Board of Education of Alpine School Dist. v. Board of Education

THURMAN, J. The plaintiffs, consisting of divers school districts in the state of Utah outside of Salt Lake City, bring this action to review the proceedings of the board of education of Salt Lake City, George King, its clerk, and certain state officers, in respect to the apportionment and distribution of school funds for the year 1922, belonging to the school districts of the state. It is claimed by the plaintiffs that a portion of said funds has already been apportioned and distributed contrary to law, and that other funds will be apportioned and distributed, and that, as against said unlawful procedure, plaintiffs have no appeal or other plain, speedy, or adequate remedy at law. The basis of plaintiffs’ contention is that-defendants, especially the board of education of Salt Lake school district and its clerk, George King, for the year 1922, disregarded the statute which provides for ascertaining the school population of the various school districts, and made an erroneous report to the state superintendent of public instruction of the school population of Salt Lake City 'school district, whereby it was made to appear that there were 5,038 more school children within said district than actually existed according to the census authorized by law. It is then alleged that the other school districts of the state, including plaintiffs, followed the method required by law in taking and reporting the school population of their respective districts, and that because of the erroneous report made by the board of education of Salt Lake City and its said clerk, and the adoption thereof by the state superintendent of public instruction, the apportionment of the school funds made by him among the several school districts of the state resulted in an excess allowance to the Salt Lake City district of a sum amounting approximately to $100,000, a large portion of which has already been paid. The superintendent of public instruction, the state auditor and state treasurer are made parties defendant, because of their legal duties in respect to the school fund and their participation in the aforesaid distribution. In response to the petition of plaintiffs a writ was issued and served commanding each of the • defendants to certify — 305 — fully to the court at a time named in the writ a transcript of all records and proceedings pertaining to his office,, relating to the enumeration of the school population and the apportionment and distribution of the school fund for the year 1922. In answer to said writ, each of the defendants made full and complete returns as to all matters required, as far as his particular office was concerned. It will not be necessary to consider these returns in minute detail as to each defendant, because, as will later appear, the controlling question in the case is as to the legality of the proceedings of the board of education of Salt Lake City, and its clerk, George King, in taking the census of the school population of said district and the report thereof by said clerk to the superintendent of public instruction. • Before considering in detail the return of the Salt Lake' City school board and its clerk, it will be illuminating at this point to quote two' or more sections of the statute providing the manner of taking the census and the nature of the report to be made by the clerk to the superintendent of public instruction. Compiled Laws Utah 1917, - § § 4610 and 4611, as amended in Sess. Laws 1921, c. 103, prescribe the method of taking the census and reporting the same in precincts outside of cities of the first and second classes, while sections 4674 and 4675, as amended in ¡laid chapter, prescribe the method within, such cities. By casual comparison it will be seen the methods are exactly the same. "We will therefore only quote the sections last referred to: 4674. “The board of education shall appoint suitable persons for each ward, who shall act as enumerators for school population for said ward, and visit every house therein between the 15th and 31st of October of every year, and ascertain and enter upon the lists the name of every person residing in such ward who on October 31st of that year shall have reached the age of six and shall not have reached the age of eighteen. Provided, that all children between said ages attending other than the district or-public high schools outside the district in which they reside, shall •be enumerated in their home district. Such enumeration lists shall contain all information required by law, and such other information as the state superintendent or the board of education may require. — 306 — 4675. “The enumeration, lists shall he filed with the clerk of the board as soon as completed, and not later than the tenth day of November. Immediately thereafter the clerk of the board shall make out and forward to the state superintendent a statement showing the number of children of school age residing in the district, together with all other information obtained under the provisions of the next preceding section that may be required by the state superintendent.” The return of the board of education of Salt Lake City, and its clerk, together with that of the state superintendent of public instruction, are, in substance, as follows: Immediately after the 10th day of October, 1922, the clerk of the board, George King, presented to the board a list of persons to be considered by the board as census enumerators. Said list was approved by the board, and at its regular meeting on October 10th it was resolved by the board that said persons be appointed and the clerk was authorized to make all arrangements necessary for taking the census. The clerk thereupon caused said persons to enter upon their duties as census enumerators and furnished them with cards upon which were to be recorded the names of persons within school age residing