(dissenting.) The vote of the tax by the electors of School District No.-15 was regular, and authorized the county court to levy the tax voted upon all the property then in that district, but it was not a completed levy until the action of the county court levying the tax, but was inchoate and incomplete till then. This tax was voted in May, 1894. On the 15th of July, 1894,- the School District of Waldron was legally organized out of territory which before its organization constituted part of School District No. 15. October 1, 1894, the county court levied the. tax, which had been voted in May, 1894. At the August term of the circuit court of Scott county in 1894, the organization of the School District of Waldron was declared illegal and void. In January, 1895, this decision was reversed, and it was held that the School District of Waldron was legally organized on the 7th of July, 1894.
The effect of this is that the School District of Waldron was all the time from July 7, 1894, a lawfully organized school district. „ But for the supposition which the county court erroneously indulged by reason of the erroneous decision of the circuit court that the School District of Waldron had no existence, we must presume that the five-mill special tax voted by the electors of School District No. 15, as constituted when it included the territory, population and taxable property of the School District of Waldron, afterwards formed, would have been levied in the name of the School District of Waldron. In contemplation of law, it would seem that it was levied for that district, though levied in the name of School District No. 15. This tax was collected in 1895, and paid into the treasury of Scott county on July 13, 1895. Of course, this tax could not be distributed till it was collected and paid into the treasury, and at the time it was collected and paid in there was no longer any question about the legality and existence of the special School District of Waldron. This had been settled by the supreme court in January, 1895. And, upon any distribution thereafter made, the School District of Waldron should have had allotted to to-it the taxes that had been levied upon the property in the bounds of that district.
As a matter of law, it could make no difference that a contract for a school had been made to be discharged out of the taxes by School District No. 15, which school the children of the School District of Waldron attended. If School District No. 15 saw fit to maintain a school of its own volition,, and allow the children of the School District of Waldron to attend it, it is difficult to see how this would in law excuse district No. 15 from accounting to the School District of Waldron for money of the latter which it had collected and used, however it might appear according to natural equity and justice.
It-is said in the opinion of the court that the county court had power to distribute the surplus only, and that there was no surplus. But the whole fund was on hand when the money was paid into the treasury. District No. 15 having appropriated the whole, there could be no surplus afterwards. If the School District of Waldron was entitled to part of a surplus, on the theory that its property paid part of the tax, why was it not entitled to its share of the whole, according to what the property within its bounds had paid ? If one come into possession of money which belongs to another, it is no answer to the demand of the owner to say that the party who received the money had obligated himself to pay it out, or had paid it out, in settlement of his own obligations. The whole theory of the law of taxation in this state is that those who pay the taxes shall be entitled to control and have the benefit of the expenditure of them.
It does not appear in this case that the School District of Waldron consented to the expenditure of the money collected off the property within its bounds, by virtue of the tax, by School District No. 15. It matters not that the School District of Waldron levied no tax; those who voted the tax were afterwards erected into a special school district. They paid the tax levied upon their property. Shall the fact that they were, after the tax was voted, but before its levy was completed by the county court, and long before the tax was collected, organized into a separate district deprive them of their just share of the tax? Suppose district No. 15 had made no contracts to absorb this money, is there any doubt that the School District of Waldron would be entitled to its share of it? What difference can it make in law that School District No. 15 had made such contracts? They were its contracts, and it had no right, in my opinion, in strict law, to expend that part of the tax that had been levied upon the property of and paid by the citizens in the territory out of which the School District of Waldron had been formed before the tax levy of. the tax was completed by the action of the county coiirt^levying the tax voted. If the county county court ,Sa'(f ^ihe power to make the distribution it did make,'HÍetf I am of the opinion that the judgment should be 'affirmed. But I am not satisfied that the remedy of ttie ^Sbiiool District of Waldron against district No. 15'was not an action for money had and received. ' « ^