(184 Ind. 736) of Kosciusko county asking for a local option GALVIN et al. v. TAYLOR et al. (No. 22623.) election in Washington township, in said (Supreme Court of Indiana. May 17, 1916.) county. The board of commissioners held 1. INTOXICATING LIQUORS 36(1) LOCAL the petition sufficient, and pursuant thereto OPTION ELECTION-DECLARING RESULT"- an election was had on April 29th in which, POWER OF COUNTY COMMISSIONERS. as it appeared from the report of the election commissioners, 268 votes were cast against and 270 votes in favor of the sale of intoxicating liquors in said township. Subsequently certain parties in interest filed a statement of contest with the board of commis Burns' Ann. St. 1914, § 8322, providing that after certification by the election commissioners of the results of a local option election the board of county commissioners shall make and enter an order "declaring the result of" such election, does not authorize such board to declare the election invalid. [Ed. Note.-For other cases, see Intoxicating|sioners and charged in said statement that Liquors, Cent. Dig. § 43; Dec. Dig. 36(1).] four persons, naming them, who were not at 2. INTOXICATING LIQUORS 37-LOCAL OP- the time qualified legal voters in said townTION ELECTION-JUDGMENT OF COUNTY COM- ship voted at said local option election; that MISSIONERS-COLLATERAL ATTACK. the casting and counting of their several votes was wrongful and illegal, and that such votes should have been thrown out; that the casting and counting of said four illegal votes changed the result of the election. Prayer that the result of the election be declared in favor of those who opposed the sale of intoxicating liquors or that said election be declared illegal and void, and the result vacated. A hearing was had on said statement of contest before the board of commissioners, which found that: For the board of county commissioners, acting under the power given it to hear and determine a local option election contest, to enter a judgment declaring the election void, while erroneous, as exceeding its authority, is not without jurisdiction, so as to render it void, and so render the judgment subject to collateral attack. [Ed. Note.-For other cases, see Intoxicating Liquors, Cent. Dig. § 42; Dec. Dig. 37.] 3. APPEAL AND ERROR EFFECT. 460(2)-JUDGMENT Under Burns' Ann. St. 1914, § 679, declaring the effect of an appeal, a term time appeal from a judgment of the circuit court which, like the judgment of the county commissioners from which appeal had been taken to it, held a local option election void, suspended all further proceedings under the judgment. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2223, 2224, 2246; Dec. Dig. 460(2); Reference, Cent. Dig. § 222.] 4. INTOXICATING LIQUORS 36(5)-APPLICATION FOR LICENSE-APPEAL REVIEW. The circuit court on appeal from the denial by the county commissioners of application for liquor license was bound to treat as binding the judgment of the county commissioners, not subject to collateral attack, holding a local option election void, and the subsequent proceedings thereunder, no evidence being introduced of pendency of appeal suspending further proceedings under such judgment. [Ed. Note.-For other cases, see Intoxicating Liquors, Dec. Dig. 36(5).] Appeal from Circuit Court, Elkhart County; James S. Drake, Judge. Patrick Galvin and others applied to the county commissioners for liquor licenses; remonstrance being filed by Joseph H. Taylor and others. From a judgment of the circuit court on appeal from the commissioners dismissing the applications, applicants appeal. Affirmed. F. J. Heller and D. V. Whiteleather, both of Columbia City, and Leonard Rose & Zollars, of Ft. Wayne, for appellants. Homer Longfellow and L. W. Royse, both of Warsaw, for appellees. "There were votes cast at said election by persons not entitled to vote in said township in a number greater than the apparent majority of the 'no' vote over the 'yes' vote, and from the unsatisfactory state of the evidence it is impossible to determine how such illegal votes were cast, and on account of the closeness of the the proposition submitted obtained a majority of vote it is impossible to determine which side of all the legal votes cast." The board therefore ordered and adjudged that "said election be, and the same is hereby, declared illegal and void, and that the same is no election," and ordered that a second election be held on June 10, 1913, on the same question. Such election was held, and a majority of the votes cast were against the sale of intoxicating liquors in said township. Following the election of April 29th appellants filed with the board of commissioners their applications for licenses to sell intoxicating liquors. On July 7, 1913, the board dismissed the same on the ground that the election of June 10th was legal, and that it had no jurisdiction to consider