in the district on October 31, 1922; one card was to be used for each family. Prior to the 31st of October the enumerators filed with the clerk 19,000 cards of the form prescribed and in addition thereto, under the direction of the clerk, each enumerator, upon a separate form, compiled the total number listed by him, and filed the same with the clerk. Then follows an explanation in the returns as to just what was done by the clerk as affecting the census made by the enumerators and his reasons therefor. The paragraph containing the explanation is somewhat lengthy but as it constitutes the real foundation of all the grievances complained of by the plaintiffs we prefer to state it in defendants’ own language: “That an examination of the original cards of said enumerators and an examination of the said enumerators’ lists compiled therefrom caused said clerk to conclude that said enumerators, in the taking of the said census, had failed to make a complete and full enumeration of the children of school age residing in Salt Lake City school district on October 31, 1922; that the said enumeration lists disclosed a total of 28,264 children of school age in the — 307 — Salt Lake City school district as oí said date, or approximately 1,200 less than for the year 1921; that compared with the actual enrollment of children in the Salt Lake City public schools for the months of September and October, 1922, and compared with other facts known to said clerk, said enumeration lists disclosed to said clerk an inaccuracy or' incompleteness to the extent of approximately 5,000 persons; that thereupon, to wit, under date of November 14, 1922, the said clerk advised the said board of education of the prima facie inaccuracy and incompleteness of the record of said enumerators, and further advised said board that pursuant to instructions given him to take all necessary steps in connection with the annual school census he had caused the original census cards to be forwarded to the principals of the various schools in Salt Lake City school district for the purpose of having them check the names, ages, and residences of the children appearing upon said census cards against the names, ages and residences of the children enrolled in each school, of statutory school age, and residing in Salt Lake City school district as of October 31, 1922; that in each grade school of Salt Lake City school district the name, age, and residence of each child attending school was duly entered upon a card, a copy of which is hereto attached, marked Exhibit C, and made a part hereof, and, as in the case of the cards of the census enumerators, all the children of each family are entered upon a single card; that under the direction of said clerk each principal of each grade school of Salt Lake City school district, after checking the names, ages, and residences of the children listed on the census enumerators’ cards against the names, ages, and residences of the children listed on the cards referred to, of the form of Exhibit C, reported to said clerk the names of certain children as residing in Salt Lake City school district as of October 31, 1922, who on said date had reached the age of 6, and had not reached the age of 18, and who had been omitted in the count of the census enumerators; that the number of girls and boys in the various grade schools of Salt Lake City school district so reported as omitted from the count of the enumerators, is as follows.” Then follows the number of boys and girls, separately stated, in each of the grade schools, whose names were omitted by the census enumerators, and the number of boys and girls in each of the high schools of the district whose names had likewise been omitted, after which the return proceeds as follows: “That the clerk of the board of education of Salt Lake City having taken the foregoing steps in connection with ascertaining and determining the number of persons residing in Salt Lake — 308 — City school district who on. October 31, 1922, had reached the age of 6 and had not reached the age of 18, and being fully advised in the premise, and having concluded that the total number of persons who were residing in Salt Lake City school district on the 31st day of October, 1922, of the age of 6 years and not over the age of 18, was 16,577 boys and 16,725 girls, or a total of 33,302 persons, reported the result of his findings to the board of education of Salt Lake City, and the said board of education of Salt Lake City received and approved said report; that on December 26, 1922, said clerk made out and forwarded to the state superintendent of public instructions a statement showing the number of children of school age residing in Salt Lake City school district to be 33,362.” The returns filed by the defendants are elaborate and comprehensive, accompanied by numerous exhibits illustrating exactly what the defendants did and the manner of keeping their records. It appears from correspondence attached as exhibits that on January 2, 1923, the state auditor informed the state superintendent of public instruction that there was on hand in the district school fund, subject to apportionnlent, the sum of $1,573,416.78, and in the state land interest fund $158,233.34. It also appears from the returns that on January 9, 1923, the superintendent of public instruction certified to the state auditor the results of his apportionment based upon the alleged erroneous report of the Salt Lake City school board and its clerk, and thereafter, on January 11, 1923, checks were issued and paid by the state treasurer to the Salt Lake City school district the aggregate sum of $419,-605.20. It is also certified by the defendants that the said sum is $49,912.08 more than said district would have received if the funds had been apportioned upon the basis of 28,264 school children, which was the school population as shown by the original cards of the census