12 Colo. 453 | Colo. | 1889
Lead Opinion
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.
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
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
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.
For the reasons stated in the foregoing opinion the judgment is reversed and the cause remanded, with directions to dismiss the action.
Reversed.
Dissenting Opinion
{dissenting). This action was heard and determined on demurrer before Hon. A. P. Bittenhouse, judge of the eighth judicial district, at the November term, 1887, of the district court of Weld county. After a careful review of the case, I cannot concur in the opinion approved by the majority of this court. The following section of the General Statutes, in addition to those already quoted above, is necessary to an understanding of this opinion: “Sec. 3035. Each regular organized school district heretofore formed, or that may be formed, as provided in this act, is hereby declared to be a body corporate, by the name and style of school district No. -, in the county of-and state of Colorado, and in that name may hold property and be a party to suits and contracts the same as municipal corporations in this state.”
In the cases of Washington and Logan Cos. v. Weld Co. 12 Colo. 152, this court somewhat reluctantly decided that the new counties, though formed out of territory previously belonging to the old county, were not entitled to any part of the surplus money in the treasury of the old county. The decision was based upon the ground that the general assembly, in creating the new counties, had not provided for any division of the public funds, and that there was no existing provision of our constitution or laws by which the division could be made. The decision, though based upon strict law and the doctrine of stare decisis, nevertheless seemed harsh, for the reason that there was a surplus of $60,000 in the county treasury which had been collected by taxation from the inhabitants of the new counties as well as the old, in proportion to the value of their property, respectively,
The case at bar may be distinguished from the two cases above referred to in many essential particular's. In those cases the controversy was in respect to the surplus of the public moneys of Weld county in the county treasury as an entirety. The fund could not be said to belong to any particular district or municipality of the county as distinguished from any other subdivision thereof. It was subject only to general use and appropriation by the board of commissioners for that county. In this case the fund in controversy is for the use of public schools. It is to be distributed to certain school districts upon an ascertained ratio. These districts are independent corporations. They do not owe their existence to the county, nor can the county interfere with or take away any of their corporate rights or franchises. The school fund does not belong to the county. The
The general law provides for the taking of a school census once a year as a basis for the apportionment or division of the school fund between the school districts. The apportionment based upon this census is to be made once a year, on the 1st day of October. The distribution and certification of this fund, as it is collected, is to be made four times a year. The annual apportionment is a mere question of arithmetic, based upon the ratio which the amount of the tax levy bears to the number of school children in the several districts of the county. The quarterly apportionment is but a computation — a ministerial or clerical act — to ascertain the amount in dollars and cents each school district is entitled to out of the fund then on hand for distribution. Gen. St. §§ 3014, 3049, 3067, 306S.
But it is said that by the division of a school district, or by a change in the boundaries thereof, or by the creation of a new school district within the county, a change in the ratio may become necessary at the time of the quarterly apportionment. Granting this construction of the law to be correct, it does not militate against the claim that each lawfully organized district always has a legal interest in a certain proportion of the public school fund which it helps to create, and that such proportion is ascertainable by a definite rule prescribed by law. It cannot be successfully maintained that a change in the ratio caused by the division of a school district, or by the change in the boundaries thereof, or by the creation of new school districts, works a forfeiture of the right of any school district to its just proportion of the public school fund. If a change in the ratio may be made when
In the Washington" and Logan county cases, supra, Chief Justice Helm says: “ In the absence of restrictive constitutional or statutory provision on the subject, when a new county is created by segregating a portion of the territory belonging to an existing county, the old county retains all assets previously owned by it, including rights of action, funds and other personal property; also all real estate held in proprietary right, save such, if any, as may be within the territory taken away.” Such is undoubtedly the doctrine of the books. By analogy it may be said with equal force that, if a school district be incidentally divided by the division of a county, the school district nevertheless retains its corporate name — its corporate entity and franchises. The school district is not blotted out of existence. It still has a local habitation and a name. It may be difficult sometimes to determine
It is objected that school district No. 12 in Weld county is not the same corporate body as school district No. 12 in Logan county. Such might be the case under some circumstances. But to claim that it is necessarily so in this case would be like contending that the inhabitants of Weld county residing in that portion of territory out of which Logan county was created lost their identity by the act of county division; that they are no longer the same individuals, and can maintain no action to enforce their rights. How long would such a plea be entertained by a court of justice in case substantial rights were sought to be affected thereby? But we need xxot resort to argument on this question; for it is coxiclusively admitted by the record that school district No. 12 in Logan county, as it existed after the couxxty division, is the
Again, it is claimed that the plaintiff in error, as county superintendent, can only take notice of the rights of school districts within his own county. This may be true as to all matters arising since the county division, but there is the most obvious propriety in requiring the officers of the old county to recognize and discharge all rights which attached before the county division. In this respect their duties are analogous to the obligations of the individual members of a copartnership after the dissolution. The record in this case, as well as the act of the general assembly dividing the county, shows. that the county 'superintendent has in his office all the records of the old county pertaining to the public schools, including the annual estimate and apportionment of October, 1886, as well as the quarterly apportionment and certification of January, 1887; and so had complete data from which he knew or might have ascertained the precise rights of school district No. 12 to the moneys in controversy. In the case of People v. Board, supra, this court held, under similar circumstances, that certain county officials would not be permitted to plead that they could not obtain the necessary knowledge relating to school affairs to enable them to carry on the public business intrusted to them. With these records and the sections of the General Statutes heretofore cited before the county superintendent, the rights of school district No. 12 to its just proportion of the public school fund were easily ascertainable. Under such circumstances it was his clear legal duty to so execute the duties of his office that the school district should receive its just and legal dues. In such cases the remedy should be speedy and adequate.
It may be that cases would arise under this view of the law difficult of judicial determination. But difficulties are constantly arising in the construction of new laws and in the harmonizing of them with old statutes so as to preserve personal and property rights thereunder; and in dealing with these difficulties all branches of the government should exercise constant vigilance and patience to prevent the sacrifice of substantial rights as far as possible; and if such misfortune may not be prevented altogether, then the aim should be to reduce them to the least, possible minimum. A portion of this public school fund belonged to school district No. 12. I use the word •'“belonged” advisedly. It is the word used by the statute (section 3061, supra)-, and, until it is clearly demonstrated that the rights of school district No. 12 to this property have been irretrievably sacrificed, it is, in my opinion, the duty of the court to uphold and protect them.