School Dist. No. 7 v. Board of Com'rs of Creek County

HEFNER, J. School district No. 7 in Creek county, as plaintiff, sued the board of county commissioners of Creek county, as defendant, to recover state aid money alleged to be due the district school by reason of the fact that such funds had been paid by the state to the county treasurer, and because the county treasurer had never turned said funds over to the school district. The funds involved are known as state aid and county aid and gross production tax. It is admitted that the plaintiff has received the per capita amount due the district based on the population of the majority scholastics therein. The amount sued for represents the per capita amount based iipon the minority or separate school scholastics residing in the district. The trial court entered judgment for the plaintiff except as to the portion of the funds it held was barred by the statute of limitations. The plaintiff is what is commonly known as a “common” school district ns distinguished from an “independent” school district. The plaintiff contends that all moneys apportioned to the county treasurer coming from state and county aid and from gross production tax are for the. use and benefit of the white or majority schools; and that the county must maintain the school for the negroes or separate school, as the case may be. by an ad valorem tax levied against all taxable property in the county: and that all state aid money, including the gross production tax. must be paid to the district *2 school, and that the county must produce in cash by an ad valorem tax the full amount of the approved budget to take care of the separate school. In other words, plaintiff contends it has a right to appropriate the state aid money coming into the hands of the county treasurer based upon the scholastic population of the separate school. The board of county commissioners contends that the moneys received for a separate school from the state aid and gross production tax are for the use and benefit of the separate school; and that the. funds so received for the use of the separate school, based on the number of separate school scholastics, is to be used to defray the expenses of the maintenance of a school for that separate district and that the funds are to be deducted from the amount of moneys necessary for the maintenance of said separate school at the time of making the levy for the maintenance by an ad valorem tax. Both the plaintiff and defendant refer to the case of Board of County Commissioners v. School District No. 19, Carter County, 119 Okla. 20, 248 Pac. 324. In that case it was said: “The separate school provided for by law is as much a part of the common school system of the state as the majority school, and it may be a white school as well as a negro school (section 10569, C. O. S. 1921; Railway Co. v. Lane, 69 Okla. 145, 170 Pac. 502), and while there is a different method in assessing and collecting ad valorem taxes for the maintenance of the separate from the majority school, there is no provision of the statutes to indicate any difference in their relation to, or right in, the gross production tax.” This clearly and correctly holds that the separate school is as much a part of the common school system of the state as is the majority school, and that the separate school is entitled to its proportionate share in the gross production tax fund. It is true that in the Carter County Case the county treasurer was required to pay over to the treasurer of the school district all of the gross production tax received by him, including the amount that was held by him derived from the scholastics of the separate school. This was a correct holding because school district No. 19 composes the City of Ardmore and is an independent district and the law relating to the separate school in an “independent” district is altogether different from that relating to a separate school in a ’’common” school district. The officers of a district school board consist of a director, a clerk, and a member. The officers of a board of education of an independent district consist of a president, vice-president, clerk, and a treasurer. (See sections 10351, 10409, and 10413, C. O. S. 1921). In an independent school district the board of education has the power to prescribe rules and regulations for the government of both the independent and the separate school. It elects the teachers for both schools. It makes the estimate for the support and maintenance of both schools. Not only is this true, but when the taxes are levied and collected for the support and maintenance of the separate school, it is the duty of the county treasurer to pay the same into the hands of the treasurer of the independent district. (See section 10574, C .O. S. 1921.) In a common school district the district board does not have the power to prescribe rules and regulations for the government of the separate or minority school. It does not elect the teachers in the separate school. It does not receive nor disburse the funds of the separate school. In fact, it has no authority whatsoever over the separate school. In the common school district the estimate for the maintenance of the separate school is made by the county commissioners. The county superintendent prescribes the rules and regulations for the government of the separate school. All orders or warrants for the expense of such school are issued upon the county treasurer by the county clerk and countersigned .by the county superintendent. (See section 10579, et seq., C. O. S. 1921.) It is the duty of the county treasurer to receive all funds for the support and maintenance of the separate school in a common school district and hold the same for the benefit of the separate school in such district and disburse the same upon the warrants drawn by the county clerk upon the county treasurer and countersigned by the county superintendent. The contentions herein by the plaintiff have Keen recently decided against it in the case of Board of Education of City of Sapulpa v. Board of Commissioners of Creek County, 127 Okla. 132, 260 Pac. 22. In this case, Mr. Justice Riley, speaking for the court, said: “We hold, therefore, that not only are the separate scholastic enumerations to be considered in the apportionment of funds derived from the common school fund as aid, but such separate schools are entitled to equal benefit in the expenditure of such funds by reason of section 3, art. 11, of the Constitution, and section 10493, C. O. S. 1921, et. seq., providing for the enumeration of all *3 school children in the state, including both negroes and whites, sections 10236, 10237, C. O. S. 1921, providing for the apportionment of the state common school fund to various counties, and section 10315, C. O. S. 1921, providing for the apportionment of the common school fund to various school districts.” This ease clearly holds that the separate schools are entitled to the equal benefit of the expenditures of the state aid known as the gross production tax fund. It must therefore follow that the moneys received for a separate school from state aid and gross production tax are for the use and benefit of the separate school; and that the funds so received for the separate school, based on the number of separate school scholastics, is to be used to defray the expenses of the maintenance of a school for that separate district ; and that the funds are to be deducted from the amount of money necessary for the maintenance of said separate school at the time of making the levy for the maintenance by an ad valorem tax. Under the Constitution, the statutes, anu the eases construing them, we think the law may be summarized as follows: Separate schools for white and colored children with like accommodations shall be provided by the Legislature and impartially maintained. The separate school provided for is as much a part of the common school system of the state as the majority school, and it may be a white school as well as a colored school. The one has as much right in and to the state aid.fund provided for by the Constitution and the statutes as the other. Funds created and set apart for the support and maintenance of the one cannot be expended and used for the support and maintenance of the other. The separate school in an independent school district is under the management and control of the board of education of the independent school district and, under the statute, all funds collected by the county treasurer for the support and maintenance of the separate school, when collected, must be paid into the treasury of the independent school district. In common school district the district hoard has neither authority nor control over the separate school. It neither employs teachers nor disburses the funds of the separate school. The estimate for the maintenance and support of such separate school is made by the county commissioners. The county superintendent employs the teachers and prescribes the rules and regulations for the separate school. The funds are disbursed by warrants drawn by the county clerk on the county treasurer and countersigned by the county superintendent. The plaintiff has neither authority nor control over the separate school in district No. 7. There is no statute that authorizes it to receive or disburse the funds belonging to the separate school. All this authority was by the Legislature placed in other hands. It therefore follows that it is not entitled to recover the funds sued for. Taking this view of the case, it is not necessary to de‘-termine whether or not the statute of limitations is applicable. The judgment of the tvnai court is reversed, with instructions' to «ater judgment for the defendant. MASON, V. C. X. and LESTER, HUNT, OLARK, and RILEY, JX, concur. PIIELPS, X, dissents.