School District No. 49 In Logan County v. The Community High School of Thomas County

• Decision Date: 05 May 1928
• Docket Number: 28,031
• Parties: SCHOOL DISTRICT NO. 49 IN LOGAN COUNTY, Appellant, v. THE COMMUNITY HIGH SCHOOL OF THOMAS COUNTY, Otherwise Known as THE COLBY COMMUNITY HIGH SCHOOL, Appellee
• Court: Kansas Supreme Court

267 P. 23

126 Kan. 51

SCHOOL DISTRICT NO. 49 IN LOGAN COUNTY, Appellant, v. THE COMMUNITY HIGH SCHOOL OF THOMAS COUNTY, Otherwise Known as THE COLBY COMMUNITY HIGH SCHOOL, Appellee

No. 28,031

Supreme Court of Kansas

May 5, 1928

Decided January, 1928

Appeal from Thomas district court; CHARLES I. SPARKS, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. STATUTES--Construction. So far as R. S. 72-2505 and R. S 72-3014 may be in conflict with each other, the latter section, being the latest enactment, controls, following Arkansas City v. Turner, State Auditor, 116 Kan. 407, 226 P. 1009.

2. SCHOOLS--Tuition for Students Attending High School in Adjacent County--Statutory Authority for Collection. Where pupils residing in a county which does not operate its high-school system under the Barnes act (R. S. 72-3001 et seq.) attend high school in an adjacent county which does operate under that act, the statutory authority for the collection of tuition for such nonresident pupils is R. S. 72-3014, not R. S. 72-2505.

3. PAYMENT -- Recovery of Payment Made by Mistake of Law -- Payment by County. The rule that money paid by mistake of law may not be recovered in an action brought for that purpose does not apply to unauthorized disbursements of public funds--as to these an action for their recovery is maintainable; and in the absence of some intervening equity the question whether the mistake in disbursing them was one of law or one of fact is not of controlling importance.

4. SAME--Pleading. Under the facts stated in the opinion, defendant's cross action for the recovery of public funds paid to plaintiff without statutory authority therefor was good against plaintiff's demurrer thereto.

C. A. Spencer and J. H. Jenson, both of Oakley, for the appellant.

E. H. Benson, of Colby, for the appellee.

OPINION

DAWSON, J.:

The plaintiff school district sued to collect an account of $ 405.40 as tuition fees for the education of certain pupils who reside in the defendant district and who attended school in the plaintiff district during the school year 1924-1925.

The defendant answered with a general denial and filed a cross petition alleging that by mistake it had paid tuition fees to the plaintiff for the education of some of its resident pupils, in the sum of $ 345 for the school year 1923-1924 and $ 475.20 for the school year 1925-1926, for the return of which sums with interest it prayed judgment.

Plaintiff's demurrer to defendant's answer and cross petition was overruled, and this appeal is to determine the propriety of that ruling.

The pleadings of the litigants developed all the pertinent facts. At the town of Page, in Logan county, for some years past the plaintiff school district has conducted a high school. The Barnes law (Laws 1905, ch. 397) with its amendment (R. S. 72-3001) has been adopted in Logan county and the plaintiff school district maintained its high school at the standard required by that act at all times concerned in this lawsuit.

Defendant is a community high school comprised of the whole territory of Thomas county. It came into existence as successor of the former Thomas county high school by virtue of the Laws of 1923, ch. 187 (R. S. 72-2501 et seq.).

Plaintiff collected tuition from defendant for the two school years 1923-1924 and 1925-1926, and founds its present action for tuition for the year 1924-1925 upon R. S. 72-2505, which, so far as pertinent, reads:

". . . If any pupil, living within the boundary of said community high-school district, shall, with the approval of the county superintendent, attend any other high school, either approved or accredited outside the boundaries of said community high school, the board of trustees of said community high school shall pay or cause to be paid into the treasury of the said high school which such pupil attends a tuition fee of two dollars per week for the time such pupil is in actual attendance at said high school: . . . Provided further, That the provisions of this section relating to tuition shall apply also to pupils attending high schools in adjoining counties. [L. 1923, ch. 187, § 5; March 20.]"

Defendant partly bases its cross action (as well as its defense) on the theory that the statute governing the controversy is R. S. 72-3014, which reads:

"That tuition shall be free in all high schools established pursuant to Laws 1905, chapter 397 [Barnes law], as amended by later enactments, to pupils residing in the county where such high-school law is in force: Provided, That such pupils shall present to the high-school authorities an entrance certificate, signed by the county superintendent of public instruction, certifying that such pupil has completed the course of study prescribed by the state board of education for the pupil below the high school, or who shall pass such entrance examination as the high-school authorities may require: Provided further, That when pupils reside in an adjacent county that does not operate under the provisions of such high-school law established pursuant to Laws 1905, chapter 397, as amended by later enactments, the board of county commissioners of such adjacent county in which the pupils reside, shall, upon recommendation of the county superintendent of public instruction having jurisdiction over the high school where said pupils attend, pay the tuition of $ 2 per week or fraction thereof, for such pupils to the district in which the high school is located: Provided further, That this act shall apply to all high-school pupils residing in any adjacent county that attend high school established under Laws 1905, chapter 397, as amended by later enactments: Provided further, That the said county commissioners shall pay such tuition from the general fund of the county where such pupil or pupils reside. [L. 1923, ch. 191, § 1; March 24.]"

It requires only a casual examination of the two statutes just quoted to see that both cannot apply to the matters in controversy between these litigants. And so far as they may be in conflict with each other the latest enactment is controlling. (Arkansas City v. Turner, State Auditor, 116...