38 P. 618 | Or. | 1894
Opinion by
This controversy is the outgrowth of an act of the legislative assembly of the State of Oregon, which became a law February twentieth, eighteen hundred and ninety-three, constituting Lincoln County from the western portion of Benton. By section 11 of said act it is provided: “It shall be the duty of the superintendent of schools of Benton County, within sixty days after the appointment of the superintendent of schools of Lincoln County, to make out and forward to said superintendent of schools of Lincoln County a true and correct transcript or abstract of the annual reports of the clerks of the various school districts embraced within said Lincoln County; and he shall also at the same time of making the apportionments of the school fund for the year of eighteen hundred and ninety-three, apportion to the various school districts within Lincoln County their pro rata proportion of said school fund the same as if said Lincoln County had not been created and organized. ” Section 2590, subdivision 5, Hill’s Code, makes it the duty of the county superintendent, on the third Monday in April and August of each year, to make an apportionment of the entire school fund then in the county treasury as follows: Of the school fund in the treasury of his county that has been collected in pursuance of .the school tax levy of the county court of his county, he shall apportion the sum of fifty dollars once a year to each of the several districts of the county that has reported to him as required by law, and all the balance of the school
1. From these several statutes it is apparent that the superintendents of the common schools of the several counties obtain the funds for distribution among the school districts of their respective counties from two sources, viz., from the taxes levied by the county court, and from the irreducible school fund. The superintend ent is required to distribute whatever amount there may be; of these combined funds in the hands of the county treasurer on the third Mondays of April and August of each year, in accordance with said subdivision 5, section 2590. Two prerequisites, however, are necessary before the county superintendent can make such distribution to any certain district. First, there must be school funds in the custody of the treasurer of his county to distribute; and, second, the district must have reported to him according to law. We will treat these two conditions in their inverse order.
It is the contention of the learned counsel for the appellant that, according to the letter and spirit of section 11 of the act of February twentieth, eighteen hundred and ninety-three, all school districts of Lincoln County which had a legal existence prior to the creation of that county are entitled to their pro rata proportion of the school funds of Benton County for the year eighteen hundred
2. It would be a useless and vain thing to require the defendant to make a distribution unless there were school funds in the county treasury subject to be distributed; or,, in other words, to distribute a fund which had no actual existence. The authorities are abundant, and apparently quite uniform, that where the payment of money or the distribution of a fund by a public officer is. the object in view, it must distinctly appear that there is a fund from which the desired payment can legally be made: State v.