The State ex inf. Bellamy v. Menengali

• Decision Date: 19 March 1925
• Docket Number: 24689
• Citation: 270 S.W. 101,307 Mo. 447
• Parties: THE STATE ex inf. WILLIAM T. BELLAMY, Prosecuting Attorney, ex rel. DORA B. HARRIS et al., Appellants, v. LULA MENENGALI
• Court: Missouri Supreme Court

270 S.W. 101

307 Mo. 447

THE STATE ex inf. WILLIAM T. BELLAMY, Prosecuting Attorney, ex rel. DORA B. HARRIS et al., Appellants, v. LULA MENENGALI

No. 24689

Supreme Court of Missouri

March 19, 1925

Appeal from Saline Circuit Court; Hon. Samuel Davis, Judge.

Affirmed.

James & Shook for appellants.

(1) Under Sec. 11213, R. S. 1919, a school director must be a resident taxpayer of the district, who shall have paid a State and county tax within one year next preceding his or her election. The right to vote is not a natural right, and it is competent for a State by its Constitution or by statute to confer the right only upon those who contribute to the support of the government by the payment of taxes. 15 Cyc 296; 20 C. J. p. 76, sec. 37. Nor is it in conflict with the Fifteenth Amendment. United States v. Reeves, 92 U.S. 214, 23 L.Ed. 563. The right to hold office is not a right which has been given to the individual by the Constitution, but is a privilege which is conferred by the Legislature. 29 Cyc. 1376, C, 1, (a). (2) A taxpayer is a person owning property in the State subject to taxation and on which he regularly pays taxes. State ex inf. Sutton v Fasse, 189 Mo. 536; State ex rel. v. Rebenack, 135 Mo. 341; 37 Cyc. 1597; Thomson v. Town of Newton, 21 N.H. 595, 599. (3) Lula Menengali's own evidence shows conclusively that she had not paid any State or county taxes for the year preceding her election and that she was not qualified under Section 11213 to be a school director. The payment of personal taxes by one not authorized to do so does not confer the right of suffrage upon him under the Constitution which provides that no person shall be allowed to vote, unless he shall have paid a tax assessed against him. Lennon v. Board of Commissioners, 29 R I. 329. Where the property of a widow is listed in the name of her deceased husband, she is not entitled to vote in a school district meeting where the voter must be a taxpayer. 35 Cyc. 875; 63 Vt. 383. It is not sufficient that a man's wife pays taxes to authorize him to sign a petition where the law requires it to be signed by taxpayers. Tate v. Erlanger School District, 49 S.W. 337, 20 Ky. L. Rep. 1370.

R. D. Johnson and W. H. Meschede for respondent.

(1) The purpose of Sec. 11213, R. S. 1919, is to prescribe the qualifications necessary for election to and holding the office of school director, and among other qualifications prescribed, are that the person holding such office "shall be a resident taxpayer of the district, and who shall have paid a State and county tax, within one year, next preceding his, her or their election." (2) Said section is to be reasonably construed, and when so construed all that is required is that the person seeking and holding such office must be the owner of property subject to taxation, and which has lawfully been subjected to taxation, and upon which a State and county tax has been paid within one year, either by the owner or by some person for such owner. State ex inf. v. Fasse, 189 Mo. 537; State ex rel. Circuit Atty. v. Macklin, 41 Mo.App. 343; 15 Cyc. 297. (3) It is not necessary even that the property shall have been assessed in the owner's name. State ex rel. Circuit Atty. v. Macklin, 41 Mo.App. 343. (4) It is immaterial whether the taxes be paid by the owner himself or by some other person for the owner. School District v. Bowman, 178 Mo. 658; State, Lamar v. Dillon, 22 L. R. A. 124; 15 Cyc. 297, sec. 3. (5) Primarily the collection and assessment of taxes are proceedings in rem. School District v. Bowman, 178 Mo. 658.

Railey, C. Higbee, C., concurs.

OPINION

RAILEY

On September 20, 1922, the Prosecuting Attorney of Saline County, Missouri, filed in the circuit court of said county, a quo warranto proceeding, which, omitting caption and signature, reads as follows:

"Now comes William T. Bellamy, Prosecuting Attorney for the County of Saline in the State of Missouri, who in this behalf prosecutes for the State of Missouri, and for the said State at the relation of Dora B. Harris, Minnie Harris, Louis Pragman, R. E. Kuntz and Arnold Pinkepank, in said county, according to the form of the statute in such cases made and provided, gives the court here to understand and be informed that the relators herein named are resident tax paying citizens of School District Number 80, in Saline County, Missouri, and some of whom are parents of children of school age within said school district; that said School District No. 80 is a duly organized common school district within said county, and as such under the law is entitled to have three qualified school directors within said school district who under the law are required to be citizens of the United States, resident taxpayers of the district, and who shall have paid a State and county tax within one year next preceding his, her or their election, and shall be at least twenty-one years of age; that said office of school director of said School District Number 80 is an office of great trust in the administration of the schools of said district, and that on the fourth day of April, 1922, the respondent, Lula Menengali, of said County of Saline, State of Missouri, did use and exercise, and from that time to the exhibition of this information has there used and exercised, and still does use and exercise, without any legal warrant, grant or right whatever, the office of school director of said School District Number 80, and for and during the time aforesaid has there claimed and still does claim, without any legal grant, warrant or right whatsoever, to be one of the school directors of said school district, and to have, use and enjoy all the rights, liberties and privileges of the office of school director of said school district, which said office, rights, privileges, liberties she, the said Lula Menengali, for and during all the time last aforesaid, without any legal warrant, grant or right whatsoever, has usurped and still does usurp, at the County of Saline in the State of Missouri, in contempt of and to the great damage and prejudice of the authority of the State of Missouri aforesaid. That the said Lula Menengali claims to have been elected to the said office of school director of said school district on the 4th day of April, 1922, but the prosecuting attorney alleges that at the time of such election and ever since said time, the said Lula Menengali was not legally qualified to hold the said office of school director, for the reason that she was not a taxpayer of said school district and she had not paid a state and county tax within the State of Missouri within one year next preceding said fourth day of April, 1922, the date of said election.

"Whereupon, the said prosecuting attorney in this behalf prosecutes for the State of Missouri, and prays the consideration of the court here in the premises, and that due process of law may be awarded against the said Lula Menengali in this behalf to make answer to the State of Missouri, and show by what authority she claims to have, use and enjoy the rights, liberties and privileges aforesaid."

Respondent filed a return to the above writ, and alleged that at the regular annual school meeting held in April, 1922, in School District No. 80, in Saline County, Missouri, she was duly and legally elected as director of said district for a term of three years, by the qualified voters of said district voting at such annual meeting in said District No. 80; that she duly qualified as such director, and has acted as such from and since her election; that she is possessed of all the requisites and qualifications necessary to hold said office as director aforesaid; that by virtue of said election during the period aforesaid, she used and is still using the rights and privileges of said office of school director of the district aforesaid, etc.

The case was tried before the court without a jury. At the commencement of the trial counsel for appellant suggested to the court that in a case of this character he understood the burden of proof was upon defendant to show title to the office. The court acquiesced in this theory, and thereupon respondent offered substantial testimony to establish the following facts:

That on the first day of June, 1920, and prior thereto the respondent owned in Saline County, Missouri, four cows, some heifers four brood sows, one horse, and a half interest in an automobile; that the above property was listed and assessed for taxation in 1920, in the name of Joe...