School District No. 21 v. Board of County Commissioners

86 P. 24, 15 Wyo. 73, 1906 Wyo. LEXIS 6

Opinion

Scott, Justice.

The defendant in error, the Board of County Commissioners of Fremont County, Wyoming, commenced this action in the District Court of that county against Peter P. Dickinson as County Treasurer and ex-officio Collector of Taxes to restrain and enjoin him from paying to the plaintiff in error certain taxes which had been theretofore levied, and which might thereafter be collected for school purposes. A temporary injunction was allowed and thereafter, upon application of the school district, it was made a party defendant and permitted to defend in the action, and filed a demurrer to the petition on the ground that upon its face it did not state facts sufficient to constitute a cause of action against said school district. The demurrer was overruled, to which ruling exception was duly taken and the school district elected to stand upon the demurrer and the ruling thereon, and thereupon the defendant Dickinson being in default for answer or other pleading, judgment was rendered continuing the temporary injunction in force and perpetually enjoining the defendant Dickinson as Coutny Treasurer and ex-officio Collector of Taxes and his successors in office from paying to said school district the amount or any part of the moneys so collected and received, or that may thereafter be collected pursuant to the levy therefor. The school district brings the case here on error.

1. For the purpose of deciding the demurrer everything which is alleged in the petition must be deemed and taken as true. It is alleged that the school district lies wholly within the limits of the Shoshone Indian Reservation and within said county, and that it was organized in 1902 by the Superintendent of Schools of the county; that the district on May 4, 1903, voted a special school tax of eight hundred dollars, and that the Board of County Commissioners levied a tax of four mills on the dollar of the assessed valuation of property within the district for the purpose of raising said tax, two hundred and twenty dollars of which has been paid to the County Treasurer and ex-officio Collector of Taxes by various taxpayers of said district, and that more or all of said taxes may be paid to said Treasurer and ex-officio Collector of Taxes at any time, who threatens and is about to pay over to the treasured of said school district the said sum so collected or that may hereafter be collected under and in pursuance of said special school tax levy for said school district. The board further avers that it has reason to believe and does believe that the organization of said school district was illegal, as was also the levy of said special school tax, and that the moneys so collected should be refunded to the parties who paid them; that said board is about to commence a suit to determine the legality of the organization of said school district; that if such moneys be paid to the treasurer of said school district, the board will be unable, if it should be determined that said district was illegally organized, to pay or order repayment thereof to those who have-paid or may pay said tax and thus work irreparable injury to the board and the taxpayers of the county.

The prayer is that the County Treasurer and ex-officio Collector of-Taxes be perpetually enjoined from paying moneys so collected or which may be hereafter collected to the treasurer of said school district, and for such other and further relief to which it may in equity be entitled, and for costs.

Section 13, Article XV, of the Constitution, is as follows : “No tax shall be levied, except in pursuance of law, and every law imposing a tax shall state distinctly the object of the same, to which only it shall be applied.” Under the provisions of this section it was held by this court in State v. Commissioners of Laramie County, 8 Wyo., 104, that a deficiency in the state tax due from the county could not be paid out of the fund raised for general revenue purposes, in the county, and that a tax levied for county revenues “can be applied for no other purpose.” Such is the law applicable to the different county funds the expenditure of which within the limits prescribed by statute is lodged with the County Commissioners. The funds over which the board have control are pointed out and designated in Section 1087, Revised Statutes of Wyoming, 1899, which is as follows: “The County Treasurer shall receive all moneys' belonging to the county and state from whatever source they may be derived, and all moneys directed by law to be paid to him. All moneys received by him for use of the county shall be paid out by him only on the orders or warrants issued by the Board of County Commissioners, as prescribed by law, except when special provisions for the payment thereof shall be otherwise provided by law.” The County Treasurer is by virtue of his office collector of taxes (Sec. 1085, R. S. Wyo.), and as such receives “all moneys directed by law to be paid to him.” As such collector of taxes he received the moneys involved in this suit which belonged neither .to the state nor the county; and he was not authorized to pay the same into the county treasury. It formed a fund distinct in itself, separate and apart from the general school fund of the count)'-, the disposition of which is independent of the Board of County Commissioners, and, unlike the general fund for school purposes, it is neither apportioned nor paid out on order of the County Superintendent of Schools. Section 1822, Revised Statutes of Wyoming, which has reference to taxes for school purposes, is as follows: “The amount of tax cóllécted by the County Collector shall be held by said County Treasurer subject to the draft of the County Superintendent and shall be paid over accordingly; Provided, That the money collected on the district tax rolls shall be paid by the treasurer directly to the treasurer of the proper district, and his receipt taken therefor.” The tax roll here referred to is the list of taxes voted by and at the regular school meeting in the school district and certified to the County Assessor by the clerk of such district and which are separately scheduled. (Chap. 79, Sec. 13, S. T. 1903.) It is difficult to understand, in view of the provisions of the statute, already referred to, what authority or interest the Board of County Commissioners has over or in the money here involved which is in the hands of the collector of taxes and the disposition of which is attempted to be questioned, and we are of the opinion that the board has not such an interest as will enable it to maintain this suit.

