People, for Use of School Dist. No. 6, Conejos County v. Schaeffer

• Decision Date: 15 February 1937
• Docket Number: 13821.
• Citation: 65 P.2d 699,100 Colo. 70
• Parties: PEOPLE, for Use of SCHOOL DIST. NO. 6, CONEJOS COUNTY, v. SCHAEFFER et al.
• Court: Colorado Supreme Court

65 P.2d 699

100 Colo. 70

PEOPLE, for Use of SCHOOL DIST. NO. 6, CONEJOS COUNTY, v. SCHAEFFER et al.

No. 13821.

Supreme Court of Colorado

February 15, 1937

In Department.

Error to District Court, Conejos County; John I. Palmer, Judge.

Action by the People, for the use of School District No. 6 in the County of Conejos in the State of Colorado, against Ella J Menke Schaeffer and others. Judgment for defendants, and plaintiff brings error.

Affirmed.

William J. Christensen, of Alamosa, for plaintiff in error.

Ralph L. Carr, Jean S. Breitenstein, and John G. Reid, all of Denver, for defendants in error.

BAKKE Justice.

Plaintiff in error was the plaintiff and defendants in error were defendants, so we will speak of the respective parties as they were described in the lower court.

Plaintiff a school district, brought this action to recover damages from two treasurers of Conejos county and their surety for an alleged breach of duty by such treasurers. To the amended complaint separate general demurrers were interposed by each of the defendants, which were sustained by the lower court. The case is Before us on several assignments of error made by the plaintiff.

For the purpose of this opinion the court will accept the plaintiff's statement of substance of his assignments of error, which is summed up in the following interrogatory 'Do the facts alleged in the amended complaint show an improper payment from the relator's special bond redemption fund and omissions to report thereon and account therefor by the defendant county treasurers, to the loss to the relator? ' The two important words in this interrogatory are 'improper payment.'

The facts, as they appear from the pleadings, and in so far as they are pertinent to this inquiry, are substantially as follows: The plaintiff School District on July 15, 1913, issued and sold bonds in the amount of $4,900, and on November 1, 1913, $4,900 worth more, making a total of $9,800 worth of bonds. On May 15, 1926, relator, School District No. 6, issued and sold refunding bonds in the amount of $9,800 for the purpose of refunding the bonds issued originally in 1913. Said $9,800 was paid to one Reginaldo Garcia, the then county treasurer of Conejos county. Thereafter, in 1926, certain bonds issued in 1913 were paid by Garcia as county treasurer, but it appears that part of this money, namely, $1,203, was used to pay interest coupons on bonds of the 1913 issue which were still outstanding, and it is the alleged negligent, unlawful, and unauthorized payment of the interest coupons of the 1913 bond issue after the alleged call for their redemption had been made and the consequent injury to the credit of the plaintiff school district that is here complained of.

In our opinion this entire litigation hinges upon whether or not the call for the redemption of the 1913 bonds was sufficient. If the call was insufficient, the 1913 bondholders had a right to demand and receive their interest in accordance with the provisions of the bonds they held. To determine the legality of the notice of the call it becomes important for us to determine whether or not the publication was governed by section 8801, C.L.1921, or section 8371, because it appears in the amended complaint that notice of call was published in accordance with section 8801, which reads as follows: 'It shall be the duty of the county treasurer of each county in this state, when there are sufficient funds to the credit of any school district, or to the credit of any school fund of any such district, to pay in full the principal and interest of any orders which may be on such fund, in the order of their registration, and if at any time there shall be two hundred dollars in the hands of such treasurer, to the credit of any such fund, it shall be his duty to cause to be published in some newspaper published at the county seat of such county, for twenty days, a notice that certain school orders (describing same by numbers and amounts) will be paid upon presentation, and at the expiration of said twenty days' advertisement, such orders shall cease to bear interest.'

It will be noticed that this particular section has to do with orders, and that said section was a part of the law adopted in 1887, the title to which reads as follows: 'An Act to provide for the payment of school orders by the county treasurer, as soon as there is money on hand for the payment of the same.' Laws 1887, p. 405. Counsel for the plaintiff contends that this language is broad enough to include 'bonds' and that a notice published in accordance with the requirements of this section is sufficient notice for the call of the 1913 bonds.

With this contention we cannot agree, because section 8371 makes specific provision for publication of notice in connection with redemption of bonds such as constitute the subject-matter of this action. While it is true that section 8371 is part of the act of 1919 (Laws 1919, p. 608, § 16), that act is simply a re-enactment of the 1909 act (Laws 1909, p. 494) as far as the important provisions affecting this case are concerned, and section 8371 requires 'the treasurer of said school district, immediately after so receiving sufficient money therefor, shall advertise in some newspaper * * * once a week for four consecutive weeks,' and it is nowhere contended that this requirement was complied with.

It has been...