Thornburg v. School District No. 3

• Decision Date: 27 May 1903
• Citation: Thornburg v. School District No. 3, 75 S.W. 81, 175 Mo. 12 (Mo. 1903)
• Parties: THORNBURG, Appellant, v. SCHOOL DISTRICT NO. 3
• Court: Missouri Supreme Court

75 S.W. 81

175 Mo. 12

THORNBURG, Appellant, v. SCHOOL DISTRICT NO. 3

Supreme Court of Missouri, First Division

May 27, 1903

Appeal from Chariton Circuit Court.-- Hon. John P. Butler, Judge.

Affirmed.

T. J Skinker for appellant.

(1)The plaintiff is a bona fide holder of the bonds.The school board was the body whose duty it was, under the law, to ascertain and determine, before issuing the bonds, whether or not proper notice had been given of the election.It did determine this question and announced its determination by a suitable recital embodied in the bonds.The officers of the school meeting had already embodied a like recital in the record of the meeting, which is required by law to be kept.In favor of the plaintiff these recitals are conclusive, and preclude the district from showing that the notices posted called for an election to be held on a day different from that on which the election was held.Laws 1881, pp. 200, 201;Town of Coloma v. Eaves,92 U.S. 484;Commissioners v. Nichols,14 Ohio St. 260;Commissioners v. Bolles,94 U.S. 104;County of Warren v. Marcy,97 U.S. 96;1 Dillon, Mun. Corp.(4 Ed.), sec. 549;Catron v. Lafayette County,106 Mo 670;Steins v. Franklin County,48 Mo. 167;Knox County v. Aspinwall,21 How. 531;Lexington v Butler,14 Wall. 282;Flagg v. Palmyra,33 Mo. 440;State v. Saline County Court,48 Mo. 390;Carpenter v. Town of Lathrop,51 Mo. 483;Walnut v. Wade,103 M. S. 683;Cumberland County v. Randolph,89 Va. 614;State v. Board of Education,27 Ohio St. 96;State v. Commissioners,37 Ohio St. 526;Madison County v. Brown,67 Miss. 684;Vicksburg v. Lombard,51 Miss. 127;Cutler v. Madison County,56 Miss. 123;Madison County v. Paxton,57 Miss. 701;Society for Savings v. New London,29 Conn. 192;Belo v. Forsythe County,76 N.C. 489;Clapp v. Cedar County,5 Iowa 54;Nolan County v. State,83 Tex. 182;San Antonio v. Lane,32 Tex. 405;Anderson County v. Railroad,52 Tex. 228;Lane v. Town of Embden,76 Me. 354;Jefferson County v. Lewis,20 Fla. 980;Seymour v. Tacoma,6 Wash. 427;Black v. Cohen,52 Ga. 621;Coler v. County Commissioners,6 N. Mex. 88;Nelson v. Haywood County,87 Tenn. 781.(2) For like reason the district is estopped to deny that, on the 30th of August, the school board entered an order for obtaining the loan.Heard v. School District,45 Mo.App. 660;Mix v. The People,72 Ill. 241;Gibbs v. School Dist.,88 Mich. 334.(3) In determining the amount of bonds that could be issued by this district, the court should have taken into account the railroad property of the district.R. S. 1899, p. 106;Bank v. Lyon County,90 F. 523.(4) Merchants' stocks of goods should also have been taken into account in determining the debt-incurring capacity of the district.Const., art. 10, sec. 12;R. S. 1879, secs. 6318, 6319, 6315, 6316, 6314, 6685;"Assessment" Webster's Dictionary; Black's Law Dic.; The Century Dic.;Cooley on Taxation (1 Ed.), 258, 261;R. S. 1899, sec. 8546;Railroad v. Shacklett,30 Mo. 559;State v. Railroad,37 Mo. 265;State v. Railroad,60 Mo. 149;Bailey v. Magwire,22 Wall. 229;2 Wag. Stat., chap. 95;R. S. 1879, secs. 6870, 6871, 6872, 6818;State ex rel. v. Railroad,116 Mo. 15;2 Wag. Stat., p. 1167, secs. 47, 49;p. 1168, sec. 54;p. 1170, sec. 61;p. 1160, sec. 10; 1161, sec. 14; 1162, secs. 17,19; 1193, sec. 166; 938, sec. 6;1 Wag. Stat., p. 442, sec. 17;State v. Tracy,94 Mo. 225;Kansas City v. Johnson,78 Mo. 661;Cape Girardeau v. Riley,72 Mo. 220.(5) Even if the court should conclude that some of the foregoing items are not to be counted, still the bonds should not be held wholly void; they should be scaled proportionately and held valid to the extent that the district could lawfully incur debt.McPherson v. Foster,43 Iowa 72;Bank v. Terrell,78 Tex. 450;Gillim v. Daviess County(Ky.),14 S.W. 838;Daviess County v. Dickinson,117 U.S. 657;Daviess County Court v. Howard,13 Bush. 101;School Town of Winamac v. Hess,151 Ind. 229;Aubrey v. Donaldsonville,33 La. Ann. 390;Ins. Co. v. Lyon County,95 F. 330;Stockdale v. School District,47 Mich. 227;Vaughan v. School District,27 Or. 57;Seymour v. Tacoma,6 Wash. 427;Waterworks Co. v. Carterville,153 Mo. 128;City of Dawson v. Waterworks Co.,106 Ga. 735;Culbertson v. City of Fulton,127 Ill. 30;Shirk v. Pulaski County, 4 Dillon 209;Quincy v. Warfield,25 Ill. 317;Thompson v. School District,102 Iowa 94;Parkinson v. City of Parker,85 Pa. St. 313;Lewis v. City of Clarendon, 5 Dillon 329;State v. Allen,43 Ill. 456;Mix v. The People,72 Ill. 241;Allen, Treasurer, v. Railroad,44 Ill. 85;Peltz v. Eichele,62 Mo. 171;Carroll v. Campbell,108 Mo. 550;Johnson v. Duer, 115 Mo. 366.

