District No. 6, Township 40, Range 28 v. District No. 5, Township 40, Range 28 , 1885 Mo. App. LEXIS 330 ( 1885 )

Opinion by

Philips, P. J.

The petition in this case sets out the following state of facts: That the defendant is an old school district, existing prior to 1880, composed of certain sections; that afterwards, in 1881 the plaintiff was erected into a new school district, composed of part of the territory formerly embraced in the defendant district, and certain other territory not so embraced. That at the date of the formation of the new district, the defendant was. not indebted in any sum whatever, and that there was then in the hands of the treasurer of Henry county the sum of $311.93, as a balance to the credit of said old district, which sum had accumulated from the levying and collecting of taxes prior to the formation of the new district, and on the personal property of the taxable inhabitants residing therein, including those transferred to the new district; and that, after the formation of the new district, plaintiff demanded of the defendant a warrant for its portion of said fund, which defendant refused to give. Plaintiff claims that the equitable portion of said fund to which it is entitled amounts to $111.35. This suit is to recover judgment therefor, and for all proper relief. To this petition defendant demurred, on the ground that the same does not state facts sufficient to constitute a cause of action. The circuit court having sustained this demurrer, and the plaintiff electing to stand on its petition, it has brought the case here on writ of error.

1. It must be conceded that there is strong equity underlying this claim, at least so far as the children and taxpayers, who were transferred from the old to the new district, are concerned. The money in the hands of the treasurer was admittedly a trust fund, held for educational purposes, presumably in the old district, and the treasurer could not pay it out except on the warrant of the proper officers of that district.

An examination of the school law of this state (chapter 150 Rev. Stat.) leads to the inevitable conclusion that the only class of property held by a school district, which, in the contemplation of the - legislature, might become the subject of equitable distribution between two or more districts, is that of school houses and sites. So sections 7024 and 7025 provide a method in the case of carving one district, or a part of one, out of another in which a school house had been erected, for the equitable compensation of the taxpayers transferred to the new district for the?* proportionate interest in such school house.

As illustrative of how rigidly the courts construe the granted powers of these quasi corporations, or whatever else you may call them, it is held, in Rice v. McClelland et al. (58 Mo. 116), that where a tax has been assessed by the directors of -a school district for the erection of a school house, and a new district is thereafter •carved out of it, the latter, is not entitled to demand of the former a proportionate share of the money so collected. The decision is based on the proposition that the money being a trust fund; collected for the erection of a school house, could be applied to that purpose alone, and paid out by the treasurer only upon the proper warrant. That is one of the contingencies, or hard cases, if you see fit to so call it, which the legislature foresaw might arise under the operation of the school law. But this adjustment of the rights and interest of the taxpayers and children can be made in no other way, because that is the prescription in the statute — the special charter of the corporations. In the absence of such statutory provision, we know of no mode, recognized by the law, by which this result could be. secured. It does not appear from the petition for what purpose the money in question was collected from the taxpayers of the defendant ■district. It is simply averred that “said sum was derived from taxes levied and collected on the real estate and personal property of the taxable inhabitants of the defendant.” From aught that appears, this fund may have been collected for the purpose of building a school house. If so the case is not distinguishable from that of Rice v. McClelland, supra.

But conceding that it was collected for other purposes contemplated by the statute, and it must be .assumed, without more, that it was legally collected, as the presumption of the law is ever in favor of the official integrity and fidelity of public officers. Lawson on Presumptions 53; Henry v. Dulle, 74 Mo. 443. By what rule of law or equity can the -plaintiff sue for it ? It is admitted in argument, by the -learn'ed counsel for plaintiff, that this is a casus omissus in the statute. There is no statutory provision applicable to such case, for the simple reason, that it was not supposed by the legislature that there could ever be in the hands of the treasurer any surplus fund arising from assessment levies on the taxpayers for school purposes. Under the system devised by the legislature, just so much, and no more, revenue was to be exacted of the taxpayers at any one time as was exactly necessary, above the fund received from the general apportionment from the state, to conduct the school for the current year. And, therefore, the presumption would further be that all the children of the district had received their share of the benefit from such tax. It is true, an instance may be conceived in which a surplus might exist; as, for example, a levy might be made, and tax collected for the current year, and after the school began an epidemic might break out, or other cause supervene, which would disband the school for the year.

