66 S.W.2d 547 | Mo. | 1933
Lead Opinion
This is a proceeding by the State at the relation and to the use of the Collector of Polk County against J.W. Allison to enforce lien for certain school taxes levied for the year 1928 against land owned by defendant and situate in the Flemington School District in that county. The circuit court found the issues for plaintiff, entered its judgment accordingly and defendant appealed.
The Board of Education of the Flemington School District of Polk County, which recently theretofore had been organized as a town or village school district, called a special election for March 1, 1928, at which a proposition to issue bonds of said district in the sum of $12,000 for the construction of a new school building was submitted. The proposition was approved by more than two-thirds of the voters voting thereon at such election and thereupon the board of education, on March 3, 1928, duly authorized the issuance of twelve bonds, each in the sum of $1000, bearing date of March 2, 1928. Apparently at the same time provision was made for a levy "on all taxable property" in said school district of an annual tax to create "a sinking fund for the payment of the principal and interest on said bonds." Pursuant to such authorization the bonds were issued and duly executed by the proper officers. On March 6, 1928, the defendant herein, and nine other resident taxpayers of said school district, brought a suit, naming the school district and the members of the board of education as defendants therein, seeking an injunction restraining the issuance of the bonds "and levying of a tax to pay interest and to provide a sinking fund for payment of the bonds." No temporary injunction was asked or granted. At the first term of the circuit court thereafter, being the May Term, 1928, the court sustained *545 defendants' demurrer to the petition filed in the injunction suit whereupon plaintiffs filed an amended petition. The amended petition attacked the regularity and validity of the special election and the validity of the bonds authorized thereat, alleged that the school district "was never legally organized as a town or village school district and that it has no legal existence," that the "election was absolutely null and void" and prayed that the board of education be restrained from issuing the bonds and that the making of a tax levy "to pay interest and to provide a sinking fund" be enjoined. On July 10, 1928, the court sustained defendants' demurrer to the amended petition; plaintiffs declining to plead further the court entered judgment dismissing plaintiffs' bill or petition and plaintiffs' appeal therefrom came to this court. Here the judgment of the circuit court was affirmed, December 11, 1929. [See Remington v. Flemington School Dist. (Mo.), 22 S.W.2d 800.] Though no injunction was granted restraining the sale of the bonds authorized, executed and issued as aforesaid nevertheless the pending injunction suit operated, in practical effect, to delay and postpone the completion of negotiations for the sale of the bonds so that the sale could not be, and was not, finally consummated until after the mandate of this court affirming the judgment of the circuit court in that suit went down in January, 1930. Thereupon the bonds were duly registered and delivered to the purchaser who paid over the purchase price thereof to the school district. Pursuant to the provision made therefor the annual tax to be levied for the year 1928 for the purpose of creating a fund for the payment of interest on said bonds as it should fall due and "to constitute a sinking fund for the payment of the principal thereof within the time said principal" should become due (Sec. 9199, R.S. 1929, Sec. 12, Art. 10, Constitution of Missouri) was fixed at twenty-five cents on the one hundred dollars valuation. The defendant (and appellant) herein paid all taxes, state, county and school, for the year 1928, levied against the land which he owned in said school district except this levy of twenty-five cents for interest and sinking fund which he failed and refused to pay.
[1] In August, 1930, this suit was filed seeking to enforce the collection of the 1928 tax levied for interest and sinking fund in the total sum of $5.40. The petition and the accompanying tax bill, which was made a part of the petition and introduced in evidence, are in conventional form. The defense set up and relied upon is stated in the answer as follows: "That the amount of $5.40 which plaintiff claims is due as a school tax for the year 1928 is not a legal tax and defendant is not liable therefor . . . that the taxes are claimed to be due to Flemington School District . . . as taxes for the purpose of raising a sinking fund and paying the interest on school bonds claimed to have been voted by said district . . . *546 that no bonds had been executed nor were any in existence in 1927 or 1928 or 1929. That there was no existing indebtedness against said school district at said time and therefore the Board of Education had no right or authority to make any estimate or ask for any levy for the purpose of raising funds to create a sinking fund to pay off any bonds or the interest on any such bonds or indebtedness."
Such was defendant's position in the trial court and is his sole contention as appellant here. It is urged that the trial court erred in its, view of the law applicable to the facts. The election was held and the bonds were issued under the authority of Section 12, Article 10, of our Constitution. One proviso of said section is, "that any county, city . . . school district or other political corporation or subdivision of the State, incurring any indebtedness requiring the assent of the voters" as in said section specified "shall before or at the time of doing so, provide for . . . an annual tax sufficient to pay the interest on such indebtedness as it falls due, and also to constitute a sinking fund for the payment of the principal thereof, within twenty-years from the time of contracting the same." This provision is mandatory and self-enforcing. [State ex rel. Audrain County v. Hackmann,
[3] If as appellant argues since the bonds were not sold during the year 1928 no interest accrued and became payable for that year nevertheless since the principal of the bonds matured within the number of years from and after March 2, 1928, therein specified it was necessary to levy an annual tax to provide and accumulate a sinking fund which would be sufficient at the maturity of the bonds to pay the principal sum. But even if no interest accrued for the year 1928 by reason of the enforced delay in selling the bonds such portion of *548 the tax as was intended for the payment of interest falling due in that year would remain when collected as a part of the fund designated as an interest and sinking fund and could not, as we have said, be diverted or applied to any other purpose and would necessarily operate to reduce the amount of the tax levy required to meet the first interest payments accruing after the sale of the bonds so it would seem appellant's substantial rights have not suffered or been impaired. Appellant sought by the injunction suit to restrain and prohibit this, or any tax levy, for the payment of interest and principal as being illegal but wholly failed, after two attempts to do so, to so much as state any ground or cause for declaring the levy illegal.
In Black v. Early,
Presumably the other taxpayers of the district have paid this tax. The school building has no doubt long since been erected. Upon the facts of this case we perceive no logical, legal or equitable reason why the appellant should be relieved of the tax and sustained in his refusal to pay same. The judgment of the circuit court is therefore affirmed. Sturgis and Hyde, CC., concur.
Addendum
The foregoing opinion by FERGUSON, C., is adopted as the opinion of the court. All the judges concur.