State ex rel. Booth v. Bryan

• Decision Date: 31 December 1894
• Citation: 38 P. 618,26 Or. 502
• Parties: STATE ex rel. BOOTH v. BRYAN, Superintendent.
• Court: Oregon Supreme Court

38 P. 618

26 Or. 502

STATE ex rel. BOOTH v. BRYAN, Superintendent.

Supreme Court of Oregon

December 31, 1894

Appeal from circuit court, Benton county; J.C. Fullerton, Judge.

Petition by Charles Booth for a writ of mandamus to compel E.L. Bryan county school superintendent of Benton county, Or., to make an apportionment of school funds. From a judgment sustaining a demurrer to and dismissing the alternative writ, relator appeals. Affirmed.

John Kelsay, for appellant.

W.S McFadden, for respondent.

WOLVERTON J.

The plaintiff prays a writ of mandamus founded upon the following state of facts, which appear from the alternative writ: The relator is a resident, voter, and taxpayer, and has been for 90 days last past the duly appointed, qualified, and acting superintendent of common schools for Lincoln county Or. The defendant is now, and for the past six months has been, the duly elected, qualified, and acting superintendent of common schools for Benton county. On the 8th of May, 1893 the relator demanded of the defendant that he apportion to the various school districts in Lincoln county their pro rata proportion of the school funds for the year 1893, the same as if Lincoln county had not been created or organized, which duty defendant peremptorily refused to perform, and still refuses to do the act required of him. The relator has a family of minor children of school age entitled to school privileges. A demurrer was interposed to the writ, and, among others, the following grounds therefor were assigned: It does not appear that the school clerks of Lincoln county have complied with the law in reference to making their report to defendant as provided in section 2608 of the act of February 20, 1891; that no facts are stated entitling the plaintiff to any relief as against defendant, or showing it to be the duty of defendant to do any of the acts required of him. The demurrer was sustained by the court below, and the writ dismissed, from which judgment this appeal is prosecuted.

This controversy is the outgrowth of an act of the legislative assembly of the state of Oregon which became a law February 20, 1893, constituting Lincoln county from the western portion of Benton. By section 11 of said act it is provided: "It shall be the duty of the superintendent of schools of Benton county, within sixty days after the appointment of the superintendent of schools of Lincoln county, to make out and forward to said superintendent of schools of Lincoln county a true and correct transcript or abstract of the annual reports of the clerks of the various school districts embraced within said Lincoln county; and he shall also at the same time of making the apportionments of the school fund for the year of 1893, apportion to the various school districts within Lincoln county their pro rata proportion of said school fund the same as if said Lincoln county had not been created and organized." Section 2590, subd. 5, Hill's Ann.Laws Or makes it the duty of the county superintendent, on the third Mondays in April and August of each year, to make an apportionment of the entire school fund then in the county treasury, as follows: Of the school fund in the treasury of his county that has been collected in pursuance of the school-tax levy of the county court of his county, he shall apportion the sum of $50 once a year to the several districts of the county that have reported to him as required by law, and all the balance of the school funds, of whatever nature thereafter remaining in the treasury of the county, shall be apportioned by him among the several districts that have reported to him as required by law, in proportion to the number of persons in each district over the age of four and under twenty years; but if, at the time of making the apportionment, there should not be a sufficient sum in the treasury collected in pursuance of the school-tax levy to enable him to apportion to each district that has reported to him as required by law the sum of $50, then he shall apportion the entire amount in the treasury collected from the school-tax levy pro rata among such districts of his county as have reported to him according to law. Section 2608 provides: "Districts shall not be entitled to their proportion of the school fund at the disposal of the county school superintendent unless they shall report to him by the first Monday of March of each year, and shall have had a school taught in their district of one quarter's duration in each year." And section 2619, subd. 5, requires each district clerk to make a report to the directors and citizens at the regular annual meeting on the first Monday of March of each year, and, after all necessary corrections are made therein, it is then incumbent upon him to file the original in his office, and immediately forward a certified copy thereof to the school superintendent of his county, provided that the same shall be forwarded and filed with the superintendent by the 15th day of March of each year. A form is prescribed in which the annual report, as nearly as may be, shall be submitted to the superintendent. This form requires a report of the number of legal voters, the number of persons over four and under twenty years of age, number of male scholars, the number of female scholars, the number of quarters of school taught, etc. By section 2716 it is made the duty of the board of commissioners for the sale of school and university lands, and for the investment of the funds...