Opinion
No. 28434.
July 1, 1952.
APPEAL FROM THE CIRCUIT COURT, MADISON COUNTY, J. O. SWINK, J.
J. B. Schnapp, Fredericktown, for appellants.
Melvin Englehart, Fredericktown, for respondent.
This is an appeal from the judgment of the Circuit Court of Madison County awarding a peremptory writ of mandamus in a proceeding to compel one school district of such county to levy taxes for the satisfaction of a judgment obtained against it by another school district of such county.
On August 22, 1951, Fredericktown School District No. 20, the relator in the present proceeding, obtained a judgment in the circuit court against Underwood School District No. 16 for the aggregate amount of $1,157.81 and costs. While the record itself is silent upon the matter, it seems to be conceded that the judgment was for the amount of tuition due the Fredericktown District from the Underwood District for pupils residing in the latter district who had attended the former district's high school upon their completion of the work in the highest grade offereded in the school of their own district. Section 165.257 RSMo 1949, V.A.M.S. No appeal was taken from such judgment, and in due time it became final according to law.
On October 18, 1951, in an attempt to obtain satisfaction of its judgment, the Fredericktown District instituted this proceeding in mandamus against the Underwood District, the individual members of its board of education, and Paul Rose, the clerk of the County Court of Madison County.
After referring to the rendition of the judgment and the fact that it had not been satisfied, the petition alleged that by virtue of Art. X, Sec. 11(c), Constitution of 1945, V.A.M.S., as well as by Section 165.080 RSMo 1949, Vernon's Missouri Statutes Service, Laws 1951, the Underwood District was authorized "by a majority vote" to levy a tax rate aggregating $1.95 on the $100 assessed valuation on all taxable property, real and personal, of such district.
The prayer was that the court issue a writ of mandamus commanding the members of the board of education of Underwood District, together with the county clerk, to certify and extend upon the tax books a total rate of $1.95 on the $100 assessed valuation of all taxable property of the district, and that such levy be credited to the incidental funds of the district.
An alternative writ of mandamus was thereupon issued, which the respondent district and officers moved to quash upon the grounds, among others, that no cause of action was stated by relator's petition; that there was no allegation in the petition that an election had been held and the increased tax rate approved by a majority of the qualified voters voting thereon; and that without such election and approval any certification of such additional levy by the members of the board, and any extension of it upon the tax books by the clerk, would be "unconstitutional" and unlawful.
After a hearing the court overruled the motions to quash and made its alternative writ peremptory. Following an unavailing motion for a new trial, respondents gave notice of appeal to this court, and by proper successive steps have caused the case to be transferred here for our review.
The parties agree that we have appellate jurisdiction, and we think correctly so.
A school district is not a political subdivision of the state as the term is used in Art. V, Sec. 3, Constitution of 1945, V.A.M.S., and our jurisdiction is consequently not defeated by reason of the circumstance that the two school districts are parties to the proceeding. Hydesburg Common School Dist. of Ralls County v. Rensselaer Common School Dist. of Ralls County, Mo.Sup., 214 S.W.2d 4; Young v. Brassfield, Mo.Sup., 223 S.W.2d 491. Nor are the respondent directors and county clerk to be regarded as state officers within the meaning of such constitutional provision. Young v. Brassfield, supra.
Any doubt that might exist with respect to our jurisdiction would more likely depend upon the question of whether the case involves the construction of either the revenue laws or the Constitution of this state. While the revenue laws are indirectly and incidentally involved, they are not present in the case in such a sense as to vest the Supreme Court with appellate jurisdiction. To do that it would be necessary that they be directly and primarily concerned. Young v. Brassfield, supra; Hurtgen v. Gasche, Mo.Sup., 223 S.W.2d 493. So also as regards the reference to certain provisions of the Constitution. The question arising on the motions to quash was not one of the construction of the Constitution, but of whether the petition stated a claim upon which relief could be granted. In other words, the real issue presented was one of pleading; and absent any other ground to oust this court of jurisdiction, a mere question of pleading is properly one for us to decide. State ex rel. and to Use of Markwell v. Colt, 355 Mo. 55, 194 S.W.2d 1021.
There is no doubt of the duty of a school district to pay its lawful debts if it can do so by a levy within the limits fixed by law; and it is consequently mandatory that its officers shall certify a levy within such limits sufficient to discharge the district's obligations. In other words, in the performance of their duty the officers of the district have no discretion which can be rightfully claimed or exercised within the limits imposed by law upon the scope of their authority. Linn Consolidated High School Dist. v. Pointer's Creek Public School Dist., 356 Mo. 798, 203 S.W.2d 721; State ex rel. Hufft v. Knight, Mo.App., 121 S.W.2d 762. It follows, therefore, when such a debt has been reduced to judgment, that inasmuch as an execution may not run against the property of the district, the only remedy available to a judgment creditor to compel the performance of such duty is to sue out a writ of mandamus in a court of competent jurisdiction requiring the extension of a sufficient levy within the lawful limits to provide funds for the necessary purpose. State ex rel. Hufft v. Knight, supra; State ex rel. Edwards v. Wilcox, Mo.App., 21 S.W.2d 930. However there is always this to be observed — that the court will not compel the performance of an illegal act, so that the burden will be upon the relator to show that the rate which he would have the officers commanded to certify is not for any reason in excess of their authority. State ex rel. and to Use of Markwell v. Colt, Mo.App., 199 S.W.2d 412; State ex rel. Hufft v. Knight supra.
By the terms of the Constitution a school district other than one formed of a city or town may not impose a tax in excess of 65 ¢ on the $100 assessed valuation without voter approval. Art. X, Sec. 11 (b), Constitution of 1945, V.A.M.S. The Underwood District is impliedly conceded to fall within this category. With voter approval such a district is authorized to increase the tax to three times the limit of 65 ¢, or to a rate of $1.95 on the $100 assessed valuation. Art. X, Sec. 11(c), Constitution of 1945, V.A.M.S.; Section 165.080 RSMo 1949, Vernon's Missouri Statutes Service, Laws 1951.
While relator recognized in its petition for the writ that voter approval was a prerequisite to the authority of the officers of the Underwood District to certify a rate of $1.95 on the $100 assessed valuation, it nowhere set up in its petition that such voter approval had been obtained. As a matter of fact, it effectually admits the lack of voter approval, and frankly concedes in its brief that if it be true that the board of the Underwood District could not levy in excess of 65 ¢ on the $100 assessed valuation without voter approval, then the levy which was peremptorily ordered by the trial court in this proceeding was in excess of constitutional authority. Suffice it merely to say that the language of both the Constitution and the statute is clear upon the question of the necessity for voter approval of a rate in excess of 65 ¢ on the $100 assessed valuation. In the absence of an allegation that the proposed rate had received voter approval, the petition consequently failed to state facts upon which the court was authorized to award relator the relief it sought; and in undertaking to compel respondents to certify and extend upon the tax books a rate of $1.95 on the $100 assessed valuation where there had been no voter approval, the court was mistakenly compelling the performance of an illegal act.
It follows that the judgment of the circuit court should be reversed and the cause remanded with directions to the circuit court to enter a new judgment quashing its peremptory writ of mandamus. It is so ordered.
ANDERSON and RUDDY, JJ., concur.