School Dist. No. 61 v. School Dist. No. 32 , 53 Or. 33 ( 1908 )

Mr. Justice Eakin

delivered the opinion of the court.

There is no conflict as to the facts, but the defendant contends that, the tax being a special tax, it cannot be lawfully used for any other purpose than that for which it was levied without violating the provisions of Section 3, Article IX, Constitution of Oregon, which provides that “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.”

1. The only question involved is whether the board of directors of district No. 32 can lawfully pay over to the new district created out of its territory, the new district’s pro rata of said tax money levied and collected for building purposes. We deem the consideration of this question unimpdrtant. Even if the tax money is considered as a building fund, plaintiff district’s claim upon it is the same as if it were already expended in such building; and, in that event, it would constitute an additional asset subject to division with the new district, and the result would be the same. The defendant would still have to pay to plaintiff in money, its share of the value of the improvement. The statute provides: “Assets shall include all school property and moneys belonging to the district at the time of the division.” Thus the tax money is included in the assets for which the new district must be compensated; and this is all that the two boards of directors attempted to adjust. Hence it is immaterial to the plaintiff whether the amount is paid from the tax money or from some other fund.

2. However, payment to plaintiff of this portion of the tax money is. not necessarily a diversion of it to a different purpose. If it is a trust fund for building purposes, it would still be impressed with the trust in the hands of the board of the new district. The division of the property by the two boards is evidently an equitable division of the assets of the old district, and this judgment requires only the payment of the debt, and does not determine the fund from which it is to be paid.

We find no error in the ruling of the lower court; and the judgment is affirmed. Affirmed.