
    Board of Education of Hopewell Township, Perry County, v. Guy, County Auditor, et al.
    
      Levy or collection of tax — Action to enjoin — Gan only be by taxpayer.
    
    An action to enjoin the levy or collection of a tax can be maintained only by one who is a taxpayer.
    (Decided April 16, 1901.)
    Error to the Circuit Court of Perry county.
    The plaintiff below, the board of education of Hopewell township, Perry county, commenced an action in the common pleas against the auditor and treasurer of the county to enjoin the levy and collection of a tax, levied by the commissioners of the county for school purposes in a newly created joint subdistrict. The questions are presented on a demurrer to the petition which is as follows:
    “The said plaintiff says that Hopewell township, in Perry county, Ohio, is a school district duly organized under the laws of this state and the said plaintiff is the board of education thereof. Plaintiff further says that the defendant, Charles C. Guy, is the duly elected, qualified and acting auditor of Perry county, Ohio, and the defendant, William R. Calkins, is the duly elected, qualified and acting treasurer of said Perry county, Ohio. Plaintiff further says that on April 12, 1898, there was filed in the probate court of Perry county, Ohio, a paper called a petition, signed by C. E. Deffenbaugh and nine other persons praying for the establishment of a joint subdistrict, embracing the territory bounded as follows
    (The description being immaterial is omitted.)
    
      “The plaintiff says: That the description contained in said petition is as above set forth and said petition contains no other or further identification of the territory and no plat thereof was filed therewith. That Madison township in said Perry county is a school district and is four miles from east to west and six miles from north to south, that the said township lies in the northeast corner of said Perry county, that said Hopewell township is a full original surveyed township and adjoins said Madison township on the west side thereof. The plaintiff further says that the above bounded territory embraces a very large tract of territory in said Madison township; that on the filing of said alleged petition in said probate court said court appointed three commissioners to act in said pretended proceeding to establish a joint subdistrict and fixed a time and place for them to meet and published a notice thereof in two newspapers of opposite politics published at New Lexington in said county. That said commissioners at the time, which was June 1, 1898, and the place (which was said C. E. Deffenbaugh’s home) met and attempted to and went through the formality of establishing a joint sub-district and made a report to said court in writing, that they had established a joint subdistrict and gave in their report the same lines and description above set forth, copying the same identically from said alleged petition. That said commissioners occupied, and say they were four days in discharge of said duties, and on the fourth day of June, 1898, filed their report in the said probate court, and said court immediately entered an order on its journal approving and confirming the same, and offered no opportunity for objections or exceptions thereto. The plaintiff further says that there was no proceedings had or taken before the boards of education interested in said territory, as required by law, prior to the filing of said alleged pretended petition in said probate court. That the clerk of said Madison township had no notice whatever of any proceedings to establish said pretended joint subdistrict and. neither had the b.oard of education of said Madison township or any of its members, and did not, nor did any of them act in said pretended proceeding at any time. And no certified copy of the commissioners’ report, plat or court’s order was ever delivered to the clerk of the board of education of said Madison township. Plaintiff further says that said commissioners say in their .report in reference to school-house and site the following:
    “ ‘We further find and report that there is no suitable school-house within such boundaries, and we designate as a site therefor a piece of ground in the southeast corner of the northwest quarter of section two, Hopewell township, Perry county, Ohio, south of the public road, but as near said road and as near the east line of said quarter section as practical.’
    “Plaintiff says that the above is all that is said in said report as to school-house or site therefor, or either, and there is no designation therein or thereby of a site whereon to build a school-house if said district was otherwise legally established. Plaintiff further says that said probate court was wholly and entirely without jurisdiction in said proceedings and each and every act done or attempted by it was illegal and void, and further says that by including in a joint subdistrict the territory that it is claimed by said alleged boundaries is embraced therein, belonging to said Hopewell township, it destroys three sub-districts in said township and would afford the children of this alleged joint subdistrict no better school facilities than they already have and Avould put an unnecessary burden of taxation on the people of said toAvnship and impair their present school facilities, and schools which are noAv among the best in the state, and said pretended report of said commissioners is fraudulent and an injustice, fraud and wrong on the schools and people of said township and might and' could have been so shown. . And for each and all of the above enumerated reasons the said board of education of Hopewell township by the unanimous vote of its members refuse to levy a tax for the building of a school-house or any other purpose for said pretended joint school district.
    “The plaintiff further says that thereafter the said' C. E. Deffenbaugh and others made application to the board of county commissioners of Perry county', Ohio, to levy a tax upon the people of said Hopewell township and Bowling Green township in Licking county, to build a school-house, employ a teacher, purchase fuel, etc., for said pretended joint sub school-district named by thém No. 11, and the said board of county commissioners illegally and without jurisdiction or authority of law, and by reason of the aforesaid illegal and void proceedings, made said levy, Avhich is illegal and void, and on June 26, 1899, made the following entry thereof on their journal, to-wit:
    “ ‘ENTRY.
    “ ‘In the matter' of the application of O. E. Deffenbaugh et al. for a levy, etc., for joint subdistrict No. 11, HopeAvell township, Perry county, Ohio.
    “ ‘This matter came on for hearing on .the application of G. E. Deffenbaugh et al. for a levy for joint subdistrict number 11, HopeAvell toAvnship, Perry county, Ohio, Bowling Green township, Licking county, Ohio, and the evidence, and after hearing all the evidence we find: That all of the statements and allegations contained in said application are true; That the said joint subdistrict number 11 had properly, regularly and legally established and that the same is under the care, jurisdiction and control of the board of education of Hopewell township, said county and state, and that the said the board of education of Hopewell township, said county and state, did fail and neglect to provide and furnish sufficient school privileges for the youths of school age in said joint subdistrict number 11. Did fail to provide for the continuance of school in said district for at least six months in the said year. Did fail to provide said district an equitable share of school advantages, and did fail and neglect to provide a school-house for said district number 11. Wherefore we find that in order to secure the site heretofore selected and erect a school-house thereon it requires the sum of $1,500; for a teacher the-sum of $240.00, and $60.00 for fuel etc., which will be raised by levy of .0018 mills on the taxable property of Hopewell township, Perry county, Ohio, for said township proportion of funds for the support of said joint subdistrict. We further find that said township has a township high school and that the levy made by said board of education with the levy herein made does not exceed the levy authorized by law.' Therefore we hereby report said levy for said joint subdistrict at .0018 mills to the county auditor and instruct him to proceed with the same according to law. And the said county auditor is hereby authorized and instructed to notify the Auditor of Licking county, Ohio, that the said board has this day made levy of $460.00 on the taxable property of Bowling Green township, Licking county, Ohio, for the support and maintenance of the joint subdistriet No. 11, as said township proportion of the amount of funds to be raised for the support of said joint subdistrict.’
    “The said plaintiff further says that the said de-' fendant, Charles C. Guy will, unless restrained by the order of this court proceed to enter the tax levy above set forth upon the tax duplicate of said Hopewell township, and the said William R. Calkins as county treasurer of Perry county will proceed to collect the same unless restrained by the ordetr of this court. Wherefore the plaintiff prays that, the said Charles C. Guy, county auditor, be enjoined from placing said levy oh the tax duplicate of said Hopewell township, and said William R. Calkins, countv treasurer, be enjoined from collecting the same and for all other proper relief in the premises.”
    The grounds of the demurrer are, 1, that the plaintiff has no legal capacity to sue; 2, defect of parties plaintiff; 3, misjoinder of parties defendant; 4, defect of parties defendant, and, 5, the petition does not state facts sufficient to constitute a cause of action.
    The demurrer was sustained; and the plaintiff not desiring to amend, judgment was entered upon the demurrer dismissing the action. On error the judgment was affirmed by the circuit court; and error is prosecuted here for a reversal of the judgment in both courts.
    
