Sayre v. Tompkins, 23 Mo. 443

Sayre v. Tompkins

23 Mo. 443 | Mo. | 1856

LEONARD, Judge,

delivered the opinion of the court.

The relief here sought was by injunction to restrain the defendant from selling the plaintiff’s personal property under an assessment of school taxes, made by the proper school district authorities. This is not a proper case for equitable relief. If the assessment be void, as alleged, it will not protect the officer, nor will a sale divest the plaintiff of his property. The wrong can be fully compensated for at law. It is not in any *446sense an irreparable injury, and no reason exists for transferring the jurisdiction over sucb cases from law to equity. There is as yet no authority of this court, that we are aware of, to warrant this relief, and we are not disposed to make one by sanctioning the present proceeding.

In relation, however, to the merits of the case, as they have been argued in the briefs and the parties may desire our opinion, we remark that, under the then existing law, it tras necessary to authorize the formation of a neighborhood into a new school district, that a majority of the inhabitants of the neighborhood should unite in a petition to the commissioner to take the proper steps for its organization. The statute, we think, required the consent of each of the three communities to be affected by the proceeding, and it was not enough that a majority of the inhabitants of the two existing districts consented, but it was also necessary that a majority of the proposed new district should also concur by uniting in the petition to the commissioner for that purpose. IE this were otherwise, a majority in each of the existing districts, with the consent of a minority of the proposed district, might constitute a neighborhood into a school district against the wishes of a majority of the neighborhood, which, we think, was not the intention of the legislature.

But the district, although irregularly formed, may perhaps be considered as existing de facto, and, if so, the question would be as to the effect of the assessment made under such circumstances. This is a question of some importance in principle, although we presume of no practical importance in the present case, as the parties will most probably remedy the irregularity by new proceedings for that purpose, rather than press the collection of the tax assessed under the present circumstances. Besides, the question has not been raised in the argument of the cause, and we shall therefore refrain from deciding it. We may remark, however, that in New York, in the case of Stevens v. Newcomb, (4 Denio, 438,) it was held that it was not necessary to go through all the steps to show *447that the districts had been duly organized, and that it was enough to show that they had in fact been organized, and had. acted as regular school districts for several years. The judgment is affirmed;

Jndge Ryland concurring.