275 Mo. 522 | Mo. | 1918
The answer sets up the refusal of the former school districts to recognize the lawfulness of the consolidation. and failure of the county clerk to extend the taxes for its benefit until the decision of this court
Upon a trial, the evidence tended to show that in the year 1915, and subsequently, until the ruling of this court in 271 Mo. 168, supra, the county cmr. uniformly extended the taxes for the benefit of the original school districts; that they never turned over the school property to the consolidated district; that the consolidated district did maintain a high school in one of the old districts, Ca~Men Point, where it seems a district school was also maintained; that in 1915 the consolidated board employed an attorney to recover the school funds properly belonging to it, who made demand therefor to- the county treasurer, which was refused. Shortly after the present proceeding, the consolidated district sought to enforce that demand by a mandamus suit; that up to the trial, owing to the obstructive tactics of the directors of the old school districts, and the inability of the consolidated district to recover the funds and property belonging to it, the teachers, employed by the board of .the consolidated district, were also employed by the officers of the old district and were paid out of the moneys deceived of the latter. The evidence further discloses that after the county clerk signified his willingness, following the decision of this court supra, to extend the taxes for the benefit of the consolidated district, the present action was brought on the grounds stated above.
The trial court, upon a consideration of the testimony, adjudged the corporate existence of respondent to have been forfeited, and that its powers under its organization had lapsed. From that decision, this appeal was duly taken.
It will be observed, that the pertinent part of the section under review, is couched in the following terms:
“Sec. 10776. Forfeiture of organisation, etc.— Whenever any school district in this. State, now organized or that may be hereafter organized under the laws of this State, shall fail or refuse, for the period of one year, to provide for an eight months’ school in such year, provided a levy of forty cents on the one hundred' dollars’ valuation, together with the public funds and cash on hand, will enable them to have so long a term, the same shall be deemed to have lapsed as a corporate body, and the territory theretofore embraced within such lapsed district shall be deemed and taken as unorganized territory. ’ ’
It will be seen at a glance, that the above provision for forfeiture is wholly inapplicable unless it shall be shown by the evidence that the funds in the hands of the school district, together with the levy of forty cents on the one hundred dollars’ valuation, are sufficient for the maintainence of an eight months’ school in one year. There is no substantial evidence in the present record to that effect, for until the final decision of this court validating the organization of respondent, it did not receive the public funds and cash on hand belong
In the case of State ex rel. v. School District No. 5, 195 Mo. App. 507, the judgment annulling the organization of the consolidated school district for failure to maintain schools, construed by that court to be within the-purview of the act providing for the creation of such consolidated school district, was stob silento affirmed without particular discussion as to whether the duty of the consolidated school district might not have been properly enforced by mandamus and without connoting the fact that the statute then under review did not affix forfeiture eo nomine to a mere omission to perform that duty, absent any intent to disobey the statute, or when compliance with its terms was wrongfully prevented. It is not necessary to say more as to the correctness of the views expressed in that opinion.
For the reasons heretofore given, the judgment in this case is reversed and the cause remanded with directions to the trial court to dismiss this proceeding.