      John Ferguson and James E. Johnston, for plaintiff in error.
    It was claimed by the defense in the courts below, and will therefore no doubt be claimed here, that the board of education of Hopewell township has no right to enjoin this levy, or in any case stop or interfere with the collection of the tax and building of a school house in its district, and within its territory.
    We ought not to be compelled to combat such fallacy, or to argue in favor of the right of plaintiff in error to maintain this action.
    The court Avill find by referring to Sec. 3971, Rev. Stat., that each board of education is made a body politic and corporate, and as such capable of suing and being sued, contracting and being contracted with, etc.
    The statutes also place all schools and school houses in the district in charge of the board of education of such districts and give the board the entire control and management of all schools and school houses in the district.
    They also require such board to make all provisions for schools and the education of all school youth within its territory. Sections 4007, 3987, Revised Statutes.
    The board of county commissioners in this case is an interloper and their acts and attempts to levy and collect tax and build a school house is no more than if an attempt were 'made by any other unauthorized board or person to do such an unauthorized and illegal act, and then claim that the plaintiff in error was bound to stand idly by and let them perpetrate their unlawful acts and inflictions ou their district, and after it was done claim and require the plaintiff in error contrary to its judgment to maintain and support its illegal and unlawful inflictions.
    The mode of establishing joint subdistricts is provided by chapter .5 of Title 3, Rev. Stat., commencing Avith Se,e. 3928.
    