enumerators. The return is certified by the president of the Salt Lake City school board, and the clerk; also by the state superintendent of public instruction. The numerous exhibits attached in addition to showing the forms and tables used by the various officers also show written correspondence between the defendants in matters pertaining to their official duties, including an opinion of the Attorney General given in re — 309 — sponse to the following question by the superintendent of public instruction: “May a census of the school children of a city of the first class he taken under the direction of the hoard of education and accepted hy this office as a basis for the apportionment of state school moneys, at the dates later than those specified in sections 4674 and 4675, Compiled Law's of Utah 1917, as amended hy chapter 103, Laws of Utah 1921?” The Attorney General, in effect, advised the superintendent that such census might be taken and accepted by the superintendent after the dates specified in the sections referred to if done within a reasonable time, or as soon as possible or convenient after the 10th of November. The Attorney General in the same opinion advised the superintendent, in substance, that he would be compelled to accept the list presented by the clerk of the board, regardless of the fact that the clerk had revised the list made by the enumerators by adding names thereto, provided said names were of children actually residing in the district, on the 31st day of October. Other exhibits will be referred to if necessary in the course of this opinion. Before proceeding to a determination of the questions involved, it is pertinent to remark that in connection with their returns each of the defendants filed a motion to quash the writ on the grounds that the form of action adopted by plaintiffs is not authorized by the statutes in eases of this kind. The defendants, however, at the hearing of the cause, in view of the public interests.involved, expressly waived their objection to the form of the action, and consented that the case might be determined on its merits. Section 4674 of the statute heretofore quoted specifically declares who shall act as enumerators of the school population in each ward. The time and manner of making the enumeration, and the classes of children to be listed and returned, are clearly and definitely stated. In these respects the Statute needs no interpretation. It is susceptible of but one meaning as far as the enumeration is concerned, and that is that it must be made by the enumerators appointed by the board. "We are unable to agree with the — 310 — contention of defendants that the clerk of the board, or the board itself, possesses quasi judicial powers in respect to the enumeration, to the extent that he or the board may revise the list filed by the enumerators, by either adding thereto or taking therefrom. It was no doubt within their power to call the attention of the enumerators to palpable mistakes in the enumeration and give them an opportunity to correct such mistakes, but to assume to make the correction themselves and revise the list without the consent or co-operation of the enumerators appointed by the board, in our opinion wras a disregard of the plain and unambiguous meaning of the statute and entirely beyond their power. For the purpose of correcting errors and perfecting the enumeration we are in accord with the views of the Attorney General that the times specified in sections 4674 and 4675 are directory merely, and the things therein required to be done may be done within a reasonable time after the dates specified, as long as the best interests of the schools are not injuriously affected by the delay, To uphold the contention of the defendants in this case would be to bring uncertainty into the administration of the law, notwithstanding there is no uncertainty in the law itself. If the clerk of the school board, either with or without the approval of the board, can revise the enumeration made by the duly appointed enumerators, as was done in this case, we see no reason why he may not assume to make the entire enumeration himself and dispense with the services of the enumerators altogether. It will not be contended that the statute is susceptible of any such interpretation, and yet in «the last analysis such is the logic of defendants’ contention. The question presented is so free from doubt that it is not surprising to find that it has seldom been the subject of judicial determination. Counsel for plaintiffs have called to our attention a few cases sufficiently analogous to the case at bar to justify referring to them in this connection. The case nearest in point and which in principle is practically on all fours with the instant case is that of Young v. State, 138 Ind. 206, 37 N. E. 984. In that case the statute imposed the duty of making the — 311 — enumeration on tbe trustees of tbe township and required them to file the list with the county superintendent of schools, who in turn should report to the state superintendent the school population of the county. The statute also provided that in case any trustee should neglect to file such enumeration with the county superintendent the county superintendent was authorized to appoint some competent person to perform the service. In the case referred to the trustees made the enumeration required and filed the same with the county superintendent as provided by law. That officer refused to report the enumeration to the state superintendent, upon the alleged ground that the enumeration was incorrect in that it contained a greater number of children than were entitled to school privileges. The Supreme Court of Indiana states the question to be decided as follows: “The question at issue between tbe parties relates to tbe right of tbe county superintendent to reject tbe report of enumeration made by a trustee, where be knows, or has