Opinion
No. 1913
October 1, 1935
APPEAL AND ERROR — RESERVED QUESTIONS — STATUTORY CONSTRUCTION.
1. Supreme Court need not consider questions certified to it where questions do not refer to any constitutional provision as involved or in connection with which questions arose (Rev. St. 1931, §§ 89-5001 to 89-5003). 2. Where questions certified to Supreme Court had not been presented to district court, questions could not be said to have "arisen" in the case as required by statute for certification to Supreme Court (Rev. St. 1931, §§ 89-5001 to 89-5003). 3. Supreme Court may not in first instance deal with matters of statutory construction.
ON RESERVED CONSTITUTIONAL QUESTIONS from the District Court, Fremont County; LIN I. NOBLE, Judge.
For the plaintiff, the cause was submitted upon the brief of F.B. Sheldon, Jr., of Riverton.
Section 99-309, W.R.S., provides for the establishment of new school districts and Section 99-901 provides for the apportionment of indebtedness or credits when a school district is divided. This section was construed in School District No. 3 v. School District No. 2, 29 Wyoming 80, and the rule there announced was followed in the case of School District No. 7 vs. School District No. 1, 33 Wyo. 65. The plaintiff contends that the equitable distribution is determined by Section 99-901, W.R.S., above referred to, and the basis of apportionment is the assessed valuations of the respective districts after division as compared to the total assessed valuation of the property in the original district. This contention is denied by defendant, claiming that the indebtedness should be apportioned in accordance with Section 29-601, W.R.S., relating to new counties formed out of territory taken or detached from another county, which provides the rule of equitable proportion. We feel that defendant's contention is without merit and that Section 99-901 relates to credits or indebtedness, while Section 29-601 is restricted to indebtedness alone. Plaintiff further contends that the word "credits" as used in Sec. 99-901 is synonymous with "assets" in accordance with the rule announced in Pelican v. School Directors, (Wisc.) 51 N.W. 871. The above case is also reported in 52 N.W. 1049, where a dissenting opinion appears. As to the second reserved question, plaintiff contends that all of the original district should be apportioned between the several districts newly created, in the proportion which the ratio of the assessed valuation of the property in the several districts bear to the whole assessed valuation of the original district. Not only does this seem to be the purpose of Section 99-901, W.R.S., but it is a logical and equitable rule when applied to school district divisions. We contend that the school laws should be construed and determined as a whole, and that Section 99-309 and Section 99-901 are identical in purpose. School District No. 3 v. School District No. 2, supra. In that case, the old district paid the expenses of the schools in the new district until their close the summer following, but refused to pay thereafter. The new district maintained that the old district should continue to pay the school expenses of the new district, until the new district received from the County Treasurer, the school moneys allotted to it and the taxes voted by it. The court also held that statutory provisions as to procedure for an apportionment do not prevent the districts concerned from making an apportionment by agreement between themselves. 56 C.J. 273, Sec. 116.
For the defendant there was a brief and the cause was argued orally by A.H. Maxwell, of Lander.
Our law governing apportionments when school districts are divided was enacted in 1921 and appears as Section 99-901, W.R.S. Section 24, Article 3 of the State Constitution states the requirements as to titles in legislative acts. It will be noted that no mention of an apportionment of assets appears in the title to the act referred to. There can be no apportionment without an express provision therefor. 25 R.C.L. 866. The fact that the statute uses the term "credits" has evidently confused the plaintiff. To apportion indebtedness, credits must be taken into consideration, and there are express provisions in Sec. 29-603 with respect thereto. Our law does not provide for an apportionment of assets when there is no indebtedness. If the first question should be answered in the affirmative, upon what basis should such apportionment be made? Board of Commissioners v. Board of Commissioners, 1 Wyo. 137, 92 U.S. 307. The third and fourth questions are moot ones as they ask for a construction of Sec. 99-309, and plaintiff does not ask for anything under the provisions of this section. The fifth question is also a moot one. That is evident from the fact that an answer either way would not have any bearing on the issues in this case. The indebtedness that may be apportioned must be such as has been authorized by district meetings. Sec. 99-323, R.S. School District v. Western Tube Company, 5 Wyo. 185. While Sections 99-901-2 do not expressly provide for an apportionment of assets of the original district, yet the plan results in a division of assets. Com'rs. of Laramie County v. Com'rs. of Albany County, 92 U.S. 307. What is drawn from the old district by the new district is its proportion of the public school funds for payment of teachers and other necessary expenses. Sec. 99-309, W.R.S. A new district cannot receive funds based on the number of school children in the district until there has been a census. In this particular case that would have been a year after the date of the organization of the plaintiff district. The same situation exists as to teachers and bus drivers. Sec. 78-405. A new district does not have pupils, teachers and bus drivers until it has been in existence a year or the greater part of a year. The legislative scheme for raising money clearly conflicts with the creation of funds by the old district, and the apportionment of an equitable amount thereto to the new district, until the new district is able to take care of itself.
