Cooke v. School District No. 12

• Decision Date: 05 April 1889
• Parties: COOKE, County Superintendent of Schools, v. SCHOOL-DIST. NO. 12.
• Court: Colorado Supreme Court

21 P. 496

12 Colo. 453

COOKE, County Superintendent of Schools, v. SCHOOL-DIST. NO. 12.

Supreme Court of Colorado

April 5, 1889

Commissioners' decision. Error to district court, Weld county.

All the facts necessary to an understanding of the decision are sufficiently stated in the opinion, save the provisions of the school law mainly relied upon. These provisions read as follows: 'Sec. 3067. On or before the first Monday of October next, after having received the reports from the secretaries of the several districts, as provided in section fifty-five (55) of this act, and annually thereafter, the county superintendent of each county shall estimate what proportion of the general school fund which may be distributed during the then current year among the districts of his county shall belong to each district. Sec 3068. The county superintendent shall apportion the said fund among the districts entitled to the same, according to the number of persons of school age, as shown by the census-list of the several districts. He shall, after such apportionment is ascertained, proceed as directed in section nineteen (19) of this act.' 'Sec 3014. The county superintendent shall apportion all school money to the school-districts, in accordance with the provisions of section seventy-two of this act, quarterly, to-wit, on the first Monday in January April, July, and October, in each year. Immediately after such apportionments, he shall certify to the county treasurer the amounts which are to be placed to the credit of the several districts, and notify the treasurer of each district of the amount placed to its credit.'

STALLCUP C., dissents.

Jas. W. McCreery and H. N Haynes, for plaintiff in error.

Markham & Dillon and C. A. Bennett, for defendant in error.

DE FRANCE, C.

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 act creating Logan county makes no proper provision for a division between the new and the old county of the funds or property belonging to the old county. See opinion of this court, recently filed, in the cases of Logan Co. v. Weld Co., and of Washington Co. v. Same, 20 P. 273 These cases, in which said opinion is filed were brought to enforce an equitable division of surplus county and road funds. 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, Gen. St., 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 importance seems to be attached by counsel to the words ...