said applications. An appeal from this decision was taken to the Kosciusko circuit court, and subsequently venued to the Elkhart circuit court, where the cause was tried de novo, and a judgment entered dismissing each application. It is appellants' contention that the election of June 10th was void, and therefore no bar to the granting of the licenses applied for. This contention is based on two grounds: (1) That the board of commissioners had no jurisdiction to declare the election of April 29th void; and (2) that it had no authority to order the election of June It appears that on April 7, 1913, a petition 10th. The statute here involved provides was filed with the board. of commissioners that the results of a local option election SPENCER, J. This is an appeal under section 1392, cl. 11, Burns 1914 (Acts 1907, p. 237), from a judgment of the Elkhart circuit court denying appellants' applications for licenses to sell intoxicating liquors. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Generally shall be certified by the election commission- | for that reason cannot prevail. ers to the county auditor, "and the board of speaking: commissioners of said county shall make and "Any proceeding provided by law for the purenter an order at the next regular session de-pose of avoiding or correcting a judgment is a claring the result of such election." Section 8322, Burns 1914; Acts 1911, p. 363. [1] It is conceded that under this statute the board of county commissioners has the power to go behind the return of the election commissioners as to the result of a local option election, and to determine and declare the correct result. State v. Ade, 178 Ind. 588, 591, 99 N. E. 983; Jay v. O'Donnell, 178 Ind. 282, 291, 98 N. E. 349, Ann. Cas. 1915C, 325. direct attack which will be successful upon showing the error; while an attempt to do the same thing in any other proceeding is a collateral attack, which will be successful only upon showing a want of power." Van Fleet's Collateral Attack, § 3. The expression "want of power," as thus used, means a lack of jurisdiction, either of the subject-matter of the proceeding or of the person of a necessary party to the judgment. No contention is here made that the necessary parties were not properly before The same authorities sustain the proposi- the board, and it is clear that the statute tion that its declaration thereon is not sub-conferred jurisdiction on that tribunal to ject to collateral attack. But in the case at hear and determine the election contest. bar the board of commissioners, by its judg- True, the board exceeded its authority in enment, made no attempt to declare the correct tering judgment, but its action in that reresult of the election of April 29th. On the gard was erroneous rather than void. It was contrary, it declared said election to be void subject to direct attack by way of appeal, and without result, and ordered the holding but could not be collaterally impeached. In of a new election. The power to investigate fact, appellants herein did prosecute an apand declare the correct result of an election peal to the Kosciusko circuit court and to is a power far different from that to declare this court from the judgment of the board of said election illegal and void. In discussing commissioners declaring invalid the election the right of a court to declare a primary of April 29th, and in the case of Galvin v. election void under a statute which gave to Logan, 182 Ind. 647, 106 N. E. 871, we held the court the power to determine which can- in effect, that such appeal was properly takdidates, in the event of a contest, were enen from a judgment which finally determined titled to nomination, the Supreme Court of a distinct branch of the proceeding. That apKentucky uses this language: peal was perfected in term time, and thereafter operated in law to suspend all further proceedings under the judgment appealed from. Section 679, Burns 1914; Dinwiddie v. Shipman, 183 Ind. 82, 108 N. E. 228, and cases cited; June v. Payne, 107 Ind. 307, 310, 7 N. E. 370, 8 N. E. 556; Young v. State, 34 Ind. 46; May v. Commonwealth, 160 Ky. 785, 170 S. W. 493. "There is no inherent power in the courts to pass upon the validity of elections or to try contested election cases; their authority is wholly statutory, and must be either given expressly or by necessary implication. There is certainly no authority expressly given in the act to declare a primary void, and it would be unfair, in the absence of more explicit language, to imply a meaning so utterly inconsistent with the gener: al purposes of the act." Pflanz v. Foster, 155 Ky. 15, 19, 159 S. W. 641, 643. Again, in Cyc. vol. 15, p. 394, it is said: "Elections belong to the political branch of the government, and are beyond the control of the judicial power. The determination of election contests is a judicial function only so far as authorized by the statute." [4] No evidence was introduced in the Elkhart circuit court, however, to show the pendency of that appeal, and, in the absence of such a showing, that court was bound to treat the judgment of the board of commissioners and the subsequent proceedings thereunder as binding on it, even though they See, also, Burks v. State, 51 Tex. Cr. R. were erroneous as against direct attack. 