School District No. 9 in Midland v. School District No. 5 in Midland

• Decision Date: 15 April 1879
• Citation: 40 Mich. 551
• Court: Michigan Supreme Court
• Parties: School District No. 9 in Midland v. School District No. 5 in Midland

40 Mich. 551

School District No. 9 in Midland v. School District No. 5 in Midland

Supreme Court of Michigan

April 15, 1879

Submitted April 9, 1879

Error to Midland. Submitted April 9. Decided April 15.

Judgment reversed with costs and new trial ordered.

Van Kleeck & Tindall for plaintiff in error.

Burton & Hemingway for defendant in error. Defendant's liability, if any, is statutory and does not attach until the school inspectors have determined the amount justly due Comp. L., § 3644; Saginaw v. School District No. 1, 9 Mich. 541; when fixed, mandamus is the proper remedy. School Dist. No. 2 v. School Dist. No. 1, 3 Wis. 333; Marathon v. Oregon, 8 Mich. 372; Dayton v. Rounds, 27 Mich. 82; McArthur v. Duncan, 34 Mich. 27.

Campbell C. J. The other Justices concurred.

OPINION

Campbell C. J.

This suit was brought by School District No. 9 in Midland to recover a sum due plaintiff as its ascertained proportion of the value of school property in the district of which it was formerly a part.

In 1870 the plaintiff district was set off from the defendant district. The sum of $ 134.29 was placed on the assessment roll of the township in October, 1870, as the proportion aforesaid to be collected in favor of plaintiff. Instead of receiving this money, plaintiff never obtained any portion of it, and claims it went into the possession of the defendant. An action is now brought for this money as had and received to the use of plaintiff. The court below made no finding on any of these facts, but after setting forth plaintiff's claim under the issue and testimony, held as matter of law that "the law compels the supervisor to assess it upon the property of district No. 5, and the district should pay it after it is collected." And the court further held that this payment should be compelled by mandamus and not by suit.

The court, we think, misapprehended the duty of the various officials. The statute is express that the amount placed on the assessment roll for the benefit of the new district, when collected, "shall be paid over to the assessor of the new district, to be applied to the use thereof, in the same manner, under the direction of its proper officers, as if such sum had been voted and raised by said district for building a school-house, or other district purposes." Comp. L., § 3647.

The assessor is the lawful treasurer and depositary of district funds and all moneys must pass through his hands and be paid out by him on proper orders. The school moneys are drawn from the town treasurer and placed in the hands of the assessor on the warrant of the proper district officers. It has been held by this court that the town treasurer has no right to pay school moneys to any one but the assessor, and cannot pay over money on warrants or otherwise to other persons. Fox v. Shipman, 19 Mich. 218. Any other kind of order is void upon its face and will not protect the treasurer. Fract. School Dist. No. 4 v. Mallary 23 Mich. 111.

There was no lawful way in which any of this money could pass into the hands of school district No. 5, the defendant, and therefore there could be no such statutory and legal relations between them in regard to it as would authorize resort to a mandamus, which can only issue against municipal corporations for the payment of money when the obligation to pay it has been determined by some legal liquidation. If any of this money is in the hands of defendant it is there wrongfully, and can only be liquidated by an action for money...