School District No. 13 v. State

The opinion of the court was delivered by Valentine, J.: On August 29th 1871 the superintendent of public instruction of Pottawatomie county formed a new school district from territory previously belonging to School Dist. No. 13 of said county, and designated said new district as District No. 63. Everything pertaining to the formation of said new district seems to have been regular, except that the superintendent did not, at the time of such formation, apportion the amount of the property to which each district was entitled. The school-house and other property remained in the old district. Afterward, and on March 25th 1872, the superintendent did apportion said property, and in the apportionment determined that School District No. 13 should pay the new district the sum of $131110 as its proper proportion. The only question now presented to us for consideration is, [47] whether said apportionment is void, or valid. We think it is valid, although there are some very strong reasons tending to lead to a different conclusion. The objection to the apportionment is, that it was not made at the time of the creation of the new district, and this is the only objection. Of course, under the law it should have been made at the time of the creation of the new district. (Gen. Stat. 926, § 50.) But does its validity depend upon its being made precisely at that time? Is time of the essence of the law, in this respect? We think not. It is fair, and just, and equitable, when a school district is divided into two new districts, that each should have its fair proportion of the value of the property belonging to the old district at the time of the division. Or what is the same thing, it is fair when a new district is carved out of an old one that the new district should have its fair proportion of the property or value thereof which belonged to the old district at the time the new one was created. And this fairness, equity and justice we think is more of the essence of the law, than mere time in making the apportionment. Will it be claimed that the new district must lose its proportion of the property, or the value thereof, if the superintendent should for a single day after creating the new district fail or neglect to make the apportionment? If neither of the districts, nor any person having any interest in either of the districts, has any right to appeal from the action of the superintendent in making or failing to make any apportionment, then there would seem to be but little reason for requiring that the apportionment should be made on any particular day, provided it be made within a reasonable time after the new district is created. And the statute (Gen. Stat. 926, § 51; Laws of 1872, p. 372, § 2,) does not in terms seem to give the right of appeal to either of the districts as a corporate entity, but merely to some person, or persons, who shall feel aggrieved. The word “person,” or “persons,” as used in the statute, may however include the corporation as well as real persons, for the corporation itself is in one sense a person, an artificial person. And the right of individual [48] persons to appeal may be confined to personal grievances alone, and may not be extended to grievances which directly affect only the district as a corporation, and which indirectly affect all the individuals alike, one as much as another. (As to private individuals championing the rights of the public, see Bridge Co. v. Wyandotte County, 10 Kas. 326, 331, and cases there cited; Miller v. Town of Palermo, 12 Kas. 14.) Besides, a question may be raised under the statute, whether the right to appeal extends merely “ to the formation or alteration of a school district,” and no further, or whether it extends as well to all matters incidental “to the formation or alteration of a school district.” For the purpose of this case we shall assume that the right of appeal exists, and has existed to the fullest extent ever since said new district was created. It would seem unreasonable that the legislature should not give an appeal in cases of this kind. And with a liberal construction of their language, probably they have given it. Then, if we are correct so far, we think it follows, that the superintendent, after he created said new district, had the right, at any time, and of his own volition, to make said apportionment; that the new district had the right at any time after the failure to make said apportionment to compel him to do so by an action of mandamus; that any person or persons feeling aggrieved by such failure had a right to appeal to the board of county commissioners, (Gen. Stat. 926, § 51,) and after the superintendent made the apportionment any person or persons who felt aggrieved thereby had a right to appeal. If any right to an appeal from an apportionment has ever existed, it is because the apportionment is incidental to the creation of the new district and the alteration of the old. And if the apportionment may be made at any time after the new district has been created, it is also because of its connection with creation of the new and the alteration of the old. And therefore, as the right to make the apportionment follows (whenever made) as an incident to the creation and alteration of the two districts, the right of appeal also follows (provided it exists in any case of [49] apportionment,) as incidental to such creation and alteration, and may b’e exercised by any person feeling aggrieved by the apportionment whenever the same is made. If there should be any fraud in the apportionment, we should also think that the district defrauded would have a remedy, either as plaintiff or defendant, by a proceeding in the nature of a bill in equity. With reference to taking an appeal from said apportionment, it has been said that the law was so amended in 1872, (just four days before the apportionment was made) that an appeal would be impossible in this particular case. (Laws of 1872, pp. 372, 373, §§ 2, 3.) This may be true, if the law of 1872 is to govern; but under §1, of the act concerning the construction of statutes, (Gen. Stat. 999, § 1, sub. 1,) we think the law of 1872 would not govern in this case, but that the provisions of the previous laws would govern. Willetts v. Jeffries, 5 Kas. 473; Gilleland v. Schuyler, 9 Kas. 569; The State v. Boyle, 10 Kas. 113; Morgan v. Chappel, 10 Kas. 224; The State v. Crawford, 11 Kas. 32; Jenness v. Cutler, 12 Kas. 500, 511, 512; Ayers v. Probasco, 14 Kas. 175. The judgment of the court below is affirmed. All the Justices concurring.