Sch.-Dist. No. 17, Kearney Co. v. Sch.-Dist. No. 2.

• Decision Date: 04 February 1885
• Citation: 17 Neb. 177,22 N.W. 360
• Parties: SCHOOL-DISTRICT NO. 17, KEARNEY CO., v. SCHOOL-DISTRICT NO. 2.
• Court: Nebraska Supreme Court

17 Neb. 177

22 N.W. 360

SCHOOL-DISTRICT NO. 17, KEARNEY CO.,

v.SCHOOL-DISTRICT NO. 2.

Supreme Court of Nebraska.

Filed February 4, 1885.

Error from Kearney county.

Sam. L. Savidge, for plaintiff.

E. C. Calkins and Joel Hull, for defendants.

MAXWELL, J.

In 1872 school-district No. 2, of Kearney county, was formed so that it comprised a large portion of that county. As thus organized, the district issued its bonds in the sum of $3,000, with which a school-house was erected therein. At the annual school meeting in said district in 1877 a tax of 15 mills on each dollar valuation was voted for the purpose of paying the debts of said district. In regard to this tax we find the following stipulation in the record: “It is hereby stipulated, as a matter of fact, that the proceeds of the 15-mills tax of 1877 received by the defendant district No. 2 was by said district used in paying bonds and indebtedness incurred before the four-teenth day of February, 1878, and that after applying the same as aforesaid there still remained fifteen hundred dollars' bonded indebtedness incurred in 1873.” In February, 1878, school-districts Nos. 17, 18, and 24 were duly organized out of the territory of No. 2; the value of the school-house at that time being about $1,000. The county superintendent made no division of the property belonging to the old district, nor determined what amount it should pay to the new districts, and this action is brought to recover the amounts justly due. The court below found the issues in favor of the defendant, and dismissed the action.

In School-dist. No. 9 v. School-dist. No. 6, 9 Neb. 331, and 13 Neb. 166,S. C. 2 N. W. REP. 712, and 12 N. W. REP. 921, where a school-district possessed of no property of any kind was divided before the school tax was levied, and afterwards the tax was levied on the property of the new district as well as the old, that tax was collected and paid to the old district without authority of law, so far as the amount collected on the property of the new district was concerned; and it was held that the amount thus wrongfully obtained could be recovered back. And we adhere to those decisions. Where, however, a school-district possesses property at the time a new district is formed out of its territory, it is the duty of the county superintendent to “ascertain and determine the amount justly due to such new district from any district or districts out of which it may have been, in whole or in part,...