      It will therefore be plainly seen that no such proceedings were had as authorized these electors to appeal to the probate court. The Madison township district clerk, it is alleged, had no notice of the preliminary proceedings. It is also alleged that there were none of the members of the board of education of that district had notice. That this should have been done and the action of said board taken, or its nonaction, was a prerequisite to the electors, right to appeal to the probate court, and without it, that court was wholly and entirely without jurisdiction of the proceeding, and each and every step taken and act done Avas void, and being void are subject to attack collaterally, and in every other way when the same is attempted to be enforced. It is a void proceeding and has no life or Adtality Avhatever. We have alleged and shown by our petition that these persons had no right to go before the probate court or to proceed in any respect therein whatever. We have shown that that court had no jurisdiction in the case, and that court like all other courts where no jurisdiction is obtained is powerless to act, and any attempted action, however apparently regular, is void.
    This question was carefully considered and all the cases in Ohio considered and referred to by this court in the case of Wehrle v. Wehrle, 39 Ohio St., 365.
    Again, section 3928 requires the commissioners, if there is no school house, etc., to designate a site. In this case, as we have shown, they say that the site shall be south of a public road in a named quarter section, and as near the road and east line as practicable, this is no designation.
    
      Moss v. Board of Education, 58 Ohio St., 354; Am. and Eng. Ency. Law, 643.
    
      
      Donahue, Spencer & Donahue and J. E. Powell, prosecuting attorney, for defendants in error.
    It is a universal principle based in reason and in the policy of all code procedure, that the real party in interest must be the plaintiff in the case. If one be not injured by the grievances complained of, or be not subject to any pecuniary loss thereby, he is not the real party in interest and can plainly bring no action in reference thereto. From these principles it is not only apparent but it is settled as a matter of law, that only a taxpayer, (that is a person who may be compelled to pay a portion of a tax), can enjoin the levy and collection of the tax. High on Injunctions, Sec. 573; McMahan v. Welch, 11 Kan., 280; Center Township v. Hunt, 16 Kan., 430; Nunda v. Crustal Lake, 79 Ill., 311; State v. McLaughlin, 15 Kan., 228; Ewing v. Board of Education, 72 Mo., 436; Trustees v. Thoman, 51 Ohio St., 285; Weir v. Day, 35 Ohio St., 143; Slavin v. Greene, 4 Dec., 99 (2 N. P., 39); Webb v. Ohio Gas & Fuel Co., 9 Dec. (Re.), 662, 16 W. L. B., 121; Buning on Behalf of Cincinnati v. Street Railroad, 1 Circ. Dec., 178, 1 C. C. R., 323; Moody v. Arthur, 16 Kan., 419.
    It is equally well settled on principle and authority that a pleading is demurrable if it fails to join necessary parties defendant without whose joinder the action can not be legally prosecuted. The petition of plaintiff in error, record pages 9 and 10, avers that a portion of Madison township, Perry county. Ohio, and a portion of Bowling Green township, Licking county, Ohio, were included within the boundaries of the joint sub-school district established by the probate court of Perry county, Ohio, and were parties to said proceeding in said court, the alleged irregularities of whose orders and judgment are the predicate of this proceeding to enjoin the tax. A portion of the tax levy must necessarily have been for the benefit and use of such portions of Madison and Bowling Green townships, as fell within the boundaries of said joint sub-school district, consequently the boards of education of said Madison and Bowling Green townships were necessary parties to this proceeding, even if the plaintiff had been a person with legal capacity to sue. Section 5849, Revised Statutes; Atchison, etc., R. R. Co. v. Wilhelm, 33 Kan., 206; Cooley on Taxation, page 76; 10 Ency. PI. and Pr., 911.
    The probate courts of this state are, in the fullest sense, courts of records. They belong to the class whose records import absolute verity; that are competent to decide on their own jurisdiction, and to exercise it on final judgment, without setting forth the facts and evidence on which it is rendered.
    The probate court of Perry county, Ohio, plainly had jurisdiction of the subject matter involved in the proceeding to establish the joint sub-school district named.
    It is ton late to question the validity of this proceeding in an action of the character of the one at bar, which is purely.collateral. The only remedy the plaintiff in error could have had if it was aggrieved, was a proceeding in error to have reversed the holding of the probate court in the original action itself, or to have caused the judgment thereof to have been set aside for fraud. The judgment of the probate court can not be collaterally attacked upon a state of facts such as are averred in the petition of plaintiff in error. Shroyer v. Richmond, 16 Ohio St., 455; Board of Education v. Stuck, 39 Ohio St., 259; Eckstein v. 
      Board of Education, 4 Circ. Dec., 149, 10 C. C. R., 480; Lewis v. Laylin, 46 Ohio St., 663.
    The same rule is recognized in proceedings of township trustees in the establishing of ditches. Haff v. Fuller, 45 Ohio St., 495; Mills v. Board of Equalization, 1 C. S. & C. R., 566.
    The fact that a judgment of the probate court cannot be collaterally attacked and made the basis of an action to enjoin the collection of a tax, as is attempted in this proceeding, is too well established to be further questioned in this state. Sheldon’s Lessee v. Newton, 3 Ohio St., 494; Heckman v. Adams, 50 Ohio St., 305; Slagle v. Entrekin, 44 Ohio St., 637; Callen v. Ellison, 13 Ohio St., 446; King v. Bell, 36 Ohio St., 460, Lindeman v. Ingham, 36 Ohio St., 1; Railroad Company v. Belle Centre, 48 Ohio St., 273; Brown, Exr. v. Reed, 56 Ohio St., 264; Knapp v. Thomas, 39 Ohio St., 377.
    It is amply established by the authorities cited that, the judgment of the probate court of this state cannot be collaterally attacked in a proceeding analogous to the one at bar. The court had jurisdiction of the subject matter and of the parties, and its judgment is final and conclusive unless reversed on error or set aside for fraud.
   MinshaUj, O. J.

