67 P. 559 | Kan. | 1902
The opinion of the court was delivered by
This was an action brought by the state of Kansas on behalf of its permanent school fund to recover from school district No. 22 of Shawnee county upon two series of bonds issued by the district, which were ten bonds of $300 each, executed and delivered on October 9, 1886, bearing six per cent, annual interest, and eight bonds of $500 each, dated August 15, 1888, drawing interest at five per cent. Ip August, 1889, the city of Topeka, by an ordinance which
“First, that of the bonds sued upon by the plaintiff and as issued by the defendant school district No. 22 in 1886, the sum of $1500 was expended for the purchase of the school site which was afterwards built upon by said district and afterwards taken into the city by the lawful extension of its limits, and that the balance of the issue of said bonds in 1886, to wit, $1500 and all of the issue of the $4000 in bonds sued upon by plaintiff, were expended in the erection and furnishing of said school district heretofore referred to.
“Second, that out of the moneys in the treasury of said school district there was, after the first issue but prior to the second, expended in addition to the above, for the erection and furnishing of said schoolhouse and its environments, a sum in excess of $1500.”
The board of education filed an answer and cross-petition, in which it averred that the board and the school district, after the annexation, mutually agreed to divide the expense of maintaining the school, and arranged between them that the board of education should assume and pay a certain proportion of the bonds. These allegations were held by the court below on demurrer to furnish no basis for a cross-de.mand against the school district or any defense to the I bonds. The board of education in this pleading ex¡pressly consents that the court render judgment
In 1893 an act was passed by the legislature entitled : "An act relating to cities of the first and second class, providing for the settlements between a school district or a part of a district and the city, when annexed by the extension of the city limits.” (Gen. Stat. 1901, §§ 6428-6430.) Section 1 of the act (Gen. Stat. 1901, § 6428) provides that when all the territory of a school district is annexed to a city all its property shall be transferred to the board of education of such city, and the latter held responsible thereafter for the valid floating and bonded debt of the district. Section 2 (Gen. Stat. 1901, § 6429) relates to the disposition of the property of the school district when a part of its territory is annexed to the city, and provides a method of adjustment by which the county superintendent is to determine the present value of the school property in the district, and equitably apportion the same, together with all moneys due to or in the hands of the district treasurer. The next to the last paragraph of this section reads: "The board of education, or the district board retaining the schoolhouse, shall assume the bonded indebtedness incurred in building and furnishing such schoolhouse.” (Gen. Stat. 1901, §§ 6428-6430.) The court below rendered a judgment as follows :
"That the state of Kansas have judgment against said school district No. 22 for the sum'of $11,447; that said plaintiff also have judgment against the defendant, the board of education of the city of Topeka, for the sum of $8994, and that the said board of education of the city of Topeka, is primarily liable for said last-mentioned sum, and that the defendant school district No. 22 is exclusively liable for the residue of said judgment, to wit, $2453.”
It is contended by counsel for the board of education that the title of chapter 128 of the Laws of 1898 is not broad enough to cover a liability imposed by section 2 upon the city for the cost of building and furnishing the schoolhouse. The paragraph fixing this liability is preceded by a direction to the county superintendent how to divide the school money and property of such district when a part of its territory is annexed to a city. When part of a country school district is taken into a city, and a settlement is made by the county superintendent between the part annexed and the city, this carries with it an adjustment of the rights of that portion of the district which is not annexed. It is within the constitutional power of the legislature, when a part of the territory of a school district upon which a schoolhouse is situated is taken into a city to charge the latter with the payment of bonds issued by the district to build the schoolhouse, although the city should annex no more than the site of the building. This court has viewed with great liberality the titles to legislative acts, in order to sustain the enactments against the objections that the body of the laws was too broad to come within the scope of their titles. (City of Eureka v. Davis, 21 Kan. 578; In re Pinkney, Petitioner, 47 Kan, 89-95,
Getting the property, a moral obligation rested on the city to pay for it. There can be no constitutional objection to a retroactive law which changed this moral obligation into a legal one. (Comm’rs of Sedgivick Co. v. Bunker, 16 Kan. 498 ; Perry County v. Conway County, 52 Ark. 430, 12 S. W. 877, 6 L. R. A. 665.)
Concerning the power of the legislature to change the boundaries of school districts and apportion their property, see Lowe et al. v. Hardy et al., 26 Pac. (Utah) 982.
The law of 1893 declares that “the board of education, or the district board retaining the schoolhouse, shall assume the bonded indebtedness incurred in building and furnishing said schoolhouse.” The court below held that this assumption did not include the cost of the site of the building. We think this view is too narrow. The bonds sued on recite that they were issued “for the purpose of erecting a schoolhouse in said district in pursuance of chapter 49 of the Laws of 1879.” The sum of $1500 was taken from the proceeds of these bonds by the officers of the school district and used in buying land for a site. This was done in the face of section 6 of said law of 1879, which makes the school officers liable to fine and imprisonment for using any of the money accruing from the sale of such bonds for any other purpose than that designated in the act, which is to erect or purchase one or more schoolhouses for the district. The school officers, when they bought the site in 1886, certainly entertained the view that authority to buy a house included the land; else they proceeded with a criminal intent.
“And by the grant of a house, the ground whereon it doth stand, doth pass.” (Shep. Touch. 90.) A testator bequeathed “my brick house,” a building 7Si feet long by 20 feet wide, situated on the corner of a lot 132 by 82i feet. It was held that the lot upon which the house stood passed by the devise of the house. (The Common Council of the City of Richmond v. The State, 5 Ind. 334.) “As the land upon which the building stands is essential to the existence of the structure, it is fairly to be presumed that it was the intention of the legislature to include it in the provisions of the statute by the phrase ‘ houses of religious worship.’ ” (Trinity Church v. Boston, 118 Mass. 164.) This was a case construing an act exempting “houses of religious worship” from taxation, and the law was subject to the rule of strict construction. “Messuage. The best writers represent this word as synonymous with house, and as embracing an orchard, garden, curtilage, adjoining buildings, and other appendages of a dwelling-house.” (Ander. Dict, of L.) “In a grant or devise of a house the curtilage and garden will pass, even without the words ‘with the appurtenances’ being added.” (Bouvier ; Estey v. Currier, 98 Mass. 501 ; Allen v. Scott, 21 Pick. 25, 32 Am. Dec. 238; Webster v. Potter, 105 Mass. 414 ; Jackson v. White, 8 Johns. 60.)
That part of the answer of the school district which pleaded an amicable adjustment of the claims to property between it and the city, some four years before the act of 1893 was passed, stated no valid defense.
The judgment of the court below will be modified, with directions to ehter judgment against both of the parties defendant below for the whole of plaintiff’s demand, the board of education to be adjudged primarily liable and the school district secondarily liable for the amount.