School District No. Four v. Smith , 90 Mo. App. 215 ( 1901 )

BLAND, P. J.

The elections were held under the provisions of section 9742, which requires the clerk of each district to post a notice of the proposed change in at least five public places in each district, fifteen days prior to election. The notice posted in district number four contained no description of the territory to be detached from it and to be attached to district number eight It did not name the district to which it was proposed to attach the territory nor the name of any district, nor was it signed by the clerk of district number four. A notice of an election under the above section must be as comprehensive as the petition for the change. It must inform the voters what change it is proposed to make in the boundaries of the districts interested. The notice posted in district number four wholly failed to give any intelligent description of the territory it was proposed to take from the one and to attach to the other district. The election in district number four was therefore null and void. School District v. School District, 94 Mo. 612; State ex rel. v. Gibson, 78 Mo. App. 170; School District v. Neal, 74 Mo. App. 553; State ex rel. v. Eden, 54 Mo. App. 31.

A valid election in each of the two districts was a necessary prerequisite to give the county school commissioner jurisdiction to proceed under the provisions of section 9742, supra, to form his board of arbitrators to consider and determine the necessity of the proposed change. State ex rel. v. Eden, supra. The proceedings of the 'county commissioner and the board of arbitration in detaching territory from district number four and attaching same to district number eight, is therefore null and void and confers upon the clerk of the county court (the defendant) no authority whatever to change the boundary lines on the map, of school district number four, on file in his office, nor any authority to transfer the school tax of any taxpayer in district number four to district number eight, nor to change tire enumeration of children of school age in district number four. The petition alleges that he is about to do all of these legal wrongs and asks that he be restrained therefrom.

II. One of the grounds of the demurrer is that injunction is not the proper remedy to prevent the wrongs complained of. The last clause of section 3649, Revised Statutes 1899, provides that the remedy by injunction shall exist “to prevent the doing -of any legal wrong whatever, whenever in the opinion of the court an adequate remedy can not be afforded by an action for damages.” Should the wrongs complained of be consummated it would be a continuing one and the children of school age in the disputed territory would be enumerated in a district in which they do not belong and be compelled to attend the public schools in this district or forego the benefit of any public school. The taxes in the disputed territory which should go to district number four would go to number eight and the burden of taxation on the remaining taxpayers of district number four be thereby proportionately increased; in such circumstances it is evident that no rules for the measurement of damages can be formulated that would afford district number four adequate relief. Calvert v. Bates, 44 Mo. App. l. c. 632. Injunctive relief under somewhat similar circumstances has heretofore been afforded by the courts of this State without question (Perryman v. Bethune, 89 Mo. 158; School District v. Wallace, 75 Mo. App. 317), and we think our statute, which broadens the equity rule, warrants the remedy prayed for by the petition.

III. We do not think that the allegations of the petition-are sufficient to raise the issue of the legality of the organization of district number eight. The proceedings called in question by the petition are not the ones which culminated in the organization of that district, but proceedings which are about to result in attaching new territory to the district as theretofore organized. If it is desired to attack the legality of the organization of the district, quo warranto, not injunction, is the appropriate-remedy. State ex rel. v. Stone, 152 Mo. 202.

IY. The sixth and last ground of demurrer, to-wit,. “that there is a defect of parties defendant in that school district number eight is a necessary party,” presents a more difficult question for solution. No restraining order or judgment is 'asked against the district or its officers and no such judgment or order can be directly rendered against the district or any of its officers. The sole relief prayed for is to enjoin the defendant from performing certain official acts which can be performed by none other than defendant as clerk of the county court; but the defendant has no interest in the subject-matter in controversy while the district has, and should the defendant be enjoined, the injunction would operate through him upon the district as much so as if it were a party to the proceedings and the district would be effectually deprived of the benefits it would otherwise derive from the disputed territory as though the decree was in terms directed against it and its officers. High on Injunctions (3 Ed.), sec. 1551. In A. T. & S. F. Ry. Co. v. Wilhelm, 33 Kan. 206, it was held that, “Where an action is brought against the sheriff and treasurer of a county to restrain the collection of taxes levied by a school district for building and library funds upon the ground that the levies are excessive, a final injunction would not be granted until the officers of the school district directly interested in the collection of taxes are made parties defendant.” To grant the relief prayed for would be as effectual against the school district as though it were a party to the proceedings and it would thus be deprived of its rights without the opportunity of being first heard. This is opposed to the fundamental principles of the law. State ex rel. Lemon v. Buchanan Co. Board of Eq., 108 Mo. l. c. 241. We, therefore, hold there was no error in sustaining the demurrer and affirm the judgment.

Goode, and Barclay, JJ., concur in the result.