Opinion
No. 21892.
December 17, 1952. Rehearing Denied January 12, 1953.
Don Chapman, Chillicothe, Stephen J. Millett, Kingston, Nolan M. Chapman and Nolan M. Chapman, Jr., Chillicothe, for relator.
Harry A. Hall, Kansas City, Wilson D. Hill and Dick B. Dale, Jr., Richmond, for respondent.
This is an original proceeding in mandamus to compel respondent, Francis Blackwell, Clerk of the County Court of Ray County, to assess the amount of taxes claimed to be due relator upon land in that county and included within the district of relator.
We have jurisdiction in the instant case, because a county clerk is not a "state officer" within the meaning of the constitutional provision governing appellate jurisdiction of the Supreme Court. Young v. Brassfield, Mo.Sup., 223 S.W.2d 491.
The petition of relator, Consolidated School District C-4 of Caldwell County, alleges, (1) that it is now, and ever since the 25th day of July, 1949, has been a legally organized and established consolidated school district under the provisions of Sections 165.277, 165.280 and 165.283 RSMo 1949, V.A.M.S.; (2) that said District C-4 embraces within its boundaries lands in Caldwell, Carroll and Ray Counties; (3) the third paragraph gives the legal description of the real estate in Ray County which lies within the boundaries of said District C-4; (4) that respondent is the duly elected, qualified and acting Clerk of the County Court of Ray County; (5) that the Board of Directors of Relator, in accordance with Section 165.077 RSMo, 1949, V.A.M.S., made and delivered to Respondent on May 15, 1952, an estimate of the funds necessary to sustain the schools of said relator district for nine months and to provide funds that had been ordered by the qualified voters of said relator district in an election duly held for school building purposes; (6) that Respondent on receipt of said estimate was in duty bound to assess the amount of taxes called for by said estimate; (7) that Respondent has refused to make said assessment and to extend the tax books for the year 1952, as required by law, although he did assess the taxes and extend the tax books in the calendar years of 1950 and 1951 for the relator based upon the estimates filed with him in those years, and; (8) that relator has no other adequate remedy. The prayer of the petition is that we issue our alternative writ commanding respondent to proceed to assess the amount of taxes returned by the estimate of relator.
We issued an alternative writ, to which respondent filed his return. In the latter respondent says he has no knowledge as to whether or not relator is a legally organized consolidated school district and therefore denies the same. He admits that relator during the years 1950 and 1951 filed its estimates of taxes for those years and that he assessed the amount of taxes called for by those estimates upon the lands described in paragraph 3 of relator's petition. He also admits receiving from relator its tax estimate for the year 1952, but says that before he had acted upon it there was filed with him on June 30, 1952, a certificate of elections to the "State Board of Education from the County of Ray" reciting the creation of certain enlarged school districts in Ray County; that said certificate recited that on June 27, 1952, one of the new districts created in Ray County was "Enlarged District R-I", which included the former common school districts No. 1 (Tinney's Grove), No. 2 (Rose Valley), and No. 3 (Little Union), being the same geographical territory as described in paragraph 3 of Relator's petition. Respondent further alleged that on August 13, 1952, there was filed with him by said "Enlarged District R-I" an estimate of the amount of school monies needed for the ensuing year under Sections 165.077 and 165.080 RSMo 1949, V.A.M.S. That after the receipt of said estimate it was his duty to make the assessment on the territory of former districts No. 1 (Tinney's Grove), No. 2 (Rose Valley) and No. 3 (Little Union); that he did during the month of September, 1952, proceeded to extend the tax levy of "Enlarged District R-I" upon the tax books of Ray County, on all real estate in that part of said district described in paragraph 3 of relator's petition.
Relator filed a motion to strike out respondent's return for the reason that it stated no defense to the writ and asked for judgment on the pleadings. This motion was taken with the case.
Mandamus is the proper remedy to compel a county clerk to extend levies and make an assessment for a school district on his refusal so to do. State ex rel. District No. 3 v. Patton, 108 Mo. App. 26, 82 S.W. 537.
