
    State, ex rel. McWylie, Trustee, v. Mathews, Auditor.
    [No. 18,514.
    Filed May 24, 1898.]
    
      Schools. — Apportionment of School Revenue by County Auditor.— A township is not entitled to any of the school fund collected from the tax assessed under the general law so long as the interest on the congressional fund of such township alone amounts to more per capita than was left in the hands of the county auditor to apportion to other townships, pp. 598, 599.
    
    
      Same. — Apportionment of School Revenue. — The common school fund derived from other sources than interest on the congressional township fund, maybe validly and constitutionally unequally distributed by statutory authority, so as to make the whole, including the congressional township fund, when distributed, as nearly equal per capita to each school corporation as possible, p. 600.
    
    From the Monroe Circuit Court.
    
      Affirmed.
    
    
      Louden & Louden, for appellant.
    
      J. E. Henley and. J. B. Wilson, for appeilee.
   McCabe, J.

The appellant’s relator as trustee of Perry school township in Monroe county, in the name of the State, sued appellee as auditor of Monroe county for a writ of mandate to compel the distribution of school funds to said Perry township. Many questions arose by rulings on demurrers to the complaint, answers, and replies, but all of such, and the same questions again arise on appellant’s exceptions to the conclusions of law, stated by the court on the special finding of facts. Pursuant to such conclusions of law, the peremptory writ was refused, and final judgment rendered in favor of the defendant. Error is assigned upon the conclusions of law among other things. We therefore need only examine the questions arising upon such conclusions of law. So much of the substance of the special finding as is material is as follows: That in 1895 there was assessed on the real estate and personal property of Perry township under the general law for school purposes $957.86, half of which sum was paid in the first installment of taxes in March and April, 1896, and the other half was paid in November next following; that said auditor in making the apportionment of the school revenue on the last Monday of January, 1897, refused to apportion to said township any part of said second installment, and, on demand of relator, refused to apportion any of said sum to said township of Perry; that the interest on the congressional township fund belonging to said township of Perry in the hands of said county auditor at the time he made said apportionment, in January, 1897, amounted to $525:39; which sum was by said auditor paid to said relator at the time of making said apportionment, and. said auditor refused to apportion any. other or additional sum to said township except $38.51, the proportion of liquor license fund due said township, which he paid to said relator; that the entire common school fund for distribution in Monroe county in January, 1897, exclusive of said congressional township fund belonging to said Perry township, was $8,328.11; at the same time the children of school age in said county, exclusive of the children of such age in said Perry township, numbered 5,926.

The conclusions of law are that the interest on the congressional fund belonging to Perry township alone amounted to more per capita for the school children of said township than the entire residue of the common school and congressional school fund would amount to for the school children of the other townships of said county; that said Perry township was not entitled to any of the school fund collected from the tax assessed under the general law, so long as the interest on her .congressional fund alone amounts to more per capita, as appears by the facts found, than was left in the hands of the county auditor to apportion to the other townships. That therefore the law is with the defendant.

The statute authorized the distribution just as the auditor has made it, and in acordance with the conclusions of law.stated by the court. Section 5973, Burns’ R. S. 1894 (4486, R. S. 1881).

It is conceded that to divide the entire common school fund of the county, including the congressional township fund, it would only make $1.41 per capita for the children thereof of school age. And it, is further conceded that the congressional township fund alone of Perry township, makes $ 1.45 per capita for the children of school age in said township. That makes a larger fund than the other townships have.

The only reason why in attempting to equalize the distribution of the school fund by the State a portion of this may not be taken away, is that the terms of the congressional grant by which it was created forbid it. Davis v. State, ex rel., 44 Ind. 38-47; Board, etc., v. State, ex rel., 116 Ind. 329; State v. Springfield Township, 6 Ind. 83. But it is settled law in this State that the common school fund derived from other sources maybe validly and constitutionally unequally distributed by statutory authority, so as to make the whole, including the congressional township fund, when distributed, as nearly equal per capita to each school corporation as possible. Quick v. Whitewater Township, 7 Ind. 570; Quick v. Springfield Township, 7 Ind. 636; State, ex rel., v. McClelland, Tr., 138 Ind. 395-407. The conclusions of law were accordingly correct. The judgment is affirmed.  