Weasel Head v. Armstrong

• Decision Date: 08 April 1935
• Docket Number: 7369.
• Citation: 43 P.2d 243,99 Mont. 364
• Parties: WEASEL HEAD et al., Board of Trustees of School Dist. No. 7, v. ARMSTRONG, County Treasurer, et al. [a1]
• Court: Montana Supreme Court

43 P.2d 243

99 Mont. 364

WEASEL HEAD et al., Board of Trustees of School Dist. No. 7, v. ARMSTRONG, County Treasurer, et al. ^[a1]

No. 7369.

Supreme Court of Montana

April 8, 1935

Appeal from District Court, Glacier County; C. B. Elwell, Judge.

Action by Charles Weasel Head and others, as the Board of Trustees of School District No. 7, against A. E. Armstrong, as Treasurer of Glacier County, wherein School District No. 9 was joined as a party defendant, wherein both defendants filed a cross-complaint. From a judgment in favor of defendants, plaintiffs appeal.

Reversed and remanded with direction.

S. J Rigney, of Cut Bank, for appellants.

W. R McDonald, of Browning, and Ford & Smith and Horace W. Judson all of Cut Bank, for respondents.

MATTHEWS Justice.

On October 31, 1931, the county superintendent of Glacier county made an order creating school district No. 7 out of a part of the territory embraced within district No. 9 of that county. Thereupon a board of trustees was appointed, qualified, and acted by hiring a teacher and opening school in what is known as the "No Coat" schoolhouse, and assumed charge of the school theretofore conducted by district No. 9 at the "Old Agency." On November 4, 1931, an appeal was taken from the action of the county superintendent to the board of county commissioners, which appeal resulted in an order of the board, on December 9, 1931, setting aside the order of the county superintendent.

On December 11, 1931, a suit in equity was instituted to set aside the order of the board, and thereupon the presiding judge issued an order to show cause and an order that the order of the board "be stayed until the final determination of this proceeding." The presiding judge disqualified himself, and called in an outside judge to hear the matter. The proceeding resulted in a decree, of date June 29, 1932, affirming the order of the board, but on appeal to this court the judgment was reversed and the order of the board set aside. Grant v. Michaels, 94 Mont. 452, 23 P.2d 266. On remittitur from this court the district court entered judgment, of date July 7, 1933, in accordance with that opinion.

During the school year of 1931-1932, funds in excess of $5,000 were apportioned, and credited on the books of the county treasurer, to district No. 7. For the same school year, district No. 7 conducted the school at the "Old Agency" for about a month, and at the "No Coat" school throughout the term. On the filing of the appeal to the board, district No. 9 took over the "Old Agency" school, and thereafter paid a part of the teacher's salary at the "No Coat" school--this because district No. 7 was short of funds and without protest from district No. 7, because, in the words of trustee Grant, "We didn't know just where we were at." There were not sufficient facilities within the new district to accommodate the children within its borders, and, because of this fact, the lack of funds and the uncertainty, the trustees of the new district were "willing to let District No. 9 go ahead very much the same as they had done before the creation of District No. 7," although no agreement to that effect was entered into between the trustees of the two districts and no formal consent to the manner in which district No. 9 proceeded was given, nor was any formal protest made.

It will be noted that no funds were apportioned to district No. 7 for the school year of 1932-1933. In that year district No. 9 conducted three schools within the confines of district No. 7 and paid the expenses thereof; it also built a schoolhouse within district No. 7 without consulting the trustees thereof or permitting that district to choose the site therefor. This building cost district No. 9 $1,325.60; it was built on skids, on land evidently not owned by the district, and can be readily moved.

Prior to October 1, 1933, the defendant treasurer had honored warrants drawn by district No. 7 on the funds of the district, leaving a balance to the credit of the district of $1,558.71. In October the district issued warrants against this balance which the county treasurer refused to pay therefrom. Thereupon the district instituted proceedings against the treasurer and secured the issuance of an alternative writ of mandate, to which the treasurer made answer, alleging that the funds mentioned had been unlawfully credited to district No. 7, and should have been credited to district No. 9. As a further answer and cross-complaint, the treasurer relates the history of district No. 7, and alleges that district No. 9 contends that all funds credited to district No. 7 were wrongfully and illegally so credited; that he cannot pay out any of such funds without assuming a personal liability and creating a liability upon his official bond; that he has no interest in the controversy between the two districts; and that district No. 9 is a necessary party to a determination of the action. On application of the treasurer, the court ordered that district No. 9 be joined as a party defendant.

Answering the complaint, district No. 9 set up the facts with respect to the division of the district, and alleged that the funds involved were illegally credited to district No. 7 and should have been credited to it. As a further defense, it alleged that it received $40,500 from the federal government in 1932, for the education of Indian pupils within its borders, and of this sum expended $5,537.70 for the education of Indian pupils residing in district No. 7; further, that it expended $1,730.93 in the school year of 1931-1932, maintaining the "Old Agency" school, and in the year 1932-1933 expended $5,622.43 maintaining three schools within district No. 7, and erected a schoolhouse therein at a cost of $1,325.67. The prayer is that district No. 7 be adjudged not entitled to the $5,659.58, credited to it, and that the treasurer be directed to pay warrants lawfully issued by this answering defendant to the extent of moneys in his hands belonging to it, including the $5,659.58.

A demurrer to this answer was interposed, and thereupon the defendant district filed an amended answer and cross-complaint wherein it is alleged, among other things, that district No. 9 has to its credit $10,563.41, against which it has issued warrants which the treasurer has refused to pay on account of this controversy. It prays that district No. 7 be adjudged not entitled to any moneys credited between October 1, 1931, and July 7, 1933; that it be compelled to issue warrants to district No. 9 in the sum of $4,070.87; and that the treasurer be directed to transfer the balance in controversy--$1,586.71--to the credit of district No. 9 and to pay all warrants lawfully issued by that district.

Replies to the amended answer and cross-complaint were filed, and the matter was tried to the court without a jury. On the pleadings and the evidence adduced, the court made findings of fact on which it based its judgment, which declares: (1) That district No. 7 was legally created on the 7th day of July, 1933, and was not theretofore a duly created legal entity; (2) that it was wrongfully credited with the sum of $5,659.58, which should have been credited to district No. 9; (3) that the treasurer forthwith credit district No. 9 with the balance on the books to the credit of district No. 7; (4) that district No. 9 have judgment against plaintiffs for $4,076.87; (5) that district No. 9 was lawfully credited with $10,563.41, between October 1, 1931, and October 1, 1933; the petition for the writ was then denied, and the treasurer and district No. 9 were awarded their costs against district No 7; (8) that the two districts forthwith apply to the county superintendent for an order dividing "the property and funds of the said school districts as of the date of July 7th, 1933." The plaintiffs have appealed from this judgment, and base...