State ex rel. Sch. Dist. v. Byers

• Decision Date: 30 April 1878
• Citation: 67 Mo. 706
• Parties: THE STATE ex rel. SCHOOL DISTRICT v. BYERS et al., Appellants.
• Court: Missouri Supreme Court

67 Mo. 706

THE STATE ex rel. SCHOOL DISTRICT

v.BYERS et al., Appellants.

Supreme Court of Missouri.

April Term, 1878.

Appeal from Jasper Circuit Court.--HON. JOSEPH CRAVENS, Judge.

This was a proceeding by mandamus instituted on behalf of school district No. 2, township 28, range 29, Jasper and Lawrence counties, against the justices of the county court and the county clerk of Jasper county, to compel the justices to rescind an order of the county court whereby they had undertaken to prevent the clerk from extending certain school taxes within the district, and to compel the clerk to proceed and extend them according to law. A peremptory writ was ordered and respondents appealed.

W. H. Phelps and J. W. Sennett for appellants.

Harding & Buler for respondent.

HENRY, J.

The plaintiff presented a petition to the circuit court of Jasper county stating that the local directors of the said school district, on the third Saturday in April, 1873, made and forwarded to the township clerk an estimate of the amount necessary to sustain a school in said district not less than four nor more than six months, and also to pay the expense of erecting a school-house, and that the share of the estimate to be paid by the portion of the district lying in Jasper county was by the township clerk duly forwarded to the county clerk of Jasper county, who extended the same upon the school tax-book; that the county court of Jasper county, on the 22d day of January, 1874, without warrant or authority of law, ordered the tax to be stricken off of the tax-book, and that the collector should cease collecting the tax, and refund any already collected to the persons from whom it had been collected, which was done; that on the third Tuesday of April, 1874, the qualified voters of the district, at an election held for that purpose, determined the length of time school should be kept in the district, and the estimate therefor, and also ordered a tax to be levied for the purpose of paying existing indebtedness incurred in erecting and furnishing a school-house; that the directors thereupon forwarded to the county clerk an estimate of the amount necessary for the purposes aforesaid; and that the county clerk of Jasper county, acting under and in obedience to the orders of the county court, neglected and refused to assess the amount against the taxable property of said district lying in Jasper county, or to extend the tax upon the tax-book, whereby the same was not collected; that on the first Tuesday of April, 1875, the qualified voters of said district also made a similar estimate for the ensuing year, which was forwarded to the clerk of Jasper county, who, acting under the orders of the county court, refused and reglected to assess the same upon the property of the district in Jasper county. Wherefore plaintiff asked that a mandamus issue, directing the county court to vacate and annul the order setting aside the levies and assessments, and also directing the clerk of the county court to extend the estimates upon the tax-books against the taxable property in said district, and also commanding the county court to desist from all interference therewith. Whereupon the court issued an alternative writ of mandamus, commanding the county court to immediately vacate and annul the orders aforesaid, and commanding the county clerk to extend the taxes, based upon the estimates, upon the taxbooks of township 28, range 29, or show cause to the contrary.

The defendants, for a return to the writ of mandamus, stated that the district was organized in 1868, composed of territory lying in Jasper and Lawrence counties; that the school district and also the township in which it lies were divided by the county line between Jasper and Lawrence counties; that the school-house was built in Lawrence county, but that the district had been lawfully divided, and that part of the district lying in Jasper county detached from the original district before the assessment set out in the petition; and that the county court, on petition of the residents of that portion of the original district lying in Jasper county, had stricken off the taxes, from which order no appeal had been taken. To which return the relator demurred upon the ground that the facts set up in the return were not sufficient to constitute a defense, and were insufficient in law, which demurrer was...