It appears from the record that the common pleas held that the demurrer was well taken on the ground that the petition does not state facts sufficient to constitute a cause of action, entitling the plaintiff to relief, and overruled it on the. other grounds. On error the circuit court simply affirmed the judgment. We are of the opinion that the judgment should be affirmed on the ground that the plaintiff has no right to maintain the action. It is. true that the board of education is made by statute a body corporate with capacity to sue and be sued; but capacity to sue is one thing, and right to maintain a particular action is another thing. The plaintiff has no right to maintain this action, and. the second ground of demurrer is well taken; and might probably have been raised without demurrer. See Buckingham v. Buckingham, 36 Ohio St., 68, 78, where it is said: “To warrant a recovery on the petition, it must show a cause of action in the plaintiff. If the petition fails to show such cause of action, the objection is not waived by a failure to demur, or to make the objection by answer.” It is said in High on Injunctions, section 573: “The governing rule, resting alike upon principle and authority, is that the action to enjoin the collection of a tax should be brought by the taxpayer, whose property and interests are directly affected by the tax which it is sought to enjoin, the same degree of interest being requisite as in all other cases where the extraordinary aid of equity is invoked.” A board of education is not a taxpayer; taxes may be levied for its benefit, but it pays none. Section 3973, Revised Statutes. It has then no interest in the subject of the action, nor is it any part of its duty to prosecute it. Thus it is said in Moody v. Arthur, 16 Kas., 419: “A township cannot maintain an action to enjoin an illegal tax on individual property; only the individual can maintain such action, each for himself or for himself and others with like interest. There is no law making a public corporation the guardian of private rights.” Trustees v. Thoman et al., 51 Ohio St., 285. Here it was held that the trustees of a township cannot sue to recover back taxes paid by its citizens on an illegal levy, the right of action being in the individual taxpayers; and by a parity of reasoning only a taxpayer' can enjoin the collection of an illegal tax.

It is not necessary to consider any of the other grounds, though it may be proper to say that if the suit had been brought by one having the right to maintain it, the demurrer should have been overruled; in other words the petition states a cause of action in favor of a taxpayer; as it appears therefrom that the probate court had not acquired jurisdiction of the matter; and the tax levied by the commissioners was therefore without authority of law. By recurring to the statutes prescribing how joint subdistricts may be formed, (section 3928, et seq.,) it will be observed that, aside from the mutual action of boards of education, they may be formed by petition to a board of education situate within any part of the territory to be included in the proposed district. If the proceedings had before this board are unsatisfactory “three or more electors of the territory sought to be included therein, may file a petition or remonstrance for or against the same,” ih the probate court, which, by the aid of a commission to bo appointed by it, may establish it or not, as is found best. It is evident that no proceedings can be instituted in the probate court, until after action had before the proper board of education. Such action is a prerequisite to the jurisdiction of the probate court, and where it has been omitted, the action taken by the court is of no force or effect whatever, and may be questioned collaterally or otherwise, as may the judgment of any court rendered without jurisdiction. Wehrle v. Wehrle, 39 Ohio St., 365. It is averred in the petition and admitted by the demurrer that no action had been taken before any board of education, prior, to the filing of the petition by Deffenbaugh and others in the probate court. The court then had no jurisdiction, and its action in the premises was a nullity. But, for the reason before given, the judgment must be affirmed. Neither this court, nor the court below, can render judgment on the merits of a case, in an action where there is in law no party entitled to the relief prayed for.

Affirmed.

Williams, Burket, Spear, Davis and Shaugk, JJ., concur.  