School District No. 15. v. School District of Waldron

• Decision Date: 13 February 1897
• Citation: 39 S.W. 264,63 Ark. 433
• Parties: SCHOOL DISTRICT No. 15. v. SCHOOL DISTRICT OF WALDRON
• Court: Arkansas Supreme Court

39 S.W. 264

63 Ark. 433

SCHOOL DISTRICT No. 15. v. SCHOOL DISTRICT OF WALDRON

Supreme Court of Arkansas

February 13, 1897

Appeal from Scott Circuit Court, PRESTON C. WEST, Special Judge.

Reversed and remanded.

A. G Lemon and Daniel Hon for appellant.

The county court has no power to levy a school tax; it must be voted by the electors of each school district. When so levied, it becomes a fund to be placed to the credit of the district levying and paying it, and is not subject to be apportioned to any district subsequently created by law out of part of its territory. Const. Ark. art. 14, sec. 3; Sand. & H. Dig., sec. 7033; 32 Ark. 496; 32 Ark. 131; 33 id. 716; 38 id. 271; 42 id. 100; 93 Cal. 414. There is no statutory remedy given to recover, in a proceeding commenced in the county court. 60 Ark. 124; 40 Mich. 551. There is no provision for apportionment or division of a fund between a common school district and a special school district. 21 Am. & Eng. Enc. Law, p. 847. It is only when there is a surplus that this can be done (Sand. & H. Dig., sec. 6992, 6994), and these sections do not apply to this case. 60 Ark. 124. There was no surplus, the entire fund having been lawfully contracted away. When the tax was voted, it was the duty of the directors to provide for schools, unless otherwise instructed at the annual meeting. 45 Ark. 121; Sand. & H Dig., sec. 7029; 18 Mo.App. 266; 46 Ohio St. 595; 44-Ohio St 278; 33 Ark. 497. A school tax cannot be appropriated to any other purpose, nor to any other district, etc. Const. art. 14, sec. 3. The fact that a portion of the tax was paid by tax payers residing or owning property in the school district of Waldron does not change the law. The word "district" only refers to the body corporate, and not to territory. Sand. & H. Dig., sec. 6986; 18 Mo.App. 266; 93 Cal. 414. 60 Ark. 124 settles only the question of the legality of the formation of appellee district, but not the question involved here, and it is not res judicata. Bouvier, Law Dict. vol. 2, p. 457. The county court had no jurisdiction. 15 Ark. 381; 57 id. 299. Appellee's remedy, if any, was by suit in equity. 40 Mich. 551. The county court having no jurisdiction, the circuit court acquired none on appeal. 6 Ark. 182.

S. R. Cockrill and Miles & Miles for appellee.

The county court alone has power to levy county taxes. Const. art. 7, sec. 30; Sand. & H. Dig., sec. 1276, subd. 8; 42 Ark. 100; 34 id. 188, 193-4; 36 id. 641; 33 id. 716. The vote to levy the tax was only an unexecuted power to levy; no lien on property, etc., until the county court made the levy. This was done after the creation of appellee. 93 Cal. 411; 5 Pick. 332; 5 Gray, 413."Assessment," as used, means levy by the county court.46 Ark. 77-8. School District No. 15 had no power to collect the tax. 4 Mass. 537; 5 Gray (Mass.), 413;Const. Ark. art. 14, sec. 3. The county court had jurisdiction. Const. art. 7, sec. 28; Sand. & H. Dig., secs. 6992 to 6995, etc.; 54 Ark. 468; 4 N.Y. 425-432. An apportionment like this has often been sustained. 91 Pa.St. 182; 34 At. Rep. 33; 64 Ind. 275; 54 Iowa. 77. The appeal in 60 Ark. 124 was pending in this court when this tax was levied. The reversal of a judgment restores parties litigant to the same condition in which they were prior to its rendition. 2 Freeman, Judg. secs. 481-2; 34 Ark. 569, 580.

BUNN, C. J. RIDDICK, J., being absent, did not participate. HUGHES, J., dissenting.

OPINION

BUNN, C. J.

This proceeding was commenced by petition on the part of appellee, in the Scott county court, at its July term, 1895, against appellant, for a distribution of funds alleged to be in the treasury of the county to the credit of appellant, but which, it was alleged, belonged in fact to appellee in part, and were the subject of apportionment between appellant and appellee districts. The prayer of the petition was granted by the county court, and an order of apportionment entered, from which respondent appealed to the circuit court, where the judgment of the county court was sustained, and judgment entered accordingly. From this judgment, also, the respondent, district No. 15, appealed to this court.

