Cooke v. SchooL District No. 12

De France, C. By a legislative act approved February 25, 1887, and taking effect from and after that date, the county of Logan was created out of territory formerly embraced by the county of Weld. The defendant in error, school district No. 12 of Logan county, claims that at that time it was, and had been for several years prior thereto, school district No. 12 of Weld county; that it still embraces the same territory and has the same boundaries as when originally organized; that it lost none of its rights as a school district under the laws of the state by reason of the creation of the new county; and that it is entitled to a proportionate share of the general county school funds in the treasury of Weld county on the first Monday of April, 1887, the same as though the county of Logan had not been created. The county superintendent of schools of Weld county having refused to recognize such right, this action was instituted by such district against said superintendent to compel the latter, by writ of mandamus, to recognize the same, and to perform and carry out what it asserts was the duty of such officer in the premises. The writ was granted by the court below, and the cause has been brought to this court for review. — 455 — The act creating Logan county makes no proper provision for a division between the new and the old county of the funds or property belonging to the old county. See opinion of this court, recently filed, in the cases of Logan Co. v. Weld Co., and of Washington Co. v. Same, ante, p. 152. These cases, in which said opinion is filed, were brought to enforce an equitable division of surplus county and road funds. The law, aside from said act, contains no such provision, and, in the absence of an express statutory provision to that effect, the old county is entitled to retain the school funds now in question, if they belonged to it at the time of the creation of the new county. See opinion supra, and cases there cited. A fair and proper construction of all the provisions of law concerning the public school system of this state can, we think, lead to but one conclusion with regard to the ownership of the funds over which this contention has arisen; and that conclusion is that they belonged to the county of Weld, for the purposes for which they had been provided, until accredited to the different school districts of that county under the law. Whether the ownership of such funds may be held to continue in the county after being so accredited to the districts, and until the money is actually .paid out by the treasurer of the county in the manner provided by law, we need not say. It is contended by counsel for defendant in error that at least after, if not before, the annual estimate provided for in section 3067, General Statutes, is made, the funds provided for the current school year belong to the school districts in proportionate parts, according to such estimate, and not to the county; and that, when such estimate was made in October, 1886, by the county superintendent of Weld county, the right of defendant in error to a proportionate share of such funds attached and became vested in it, and that such right was not divested or impaired by the creation of Logan county. Much im — 456 — portance seems to be attached by counsel to the words “shall belong to each district,” found in said section 3067; but the language of this section must be construed in connection with all other provisions of the law which have a bearing upon the same subject-matter. When thus construed the words “ shall belong to each district ” cannot be held as importing an ownership in the districts from the date of such estimate, but rather that at some time thereafter the districts should have such control over or interest in such funds as is provided by law. The making of such estimate does not include an apportionment of the funds, for no part thereof is thereby actually set apart or credited to any district; nor is that done until the quarterly apportionments are made as provided for in section 3014, General Statutes. The amount which each district shall receive during the year is not fixed by such estimate; nor could it be, for such amount depends upon the amount to be derived from the collection of taxes and from other sources, as well as upon forfeitures and the creation of new districts from unorganized territory. Such new districts, if any be created, are entitled to a share of such funds. Sec. 3025, Gen. St. They must, within the time limited by the section last named, open and maintain public schools. A public school is one that derives its support in whole or in part from moneys raised by taxation. Taxes for the support of our common schools are all levied by the respective counties, and but once in each year. A new district may be created from unorganized territory shortly after such annual levy; and in that cáse, if it were not entitled to a portion of the public funds, it could not, for want of proper funds, maintain the school required by law, and would as a consequence lose its organization. By giving to such new district its share, the amount going to each of the old districts is proportionately reduced. In case of forfeiture by one or more districts, then the amount going to each of the others is, by reason of such forfeiture, pro — 457 — portionately increased. The fact that the amount or proportion to which each district may be entitled is thus subject to diminution or enlargement undermines and destroys the argument advanced by counsel for defendant in error that a right attached and became vested in it to a proportionate share of the funds in dispute upon the making and from the date of such annual estimate. The act establishing Logan county does not refer to or mention by name the subject-matter of school funds or of school districts, unless school funds were intended to be included in the expression “all matters of revenue,” found in section 11 of said act; and, if such was the intention, then for the want of a proper provision for their apportionment or division between the two counties, or the respective school districts thereof, the old county is entitled to retain the same as funds belonging to it, according to the principles announced by this court in the opinion hereinbefore referred to. That the general school fund, referred to in section 3067 of the General Statutes, belongs to the county, to be used and distributed for the purposes and in the manner provided by law, until such time at least as it is apportioned and accredited to the respective school districts, is evidenced, we think, by the whole tenor of the law, and notably by section 4, article 9, of the state constitution, and sections 3006, 3064, General Statutes. The custody and control thereof is in the county, through its proper officers, until actually paid out by the county treasurer. It is not paid or delivered over to the school districts or their respective treasurers, but it is kept in the county treasury and paid out to the legal holders of the orders of such districts, properly drawn in favor of parties to whom, the districts have become lawfully indebted, and not otherwise.- Sec. 3048, Gen. St. The special district funds are paid out in the same manner, but the districts themselves direct the levy of such special funds and its amount, while they have no voice in the levy of the — 458 — county school tax. The county commissioners control the latter,— under certain restrictions, it is true,—but they are given a discretion, within certain limits, as to the amount of such general levy. The control of the general fund is thus removed from the districts as far as it may be consistently with their right to participate in the same at all, or in the benefits to be derived therefrom. Counties are expressly made responsible to the state for taxes levied for state purposes, with certain exceptions (sec. 2686, Gen. St.); but there is no statutory provision, so far as we can discover, which makes a county liable to school districts, or otherwise, for a loss of the general school fund, even though such loss should occur after the fund has been apportioned and accredited to such districts. A county school superintendent has no supervision over school districts situated outside of his own county; nor has he any official knowledge thereof or official connection therewith; nor has he any authority to apportion to such outside districts the general school fund of- his county, or any part thereof. The case presented is one of apparent hardship. But the courts are powerless in the premises. It was competent for the law-making power, when it established Logan county, to make provision for an apportionment of the fund in question; but it did not see fit to do so. Its failure in this respect may be deemed an omission or oversight, but it is one which the courts cannot supply without passing outside of their own province. They cannot extend provisions of law enacted for an entirely different purpose, and having no such object in view, to apply to a case in hand in order to furnish the relief demanded, for that would be no less than usurpation. When courts undertake to make laws for “hard cases” they pass out of their proper sphere. We are constrained to deny the relief sought. The judgment must be reversed and the action dismissed. Bising, 0., concurs. Stallcup, 0., dissents. — 459 — Per Curiam. For the reasons stated in the foregoing opinion the judgment is reversed and the cause remanded, with directions to dismiss the action. Reversed.