School Dist. No. 2 OF MULTNOMAH COUNTY v. Lambert

• Decision Date: 04 November 1895
• Citation: 28 Or. 209,42 P. 221
• Parties: SCHOOL DIST. NO. 2 OF MULTNOMAH COUNTY. v. LAMBERT, County Treasurer.
• Court: Oregon Supreme Court

42 P. 221

28 Or. 209

SCHOOL DIST. NO. 2 OF MULTNOMAH COUNTY. v. LAMBERT, County Treasurer.

Supreme Court of Oregon

November 4, 1895

Appeal from circuit court, Multnomah county; E.D. Shattuck, Judge.

Petition for mandamus by school district No. 2 of Multnomah county against A.W. Lambert, treasurer of Multnomah county, to compel the payment of certain moneys to said district. It was adjudged that a peremptory writ issue, and defendant appeals. Reversed.

M.C. George, for appellant.

George H. Williams, for respondent.

MOORE J.

This is a mandamus proceeding to compel the treasurer of Multnomah county to pay an order drawn upon him by the county school superintendent in favor of a district clerk. The facts are that on May 24, 1895, the legislative assembly, by an act which took effect on that day, changed the boundaries of the city of Portland so that a part of the territory formerly within the city limits was excluded therefrom, and by operation of law the boundaries of school district No. 1 were also altered to conform to the amended limits of the city; that three days after said act took effect the county superintendent established a new school district, which he designated as No. 2, the boundaries of which included all the territory cut off from district No. 1 and some uninhabited and unorganized territory adjoining thereto; that on the 6th day of the succeeding month school district No. 2 was duly organized, and L.B. Chapman, having been elected clerk thereof, notified the county superintendent that the number of persons between the ages of 4 and 20 years who were actual residents of said district at the time of the division was 150, whereupon that officer after apportioning the school funds in the county treasury among the several school districts of his county, drew an order for school district No. 2 on the county treasurer for the sum of $930 in favor of Chapman, who, being refused payment thereof upon demand, sued out an alternative writ of mandamus requiring the defendant to pay said order, or show the cause of his omission to do so. The defendant, for his return, after denying the material averments of the writ alleged that there were no funds which, under the law, could be apportioned by the school superintendent to school district No. 2, and no funds in his hands out of which he could pay the order in question; that the fund intended to be reached by said order was a portion of the school funds which should have been apportioned to school district No. 1; that on March 13, 1895, the clerk of the latter district, pursuant to law, filed in the office of the county superintendent the annual census report, containing the names and ages of all children over 4 and under 20 years of age residing therein, from which it appeared that the number of such persons was 19,471; that without warrant of law, and in the absence of any census of the children of school age residing in district No. 2, the county superintendent, under the pretense that there were 150 such children residing therein, illegally attempted to award to said district $930 out of the school fund of district No. 1 which district notified him that he would be held personally responsible if he paid upon said order any part of the fund to which it was entitled; and that school district No. 2 was not entitled to any part of the school fund in his hands. These averments were, by stipulation of the parties, deemed denied, and the court, upon the issues thus made, and an agreed statement of facts, found for the plaintiff as to the facts, and, as conclusions of law, that school district No. 2 was entitled to the money apportioned to it by the county superintendent, and that it was entitled to a peremptory writ of mandamus compelling the defendant to pay the same to its clerk; and, judgment having been rendered according to these findings, the defendant appeals.

It is contended by the defendant that, the boundaries of the city of Portland having been changed, and a portion of its territory cut off, the school-district boundaries, which were identical with those of the city, were changed to the same extent by operation of law; that when a public corporation is divided by a legislative act which makes no provision for the distribution of the assets and liabilities between the sections of the territory thus separated, courts are powerless to adjust the equities or to award such distribution; and that, conceding school district No. 1 was divided for "school purposes," within the meaning of the statute, the school superintendent has no authority to divide the school fund between the respective districts until their school boards have made an equitable division of the assets and liabilities, or a board of arbitration, in case of disagreement, has adjusted the matter; while the plaintiff insists that under the general provisions of the statute the county superintendent has such authority, and that it is made his duty to divide the school fund between the districts created out of the original territory.

The legislative assembly on October 26, 1882, passed an act which has been incorporated in Hill's Annotated Laws of Oregon as sections 2625 to 2646, inclusive. The first two sections of this act, as amended (Laws 1893, p. 25), provide that:

"Whenever the population of any city or incorporated town shall exceed four thousand inhabitants, as shown by any census of the state or of the United States, all school districts or parts of school districts within the limits of said city shall constitute one school district, and the boundaries and limits of such school district shall conform to the limits and boundaries and shall be the same as the limits and boundaries of said incorporated city or town; provided, that in all cases when any part of any school district shall be included in any such incorporated city or town, and a part thereof shall not be included within the boundaries of said city or town at the time this act shall take effect, such parts of such school districts as lie without the boundaries of such city or town shall continue to be a part of such school district.

"When the limits or boundaries of any incorporated city or town containing four thousand inhabitants or more, which has been by this act constituted a school district, are changed according to law, then the boundaries and limits of the school district therein shall be deemed to have been changed also so as to conform to the new limits and boundaries of such incorporated city or town."

The act of February 23, 1895 (Laws 1895, p. 442), amendatory of the charter of the city of Portland, changed the boundaries thereof, and cut off a portion of the territory formerly within its limits, and when the act took effect, on May 24th of that year, it, under the provisions of section 2626, supra, ipso facto changed the boundaries of school district No. 1. Section 2590 of Hill's Annotated Laws of Oregon, as amended in 1889 (Laws 1889, p. 116), provides that:

"The duties of the superintendent shall be as follows: 1. He shall lay off his county into convenient school districts and may also make alterations and changes in the same when petioned so to do, in the manner hereinafter specified; and he shall make a record showing the boundaries and numbers of all the districts in his county so established and altered. 2. He shall, when he establishes a new district, immediately notify, in writing, some taxable inhabitant of such district, giving in such notice the number and boundaries thereof; and when he makes alterations he shall immediately, in the manner aforesaid, notify the directors of all the district concerned. 3. He may establish new districts, when not already laid off, on petition of three legal voters of each proposed new district, but shall not make any changes in the districts of his county unless petitioned so to do by a majority of the legal voters of each district concerned in the change. 4. When changes are made in district boundaries as heretofore set forth, or when any district shall be divided into two or more parts for school purposes, the existing board of directors and clerk shall continue to act for both or all of the new districts or parts of districts until such districts or parts of districts shall have been regularly organized by the election of directors and clerks as hereinafter set forth in sections 30, 31, 32 and 33, title IV, of the school law. The respective boards of directors of all the districts concerned shall, immediately after such organization, make an equitable division of the then existing assets and liabilities between the old and the new districts, or between the districts already existing and affected by such change; and in case of failure to agree within ten days from the time of such organization, the matter shall be decided by a board of disinterested arbitrators chosen by the directors of the several districts concerned. The arbitrators' decision in the premises shall be final. The said board of arbitrators shall consist of three members, of whom the county superintendent shall be a member and ex officio chairman. Each member of the board of arbitrators shall be entitled to the sum of two dollars, net, per day, for each day's service while sitting in their official capacity, and the expenses thus occurring shall be equally apportioned among the several districts interested. Assets shall include all school property and moneys belonging to the districts at the time of the division. Liabilities shall include all debts for which the district, in its corporate capacity, is liable at the time of the division. In determining the assets, school property shall be estimated at its present cash value. The assets and liabilities shall be divided separately between the...