State ex rel. District No. 1 v. Miller
STATE ex rel. District No. 1 v. HERBERT H. MILLER, Clerk, etc.
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ELLISON, J.
— The relator school district seeks to compel the respondent county clerk of Chariton county to assess and extend the taxes on property in certain territory claimed by relator, as certified by it on the 12th of May, 1903. The object of relator is to subject certain territory to taxation as a part of said district. The trial court refused a peremptory mandamus and relator appealed.
' It appears that prior to 1896, the territory composing the relator district was partly in Chariton and partly in Howard counties. The territory now in dispute lies wholly in the former county. In 1896 the territory now in dispute, with some not in dispute, organized into a separate district known as district number 2. The relator attacks the regularity and legality of the pro *669 ceeding whereby such district number 2 was attempted to be organized. But it appears in the case that such district number 2 did in fact exist from 1896 down to the present time. That it had officers, built a school house, carried on a school and received its share of the school taxes during that time.
We will concede (and thereby rid the case of much detail of statement) that district number 2 was irregularly organized. But the fact remains that for many years it was an existing district operating under the laws and filling all the functions of a school district, and that it was recognized by both State and county, the former in the apportionment of school funds and the latter in taxation and other matters arising from the relation of county and school district affairs. This proceeding is not a direct attack upon the existence of the district. It is merely seeking to compel the performance of an alleged ministerial duty by the respondent as county clerk to extend taxes for school purposes for the relator over and upon certain lands. District number 2 is not a party to the proceeding and its existence as a district only arises in a collateral Avay. That it exists in fact and has been exercising the functions above stated is beyond question. We therefore hold that in this proceeding its rights as a district to tax the territory in question cannot be questioned. [Burnham v. Rogers, 167 Mo. 17 ; Fredricktown v. Fox, 84 Mo. 59 ; State v. Fuller, 96 Mo. 165 ; State ex rel. v. Board of Equalization, 108 Mo. 241 ; State ex rel. v. Buhler, 90 Mo. 560 .] And not being a party, such proceeding should not be had as Avould blot out its existence without an opportunity to be heard. [School Dist. v. Smith, 90 Mo. App. 215 .]
Again recurring to the length of time District number 2 has been exercising the functions of a regular school district and no proceedings taken to oust it of the privileges and functions thus exercised, Ave regard it as not an umrise exercise of that discretion Avith which the *670 courts are entrusted in considering the propriety of an extraordinary writ of this nature to refuse it on account of the long delay. [Stamper v. Roberts, 90 Mo. 683 .] Judge Norton’s view in that case is applicable here. He said:
“Conceding, for the purpose of this case, without determining the question, that the change thus made was irregular and in excess of the powers conferred, the question still remains whether, under the facts of the case, a court of equity should interpose its injunctive and restraining process. The proceedings to establish this new district occurred in April, 1880; this suit, assailing its validity, was brought in 1881. In the meantime the new district was, in fact, organized, and has remained so organized, unchallenged by plaintiff, except so far as his protest in paying school taxes assessed against him may be regarded as challenging it. In view of these facts, and the further fact that, during an interval of four years, the de facto existence of the district was' recognized and parties interested have adapted themselves to the changed conditions of things, presumably for school purposes, and incurring expenses necessarily incidental to conducting a school, we are fully justified in affirming the judgment of the circuit court on the ground, if on no other, that plaintiff, by his laches, has allowed a condition of things to exist for years which would make it inequitable to grant the relief prayed for.”
The conclusion we have reached makes unnecessary a review of the brief of relator, or of suggestions advanced in oral argument. For, notwithstanding the position taken, the considerations we have set out above in the circumstances developed by the record, lead to an affirmance of the judgment.
All concur.
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