School Dist. No. 7 v. Board of Com'rs of Creek County

On Rehearing.

LESTER, J.

In addition to the expression of law as contained in the original opinion, the plaintiff cannot recover judgment for another reason.' It must be remembered that we are dealing with that portion of the state money which is devoted to the support and maintenance of the common school system of this state.

In administering and distributing, said funds the state has adopted certain agencies through whom it acts.

Constitution, article 13, section 1, of the state of Oklahoma, devolves the duty of establishing and maintaining public free schools upon the Legislature.

Constitution, article 11, sections 2 and 3, creates the funds for such schools, establishing the permanent school fund; provides that the income from such fund shall he used for the maintenance of the common schools in the state; and provides that the principal shall create a trust fund held by the state.

Constitution, article 13, section 5, provides for a Board of Education of the state, also provides that the supervision of the public schools shall be vested in this board, and that the Superintendent of Public Instruction shall be president of the board, and also provides that the powers and duties of this board shall be prescribed by law.

Section 10236. C. O. S. 1921. provides for monthly apportionment of the income accruing from the permanent school fund and the ad valorem taxes collected by the state.

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from which proper reports have been received by the Superintendent of Public Instruction.

Section 10237. C. O. S. 1921, provides the basis of apportionment, as follows :

“The apportionment to each county shall be made in proportion to the number of children over the age of six years and under the age of 21 years, resident therein, as shown by the last annual report of the county superintendent to the State Superintendent. The Commissioners of the Land Oflice, in distributing all funds mentioned in this section, shall draw their order on the State Treasurer or other officer having custody of such funds, in favor of the county treasurers of the counties respectively entitled to school moneys, for the amount of such moneys apportioned to his county, and certify the amount of such order to the State Treasurer, and also to the county clerk and superintendent of the proper county.”

Section 10315, C. O. S. 1921, provides:

“Within five days after receiving th'e certificate of the State Superintendent of Public Instruction informing him of the amount of state school fund which has been apportioned to his county, such county superintendent shall apportion the same, together with the unapportioned county school fund in the county treasury, among the school districts and parts of districts 'in such county in the ratio of the number of persons of school age who are entitled to receive the same, residing in each district, or part of district, as shown by th'e last annual report of the several clerks of such district and parts of districts.”

In the case of Board of Ed. of City of Ardmore v. State ex rel. Best, 26 Okla. 366 , 109 Pac. 563 , it is said:

“The free public school system which the Legislature is directed to establish by article 13 of the Constitution is a matter of general state con! ern and not a municipal affair.”

To the same effect, State ex rel. Friend v. Cummings et al.. 47 Okla. 44 . 147 Pac. 161 . The funds sought to be recovered under the plaintiff’s petition are part of the common school funds, which were never apportioned to the plaintiff school district by the county superintendent of schools.

The case of Gridley School District of Butte County v. Stout et al. (Cal.) 66 Pac. 785 , is a case wherein the school district brought suit against the county superintendent of schools to recover certain unexpended balances to the credit of the school district, which were turned over by the superintendent of schools to the unappropriated school fund of the county. The syllabus of this case 'is as follows:

“1. A school district cannot sue the superintendent of schools of the county on the ground that he turned over an unexpended balance to the credit of the school district lo t'lie unappropriated school fund of the county, as plaintiff has no proprietary right to the money to its credit in the treasury.

“2. A county school superintendent erroneously turning over the unexpended balance to the credit of a school district to the unappropriated school funds of the county is not liable to the school district in an action for tort.”

And in, th,e body of the opinion it is said:

“It is clear that the action cannot he maintained. The plaintiff had no proprietary right to the money to its credit in the county treasury, and therefore, no right to recover it”

In the case of Kennedy, City Treasurer, v. Miller, County Treasurer, et al. (Cal.) 32 Pac. 558 , the city treasurer of the city of San Diego brought suit against the county treasurer and county auditor of San Diego county to obtain custody of funds apportioned for school purposes. In this case it is held, quoting from the syllabus of the case:

“That all moneys apportioned from the school fund, as well as those raised by a levy on the taxable property of a city, are to remain in the county treasury until withdrawn under requisition of th'e county superintendent. and are not subject to call by the city for deposit in the city treasury.”

