 11 of Article X of the Missouri Constitution has been disregarded because it limits the tax rate for school purposes. In the case at bar, there was no effort to raise the tax rate for school purposes beyond 100 cents on the $ 100, which is allowed by the Constitution. Evidently, the Constitution is not disregarded in this respect. There is no showing that the Constitution was disregarded relative to taxpayers only being permitted to vote this tax increase. The rate of 100 cents for school purposes is allowed by the Constitution for school purposes and funds for building are allowed by the same section of the Constitution in excess of this 100 cents on each $ 100 for school purposes. This point is directed by appellant at the rate fixed at 100 cents only, and we do not see in fact where the Constitution has been disregarded on this point of fixing the rate at 100 cents on each $ 100 for school purposes. (3) This point is not an issue in this case. The transfer of money from one fund to another is a matter to be looked after when the transfer is being made, and is not a ground on which the payment of taxes can be defeated. The same is true of a present intent to divert future funds being raised by taxes from one fund to another. Both are matters to be dealt with when they come up and not defenses to payment of taxes. Lyons v. School District of Joplin, 278 S.W. 74; Pope v. Lockhart, 252 S.W. 375. In the case of Lyons v. School District of Joplin reported in 278 S.W. 74, this question is thoroughly reviewed, and in the course of the opinion we find the following language of the court: "The charge that there was a fraudulent purpose to divert the fund to other purposes could not be dealt with by the trial court, but was a question to be dealt with when an attempt to divert might be made." This construction of the law is also adopted by the court in Pope v. Lockhart, 252 S.W. 375.

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

OPINION

STURGIS

This case comes to this court on certification of the Springfield Court of Appeals as involving a construction of the revenue laws of the State. The plaintiff is the Collector of the Revenue for New Madrid County and defendant is a manufacturer of lumber and its products, located at Morehouse, in that county. As such, defendant gave bond, as required by law, for the payment of the taxes lawfully assessed against it for the year 1928. This suit is on such bond. There is no dispute as to the property assessed or its valuation. In fact, the defendant paid all taxes assessed against it for the year 1928 except a part of the school taxes now in dispute. The disputed taxes are for the year 1928 and in favor of School District No. 25 commonly known as the Morehouse School District, which defendant refused to pay as being illegally assessed. The total taxes assessed against defendant for schools for the year 1928 amounted to $ 1659.20, made up of the following rates per $ 100 valuation, to-wit:

For School Purposes

$ 1.00

For Interest

.10

For Sinking Fund

.10

For Building Purposes

.50

$ 1.70

The defendant tendered and paid the amounts assessed for interest and sinking fund and forty cents per $ 100 valuation for school purposes, making a total paid of sixty cents per $ 100 valuation, aggregating $ 585.60 school taxes. The defendant refused to pay the amount assessed for building purposes fifty cents on the $ 100 valuation, and refused to pay sixty cents of the 100 cents assessed for school purposes. The plaintiff now sues for this balance of $ 1073.60 plus interest and costs, made up of the fifty cents per $ 100 valuation for building purposes and sixty cents per $ 100 valuation for school purposes. On trial by the...