637, 103 S. W. 850. The judgment of the trial court must be, and is, affirmed. (184 Ind. 742) SCHOOL CITY OF TERRE HAUTE, OF There is nothing in the statute under consideration which authorizes a board of commissioners, either expressly or by necessary implication, to declare an election void. It is clothed with jurisdiction only to determine the correct result of the election as held, and, if the evidence introduced in such election contest is insufficient to convince the board of the correctness of the contestant's claim, then the latter has failed to sustain his burden of the issue. Bolton v. Clark, 162 Ind. 471, 480, 68 N. E. 283. It is certain that the board of commissioners had no authority to declare invalid the election of April 29th. [2, 3] Appellees insist, however, that this 2. CONSTITUTIONAL LAW 48 TION-GROUND OF DECISION. is a collateral attack on the judgment thus It will be presumed that the complaint was entered by the board of commissioners, and held insufficient on other grounds than the un [Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. §§ 43, 45; Dec. Dig. 46(1).] PRESUMP For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes constitutionality of the statute relied on by plaintiff, the decision being sustainable on such other grounds. [Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. § 46; Dec. Dig. 48; Statutes, Cent. Dig. § 56.] 3. SCHOOLS AND SCHOOL DISTRICTS 19(1)STATE COMMON SCHOOL FUND-TRUST." While the state common school fund and income therefrom constitutes a "trust," in the sense that it must be devoted to maintaining common schools, it is not a trust fund in the full sense of the word, as in ordinary trusts the legal title to trust property rests in the trustee, and the beneficial interest or equitable title is in the cestui que trust, while the state holds the legal title to such fund and administers it through its agencies primarily for its own benefit, and the school children, while incidentally benefited by the administration thereof, are not beneficiaries in the sense that they either collectively or individually have any equitable title therein. [Ed. Note. For other cases, see Schools and School Districts, Cent. Dig. §§ 34-36; Dec. Dig. 19(1). For other definitions, see Words and Phrases, tions located in Vigo county, Ind. The action arose out of an erroneous distribution by the auditor and treasurer of Vigo county of the school revenue of the state apportioned to that county for tuition purposes by the state superintendent of public instruction. In making the distribution of this fund among the school corporations of Vigo county, the auditor of that county apportioned it among them in such proportions as the children enumerated for school purposes in each of such school corporations bear to the whole number of school children enumerated in the county. By this means an equal per capita distribution of this fund was made with reference to the school population of the county, without regard to the congressional school revenue belonging to the several school corporations affected. The statute provides: tribution thereof, the auditor shall ascertain the "In making the said apportionment and disamount of the congressional township school revenue belonging to each city, town or township, and shall apportion the other school reve19(1)-nue, so as to equalize the amount of available school revenue for tuition to each city, town and township, as near as may be, according to the enumeration of children therein, and report the amount apportioned to the superintendent of public instruction, verified by affidavit." Burns 1914, § 6475. The various officers through whose hands the tuition revenue of the state, arising from the income of the common school fund, passes from its origin to its final disposition and expenditure, under the statutes providing the manner of its administration, are agents of the state, assisting in the administration. [Ed. Note.