Quoting- from the body of the opinion, th'e court, speaking- with reference to the ownership of funds which have been apportioned to the county and by the county superintendent to be apportioned among the several school districts of the county, says:

“The school moneys never lose their character of public moneys belonging

to the

state, and are to remain under the control of its officers for the purposes for which they have been appropriated. The fact that they have be'en apportioned to the several school districts does not give to those districts any proprietary right therein, or any right to their custody; hut the districts through their authorized agents have the right merely to contract for th’eir proper disbursement within the purposes authorized bylaw.”

In the case of Cooke, County Superintendent of Schools, v. School District No. 12 (Colo.) 21 Pac. 496 . it is held that the school district has no interest in the school fund until such time at least as th'e fund is apportioned and credited to the respective school districts.

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The case of Webb County v. Board of School Trustees of Laredo (Tex.) 65 S. W. 878 , decided by the Supreme Court of that state, involved certain school funds which had been received from the state by Webb county, no part of which had been paid to the school district.

Article 3934 of the Revised Statutes of Texas, 1895, provides as follows:

‘ The county superintendent, upon th'e receipt of the certificate issued by the board of education for the state fund belonging to his county, shall apportion the same to the Several school districts (not including the independent school districts of the county), making a pro rata distribution as per the scholastic census, and shall at the same time apportion the income arising from the county school funds to all the school districts, including the independent school districts of the county, making a pro rata distribution as per scholastic census.’’

In article 3935 of the Revised Statutes of Texas, it is provided that;

“* * The treasurers of the several counties shall be treasurers of the available public free school fund, and also of the permanent county school fund for their respective counties.”

The court in that case said:

“I-t is expressly made the duty of the county superintendent, whenever there is one, to make the apportionment among the school districts and communities of the county. In the performance of that duty, he is not subject to the control of th'e commissioners’ court; on the contrary, his administration of ‘all matters pertaining to public education in his county’ is expressly made subject to ‘the direction of the State Superintendent.’ In the case of White v. City of San Antonio (Tex. Sup.) 60 S. W. 426 , notwithstanding the hardship of the result, we held that the city was not liable for the conduct of its health officer in making a pesthouse of the plaintiff’s hotel, — for th'e reason that the functions the officer was called upon to perform were in the interest of the public at large, and not for th'e special interest of the city, and that therefore he was acting for the state and not for the city. For a stronger reason we must hold that a county cannot be h'eld responsible for the failure of the county superintendent to make a proper apportionment of the available school fund of th'e county. Though, in a sense, a county officer, and though called ‘county superintendent.’ he 'is. in fact, the officer and agent of the state, —the state having assumed the functions of maintaining public free schools for the education of the children throughout its domain, the counties being recognized with reference to that business merely as convenient subdivisions of territory, and some of their officers as proper agents for the administration, of affairs relating to the public fre'e schools. Such officers, with respect to such affairs, act for the state, and not for the county. This is the case, even as to officers, who, in other respects, are county officers in fact as well as in name. White v. City of San Antonio, supra; Johnson v. Hanscom, 90 Tex. 321 , 38 S. W. 761 . The complaint here is that there was a failure to properly apportion the special available school fund of W'ebb county for certain years mentioned in the petition, whereby the independent school district of the city of Laredo received no part of such fund during such years. Since the apportionment was a function assumed by the state, to be discharged by an officer acting for it, we are of the opinion 'that the county cannot be held liable for his action.”

It is alleged in the plaintiff's petition in. the instant case:

“That the said county superintendent of public instruction, and the county treasurer of Creek county erroneously apportioned and paid a large portion of said county and state aids; that for the years 1916 to 1925, inclusive, in said apportionment, said officers' ini computing the apportionment of said county and state aids to school district No. 7, failed and neglected to include the minority scholastics, to wit. minority schol-astics, male and female, between th'e ages of six and 21 years, residing in said district, in the computation of the apportionment of said county and state school aids to said school district No. 7.

“That the said sum of $3,450.99, so erroneously apportioned by the county superintendent of public instruction and the county treasurer of Creek county, was, and is, the property of school district No. 7; and the plaintiff, by reason of the duty imposed upon it by law, was, and is, entitled to same, together with interest thereon, at the rate of six per cent, per annum from the date of the several erroneous apportionments above referred to, in the total sum of $1,-132.92.”

Under the allegations of plaintiff’s petition, if the state agencies acted erroneously, such acts will not enable plaintiff school district to recover a money judgment against the county.