State ex rel. Sharp v. Miller

• Decision Date: 30 April 1877
• Citation: 65 Mo. 50
• Parties: STATE OF MISSOURI EX REL. SHARP v. MILLER, APPELLANT.
• Court: Missouri Supreme Court

65 Mo. 50

STATE OF MISSOURI EX REL. SHARP

v.MILLER, APPELLANT.

Supreme Court of Missouri.

April Term, 1877.

Appeal from Macon Circuit Court.--HON. J. W. HENRY, Judge.

Gilstrap, Dysart & Brown for appellant.

I. The act of 1868 is unconstitutional. Under its provisions, a special school board, with jurisdiction over a fractional part of a former district, could incur a large indebtedness, and then, by pushing out their boundaries by a simple resolution, subject the property included within the extension to the payment of liabilities, which the owners had no part in creating, and forcing them into another and different jurisdiction. A whole district, with its school houses and property, may thus be absorbed without their consent. If the legislature can authorize an extension of one and one-half miles, it can authorize any extension. Such a power would be destructive to the interests of surrounding townships.

II. The act of 1868 intends to authorize extension by the special district only when there is territory attached to the district outside the city proper, derived by surrender from the township board, under the act of 1867.

III. The tax is levied in violation of Art. 9, § 8 of the Constitution of 1865.B. G. Barrow and Eli J. Newton for respondent.

NORTON, J.

This was a proceeding instituted in the County Court of Macon County, under section 183 Wag. Stat. 1196, for the purpose of obtaining judgment to enforce the lien of the State against certain real estate of defendant, for taxes alleged to be due thereon. Upon a trial before the County Court, plaintiff obtained jugdment, from which defendent prosecuted an appeal to the Circuit Court, where, upon a new trial, plaintiff again obtained judgment, from which defendant has appealed to this Court. It appears from the evidence in this case, that the town of La Plata was organized as a separate school district under the provisions of chap. 47 p. 274 of the Gen. Stats. of 1865; that at the time of such organization it did not embrace the lands upon which the tax sought to be enforced was levied, but that subsequently to its organization under section 1 Acts 1868 p. 164, the board of education of the special school district town of La Plata, by resolution duly adopted, extended the limits of the territory attached; that the extension of the limits of said district under said resolution embraced or included the land of defendant, against which plaintiff was seeking to enforce the lien of the State for taxes unpaid; that there was due on said land school taxes for the years 1871 and 1872, which had been levied for the support of the public school of the town of La Plata; that the notice required to be given under section 184 Wag. Stat. 1197, that application would be made to the County Court for judgment against said land, had been given. On the trial, objections were made to the admission of evidence tending to establish the above facts, and also to the action of the court in refusing the instructions asked for by defendant. Inasmuch as the plaintiff failed to recover judgment for the taxes claimed to be due for the year 1871, it is unnecessary to notice the objection to the admissibility of the notice received in evidence in relation thereto, as defendant and appellant has not been prejudiced thereby; and as the objections to the evidence offered apply also to the action of the court in refusing instructions, we will consider them in reviewing the instructions. The declarations asked and refused were as follows: First--In acquiring the territory claimed by the extension of the district, no presumptions in favor of the action of the district board, or any officer, can be indulged, and if the court finds from the evidence that no territory had been previously attached to said district by proper authority, other than the remaining territory of district No. 2, then the school board of La Plata special school district had no power whatever, under the act of 1868, to extend the limits or boundaries of the said special school district. Second--That the said act of 1868 is unconstitutional and void. Third--That the school law does not authorize the levying of any school tax for purpose of tuition, in pursuance of the constitution of the State, and is therefore void, and confers no authority to levy such a tax. Fourth--That upon the whole law of the case...