#### S. H. H. Clark et *al., as Receivers of the St. Joseph & Grand Island Railroad Company,*v. W. B. Deveraux and School District No. 2 of Doniphan County.

No. 532.

School *Districts*— Taxation—Requirements *of District.*A court cannot decide from the expenditures of the past alone that a tax voted by the electors of a school district is arbitrary, oppressive, and illegal, or that it will produce a sum which, added to the amount then on hand, will be in excess of the reasonable requirements of the district.

Error from Doniphan district court; R. M. Emery, judge.

Opinion filed April 26, 1899.

Affirmed.

*M.*A. *Reed,*and *J. J. Baker,*for plaintiffs in error.

A. *S. Brewster,*for defendants in error.

The opinion of the court was delivered by

Wells, J.:

This action was brought in the district court of Doniphan county by the receivers of the St. Joseph & Grand Island Railroad Company to recover from School District No. 2, Doniphan county, $1139.75 claimed to have been illegally levied against plaintiffs’ property in said district, and paid under protest to avoid a levy and sale of their property. After the plaintiffs rested, in the district court, the defendants interposed a demurrer to the evidence, which the court sustained, and the action is brought here for review.

Previous to the submission of the case on its merits, the defendants in error filed a motion to dismiss these proceedings for the reason that the plaintiffs had ceased to be the receivers of said railroad company, and the plaintiffs in error filed the petition of *342Oliver W. Mink and Thomas P. Wilson, setting forth that on May 4, 1898, the plaintiffs in error herein resigned as receivers, which resignations were accepted by the court, and said petitioners were appointed and qualified as successory receivers in their place and stead, and asking that this action be revived in the name of said petitioners, and that it proceed in their names. This court, being fully advised in the premises, overruled the motion to dismiss, and ordered this action to be revived and henceforth prosecuted in the name of Oliver W. Mink and Thomas P. Wilson, receivers of the St. Joseph *&*Grand Island Railroad Company.

The only question raised on the merits is, Does the evidence offered and introduced by the plaintiffs entitle them to a judgment? The evidence upon the trial established the following facts : At the annual meeting of said school district held on July 25, 1895, the electors voted a tax of five mills on the dollar on all the taxable property in the district, of which three mills was for teachers’ wages and two mills for incidentals. The amount of this tax levied against plaintiffs’ property was $1139.75, which sum plaintiffs paid under protest to save the property from sale. At said time there was in the hands of the county treasurer $3833.74 belonging to said school district, and on June 30, 1895, there was in the hands of the district treasurer $469.28. On July 25, 1895, there were no debts existing against said district. The total expense for the last preceding year was $1508.25, of which $1160 was for teachers’ wages, and $348.25 forrents, repairs, fuel, and other incidentals, and of the amount in the hands of the county treasurer $2000 was paid by the plaintiff company as a bridge tax, which had been in litigation. The plaintiff also offered to prove that the *343total amount expended by said school district for the year 1891 was $1921.04; for 1892 was $1431.47 ; and for 1893 was $1871. This was all the evidence offered which had any bearing on the necessities of the district or the intention of its voters in relation to future disbursements. The presumption is that the voters of a municipal corporation, within the limit prescribed by law, are the best judges of the necessities of their municipality, and it must be a flagrant misuse of their privileges that would justify a court in pronouncing their action as arbitrary, oppressive, and illegal. That courts may do so in extreme cases we do not deny, but before they will presume to pronounce such a-judgment it must affirmatively appear to be justified by the evidence.

In the case at bar we are in utter darkness as to the requirements and necessities of the school district, except through such light as may be shed on the subject by the expenditures of the preceding years. Cases may be easily imagined where the past would furnish but little light as to the needs of the present. A new schoolhouse, improved appliances, additional teachers and of a higher grade may all be demanded by the peculiar situation in which the school district is placed, and of all this we have no knowledge, and can get none from the record.

The judgment of the district court is affirmed.