Vanlandingham v. Reorganized School Dist. No. R-IV of Livingston County

• Citation: 243 S.W.2d 107
• Decision Date: 12 November 1951
• Docket Number: R-IV,No. 2,No. 42561,42561,2
• Parties: VANLANDINGHAM et al. v. REORGANIZED SCHOOL DISTRICT NO.OF LIVINGSTON COUNTY et al
• Court: United States State Supreme Court of Missouri

Page 107

243 S.W.2d 107

VANLANDINGHAM et al. v. REORGANIZED SCHOOL DISTRICT NO. R-IV OF LIVINGSTON COUNTY et al.

No. 42561.

Supreme Court of Missouri, Division No. 2.

Nov. 12, 1951.

J. P. Morgan, Chillicothe, for appellants.

Nolan M. Chapman, Don Chapman, and Nolan M. Chapman, Jr., all of Chillicothe, for respondents.

TIPTON, Judge.

This is an action for a declaratory judgment and injunctive relief brought by appellants as resident taxpayers of the respondent Reorganized School District R-IV of Livingston County, Missouri, to test the validity of a school tax levy of one dollar on the hundred dollars assessed valuation of tangible property for general school purposes without a vote of the electors of that school district. It is the appellants' contention that both under the constitution and the applicable statute the levy should be only sixty-five cents on the hundred dollars valuation. The case was tried under an agreed statement of facts in the circuit court of Livingston County and the court found that the tax of one dollar on the one hundred dollars assessed valuation in that school district is a legal and valid tax. The court also denied the injunction prayed for in appellants' second count of their amended petition. From that judgment the appellants have duly appealed.

The essential facts are as follows: The Reorganized School District R-IV of Livingston County was organized in 1949 under Senate Bill 307, 1947 Session, Laws 1947, p. 370, RS1949, Sec. 165.657 et seq. This district embraces the town of Wheeling and surrounding rural areas. The appellants are resident taxpayers and property owners within the boundaries of respondent school district. The directors of Reorganized School District R-IV took the necessary statutory steps to levy a tax of one dollar on the one hundred dollars valuation of the taxable tangible property within this school district but without a vote of the qualified electors of the district, which appellants contend makes this levy invalid.

The town of Wheeling was incorporated in the year 1896 and was disincorporated in the year 1903. It has at all times since remained unincorporated. This town was laid out by accurate map and plat describing the parcels of ground within the town and describing the course of streets and alleys. This plat was duly acknowledged and filed in the office of recorder of deeds. A plat of Packer's Addition to the town of Wheeling was filed in the office of recorder of deeds on March 20, 1919 and a plat of High School Addition was filed in the office of recorder of deeds on May 21, 1920.

The town of Wheeling has a population of 450 people; it has from 150 to 160 children in attendance at school. It has the following business establishments: two grocery stores, grain elevator, lumber yard, drug store, two filling stations, barber shop, two garages, electric appliance shop, hardware store, post office, two rural mail routes, three churches, blacksmith shop, produce and feed business, two gasoline and oil bulk stations, railroad station with a railroad running through the town and a practicing osteophathic physician.

The pertinent part of section 11(b), article X of our present Constitution reads:

'Any tax imposed upon such property by municipalities, conties or school districts, for their respective purposes, shall not exceed the following annual rates: * * *.

'For school districts formed of cities and towns--one dollar on the hundred dollars assessed valuation, except that in the city of St. Louis the annual rate shall not exceed eighty-nine cents on the hundred dollars assessed valuation;

'For all other school districts--sixty-five cents on the hundred dollars assessed valuation.'

It is the appellants' contention that the words 'cities and towns', used in the above section, mean incorporated towns, and since Wheeling is an unincorporated town, the maximum levy the respondent directors of Reorganized School District R-IV could assess was sixty-five cents on the hundred dollars valuation of tangible property for general school purposes without a proper vote of the electors. It is admitted that no such election was held.

The above section does not use the words 'incorporated cities and towns,' nor are the words 'incorporated municipalities' used. If the above section meant 'incorporated towns,' it does not say so, and since these are ordinary words it must be presumed the word 'town' as used in this section means both incorporated and unincorporated towns. This is true for 'It is fundamental that in construing the language of a Constitution the words used, unless * * * technical, are to be understood in their usual and ordinary sense.' State ex rel. Buck v. St. Louis & S. F. Railroad, 263 Mo. 689, loc. cit. 696, 174 S.W. 64, 65. 'In its popular sense 'town' is used to designate an aggregation of houses so near one another that the inhabitants may fairly be said to dwell together. In this sense a town is distinguished from the country or from a rural population. * * * The use of the word 'town,' as employed in its popular sense, may or may not imply incorporation, or a particular kind of incorporation.' 63 C.J. 97-99, Sec. 1.

In the case of the City of Denver v. Coulehan, 20 Colo. 471, 39 P. 425, 427, 27 L.R.A. 751, loc. cit. 754, the Supreme Court of Colorado said, 'The popular use and meaning of the word [town] is a large, closely populated place, whether incorporated or not, as distinguished from the country or from rural communities.'

The statutes of this state use the word 'town' as applying to both incorporated and unincorporated towns. See Chapter 80, RSMo1949.

After the 1902 amendment to section 11, article X of the constitution of 1875, we held the word 'town' applied to the town of Avalon which was not incorporated. State ex rel. Reynolds v....