The State at Relation and to Use of Waddell v. Johnson

• Decision Date: 11 July 1927
• Docket Number: 26359
• Parties: The State at Relation and to Use of Walter B. Waddell, Collector of Revenue for Lafayette County, v. Johan Johnson and W. A. Johnson, Appellants
• Court: Missouri Supreme Court

296 S.W. 806

316 Mo. 21

The State at Relation and to Use of Walter B. Waddell, Collector of Revenue for Lafayette County, v. Johan Johnson and W. A. Johnson, Appellants

No. 26359

Supreme Court of Missouri

July 11, 1927

Appeal from Lafayette Circuit Court; Hon. Robert M Reynolds, Judge.

Affirmed.

Milligan & Thompson for appellants.

(1) The school taxes assessed and levied by the pretended consolidated school district were illegally assessed and levied, as said district never had any legal existence. Calloway Bank v. Ellis, 238 S.W. 844. (2) The pretended consolidated school district having been disorganized by a judgment of court of competent jurisdiction was divested of authority to sue or be sued. Meramec Spring Park Co. v. Gibson, 268 Mo. 394; Lilly v Taylor, 88 N.C. 489; Merriwether v. Garrett, 102 U.S. 472. (3) The collector of revenue is the instrumentality of said school district for the purpose of collecting taxes. Secs. 11186, 11187, R. S. 1919; Lilly v. Taylor, 88 N.C. 394. (4) The pretended consolidated school district having been disorganized by judgment of court before suit was filed, plaintiff was divested of all authority to sue for the school taxes assessed and levied by and for said district before it was disorganized. Meramec Spring Park Co. v. Gibson, 268 Mo. 394; Lilly v Taylor, 88 N.C. 489; Merriwether v. Garrett, 102 U.S. 472; Dodge v. People, 113 Ill. 491. (5) The pretended consolidated school district was not a de facto corporation. 14 C. J. sec. 223, p. 213. A de facto school district cannot levy taxes.

Henry C. Chiles for respondent.

(1) Where an attempt is made to form a corporation (such as a drainage district, school district, or the like) and such attempt fails, the courts will declare that a de facto corporation exists, if there be found the following four essentials, viz: (a) A constitutional law under which organization could be had; (b) attempted organization under such law in good faith; (c) colorable compliance with such law; (d) assumption of corporate powers. 28 Cyc. 172. (2) The consolidated school district in question was attempted to be organized under the act which has been repeatedly held to be constitutional. State ex rel. Clark v. Gordon, 261 Mo. 632; State ex rel. Richart v. Stouffer, 197 S.W. 248. The three other essentials are matters of fact and are shown to have existed from the agreed statement. The consolidated school district in question was therefore a de facto school district. (3) The legal existence or validity of the organization of a school district, drainage district or municipal corporation cannot be attacked indirectly. Collateral attack will be denied. Particularly will it be denied in a suit for taxes. 35 Cyc. 846, par. 9; State ex rel. McBride v. Sheetz, 214 S.W. 376; State ex rel. McBride v. Byrd, 214 S.W. 378; State ex rel. Strickland v. Rawls, 226 S.W. 889.

OPINION

Gantt, J.

This is a suit by the Collector of Lafayette County to enforce a lien for taxes for the years 1920 and 1921 upon land of the following description, belonging to defendants: 33.09 acres off the south side of the north half of the southwest quarter of Section Three (3), Township Fifty (50), Range Twenty-eight (28); 60 acres off the south side of the north half of the southeast quarter of Section Four (4), in said township and range -- all being in Lafayette County and State of Missouri.

The petition is conventional and was filed on the 11th of April, 1923. The answer admits the defendants owe all the taxes listed in the taxbill except the school tax. Lawful tender was made of all taxes admitted to have been lawfully levied. Further answering it is pleaded that the tax was levied for the use of Consolidated School District No. 4 of Ray and Lafayette Counties, and that said tax was illegal and void for the reason that the school district was not lawfully organized.

The reply was a general denial, with a plea of a de facto district and de facto officers, and that the acts of said officers in conducting the school were valid.

Judgment was for plaintiff for $ 104.48, and for costs including attorney's fees. After unsuccessful motions for a new trial and in arrest of judgment, defendants were granted an appeal.

The facts are admitted to be as follows: On the day of April, 1920, an effort was made to form a school district, to be known as Consolidated School District No. 4 of Ray and Lafayette Counties, by uniting districts numbered 85 and 87, together with other territory, in Ray County, and District No. 13 in Lafayette County. On the 23d of April, 1920, an election was held and the proposition was declared carried, and six directors declared elected. Thereupon, the persons elected organized as a board of directors and conducted school in the district during the years 1920, 1921 and 1922; teachers were employed and the usual school expenses incurred; the expense of conducting the school was paid from taxes levied on property in said district; no other public school was held in said territory during these years; the directors, on or before the 15th of May, 1920 and 1921, forwarded to the county clerks of Ray and Lafayette counties an estimate of the amount of funds necessary to sustain the school for a term of nine months each year, and certified the rate required to raise said amount; the County Clerk of Lafayette County, on the estimate filed, levied the tax for each year according to the rate named on all the taxable property in said district in Lafayette County, including the above described land of appellants. It is further admitted that on the 18th of September, 1920, the Prosecuting Attorney of Ray County filed in the circuit court of said county an information in the nature of quo warranto against said directors to determine the legality of the organization of the district; that on the 19th of May, 1921, the court rendered judgment of ouster, disorganized the district and enjoined the directors from further action; that on the 28th of February, 1922, the court overruled the motions of the directors for a new trial and in arrest of judgment, and granted an appeal to this court, which appeal, on motion of the directors, was dismissed on the 27th of February, 1923.

I. Appellants contend there was no de facto school district and no de facto officers of said district. We do not agree to this contention. An attempt was made in good faith under a valid law to organize the district. All the requirements of the law necessary to a lawful organization of a consolidated school district were complied with except the plats required to be posted did not sufficiently describe the boundaries of the proposed district. The persons elected directors assumed the authority to and did conduct a school in the territory for three years. We think this meets the requirements of the rule. [14 C. J. p. 214; 3 Cooley's Taxation (4 Ed.) p. 2022; Franklin Avenue Bank v. Board of Education of the Town of Roscoe, 75 Mo. l. c. 411.]

II. Appellants contend the de facto district could not legally assess and levy taxes. The district did not assess and levy taxes. It is admitted that the county clerk, on the estimate furnished, made the levy as required by Section 11183, Revised Statutes 1919. The directors forwarded to the county clerk an estimate of the amount of funds necessary to sustain the school for the year and the rate required to raise said amount. [Sec. 11142, R. S. 1919.] All the authorities hold this act of the directors to be valid. [22 R. C. L. p. 601; Akers v. Kolkmeyer, 97 Mo.App 520, 71...