dissenting.
The important question in this case is: Can the relief sought by plaintiff be obtained by injunction? Section 6491, Rev. St. 1913, provides: “No injunction shall be granted by any court or judge in this state to restrain the .collection of any tax, or any part thereof hereinafter levied, nor to restrain the sale of any property for the nonpayment of any such tax, except such tax or the part thereof enjoined be levied • or assessed for an illegal or *81unauthorized, purpose.” That a school district may levy taxes to meet the expenses of the district for the ensuing school year, and that it may also vote a tax for the purpose of creating a building fund, must be conceded. To make such a levy or to vote such a tax is not, therefore, either “illegal” or “unauthorized.” In the suit at bar the most that can be said of the levy for expenses during the ensuing school year is that the levy was excessive; and the most that can be said about the tax voted to create a building fund is that the formalities prescribed by statute had not been observed in voting the tax. These facts do not render either the levy for expenses for the school year or the tax for a building fund subject to the charge that they are “levied or assessed for an illegal or unauthorized purpose.” Conceding that the former is excessive and the latter irregular, plaintiff would not be entitled to an injunction, for the reason that it had an adequate remedy by appeal from the action of the county board. By such a proceeding the levy could have been adjusted in an orderly manner, and, if excessive, could have been reduced and the amount of plaintiff’s just liability for taxes could have been definitely determined. This suit illustrates the wisdom of -a statute like section 6191. Public officials, charged with the duty of providing the revenues necessary, for any department of the government, should not be interfered with or embarrassed by the extraordinary writ of injunction, except where it is clearly shown that such officials are proceeding fraudulently, or without authority of law, and that the relator has no legal remedy by appeal or otherwise. Moreover, so far as the record shows, the county board acted regularly, without any notice of the fact that the school district board were attempting to obtain an exces- ■ sive levy, or that they had on hand or under their control any surplus not disclosed by their report.
Letton and Rose, JJ., concur in above dissent.