-For other cases, see Schools and School Districts, Cent. Dig. §§ 34-36; Dec. Dig. 19(1).] The Congress of the United States gave the sixteenth section of land in each congressional township to the inhabitants thereof for the support of common schools. These sections were of unequal value and on sale pro5. SCHOOLS AND SCHOOL DISTRICTS 19(6)—duced unequal amounts, even relating to the STATE COMMON SCHOOL FUND-ERRONEOUS number of children of school age in such DISTRIBUTION-RECOVERY. Where the auditor of a county, in distributing the county's share of the tuition revenue of the state arising from the income on the common school fund, fails to take into consideration certain matters, as required by Burns' Ann. St. 1914, § 6475, so that the trustees of some of the school corporations thereof receive more than their proportion, there is no liability on the part of such corporations, after expenditure of the fund, to the school corporations thereof which received less than their proper proportions; the excess belonging to the state, and having been erroneously distributed and expended by its agents. [Ed. Note.-For other cases, see Schools and School Districts, Cent. Dig. § 37; Dec. Dig. 19(6).] townships. The distribution of this fund is not, therefore, uniform; but, on account of the terms of the grant, the Legislature of the state has no power to change it. State v. Springfield, 6 Ind. 83; Quick et al. v. Whitewater Twp., 7 Ind. 570. The provisions of the statute require the auditors of the several counties of the state to take into account the congressional school revenue of each of the school corporations in making the distribution of the other tuition revenue of the state, and to apportion the latter fund in such a way as to make the aggregate amount from the two sources in each of such school corporations equal in proportion to the number of children of school age enumerated therein. By failing to take into account the congressional school revenue of the several school corporations of the county, the auditor of Vigo county distributed to some of such school corporations more of the tuition revenue received from the state than they were entitled to receive under the statute, and to others for the same reason he distributed less than they were entitled to receive. This erroneous distribution began with the January distribution in 1904, and was kept up to and including the July distribution of 1910. The LAIRY, J. The school city of Terre Haute tuition funds thus distributed were received brought this action against Harrison school by the various school corporations and extownship, both parties being school corpora-pended by them for tuition within the years Appeal from Circuit Court, Clay County; John M. Rawley, Judge. Action by the School City of Terre Haute, of Vigo County, against the Harrison School Township, of Vigo County, and others. From a judgment sustaining a demurrer to the amended complaint, plaintiff appeals. Affirmed. Davis, Bogart & Royse, of Terre Haute, for appellant. Peter M. Foley, Thomas F. O'Mara, Louis Leveque, and A. J. Kelley, all of Terre Haute, for appellees. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes for which the several distributions were, in tuition should be gratis and equally open made. The complaint alleges that, during to all. The Constitution of 1851 made it the period mentioned, more than $13,000 of the duty of the Legislature to provide for a these funds which should have been distribut- general and uniform system of common free ed to the school city of Terre Haute were schools, and also provided for the creation, erroneously distributed to other school cor- investment, and preservation of our common porations of Vigo county and expended by school fund, the income from which was to be such corporations for tuition purposes. It inviolably appropriated to the support of is alleged that Harrison school township recommon schools and to no other purpose. ceived more than its distributive share, and Based upon these provisions of the Constituthis action was brought to recover the part of tion, and fostered by laws passed in pursusuch overpayment which, originally, should ance thereof, our system of free cominon have been distributed to the school city of schools has developed until it has become a Terre Haute. source of pride to every citizen of the state. [1, 2] The questions presented on appeal There can be no doubt that public educaarise upon the ruling of the court in sustain- tion is a function of the state. The state in ing the demurrer of appellee to the amended its sovereign capacity has a direct interest complaint. One of the grounds of demurrer, in the enlightenment and mental development as stated in the memorandum filed therewith, of its citizens, to the end that free popular is that section 6475, Burns 1914, is unconsti- government may be preserved and may attutional. It is well settled that this court tain its highest efficiency. The school fund, will not determine a constitutional question, from which the tuition revenue is derived, if its decision can rest upon other grounds. belongs to the state, and it is administered Cleveland, etc., R. Co. v. Hollowell, 172 Ind. by the state in the exercise of its sovereign 466, 88 N. E. 680; Hewit v. State, 171 Ind. power for its own benefit. The school chil283, 86 N. E. 63. If the decision of the trial dren are incidentally benefited; but