CASES DETERMINED BY THE SUPREME COURT OF THE STATE OF MISSOURI APRIL TERM, 1921. (Continued from Vol. 287.) WILLIAM R. HARRINGTON v. JAMES C. HOPKINS et al., Appellants. In Banc, May 24, 1921. 1. CONSTITUTION: Limitation of Taxation: City or Town School District: School Purposes. Section 11 of Article 10 of the Constitution limits the collection of all taxes in a city or town school district to one dollar on the hundred dollars' valuation for all school purposes; that is, the rate of taxation cannot be increased in such district for all school purposes in excess of one dollar on the hundred dollars except for the purpose of erecting public buildings. 2. : : Erection of Buildings: Repairing and Furnishing Buildings. A tax voted by a city or town school district for "repairing and furnishing" school buildings is not a tax for "erecting public buildings" as those words are used in Section 11 of Article 10 of the Constitution. school district, in addition to a tax of one dollar on the hundred Harrington v. Hopkins. dollars' valuation for school purposes, viz: teachers' fund eightyseven cents and incidental fund thirteen cents, levied an additional tax of ninety cents for a repairing and furnishing fund for buildings, such levy being authorized by a two-thirds vote of the qualified voters of the district voting at the annual election held in the district, the legal preliminaries being complied with. Held, that such additional levy was not authorized by Section 11 of Article 10 of the Constitution and its enforcement should be permanently enjoined. Appeal from Clinton Circuit Court.-Hon. Alonzo D. Burnes, Judge. AFFIRMED. Daniel H. Frost and W. S. Herndon for appellants. (1) Sections 11 and 12 of Article 10, of the Constitution of Missouri, govern in the matter of school taxes as well as other taxes by counties, cities and towns, etc. The limitations in those sections are self enforcing and require no legislation to enforce them, but the provision. for an increase of the limitations does require legislation to enforce such increase. Arnold v. Hawkins, 95 Mo. 569; Board of Public Schools v. Patton, 62 Mo. 449; State ex rel. v. Railroad, 74 Mo. 163; State ex rel. v. Van Every, 75 Mo. 530. (2) Recognizing this to be the law, the Legislature by Section 10797, R. S. 1909, provides for an increase of the annual rate of taxation by school districts for the purpose of paying for school building sites, whether the same have been purchased or condemned, for buying or erecting school buildings in such districts, or repairing or furnishing such buildings, and prescribes the duties of the directors in determining the rate of taxation necessary to be levied within the maximum rates of the constitution, the giving of notice, etc., and the holding of an election. This section provides or requires the assent of two-thirds of the qualified voters of the district to the levy. State ex rel. v. Gordon, 223 Mo. 12. (3) Section 11, Article 10, Missouri Constitution, limits the levy, in city school districts to Harrington v. Hopkins. forty cents for school purposes. It then goes on to provide: (a) That the aforesaid annual rates for school purposes may be increased in districts formed of cities. and towns to an amount not exceeding one dollar. Now, the district did this and this increase is not disputed. (b) For purpose of erecting public buildings in counties, cities and school districts, the rate of taxation may be further increased, when the rate of such increase, and the purpose for which it was intended shall have been submitted to a vote of the people and two-thirds of the qualified voters of said district vote therefor. If then, the law under which this levy was made is a valid law, and within the terms of the last above referred to provision of the Constitution, then the levy was and is valid. Our Legislature pursuant to the authority of the two above provisions of the Constitution passed Section 10796, R. S. 1909, to carry out the first above proviso. And they passed Section 10797, R. S. 1909, to carry out the second proviso, which statute stood with slight amendment since the adoption of the Constitution. (c) If this legislative enactment providing for a tax for repairing and furnishing school buildings is not authorized under said provision of the Constitution, then public authorities have no power to furnish or repair public buildings. All school moneys are required to be placed in three funds. First. The teachers' fund, dervived from all funds received from State, county and township funds, all monies derived from taxation for teachers' wages, and all tuition