Respondent is in no position to question the regularity or legality of the incorporation of the relator school district. Our Supreme Court has held that only the State in a direct proceeding in quo warranto has the right to challenge the validity of a consolidated school district. Spiking School District No. 71 v. Purported "Enlarged School Dist., etc." 362 Mo. 848, 245 S.W.2d 13, and Utt v. Oster, 362 Mo. 866, 245 S.W.2d 22. In the Utt case an attempt was made in a proceeding other than in quo warranto to test the validity of the organization of Relator in the case at bar.
It stands admitted that the Board of Directors of Relator School District filed with respondent on or before May 15, 1952, an estimate of the amount of money to be raised by taxation in order to sustain relator school district for a period of nine months. This complied with Section 165.077 RSMo 1949, V.A.M.S., which requires that the estimate "shall" be filed "on or before the fifteenth day of May * * *." It was respondent's duty to extend the taxes as required by relator's estimate. Section 165.083 RSMo 1949, V.A.M.S., provides that upon receipt of the estimates of the various districts the County Clerk shall proceed to assess the amount so returned on all taxable property, real and personal, in each district, etc. Respondent admits that he extended the taxes for relator within the territory described in its petition for the taxable years of 1950 and 1951. His excuse for not complying with relator's present demand is that there is another school district, to-wit: R-I, claiming the territory described in relator's petition, and that he has extended the taxes for said new school district. His return shows that said "Proposed Enlarged District R-I" did not file an estimate as required by Section 165.077, on or before May 15, 1952. That estimate was not lodged with him until August 13, 1952.
The decision of our Supreme Court in the case of State ex rel. Consolidated School Dist. No. 1, Mississippi and New Madrid Counties v. Jones, County Clerk, 320 Mo. 353, 8 S.W.2d 66, answers all of the contentions advanced by respondent in the instant case. In the Jones case respondent in his return stated that the land described in the petition was included in common school districts No. 20 and 21 of New Madrid County and that such districts had voted bonds to maintain the schools in those districts. The court held that was no defense and said as follows, 8 S.W.2d loc.cit. 69:
"It must be borne in mind at this point that school districts Nos. 20 and 21 in New Madrid county are not parties to the proceeding nor complaining here. This court held in State ex rel. [Consolidated] School District No. 1 v. Hackmann, 277 Mo. 56, 209 S.W. 92, a proceeding by mandamus to compel the state auditor to register bonds voted and issued by relator, that the respondent state auditor did not represent and had no right to represent or litigate the rights of those school districts. The same is true of the county clerk here. He does not represent school districts Nos. 20 and 21. It may be said further that he does not represent individuals whose land is sought to be taxed. Those very persons, at least a majority of them, whose lands the relator seeks to have extended for taxation in the district, have recognized the district, sent their children to school there, voted there, and served as officials there. They are not complaining and the respondent has no right to complain for them under that ruling. In the Hackmann Case some of the very facts alleged here to show laches or to show want of organization were determined against respondent by this court. The persons whose land is sought to be taxed are not complaining; the respondent has only a ministerial duty to perform; he is in no position under his return to question either the incorporation of relator or the inclusion of the land in New Madrid county within the district."
It is clear to us that respondent has no valid defense to this action. "Proposed Enlarged District R-I" is not a party to this proceeding, nor does respondent represent it. As we have said, respondent cannot question the legality of the incorporation of relator School District. Respondent's duty was purely ministerial. Yet, by undertaking to decide which school district is legally organized and which is entitled to have taxes levied by him for its support he has assumed judicial or quasi-judicial powers.
It is not to be understood that we are passing upon the legal status of either relator or Proposed Enlarged District R-I. No such questions are before us in this proceeding.
The alternative writ of mandamus should be made peremptory. It is so ordered.
On Motion For Rehearing Or To Transfer.
It is called to our attention by respondent's motion for re-hearing that the opinion fails to state that, by amendment of the return, it is shown that relator did not file its estimate until May 24, 1952. That fact we deem immaterial to the conclusions reached herein because Section 165.077 RSMo 1949, V.A.M.S., is not mandatory. As to the other grounds of the motion for re-hearing or to transfer this cause, we find none that would justify the sustaining of the same. Such motion is, therefore, overruled.