the pricourt can be sustained on other grounds, it mary purpose of the state, in maintaining will be presumed that the complaint was held this fund and in expending its income in the insufficient on those grounds, and not for education of its children, is to develop and the reason that the statute upon which ap- secure to the state a moral, intellectual, and pellant relies was unconstitutional. enlightened citizenship. While the fund and income therefrom constitutes a trust, in the sense that it must be devoted to the single purpose under the provision of the Constitution that of maintaining common schools [3-5] Appellant seeks to uphold the complaint on the theory that the tuition revenue of the state, which is apportioned twice each year, belongs to the school corporations of the state, to which the statute provides it shall be distributed. It is asserted that the auditor of Vigo county held the fund apportioned to that county as a trustee for the various school corporations therein located, and that it was his duty to distribute it in accordance with the statute, and that a school corporation, which by mistake received and expended more than its distributive share, is liable as to such excess to other school corporations of the county which received less than their respective shares, which liability may be enforced in an action for money had and received. The proposition is thus stated in appellant's brief: "Where a person has received funds which in equity and good conscience are the property of another, the person to whom the fund equitably belongs may recover from the person receiving the funds the amount by which the person receiving them has been unjustly enriched at the expense of the owner of the funds in an action for money had and received." It has always been the policy of this state to encourage education, upon the theory that knowledge and learning, generally diffused throughout a community, is essential to the preservation of a free government. Constitution of Indiana 1816, art. 9, § 1. Section 2 of the same article of our first Constitution made it the duty of the General Assembly to provide by law for a general system of edu cation, ascending in a regular gradation from township schools to a state university, where still it is not a trust fund in the full sense of the word. In ordinary trusts, the legal title to trust property rests in the trustee, and the beneficial interest or equitable title is in the cestui que trust. Here the state holds the legal title to the fund and adininisters it through its agencies primarily for its own benefit. While the school children of the state are incidentally benefited by the administration of the trust, they are not beneficiaries in the sense that they either collectively or individually have any equitable title therein. The Legislature has passed statutes providing for the manner in which this fund shall be administered, and the various officers through whose hands the tuition revenue passes from its origin to its final disposition and expenditure are agents of the state assisting in the administration of the trust. The judicial decisions of this state and of other jurisdictions sustain the views herein expressed. State ex rel. Clark v. Hayworth Trustee, 122 Ind. 465, 23 N. E. 946, 7 L. R. A. 240; Wood, Treas., v. State, 155 Ind. 1, 55 N. E. 959; State ex rel. v. McClelland, 138 Ind. 395, 37 N. E. 799; Township v. Carey, 27 N. J. Law, 377. In the last case cited the Supreme Court of New Jersey says: "But again, as regards the funds derived from the state, the freeholders, the township collectors, and the superintendents are but the conduit pipes from the state treasury to the local teachers, and they are just as much the property of the state after they get into the hands of the school superintendent as they were in the state treasury; and the fact that, in going down, they happen to flow through the hands of the township collectors, gives the township corporations no rights in the fund." In State ex rel. v. McClelland, supra, this court says: "It is a mistake to suppose that a distribution of school revenue to the school corporations of the state changes the title or ownership of the money. The persons to whom the money is intrusted, and to whom it is delivered, hold it as the agents of the state, and the state does not lose its control over it until it is paid out for tuition purposes." Certain cases cited by appellant as sustaining the proposition that the state and county hold and administer the school funds as trustees of an express trust for the benefit of the school children of the state require consideration. State ex rel. v. Board, 90 Ind. 359; Board v. State ex rel., 103 Ind. 497, 3 N. E. 165; State ex rel. v. Board, 5 Ind. App. 220, 32 N. E. 92. An examination of these cases will show that they go no further than to hold that the school fund is