In this case certan questions have been reserved and certified to this court by the district court of Fremont County, it being stated in the order doing so that they are "important and difficult constitutional questions." The procedure contemplated is that provided by Sections 89-5001 to 89-5003 inclusive, Wyoming Revised Statutes 1931.
Briefly, the action is one by School District No. 14 in Fremont County, Wyoming, organized as a new district from territory formerly a part of School District No. 38 and School District No. 21 in said County, against the District last mentioned, to recover certain school moneys and tax moneys claimed by the plaintiff to be due from the defendant under an alleged written agreement entered into between the parties on or about October 23, 1932, and thereafter submitted to and approved by the district court of Fremont County. It is averred that the defendant School District repudiated the contract and has declined to make the agreed payments. The answer and cross-petition of the defendant denies that any indebtedness is owing by it to plaintiff under the contract aforesaid, and asserts that the agreement in question was obtained without consideration and procured either by fraud or mistake and its presentation to and approval by the district court, aforesaid, was unauthorized and void. Other issues also appear to be tendered by the defendant's pleading. The plaintiff School District filed a reply denying these claims asserted on the part of the defendant and also setting up additional new matter not necessary to be described here.
The case being thus at issue and apparently ready for trial, without further steps being taken, upon motion of the parties, the court made the order of certification hereinbefore mentioned. The questions thus presented are five in number, and upon examination we find that not one of them refers to or mentions any constitutional provision as involved or in connection with which the question has arisen. That being so, under our previous decisions, this court is under no duty to consider them. State ex rel. Voiles v. Johnson County High School, 43 Wyo. 494; 5 P.2d 255; Salt Creek Transportation Company v. Public Service Commission, 37 Wyo. 488; 263 P. 621.
It is plain, too, from the original papers certified here that none of the questions aforesaid have in any form been presented to the district court and its decision invoked thereon, so that they could be said to have arisen in the case. Only constitutional questions which have arisen in a cause and which are necessary to its decision are within the jurisdiction of this court to consider when presented under the provisions of Sections 89-5001 to 89-5003 inclusive, supra. State v. Continental Oil Co., 48 Wyo. 152, 43 P.2d 686 and cases therein cited. In this connection it may be observed also that the questions before us deal only with matters of statutory construction, questions we are not permitted to decide in the first instance. Additionally, it is evident that certain issues of fact have been raised by the pleadings in this case and are for trial. Their disposition alone may dispose of the litigation. As said by Mr. Chief Justice Potter over thirty-five years ago, in State ex rel. Perkins v. Board of Commissioners of Sheridan County et al., 7 Wyo. 161; 51 P. 204: "Not only is it true that the questions reserved have not at this time arisen in the cause, but for all that the record discloses, or this court can know, they may never arise therein."
At that time the reserved questions which could be sent here were not limited as now to constitutional questions. But they, as now, had to "arise" in an action or proceeding. Session Laws, 1888, Chapter 66, § 1; Revised Statutes Wyoming, 1899, § 4276; Stoll v. Board of County Commissioners, 6 Wyo. 231, 44 P. 58; State v. Continental Oil Co., supra. Then, as now, such questions were required to be "necessary" to a disposition of the cause. State ex rel. Perkins v. Board of Commissioners of Sheridan County et al., supra; State v. Continental Oil Co., supra.
We are necessarily obliged to order the case remanded without our response to the questions submitted.
Remanded.
KIMBALL, Ch. J., and BLUME, J., concur.