
    District Township of Honey Creek v. Floete, County Treasurer.
    1. District Township: territory in other township: right to taxes arising from. Where one of the subdistricts of a district township embraced territory in another township and county, and taxes for the contingent and teachers’ fund had been levied upon such territory and paid into the treasury of the county in which it lay, and the treasurer of such county also held certain money apportioned to said territory out of the temporary school.fund of said county, held that the money thus in the hands of the treasurer belonged to the district township to which the territory was attached, and for the support of whose school the taxes were levied and paid and the money apportioned, and that the treasurer, refusing to pay said money to said district township upon the proper warrants therefor, could be compelled by mandamus to do so.
    2. -: RESTORATION OF ATTCHED TERRITORY: TAKES EFFECT WHEN: apportionment of funds. Where there has been an agreement for the restoration to a district township of detached territory, in the absence of a stipulation to the contrary, it will be held to take effect, under section 1796 of the Code, or, if that does not apply, according to the general scope and intent of the school law, on the first Monday of March after the agreement has been entered into; and the taxes collected and moneys appropriated for the support of the school of the detached territory up to the time of the taking effect of the restoration, are'-payable to the district- township which supported the school, notwithstanding the warrants therefor are not presented and payment demanded until after the restoration has been perfected.
    
      Appeal from Olayton Oireuit Court.
    
    Friday, June 16.
    Action of mandamus. The plaintiff is situate in Delaware county and the defendant is treasurer of Clayton county. The petition states that for twenty years preceding 1880 one of the subdistricts of plaintiff embraced certain territory in Lodomillo township, Olayton county, and that the school in said subdistrict was under the control of plaintiff; that in September, 1879, by the action of the respective boards of directors of plaintiff, and the district township of Lodomillo, said territory'"was restored to the latter; that in 1877, 1878, and 1879, certain taxes were levied on said territory for contingent and teachers’ fund which has been collected and are in the hands of defendant; that an order was drawn prior to the commencement of this action, signed by the president and secretary of plaintiff!, directed to the defendant, requiring him to pay the money so in his hands to plaintiff’s treasurer, and that defendant upon demand being made'therefor refused to pay said money; that in September, 1878, and 1879, and on the first Monday in April, 1880, there was apportioned to said plaintiff for said subdistrict on the basis of enumeration of scholars in the territory of said subdistrict, in said Lodomillo township, of the temporary school fund of Clayton county, by its auditor, certain other moneys which are in the’hands of the defendant; that immediately after said apportionments said auditor-notified plaintiff thereof, and accompanied the same with warrants for the money aforesaid, which were duly signed by the president and secretary of the plaintiff and payment thereof demanded of defendant, which was refused. The plaintiff claims the payment of said warrants was an official duty which can be enforced by mandamus.
    
    The defendant admitted the money was in his hands and that he had refused to pay the same to the plaintiff. There was a trial to the court on agreed statement of' facts, judgment for the plaintiff,, and defendant appeals.
    
      8. K Adams and Mwdoek <& Larldn, for appellant.
    
      A. 8. Blair, for appellee.
   Servers, Oh. J.

The defendant pleaded “that he denies said territory of Lodomillo township belongs, or has belonged, sa^ plaintiff since on or about the year 1873, when said territory under and by virtue of chapter 9 title 12 of the Code of 1873 became a part of the school district of Lodomillo township, and ceased to be apart of the plaintiff, never having been'attaehed to or set over to the plaintiff by the school superintendent of Clayton county, Iowa, on account of streams or other natural obstacles, or for any other cause whatever.”

A demurrer to this portion of the answer was sustained, and it is insisted this was error. Counsel for appellant rely largely on Large v. The District Township of Washington, 53 Iowa, 663. In that case it was held that since the Code took effect subdistricts must be co-terminous with the township, except as provided in Code, § 1797, and that territory geographically situate in one township could not be taxed for the erection of a school-house in another township, unless it had been attached thereto in the manner, and for the purposes contemplated in the section referred to.

In the case cited it was the tax payer who complained of the illegal taxation. In the case at bar the tax payer has paid the taxes levied, and the money is in the defendant’s han.ds and should be paid by him to the plaintiff or the district township of Lodomillo. As we understand, the defendant claims it is not his duty to pay the money to the plaintiff, because it belongs to the district township of Lodomillo. The plaintiff claims it is entitled to the money because the territory was in fact attached to it for school purposes, so treated, and the taxes levied and collected for such purposes. The presumption must be indulged, in the absence of any showing to the contrary, that children residing on said territory attended school in the district to which it in fact was attached. Now it may be a tax payer residing on said territory could not have been compelled to pay taxes levied for the erection of a school-house in the' geographical limits of Honey creek township. But this does not settle the question at issue between these parties. Whether there is a material distinction between taxes levied for the erection of a shool-house, and other taxes levied for school purposes, we shall not stop to inquire. The material question to be determined is, to whom does the money belong. We think to the plaintiff, because the taxes were levied for the support of the school. The amount necessary for this purpose must, under the statute, have been determined by the plaintiff, by whom the school which the taxes were levied to support, or for whose benefit the same were apportioned, was in fact furnished and the expenses thereof paid.

II. It appears from the agreed statement of facts that the board of directors of the plaintiff and the district township of Lodomillo concurred in and restored the territory in question to the latter in September, 1879, but no time was fixed when such restoration should take effect. There is some doubt whether section 1796 of the Code applies to a case of this character. If it does then the restoration did not take effect until March, 1880. If it does not apply, then there is no positive statutory declaration on the subject.

Conceding there is not, we think according to the scope and intent of the school law, when there is no agreement to the contrary, the restoration should not be regarded as taking effect until the first Monday in March after the agreement had been entered into. Such time is the beginning of the school year. Taxes are then voted by the district and arrangements then made for the school.

The Circuit Court held the plaintiff was entitled to all the money claimed except that apportioned April 1st, 1880. The taxes had been levied, collected and apportioned before the restoration took effect except as just stated.

It does not clearly appear when the warrants were drawn and presented for payment. It is assumed, however, by counsel for.appellant this was not done until after March, 1880. It is said it was not the duty of the defendant to pay the warrants at that time, because there was not then any territory in Clayton county attached to the plaintiff, and section 1785 of the Code is relied on. .

But we think it was the duty of the defendant to pay the money to the plaintiff because it belonged to it, and the time of the demand made for it was not material unless because of the lapse of time the statute of limitations had become operative, or there was something else to bar the right, other than the slight delay in making the demand that occurred in this case.

Affirmed.  