White v. Boyne

• Decision Date: 25 August 1930
• Citation: 30 S.W.2d 791,224 Mo.App. 597
• Parties: S.W. WHITE ET AL., APPELLANTS, v. J. B. BOYNE ET AL., RESPONDENTS
• Court: Missouri Court of Appeals

30 S.W.2d 791

224 Mo.App. 597

S.W. WHITE ET AL., APPELLANTS, v. J. B. BOYNE ET AL., RESPONDENTS

Court of Appeals of Missouri, Springfield

August 25, 1930

Appeal from Newton County Circuit Court.--Hon. Chas. L. Henson Judge.

AFFIRMED.

Judgment affirmed.

J. E Sater and C. E. Prettyman, Jr. for appellant.

The purported consolidation of the school district mentioned in the petition took place July 1, 1927, and therefore it was the duty of each of said school districts composing the Consolidated School District on or before the 15th day of May, forward to the county clerk an estimate of the amount of funds necessary to maintain the schools of their district for the year 1927. Section 11142 of the Revised Statutes of 1919 provides that the board of directors of each district shall, on or before the 15th day of May of each year forward to the county clerk an estimate of the amount of funds necessary to maintain the schools of their district. Section 11262 very clearly provides when the board of the consolidated School district commences to function, "An injunction will lie in behalf of a taxpayer to prevent the collection of taxes, he having paid all the taxes except those he claims to be illegal." Arnold v. Hawkins, 95 Mo. 569. An injunction is proper remedy to prevent enforcement of taxes levied without authority. Frisco v. Ammerson, 97 Mo. 300.

Horace Ruark for respondents.

(1) Irrespective of the merits of their case as pleaded, the plaintiffs have been guilty of such laches as to bar a recovery upon their part. Lyon v. School District of Joplin, 311 Mo. 349. (2) The plaintiffs' petition discloses that Consolidated School District No. 9 sued by them, is a de facto, if not a de jure consolidated school district. The plaintiffs may not in this action evade the tax nor question its legality upon the ground, not pleaded, that the district was not properly organized. State ex rel. v. Lyford, 8 S.W. (2 Ed.) 66; State ex rel. Waddell v. Johnson, 296 S.W. 806; Burnham v. Rogers, 167 Mo. 21. (3) The election to increase the rate of taxation was properly called by the board of directors of the newly consolidated school district. State ex rel. v. Fleener, 238 S.W. 819. The consolidated board has the power and right to act in school matters arising prior to the first day of July, following the creation of the consolidated school district. State ex rel. v. McMillian, 309 Mo. 291. (4) It is usually held, where there is a consolidation of several districts into one, that the old districts cannot thereafter levy any tax, but that taxes levied by them before the consolidation cannot be collected until authorized by an election in the newly created district. Hope v. Shelby County Board of Education, 281 S.W. 815 (Ky.); Causey v. Guilford County, 135 S.W. 467 (N. Car.); Perry v. Baggett, 137 S.E. 766 (Ga.).

COX, P. J. Bailey and Smith, JJ., concur.

OPINION

COX, P. J.

Action to restrain collection of certain school taxes on the ground of alleged illegal levy. A demurrer to plaintiff's petition was sustained and plaintiffs refusing to plead further, judgment was entered for defendants. Plaintiffs appealed to this court.

When this case first reached this court we were of opinion that it involved a construction of the revenue laws of the State and transferred it to the Supreme Court for that reason. [See 11 S.W.2d 1083.] The Supreme Court held otherwise and sent the case back to this court. [See 23 S.W.2d 107.]

From the conclusion we have reached in this case, it will not be necessary to set out the petition at length but shall content ourselves with a brief summary of the allegations therein, which, coupled with the record, we think makes our conclusion imperative.

The petition alleges that an attempt was made to organize a consolidated school district by combining four districts, one of which was No. 52. An election for that purpose was held July 1, 1927, and the proposition carried and directors for said consolidated district were elected on that date. These directors on the same day made an estimate of $ 0.40 on the $ 100 valuation for school purposes to maintain school in the consolidated district for the year 1927 and sent this estimate to the county clerk who extended it on the tax book. The same directors of the newly formed consolidated district called an election to be held on July 17, 1927, to vote an increase of $ 0.30 on the $ 100 valuation for school purposes. At that election that proposition carried and was certified to the county clerk and by him extended on the tax books. This made a total levy by the consolidated district of $ 0.70 on the $ 100 valuation. It is alleged that the directors of District No. 52, who are three of the parties plaintiff in this case, had made an estimate of $ 0.35 on the $ 100 valuation for school purposes for the year 1927 in said district and had forwarded same to the county clerk prior to May 15, 1927, as required by law, and that the same had been extended on the tax books against the property in said District No. 52.

The purpose of this action is to restrain the collection of all taxes levied by the consolidated district for school purposes for the year 1927. The point is made that since the consolidated district was not organized until after June 30 1927, it could not maintain school as a consolidated district and levy taxes therefor in the school year 1927. We mention this to show the legal question sought to be raised and have decided in this case. It is our opinion, however, that the further facts shown by the record, force us to the conclusion that plaintiffs...