fees. Second. Incidental fund. Money derived from taxation for incidental expenses. Third. Building fund. Money derived from taxation for building purposes, sale of sites, school buildings, furniture, etc. Sec. 10857, R. S. 1909; Livesay v. Whitney, 107 Mo. App. 479. Repairs come out of the building fund always. By Section 10857 it is provided that board shall have power to transfer out of incidental to building fund such amount as may be necessary for repairs, showing plainly that repairs are to be paid out of building fund. (4) The next proposi Harrington v. Hopkins. tion we will notice is their charge that the increased levy was not proposed for a building fund, or a repair and furnishing fund, but for common school purposes. In their brief they urge no law or reasons in support of the charge, for the reason probably that they had neither law or sufficient facts to justify their charge. State ex rel. v. Gordon, 580; Thomas v. Scott, 221 Mo. 279. (5) The statutes applicable to towns, counties and school districts in order to the orderly administration of their financial affairs first require money to be used for purpose it was levied only, then make these provisions for transfer and other like unto them providing for transfer when purposes of fund are accomplished or abandoned. This school board learned for the first time that repairs, furnishings, etc., were not incidentals. Livesay v. Whitney, 107 Mo. App. 475; State ex rel. v. Thompson, 64 Mo. 26. (6) They also learned probably for the first time that repairs and furnishings and fund for same could be provided for by submitting a proposition to the voters and in this were replenishing their building fund. John A. Cross, R. H. Musser and Pross T. Cross for respondent. (1) When the directors of a school district, undertake to impose an illegal tax on the citizen he has the right to enjoin the proceedings in its inception and at every subsequent step, until it reaches him by an actual levy on his property. Overall v. Ruenzi, 67 Mo. 203; Wagnor v. Meety, 69 Mo. 150; Arnold v. Hawkins, 95 Mo. 569. (2) The giving of the proper notice is mandatory and jurisdictional, and if not given as required by statute any action taken will be void. State ex rel. v. Eden, 54 Mo. App. 31; Mason v Kennedy, 89 Mo. 23; School Dist. v. School Dist., 94 Mo. 612; Richardson v. McReynolds, 114 Mo. 650; State v. Railway, 75 Mo. 526. (3) For school purposes in districts the annual rate on property shall not exceed forty cents on the $100 Harrington v. Hopkins. valuation; provided the aforesaid annual rate for school purposes may be increased, in districts formed of cities and towns, to an amount not to exceed $1 on the $100 valuation, on the condition that a majority of the voters who are taxpayers, voting at an election held to decide the question, vote for said increase. Said restrictions as to rates shall apply to taxes of every kind and description, whether general or special, except taxes to pay valid indebtedness now existing, or bonds which may be issued in renewal of such indebtedness. Const. sec. 11, art. 10. (a) The limitation in the above section. is self enforcing and does not require legislation to make it effective. State ex rel. v. Van Every, 75 Mo. 537; St. Joseph v. Patten, 62 Mo. 444; Arnold v. Hawkins, 95 Mo. 569. (b) The limitation upon the powers of school directors in Section 11, Article 10 of the Constitution are absolute and cover all taxes of every kind and description, and said ninety cents being in excess of the constitutional rate is void. Overall v. Ruenzi, 67 Mo. 203; Arnold v. Hawkins, 95 Mo. 569; Black v. McGonigle, 103 Mo. 192; Brookfield v. Tooey, 141 Mo. 619; Brooks v. Schultz, 178 Mo. 222; Trust Co. v. Pagenstecher, 221 Mo. 121; Board of Comm. v. Peter, 253 Mo. 520; Strother v. Kansas City, 283 Mo. 283. (c) Section 11, Article 10 of the Constitution means that the Legislature may authorize the levy of taxes within the limit specified, but not beyond. Brooks v. Schultz, 178 Mo. 222. (d) An order or resolution of the Board of Directors does not an illegal tax valid. Black v. McGonigle, supra. State ex rel. v. Railway, 169 Mo. 563. (e) "School purposes" do not include erection of buildings, nor payment of indebtedness. State ex rel. v. Railway, 83 Mo. 395; Railway v. Lamkin, 97 Mo. 503; Railroad v. People, 163 Ill. 616; Laws 1919, p. 755. WOODSON, J.-This suit was instituted in the Circuit Court of Clinton County by the plaintiff against the defendants to restrain the collection of a tax of ninety cents on the $100 valuation of all taxable property situated in the Lathrop School District of that county. |