So the money collected would remain on hand properly and necessarily. So that it does not necessarily follow, as counsel suggest in argument, that the presumption of law is that this surplus fund was improvidently or wrongfully exacted from the taxpayers by an over levy. In the absence of any statutory provision for the partition of this fund between the old and the new district, I am unable, after patient investigation, to discover any precedent or authority in law, or equity jurisprudence, for this proceeding. Admitting that the treasurer holds this fund in trust for the benefit of the whole number of children who were in the district at the time it was collected, what authority has this plaintiff to recover, it ? No such power is given it by the charter of its creation. There is no privity between it and the old district. Each is a distinct legal entity. Where a corporation goes entirely out of existence, by annexation to or merger in another corporation, if no arrangement be made respecting the property and liabilities of the defunct corporation, the subsisting corporation succeeds to all the property and liabilities of the former. This rests on the principle of succession of rights and devolution of obligations. . As it takes the benefits so it must bear the burdens of the antecedent concern. So it has been held where a township was parted, each part remains liable for a debt contracted by the whole, with right of contribution. Thompson v. Abbot, 61 Mo. 176; Plunket Creek Township v. Crawford, 27 Pa. St. 107. But here the old corporation exists. The new has received none of its property, and there is no liability for any obligation, for the petition states there is no debt. Suppose the plaintiff district should recover this fund sued for, what would become of it % If it be a trust fund for the benefit of the children who were resident in the old district at the time of its levy and collection, how could this court direct the fund, in any judgment or decree it might make, to be secured solely to the benefit of such of the children as are within the new district ? In contemplation of the statute, from which the directors of the new corporation derive all their functions and faculties, they are only authorized to employ the school fund under their control for the support of schools in the district — for the benefit of all the children of the proper school age within the territory. By what authority or process could they so direct the employment of this $111, that it could enure to the sole use and benefit of the children coming from the old district into the new % It would be inequitable that any portion of the fund recovered by the plaintiff should enure to the benefit of children for whom it was not collected, or to the benefit of taxpayers who never contributed one cent of it. Only apart of the territory which contributed this sum is embraced within the new district. The children who lived within that part of the old district when the money was collected, who were transferred to the new, may not all live now within, the new. The same taxpayers who contributed to this fund in the old district may not now live in the new. How, then, is it possible for the officers of the new district, who are seeking to recover this fund as an equitable fund for the benefit of the children or the taxpayers living in the new who were in the old district when it accrued, to so apply it after recovering it ? The impracticability of executing such a scheme demonstrates the lack of legal support for this action. The absence of any statutory provision for such a contingency, when the legislature were dealing with the subject of the apportionment of property between the old and new district, is persuasive evidence to my mind that no such right as is sought to'be secured to the new district by this suit, was designed to be conferred upon plaintiff by the legislature.

Counsel for ■ plaintiff have exhibited much industry in their search after precedents for this action. They have found none. Presumably none exist. We have carefully examined the authorities cited, but it appears, either that they rest upon a different state of facts, or upon the express provisions of the statute of the respective states. Johnson v. Smith, 64 Ind. 275; Albin v. Directors of Independent District, etc., 58 Iowa 77; Lower Allen v. Shermantown District, 91 Pa. St. 182 ; Board of Education v. Ladd, 26 Ohio St. 210.

The equity of the taxpayers and the children transferred to the new district has appealed most strongly to me, but the law, in my opinion, does not authorize us to grant their prayer.

The judgment of the circuit court must, therefore, be affirmed.

All concur.