Jefferson School Township of Greene County v. School Town of Worthington
| Citation | 32 N.E. 807,5 Ind.App. 586 |
| Decision Date | 13 December 1892 |
| Docket Number | 683 |
| Parties | JEFFERSON SCHOOL TOWNSHIP OF GREENE COUNTY v. SCHOOL TOWN OF WORTHINGTON |
| Court | Indiana Appellate Court |
From the Greene Circuit Court.
Judgment reversed, with costs, and cause remanded.
A. G Cavins, E. H. Cavins and W. L. Cavins, for appellant.
J. D Alexander and H. W. Letsinger, for appellee.
The appellee shows by its complaint that it is an incorporated school town within the territorial limits of Jefferson township, Greene county, Indiana, within which the appellant exists as a school township; that certain persons residing within the appellant's boundaries were transferred for school purposes to said school town; that such persons were assessed for school purposes within said town; that levies were made for special school and tuition tax, and steps taken that resulted in the payment by such persons to the county treasurer, for the use of the school town, of certain sums of taxes for such school purposes, the same having been duly apportioned by the auditor to the school town; that the said treasurer, instead of paying such funds to the trustees of the school town, turned the same over to the trustee of the township, who converted the same to the use of said school township. The process resulting in the payment of these taxes and the conversion thereof are set out in detail, and we do not find it necessary to copy the statement into this opinion. A demurrer was overruled to the first paragraph of the complaint.
The only question made by appellant's counsel as to the sufficiency of the complaint is in reference to the remedy. It is insisted that the appellee can not recover in an action such as this, but should have proceeded by writ of mandate, either against the treasurer in the first instance, or against the township trustee in the last. That the appellee might have proceeded by mandate against the proper custodian of the fund, so long as the same retained its identity, there is no doubt. Hon v. State, 89 Ind. 249.
It is insisted on behalf of appellant that mandamus will lie only where there is no adequate legal remedy, which proposition may be readily granted. From this it is argued that conversely it is also true that if mandamus will lie against such officers the remedy here resorted to can not be proper. To this proposition we can not give our assent. Doubtless the money resulting from the collection and payment into the county treasury of these taxes was a trust fund belonging to the school corporation, for whose benefit it was intended, and will be followed into the hands of any recipient and will there be preserved and protected for its beneficiary as long as it can be identified. Fletcher v. Sharpe, 108 Ind. 276; Bundy v. Town of Monticello, 84 Ind. 119. But while the cestui que trust may do this, it is not compelled to do so in order to have any redress. It may repudiate the trust, and proceed against the trustee as for money had and received. 2 Perry Trusts, section 828.
In proceedings against corporations of the nature of the parties to this action, where the identity of the fund has been preserved or the corporation as such has not appropriated it or derived any pecuniary benefit from it, the remedy is against the official who is the custodian of such fund, and the writ of mandate is generally invoked to compel him to pay it over to the real beneficiary, as in such cases the officer, and not the corporation, is the wrong-doer. Hon v. State, supra.
Where, however, it is shown that the money has been absorbed by the corporation, as where it has been covered into the treasury to the credit of the general fund, then such corporation will be liable. Vigo Tp. v. Board, etc., 111 Ind. 170, 12 N.E. 305.
We think the circumstances in the case under consideration are such as to create a liability from the appellant to the appellee. A proceeding by writ of mandate against either the county treasurer or the township trustee would be futile, after the fund has been diverted and appropriated to the use of the school township.
What has been said applies to the ruling of the court on demurrer to the first paragraph of the complaint, as well as the overruling of the motion to strike out portions of the second paragraph. Besides, the overruling of the motion to strike out is not reversible error in any event. Sprague v. Pritchard, 108 Ind. 491, 9 N.E. 416; Gill v. State, ex rel., 72 Ind. 266.
The court found the facts specially and stated its conclusions of law upon the same, to which the appellant excepted. By this ruling the appellant attempts to present the question of the regularity of the assessment of the special school tax levied and its extension to the taxable property of the persons transferred. We do not think the township is in any position to raise this question. If the taxpayers from whom the money came paid the same voluntarily, this would not diminish the appellee's title to the same, as between it and the appellant. The township has received this fund and used it, and it can not controvert the legality of the tax imposed or the regularity of the assessment, any more than a tax collector or municipal officer could, who had collected such taxes. Perryman v. City of Greenville, 51 Ala. 507; Board, etc., v. Serrett, 31 La. Ann. 719; Morris v. State, 47 Tex. 583; Cairns v. O'Bleness, 40 Wis. 469.
The special findings show that a portion of the taxes involved in this suit had been paid more than six years before the commencement of the action. It is insisted that the collection by suit of such portions as were paid more than six years prior to that time is barred by the operation of the six years' statute of limitations.
Whether or not the claim in this case, or any portion of it, comes within the operation of that statute depends upon its being a direct...
To continue reading
Request your trial