A. W. Mullins for respondent.

(1) The evidence showed and the court found that the election, recited in the bonds sued on, was not held in pursuance of any notice given therefor; the notice was that the election would be held on the 29th day of August, 1883(without naming the place of holding the election) but the school record in evidence shows and the bonds recite that the election was held on the 28th day of August, 1883.The authority to incur the indebtedness and make and issue the bonds could be conferred only by a vote of the electors of the district at an election duly called and twenty days' notice given by the clerk of the school board posting bills stating the time of holding such election.Const., art. 10, sec. 12;Laws 1881, pp. 199, 200, secs. 2 and 3.(2) Stocks of goods and merchandise in the school district are not to be included in ascertaining the aggregate taxable value of the property therein.State ex rel. v. Railroad,116 Mo. 15;Prickett v. City of Marceline,65 F. 474.(3) Railroad property was not taxable for the purpose of building or paying for the building of schoolhouses, at the time of creating or attempting to create the indebtedness in question, and was not taxable for that purpose until the year 1885.Laws 1885, pp. 229, 230;State ex rel. v. Railroad,83 Mo. 395.(4) By "the assessment next before the last assessment for State and county purposes," as used in section 12 of article 10, of the Constitution, is meant the assessment next before the last completed assessment, and does not refer to the last completed assessment, although another assessment may have been begun and in process of being made.Sec. 12, art. 10, Const.;Prickett v. City of Marceline,65 F. 469;State ex rel. v. Railroad,116 Mo. 24;Culbertson v. City of Fulton,127 Ill. 30.(5) School bonds, issued in excess of the constitutional limitation imposed by section 12 of article 10 of the Constitution, are void; and the school district is not estopped from pleading such constitutional limitation by any recitals contained in such bonds; or by the certificate of registration indorsed on such bonds by the State Auditor; or by both such recitals and such certificate.Sec. 4306, 1879;sec. 847, 1889;sec. 5167, 1899;Carpenter v. Town of Lathrop,51 Mo. 483;Heard v. School District,45 Mo.App. 660;Sturgeon v. Hampton,88 Mo. 203;Hedges v. Dixon County,150 U.S. 182;Dixon County v. Field,111 U.S. 83;Sutliff v. Lake County Commissioners,147 U.S. 230;Lake County v. Graham,130 U.S. 674;Litchfield v. Ballou, 114 U.S. 190.

VALLIANT, J. Brace, P. J., and Marshall, J., concur in paragraph I, II and IV, and in the result, but dissent from paragraph III; Robinson, J., absent.

OPINION

VALLIANT, J.

This is a suit upon nine bonds and coupons issued by the defendant, a school district in Chariton county.The bonds bear date December 1, 1883, and are part of an issue of fourteen bonds, aggregating $ 3,500, which was made to raise money to build a schoolhouse in the district.

The answer admits that the bonds were issued by the persons at the time holding the position of directors for the school district, but avers that they acted without authority and in violation of law, for the reasons that no election was held as required by law, no notice of such election was given, no order was made by the board of directors or entered on the record of the board authorizing the issue of the bonds or providing for the borrowing of money to build a schoolhouse; that the aggregate amount of the bonds issued exceeded five per centum of the value of the taxable property in the district as shown by the assessment next before the last assessment for state and county purposes, and that for those reasons the bonds were invalid.The reply traversed the affirmative statements in the answer and averred that the bonds were sold by the district for $ 3,500, that the district received the money and with it built a school house which has been used as such since 1883 and is still so used by the district.

Upon the trial the plaintiff introduced in evidence the nine bonds and the coupons sued on; the following is a copy of one of the bonds; all the rest are like it:

"Know all men by these presents: That in pursuance of section No 2, of an act approved March 21, 1881, amendatory of sectionNo. 7032 of article 1, chapter 150, of the Revised Statutes of Missouri, 1879, and by virtue of an election held at the schoolhouse on August 28, 1883, in district No. 3, township 56, range 21, Chariton county, Missouri, whether a loan of $ 3,500 should be made for the erection of a schoolhouse in said district, which proposition was submitted to the legal voters thereof on said day, after twenty days' notice of said election had been given, as provided by law; and whereas, at said election, seventeen ballots were cast and canvassed in favor of the loan, and two ballots were cast and canvassed against the loan; now, therefore, in compliance with an order made and entered on the record by the board of school directors of said...