
    CITY OF BELDING v. IONIA COUNTY TREASURER.
    1. Eines—Apportionment to Libraries.
    Penal fine moneys are required to be apportioned in counties having no county library to local units having public libraries on the basis of the proportion that the number of school-age children in each such unit bears to the total number of sehoolage children in all such units entitled thereto in the eounty notwithstanding some of such children may be counted in more than 1 district, and even though such apportionment may require adjustment of payments of future funds to be received (CLS 1956, §§ 340.913, 340.915).
    References for Points in Headnotes
    [3] 14 Am Jur, Costs § 91.
    
      2. Same—Apportionment to Libraries—Record op Establishment.
    The legal establishment of a school district library may not be the subject of a collateral attack in mandamus action for apportionment of penal fine moneys because of the loss of records of the original referendum election, where there has been long public acquiescence in the exercise by school district of the powers and functions appertaining to operation of a school district library (CLS 1956, §§340.913, 340.915).
    3. Costs — Public Question — Apportionment op Penal Pine Moneys.
    No costs are allowed in mandamus proceeding relative to apportionment of penal fine moneys, a public question being involved.
    Appeal from Ionia; Davis (Morris K.), J.
    Submitted April 4, 1962.
    (Docket No. 21, Calendar No. 49,131.)
    Decided September 7, 1962.
    Mandamus by the City of B elding, a municipal corporation, in its own right and acting in behalf of the Alvah N. B elding Memorial Library, against Kathleen Maloney, Ionia County Treasurer, and Belding Area Schools to enforce payment of pro rata share of penal fines- collected and earmarked by statute for library purposes. Attorney General intervened on prior appeal. On remand from Supreme Court apportionment made to plaintiff. Tutervenor appeals.
    Reversed' and remanded for reapportionment.
    
      Leo Bebeau and Gemuend & Barnes (Raymon W. Barnes, of counsel), for plaintiff.
    
      Frank J. Kelley, Attorney General, Eugene Krasicky, Solicitor General, and Maxine Boord Virtue, Assistant Attorney General, for intervenor.
   Dethmers, J.

This mandamus case makes its second appearance here. The background and relevant facts are to be found in our previous opinion reported at 360 Mich. 336. Involved is apportionment of Ionia county penal fine moneys to libraries entitled thereto. We held that plaintiff city was entitled to an apportionment for its public library on the basis of school-age children within its borders, unless a forfeiture had been effected. We remanded for taking of proofs and a determination as to whether plaintiff had forfeited its rights and, if not, for determination, also, of the number of children of school age residing within plaintiff city and apportionment accordingly.

On remand, it was stipulated that there was no forfeiture on plaintiff’s part and that there were 1,330 children of school age in plaintiff city and, in addition to those, another 30, or 1,360, in defendant Belding Area School District. Also, taking note of our reference to Stuart v. School District No. 1 of the Village of Kalamazoo, 30 Mich 69, plaintiff stated that it did not contest the legal establishment of defendant school district’s library and its right to a portion of the penal fine moneys, but it insists that that defendant’s share must be apportioned only on the basis of school-age children in the district but outside of the city.

The court, on remand, ordered the defendant county treasurer to pay to plaintiff city, out of the county’s penal fine moneys, $6,483.80, being a sum representing the product of 1,330 times the figure which is the quotient of total penal fine moneys in the county treasury divided by the total number of children of school age in local units which have public libraries in Ionia County and are entitled to library moneys.

The attorney general, as intervenor, has taken an appeal. His position is that the $6,483.80 should be divided equally between plaintiff city and defendant school district because the library of each serves the 1,330 school-age children residing in plaintiff city.

We disagree with the order of the circuit court and with the positions of both the plaintiff and the attorney general.

The applicable statutory and constitutional provisions, referred to in our previous opinion, contain no authority whatsoever for the 50-50 split proposed by the attorney general. Neither do they authorize, for the purpose of making the apportionment for defendant school district, exclusion of 1,330 school-age children residing therein from the count of school-age children in the district merely because they also happen to reside in plaintiff city.

Section 915 of the statute (CLS 1956, § 340.915 [Stat Ann 1959 Rev §15.3915]) provides for an annual statement, from the superintendent of public instruction to the county clerk and county treasurer, of the townships, cities, and school districts in the county entitled to receive library moneys, giving the number of school-age children in each as reported to his office by such local units. Sections 913 and 915, read together, call for apportionment by the county treasurer, in counties having no county library, of the penal fine moneys to each of those local units having public libraries and entitled to receive library moneys on the basis of the proportion that the number of school-age children in each such unit bears to the total arrived at by adding the number of school-age children in all such units entitled thereto in the county. It will be objected that the 1,330 children in plaintiff city are thus included both in the count for plaintiff city and in that for defendant school district, to the prejudice of units elsewhere in the county where but 1 library exists. We cannot read the statute as providing for anything other than precisely that result. Units having’ no such library and not entitled to receive library moneys, of course, receive nothing at all. There is nothing unconstitutional about this or violative of the statute.

If apportionment to plaintiff as herein outlined leaves the fund in the hands of the county treasurer insufficient to pay both plaintiff and defendant school district on that basis, because of previous apportionments to units not involved in this suit in amounts in excess of that which would have been paid to them under the formula herein mentioned, we apprehend that adjustments may be made from moneys later coming in to the county’s penal fines fund.

Question is raised concerning the import of the reference in our previous opinion to the Stuart Case. Proof of loss of records of the original referendum election for the district library’s establishment is not a sine qua non. We think that case, applied to the facts at bar, fairly indicates that after long public acquiescence in the exercise by a school district of the powers and functions appertaining to operation of a school district library, its legal establishment is not subject to collateral attack as would be the case here.

Reversed and remanded for issuance of writ commanding apportionment by the county treasurer to plaintiff in conformity herewith.

No costs, a public question being involved.

Carr, C. J., and Kelly, Black, Kavanagh, Souris, and Otis M. Smith, JJ., concurred.

Adams, J., did not sit. 
      
       CLS 1956, § 340.913 (Stat Ana 1959 Rev § 15.3913).—Reposter.
     