On the third Saturday in May, 1894, as the law provided, the qualified electors of School District No. 15, as then constituted, met and, among other things, voted a school tax to defray the expenses of a school for a portion of the ensuing school year. It appears from the record that, at the time of said election, the tax thus voted was estimated to be sufficient to produce the sum of $ 800, which, added to the school revenue to be derived from other sources, and soon to come in, amounted in the aggregate to the estimated sum of $ 1,200, estimated to be sufficient to defray the expenses of operating the schools for six months.

Presumably, the directors of appellant district No. 15, in compliance with the law (section 7049 of Sand. & H. Dig.), made their estimate to the annual meeting of the district on the said third Saturday in May, 1894, of the expenses of the district for that year, including the expenses of a school for the period of three months for the next year, after deducting the probable amount of school moneys to be apportioned (the state fund and so forth), and also submitted an estimate of the expenses per month of continuing the school beyond the term of three months; and an estimate of whatever else might be necessary for the comfort and advancement of said school. These estimates are required to be made by the directors to the assembled electors of the district at the time of the annual meeting aforesaid, to the end that the electors may be the better enabled to vote intelligently on the subject of how long the school should continue during the year, and the rate of taxation necessary to insure the desired object. These estimates therefore form the basis--the only basis--for the taxation thus sought to be had upon the property of the district.

In September, 1894, the directors of appellant district contracted with a sufficient number of teachers, and during the term expended other funds sufficient to have the school continue for the period aforesaid, and these incidental expenses and contracts for the teaching force absorbed nearly all the revenues which actually come into the county treasury to the credit of appellant district. The school was taught, beginning the latter part of September, 1894, and closing in March, 1895, having been patronized and attended by students residing in the town of Waldron and the adjacent territory included in said district No. 15, although the record shows a portion of the children in the town of Waldron attended the school conducted under the auspices of the friends of appellee school district a portion of the year.

It appears that the appellant district No. 15, before the formation of appellee separate school district of Waldron, included all the territory, no more, no less, afterwards included in both districts; that is to say School District No. 15 was the original district, which included, besides a suburban territory, the town of Waldron.

When the annual school election at which the tax aforesaid was voted on the third Saturday in May, 1894, was held, the special School District of Waldron had no existence, and of course it did not enter into the estimates, except as it was a part of the original district No. 15, and the tax was voted in the name of the latter and for its benefit, and was so extended on the tax books against the property of the original district, and, it appears, was collected and turned into the treasury to the credit of said district No. 15, to be drawn out upon the warrant of its directors. It appears also from the record that the appellee district, the special School District of Waldron, was organized on the 7th day of July, 1894, and that, at the instance of certain persons in Waldron and in the remainder of district No. 15, the attorney general of the state instituted proceedings in the nature of quo warranto against the special district to have its organization declared invalid, and that, upon final hearing on appeal, this court, in January, 1895, held the organization of the special School District of Waldron to be valid. Beavers v. State, 60 Ark. 124, 29 S.W. 144.

The present proceeding, although begun in the summer of 1895, has for its object the apportionment by the county court of the entire current revenues of School District No. 15, derived from taxation and otherwise, as aforesaid, for the school year of 1894-1895, and is based upon section 6992 of Sand. & H. Dig., which reads as follows, to wit: "In case there be a surplus fund on hand at the time of the formation of said (new) district, it shall be entitled to a proportionate part of said fund, the same to be ascertained and determined by the county court of the county in which said new district may be created, as in the judgment of said court may be considered right and proper." This section, we conceive, is made applicable to special school districts, as well as to common school districts, by the provisions of section 7113 of Sand. & H. Dig.

In the case of the organization, by the county court, of a new district out of the territory of an old one, it will be seen from the statute quoted that it is only the surplus, or funds in excess of what is reasonably necessary to operate the schools of the old district, that are subject to apportionment by the county court clothed in such case with power to do what is right and proper in the premises.

The tax voted by the electors of the original district No. 15, on the third Saturday in May, 1894--the annual school meeting--became a source of revenue to that district to be appropriated to the objects named by the electors of that...