Ctr. Sch. Tp. v. State ex rel. Bd. of Sch. Com'rs

• Decision Date: 31 March 1898
• Citation: 49 N.E. 961,150 Ind. 168
• Parties: CENTER SCHOOL TP. et al. v. STATE ex rel. BOARD OF SCHOOL COM'RS.
• Court: Indiana Supreme Court

150 Ind. 168

49 N.E. 961

CENTER SCHOOL TP. et al.

v.STATE ex rel.

BOARD OF SCHOOL COM'RS.

Supreme Court of Indiana.

March 31, 1898.

Appeal from superior court, Marion county; Vinson Carter, Special Judge.

Action by the state, on the relation of the board of school commissioners of the city of Indianapolis, against Center school township of Marion county. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

T. S. Rollins, for appellant. Charles A. Dryer, for appellee.

JORDAN, J.

The state of Indiana, on the relation of the board of school commissioners of the city of Indianapolis, instituted this action against Center school township of Marion county, Ind., to recover money arising out of the surplus dog-tax fund which it is claimed was due to said board of school commissioners for the years 1893, 1894, and 1895. The complaint is in four paragraphs, three of which are similar, and in their order separately seek to recover the fund withheld from the relator by the defendant's trustee for the aforesaid years, and by him appropriated and used for the benefit of the public schools of said Center school township. The fourth paragraph is intended to embrace all of the surplus dog fund received and used by the defendant during said years, which it is alleged belongs to the relator, and this latter paragraph is in its nature one for money had and received. The charge made by the complaint against the appellant is, in substance, and to the effect, that on the first Monday in March in each of the aforesaid designated years, under section 8654, Burns' Rev. St. 1894, the dog fund in excess of $50 was by the provisions of said section required by the proper township trustee to be distributed to the school corporation represented by the relator in proportion to its enumeration for school purposes; that the trustee failed and neglected to discharge this duty, but, on the contrary, appropriated and expended all of said surplus fund in his hands for the benefit and use of the schools of Center school township; and that no part thereof was paid over to or received by the relator for the use of its schools. A demurrer to each of these paragraphs was overruled, and the issues were joined between the parties by a general denial, and a trial resulted in the court awarding a judgment in favor of the appellee for the use of the relator for $13,876.51, being the proportionate part of the surplus fund in controversy to which the trial court held appellee was entitled.

The only question raised and presented by the appellant is the sufficiency of the complaint on demurrer to entitle the appellee to recover of the former the money in dispute. The first insistence of its counsel is that the legal title to the money in controversy in the theory of the law was vested in the township trustee, who was the custodian of said money, and that, consequently, he could appropriate it as he pleased, and, if he unlawfully distributed or expended the same, the appellee's remedy, after the demand, would be confined to a suit on the trustee's official bond, and therefore this action cannot be maintained against the school corporation to recover the money in question. Certainly, this contention has no legitimate support, and we may pass it without further consideration.

The theory presented by the complaint in the action is that under the law a portion of the fund in question should have been distributed by appellant's trustee to the school corporation represented by the relator; that this duty the trustee failed or neglected to perform, but, on the contrary, distributed to appellant, and it expended, through him, for the legitimate use and benefit of its public schools, the money which in the first instance belonged to the appellee. Manifestly, under such circumstances, the latter would be legally authorized to proceed against appellant in an action for money had and received, and would be entitled to recover that which the law awarded to it, and which had been wrongfully appropriated to the use and benefit of appellant. This doctrine the authorities fully support. Jefferson School Tp. v. School Town of Worthington, 5 Ind. App. 586, 32 N. E. 807;Vigo Tp. v. Board Com'rs Knox Co., 111 Ind. 170, 12 N. E. 305;Bicknell v. School Tp., 73 Ind. 501;First Nat. Bank of Crawfordsville v. Union School Tp., 75 Ind. 361;Killian v. State, 15 Ind. App. 261, 43 N. E. 955;Shelby Tp. v. Randles, 57 Ind. 390;Hohl v. Town of Westford, 33 Wis. 328;Merrill v. Marshall Co., 74 Iowa, 25, 36 N. W. 778. If appellant, a public corporation invested under the statute creating it with the power to sue, and also liable to be sued, has received money belonging to and due the relator, which has been legitimately expended, as alleged, for the use and benefit of its public schools, then the law imposes upon it the duty to refund such money. Such duty arises out of the general obligation which the law exacts in the interest or support of justice, and this rule is applicable alike to individuals and corporations, private or public. Dill. Mun. Corp. § 461; Argenti v. City of San Francisco, 16 Cal. 255. By the construction placed upon section 8654, supra, in the decisions of this court in Taggart v. State, 142 Ind. 668, 40 N. E. 260, and 42 N. E. 352, and Gold v. State, 143 Ind. 706, 40 N. E. 263, the appellee's right to its proportionate part of the surplus dog tax in the hands of the township trustee of Center school township for the years in question is settled in its favor. In the Taggart Case this court expressly overruled that of School City of South Bend v. Jaquith, 90 Ind. 495, wherein, under the provisions of section 5 of an act of the legislature of 1881 (section 2651, Rev. St. 1881), which were, in effect, the same as are those in section 8654, supra, it was held that no part of the surplus dog fund belonged to the city school corporation, but that such fund belonged to, and should be distributed wholly to, the school township. Counsel for appellant do not insist but what the construction given to the statute in the Taggart appeal was correct, and virtually concede that the decision in the case of School City of South Bend v. Jaquith, supra, was properly overruled. But their principal contention in support of this appeal seemingly is that our decision overruling the case must not be held to be retrospective, and thereby invade what they term the vested rights of the appellant to the money in controversy. Counsel propound the following question, which they urge as the principal one involved, namely: “Will the rights of the parties to the funds sued for in this cause be determined by the law as it is now declared to...