held in trust for a particular purpose, and that it cannot be diverted to any other than that to which it is devoted. All of these cases were actions by the state, on relation of the Attorney General, to recover school funds which had been diverted from the purpose for which the fund was created. In the case of State ex rel. v. Board, 90 Ind. 359, supra, the court uses language which, standing alone, would seem to indicate that the state and its officers hold the fund in trust for the benefit of the school children of the state; but this language was not necessary to the decision, and in view of the later expressions of this court on the subject it must be deemed to have been used inadvertently. These cases are not inconsistent with the theory that title to the school fund and the income therefrom is in the state, and that the officers through whose hands it passes on the way to final expenditure are the agents of the state, and not trustees for the school corporation, or for the school children of such corporation. Section 6408, Burns 1914, is as follows: "The trustees shall keep a record of their proceedings relative to the schools, including all orders and allowances on account thereof, including, also, accounts of all receipts and expenditures of school revenue, distinguishing between the special school revenue belonging to their township, town or city, and the school revenue for tuition which belongs to the state, and by it apportioned to their township, town or city." These statutes observe the distinction between revenue raised by local taxation and the tuition revenue which belongs to the state. The cases of Inglis v. State, 61 Ind. 212, Bocard v. State, 79 Ind. 270, and Rowley, Adm'r, v. Fair, 104 Ind. 189, 3 N. E. 860, were actions involving the liability of trustees on bonds. In these cases it was held that, as between the trustee and his bondsmen, on the one hand, and the township, on the other, the trustee would be regarded as the legal owner of the money in his hands and that he was absolutely liable for its loss. As was said in the case last cited: "But the title of a township trustee in the money for which he is held accountable is only recognized to the extent that is necessary for the better preservation of the various funds which the money represents, and is, in fact, a legal title only in a technical and very limited sense." ion. These cases lend little support to the theory of appellant, and do not in any way conflict with the principles stated in this opinThe case of School Town v. School Township, 86 Ind. 582, also cited by appellant, can be readily distinguished from the case at bar, on the ground that it involved the ownership of a school building erected by local taxation. It is the policy of the statutes of the state that the tuition revenue of the state shall be apportioned among the several counties in proportion to the children of school age enumerated therein, and that the fund apportioned to each county shall be distributed among the school corporations of the county in the manner heretofore indicated in this opinion. By this means the public tuition fund, consisting of this fund in connection with the congressional school fund, is equalized as nearly as possible among the school A distinction must be observed, however, corporations of the state in proportion to the between a fund raised by local taxation, children of school age enumerated therein, either for tuition purposes or for any other and the law contemplates that it shall be expurpose. As to such a fund, the officer in pended annually for the education of the whose hands the custody of such fund is children of the school corporation to which placed by law holds it as trustee for the local it is finally distributed. So long as the fund corporation within whose limits the tax was remains unadministered in the hands of any levied. The reason for this distinction is of its agents, it is under the control of the obvious, and it has been recognized by the state, and the state will lend its aid to enLegislature, as well as by the courts of this force the proper distribution and administraSection 6407, Burns 1914, provides: tion of the fund. It has been held, accordingly, that the trustees of a school town with"The school trustees of every township, incorporated town or city shall receive the special in a township may compel by mandamus the school revenue belonging thereto, and the reve- trustee of the township to turn over to them nue for tuition which may be apportioned to his the portion of the tuition revenue of the township, town or city by the state for tuition state in his hands which they, under the stator the common schools, and shall pay out the same for the purpose for which such revenue[s] ute, were entitled to control and administer. were collected and appropriated." Johnson et al. v. Smith, 64 Ind. 275. In this state. |