reason to believe, that such report is incorrect, and employ some competent person to make another enumeration.” In concluding its opinion upon that question the court, at page 209 of 138 Ind., at page 985 of 37 N. E. of the report, says: “By the above provisions of our statute the trustee is made the proper officer to take the enumeration of the school children, and, where he performs that duty, and flies the required report, there is no provision for making another enumeration. The enumeration made by him, when properly and regularly reported, is, we think, binding and conclusive on the county superintendent. The duty required of the county superintendent by the provisions of section 4431, is, in our opinion, ministerial only, and he may be compelled by mandate to perform it.” In the case referred to, it will be observed that the appellant Young, who was the county superintendent appealing from a judgment in a mandamus proceeding, was, if anything, in a stronger position than are the defendants in the ease at bar, for the statute in that case apparently afforded him some pretest at least for the course he pursued. The fact that it was a mandamus proceeding in no sense weakens the pase as an authority here because, in such case, if the — 312 — court could have found that appellant had any discretion whatever in respect to the enumeration, it must, upon elementary principles, have decided in his favor and ordered a dismissal of the case. See, also, State v. Wedge, 27 Nev. 61, 72 Pac. 817; Trustees of School Dist. No. 7 v. Sherman, 59 N. J. Law, 375, 35 Atl. 1060. Other cases tending to the same effect are referred to, but it is unnecessary to cite them here. Defendants, in support of their contention, cite the following cases: State v. Wilder, 211 Mo. 305, 109 S. W. 574; Public Schools v. Wright, 176 Mich. 6, 141 N. W. 866; Louisville School Board v. Superintendent of Public Instruction, 102 Ky. 399, 43 S. W. 718; Judson v. Agan, 134 Iowa, 557, 111 N. W. 943; 24 R. C. L. 593. These cases, in most instances, are materially different from the case at bar, in that the officers whose authority is challenged are endowed by statute with discretionary powers not found in the instant case. It is unnecessary to consider them in detail for, in our opinion, they do not answer the contention made by plaintiffs herein. The court is of the opinion that the board of education of the Salt Lake City school district and its clerk, George King, exceeded their jurisdiction in assuming to revise, change, and alter the enumeration made by the duly appointed enumerators of said district by increasing the same from a population of 28,264 to a population of 33,302, and also exceeded their jurisdiction in transmitting to the superintendent of public instruction a statement to the effect that the school population of said district was 33,302 instead of 28,264, as found by the enumerators. Compiled Laws 1917, § 4518, provides, inter alia, that the state auditor shall notify the state superintendent of the actual amount of money in the state treasury to the credit of the district school fund on the 31st days of October and December and the 31st day of March of each year. Within ten days after receiving such notification the superintendent shall apportion the funds among the several counties and cities of the first and second classes in the state according to the school population as shown by the last school census lists of the several counties and cities. — 313 — It appears from the returns made by the defendants in this ease that the December apportionment for the year 1922 has already been made, and the funds were distributed on the basis of the erroneous census to which we have referred, and by means thereof the Salt Lake City board has received an amount greater than it was entitled to in the sum of $49,-912.08. It has been held -by respectable authority that where a mistake of this kind has been made the same may be adjusted in later apportionments so that each district may receive its just proportion of the funds according' to its school population. State v. Fay, 36 La. Ann. 242; Andrus v. Board of Directors, 108 La. 386, 32 South. 420; Louisville School Board v. McChesney, 109 Ky. 9, 58 S. W. 427. In the case last cited the adjustment appears to have been authorized by a statute of the state. We are of opinion, however, that, independent of an express statute, the principle enunciated in the Louisiana cases is just and equitable and furnishes a correct guide in cases of this kind. In 11 C. J. at page 213, under the title Certiorari, it is said: “On annulling the proceedings below, the reviewing court may-order restitution to a relator who has suffered by the illegal action.” In view of the public interests involved, and the stipulation and request of the parties that the cause be determined upon its merits without regard to the form of the action, we feel authorized to make such order under the facts disclosed by the record as in view of the law determining the rights of the litigants, will give full and adequate relief to the parties entitled thereto. It is therefore ordered that the clerk of the board of the Salt Lake City school district, on or before the 31st day of March, 1923, make and forward to the state superintendent of public instruction a true statement as to the school population of said district, in accordance with the enumeration made by the enumerators of said district. It is further ordered that the said superintendent make future apportionments in accordance therewith, except that in the apportionment to — 314 — Salt Lake City School district the sum of $49,912.08 shall be deducted therefrom and apportioned among the other school districts of the state in proportion to their respective school populations, in accordance with the views herein expressed. Neither party to recover costs. WEBER, C. J., and GIDEON and CHERRY, JJ., concur.