2. The object and scope of the action goes far beyond the mere preservation of the money arising from the special school tax and strikes at the legality of the organization and existence of the school district. By Section 1195, Revised Statutes of Wyoming, as amended in Chapter 20, Session Laws of 1901, it is,made the duty of the County Superintendent of Schools to divide the county into school districts. Where the boundaries of a school district are so designated or formed provision is made for organization of such district by the election of trustees (Sec. 523, R. S. Wyo.) ; and an appeal may be taken from the organization of the district by a majority of the voters who may not be satisfied with such formation to the Board of County Commissioners. (Sec. 524, R. S. Wyo.) The allegation in the petition that the school district was organized by the County Superintendent of Schools carries with it the presumption that all of the steps required by the statutes have been complied with to perfect its organization. Being so organized, it became and is a body corporate (Sec. 529, R. S. Wyo.), and as such has certain powers vested in it. Suits may be brought by or against it in its corporate name. Within certain limits as to taxation, it is authorized to vote such sums of money as may be necessary to build, rent or purchase a school house, or school houses, and in general to maintain and keep up in a proper manner such school or schools in the district as may be necessary for the accommodation, comfort and education of the children of school age therein. (Chap. 63, S. L. 1903.)

It appears on the face of the petition that School District No. 21 was organized within the boundaries of Fremont County, and that the Board of County Commissioners is about to commence or institute an action to determine the legality of its organization. It was evidently the theory of the pleader that such question could not be determined in this suit, and he was correct in his conclusions, for that question can only be determined in a direct proceeding. In Burnham v. State, 167 Mo., 17, which was an action to recover taxes which were levied for school purposes, it was sought to question the validity of the organization of a school district. The court said: “Confusion amounting to chaos would result if the life of every municipal or other corporation in the state could be assailed in this manner.” In Stuart v. School District, 30 Mich., 69, it was also sought to question the validity of the organization of a school district. That court said, Cooley, J., delivering the opinion: “If every municipality must be subject to be called into court at any time to defend its original organization and its franchises at the will of any dissatisfied citizen who may feel disposed to question them, and subject to dissolution, or be crippled in authority and powers if defects appear, however complete and formal may have been the recognition of its rights and privileges, on the part alike of the state and its citizens, it may very justly be said that few of our municipalities can be entirely certain of the ground they stand upon, and that any single person, however honestly inclined, if disposed to be litigous, or over technical and precise, may have it in his power in many cases to cause infinite trouble, embarrassment and mischief.” In Trumbo v. The People, 75 Ill., 561, judgment was recovered for a school tax levied upon certain lands belonging to Trumbo who appealed. The case was tried in the lower court upon an agreed statement of facts from which it appeared, that, contrary to the provisions of the statute, the district lines of the new school district were within one mile of the school houses in each of two older established districts from which it was formed. That court said: “Yet, notwithstanding the school district was thus illegally formed, in violation of this statutory condition, a majority of the court are of the opinion that, in this collateral proceeding, the legality of the formation of the district cannot be inquired into, but that it must be taken to have been rightfully formed; and that the only mode in which the illegality can be inquired into and taken advantage of is by information in the nature of quo zvarranto.”

The rule announced in these cases is in line with the decisions of the various courts of last resort. (Ex parte Moore, 62 Ala., 471; Seavey v. Yarnell, 47 Ark., 269; Mullikin v. Bloomington, 72 Ind., 161; Mendenhall v. Burton, 42 Kan., 570; Chicago, &c., R. Co. v. Kentwood, 49 La. Ann., 931; St. Paul Gaslight Co. v. Sandstone, 73 Minn., 225; State v. Whitney, 41 Neb., 613; Rellstab v. Belmar, 58 N. J. L., 489; Gardner v. Christian, 70 Hun (N. Y.), 547; Henderson v. Davis, 106 N. Car., 88; Coler v. Dwight School Tp., 3 N. Dak., 249; Graham v. City of Grenville, 67 Tex., 62; El Paso v. Ruckman, 92 Tex., 86; Hornbrook v. Elm Grove, 40 W. Va., 543; Shapleigh v. San Angelo, 167 U. S., 646.) The foregoing are but a few of the many cases which support the rule and are referred to without further comment than as showing how firmly the courts adhere to the rule that the existence of a municipal corporation cannot be questioned except in a direct proceeding; nor do we think the opinion of the Supreme Court of Tennessee in Angell et al. v. Town of Spring City, 51 S. W. (Tenn.), 191, is at variance with these decisions. In that case the decision was based upon a statute which provided that unless certain prerequisites were done and made of record in the matter of the incorporation of a town its charter should upon its face be void. We have no such provision in our statutes with reference to school districts.

It necessarily follows that for the purposes of this case School District No. 21 in Fremont County, Wyoming, must be deemed to have been legally organized and existing as such, and that the court erred in overruling the demurrer to and rendering judgment upon the petition.

The judgment is reversed and the temporary injunction vacated, and the cause remanded with directions to the lower court to dismiss, the case.

Potter, C. J., and Beard, J., concur.