State v. Gwaltney, 4780.

• Decision Date: 20 May 1930
• Docket Number: No. 4780.,4780.
• Parties: STATE ex rel. DIEHLSTADT CONSOL. SCHOOL DIST. OF SCOTT COUNTY et al. v. GWALTNEY, County Court Clerk.
• Court: Missouri Court of Appeals

28 S.W.2d 678

STATE ex rel. DIEHLSTADT CONSOL. SCHOOL DIST. OF SCOTT COUNTY et al. v. GWALTNEY, County Court Clerk.

No. 4780.

Springfield Court of Appeals. Missouri.

May 20, 1930.

Rehearing Denied June 11, 1930.

Appeal from Circuit Court, Mississippi County; Frank Kelly, Judge.

"Not to be officially published."

Suit by the State, on the relation of the Diehlstadt Consolidated School District of Scott County and others, for mandamus to be directed to Wert Gwaltney, Clerk of the Mississippi County Court. Judgment for respondents and relators appeal.

Reversed and remanded, with directions.

M. E. Montgomery, of Benton, and Ward & Reeves, of Caruthersville, for appellants.

J. M. Haw, of Charleston, for respondent.

BAILEY, J.

On the 17th of September, 1928, the relators, consisting of the Diehlstadt consolidated school district of Scott and Mississippi counties and its board of directors, filed this suit in mandamus to compel respondent, as clerk of the county court of Mississippi county, to extend the tax levies of relator district for the year 1928, against three sections of Mississippi county land. Return and answer were filed. There was no trial, but, on motion, respondent obtained a judgment on the pleadings, quashing the alternative writ of mandamus theretofore issued, from which judgment relators have appealed. This appeal first went to the Supreme Court and was transferred here.

It seems unnecessary to set out the pleadings. The facts necessary for a complete understanding of the issues involved, as gleaned from the petition, return, and answer, may be accepted as true for the purposes of this case, and, briefly stated, are as follows: The Diehlstadt consolidated school district No. 42 of Scott and Mississippi counties, hereinafter referred to as the school district, had been a duly organized school district with territory lying in two counties, i. e., Mississippi and Scott counties, for some years. The greater part of the territory was in Scott county, there being only three sections of land in Mississippi county contained within the district. Through its board of directors the said school district, as required by section 11142, R. S. Mo. 1919, duly made its estimate in writing of the amount of funds necessary to sustain said school district for the school year, commencing July 1, 1928, and ending July 1, 1929, which estimate set out and showed a levy of $1.80 on the $100 was required, all of which had been authorized by the qualified voters of the school district. This estimate was forwarded in due time to respondent, the then duly elected and qualified clerk of the county court of Mississippi county. Section 11183, R. S. Mo. 1919, requires the county clerk, on receipt of such estimate, to assess the amount so returned on all taxable property in said district, provided the estimate is within the rates allowed by law (as to which there is no controversy in this case). Respondent refused to extend the taxes as required by law. The return to the alternative writ of mandamus directed to respondent by the circuit court of Mississippi county shows that, prior to the April school election, of 1928, both the relator school district and school district No. 11, of Mississippi county, claimed the territory in Mississippi county, described in the petition; that at the April, 1928, school election a proposition for changing the boundaries between the two said districts, so as to take the three sections from the consolidated school district and add them to school district No. 11, was voted upon; the proposition obtained a majority vote in school district No. 11, but failed to obtain a majority vote in the consolidated district; thereafter school district No. 11 appealed and petitioned the county superintendent of schools of Mississippi county for the appointment of a board of arbitrators to settle the question as to whether or not said change should be made; the superintendent appointed such a board, which met on April 17, 1928, and decided the sections of land in question should be detached from the consolidated school district and attached to school district No. 11. The return further states "that, since said report and finding of said Board of Arbitrators and prior to the time of the pretended estimate of relator district for the year 1928 was filed with respondent, said sections 26, 34 and 35 ever since have been and now are embraced within and a part of said School District No. 11 of Mississippi County, Missouri, by reason of the above facts, and by reason of the facts hereinabove set out relator district has no right or interest in any taxes that may be assessed against the property herein described and is not entitled by law to have any taxes whatever assessed against said property in its favor; that said School District No. 11 of Mississippi County, Missouri, is entitled to have all the school taxes on said property assessed in its favor and on proper estimates duly made and filed with respondent in accordance with the law in such cases made and provided, respondent has assessed the school taxes on said property in favor of School District No. 11 of Mississippi County, Missouri, for said year 1928."

The answer to respondent's return admitted all statements in said amended return contained, except legal conclusions, and further set up that the proceedings on appeal to the superintendent of Mississippi county were void, because no appeal was taken to the county superintendent of schools of Scott county, and that relator district did not in any manner participate in the arbitration in Mississippi county. The answer further set up that "the claim of School District No. 11 of Mississippi County, Missouri, to the three sections of land in controversy as a part of its territory is solely based upon said arbitration and the decision set up and pleaded in said amended return, and that no stream...