State ex rel. Board of Education v. Tiedemann

69 Mo. 306 | Mo. | 1879

Sherwood, C. J.

i. public school PROPERTY EXEMPT prom execution,

We are all agreed that the beneficial

plaintiff in this action is a public corporation. Gen. Stat., 275, § 6; Sess. Acts 1867, 160, § 6; Dillon 'J . Tv , on Munic.• Corp., § 10 . Heller v. Stremmel, 52 Mo. 309, and, thei-efore, not subject to the process of execution, at least so far as any school building or property is concerned. 1 Wag. Stat., § 36, p. 295. And this idea finds further support in the avowed policy of this State, evinced in the most decided manner in our organic as well as statutory provisions, to favor and foster popular and promiscuous education, by applying, for that purpose, a large portion of the revenues of the State, as well as authorizing local and burdensome taxation for the erection of school buildings and the maintenance of schools. It would greatly tend to frustrate the design and purpose of the law in respect to common schools, were school buildings and property liable to sale under the hammer, as attempted in the present instance. And besides, nothing would be gained by such proceeding; for supposing the school house sold, it would immediately become the duty of the “ board of education ” to levy taxes for-the erection of a new school house, and, therefore, nothing would be gained. As the board, as just seen, is .authorized to levy taxes, it would seem that the appropriate method of procedure, in such cases, would be by mandamus to compel the levy, of a sufficient tax to pay the indebtedness. Dillon on Muuie. Corp., § 446. Such a course would certainly avoid all difficulty, and oftentimes prevent the sacrifice of valuable property. Bat however this may be, whatever may be the proper course to pursue, we are confident that it .would contravene the evident policy of our laws to permit school property to go to sale under fi.fa., either general or special. In addition to the foregoing observations, it has been expressly decided by this court, that a school house and lot, title whereof is vested in a board of education, is not the subject of a mechanics’ lien. Abercrombie v. Ely, 60 Mo. 23. If not subject to the lien, then not subject to a sale to enforce such lien.

2 injunction tion..

But it is insisted that the beneficial plaintiff had an adequate remedy at law, and, therefore, equity should not interpose injunctive relief. It is true that relief could have been thus obtained, but this does not oust equitable jurisdiction in a case of this sort, for if it be the case that the school house was not vendible under execution, equity would interfere to prevent a cloud from being east on the title by reason of a void sale, and also to prevent a multiplicity of suits springing from such void act. Holland v. Mayor, 11 Md. 186; Mayor v. Porter, 18 Md. 284; Vogler v. Montgomery, 54 Mo. 577; Damschroeder v. Thias, 51 Mo. 100; McPike v. Pen, 51 Mo. 63.

These considerations induce an affirmance of the judgment of the lower court, which perpetually enjoined a sale of the property levied on.

All concur.

Affirmed.