Clarke v. School District No. 16

106 S.W. 677, 84 Ark. 516, 1907 Ark. LEXIS 258

• Court: Supreme Court of Arkansas
• Decided: December 9, 1907
• Status: Published

Opinion

Wood, J.

The questions presented by this ..appeal are: (1) Can the directors of a common school district employ one of their number as clerk of the board at a salary of $15 payable out of the school fund?

(2) If the sums are illegally paid, can the treasurer of the county, who pays warrants drawn for such amounts, recover same back from the person to whom the sums were paid?

(3) Does the statute of limitations run against the treasurer, Bussell, or the school district to recover the funds? Was the district a proper party? -

Answering these in the order named:

• i. We find no statute authorizing the directors of a common school district to employ one of their number as clerk and to contract to pay such clerk a salary for his services as clerk of the board. The law provides that one of the directors shall act. as clerk, and prescribe various duties for him to perform. Kirby’s Digest, § § 7630, 7631. But we find no express provision for 'his compensation, and none from which such compensation could be implied. In the absence of statutory authority expressly conferred upon the board of directors or some general provision from which such authority must be implied, such contracts of the board with one of their number, can not be upheld. It would seem, from the onerous duties required of the clerk of the board, that some provision should be made for his compensation, but, in the absence of legislation upon the subject, he must .simply take the position' cum onere and without pay.

2. Although the treasurer illegally pays the warrants for such services, he may, when his mistake is discovered, recover the same back into the treasury. The funds in his hands are trust funds belonging to the district, and he or the district may sue to recover same back into the treasury where they have been illegally paid out. There is no question of having paid money on an executed contract in the case. Neither the treasurer nor the district whose funds are in his hands are parties to any contract that was beyond the power of the directors to make.

3. The statute of limitations would run against Bussell and the district for all sums paid out by him more than three years before the institutiin of the suit. There was a liability on the party receiving the funds illegally from the treasurer immediately upon receipt of the same. And suit could have been brought and maintained for the recovery of the money at once. The statute began to run at once, and after three, years effectually barred the action.

The school district, having been reimbursed by Bussell, was not a necessary party. It was not, however, an improper party, for the funds belonged to it; and, as it had been paid, it could sue for Bussell’s benefit.

The statute of limitations will, run against a school district, as well as a county, city or town. See Ft. Smith v. McKibbin, 41 Ark. 45; Helena v. Hornor, 58 Ark. 151. A school district is a corporation, and may sue in any of the courts of the State having competent jurisdiction. See 7541, Kirby’s Digest. The State is not a party here, and the school district, in seeking to recover funds illegally paid out on the warrant of its directors, is not exercising any of the functions of the sovereign power. 19 Am. & Eng. Enc. Law, 192, note 1; May v. School District, 22 Neb. 205, 3 Am & Statg Rep. 266, and note.

In reality, the school district here was only a party for the benefit of Bussell, it having already been paid.

The judgment is reversed for all except $30 with interest, and as to that is affirmed.