#### Joint School District No. 8 of the Towns of Harmony, Jefferson, and Sterling, Appellant, vs. School District No. 5 of the Town of Harmony, Respondent.

*March 10*—

*March 27, 1896.*

*School districts: Division: Apportionment of school funds.*

1. Where a newly created school district had not existed for a sufficient length of time to enable its clerk to make a report, under sec. 462, R. S., showing that all school money received from the state by such district had been used in paying a legally qualified teacher, and that a school had been taught in such district by such a teacher for at least six months during the year, it was not entitled, under sec. 558, to have any part of the town school fund apportioned to it, and cannot recover from an older district, a part of.whose territory had been detached to form the new district, the amount apportioned to such older district on account of persons of school age residing in the territory so detached, *Gassville v. Morris,*14 Wis. 440; *School Directors of Pelican v. School Directors of Rode Falls,*81 Wis. 428; *School Directors of Eagle River v. School District No. 1,*81 Wis. 543, distinguished.

2. Where a portion of the territory of one political subdivision is detached to form a new one, the former, in the absence of ,a statute providing otherwise, retains all its property, powers, rights, and privileges. •

*609• Appeal from an order of the circuit court for Yernon ■county: O. B. Wyman, Circuit Judge.

*Affirmed.*

*'*The complaint-sets forth,-by appropriate and-sufficient allegations, substantially that the plaintiff school district, prior to Eebruary 27, 1892, constituted a part of several ■other districts, and among them *School District No. 5 of the Tovm of Harmony,*defendant, on which date such proceedings were duly had that an order was made creating plaintiff school district, to take effect May 28,1892. The district was duly organized June 11,1892, by the election of officers, and thereafter the clerk, in July, made his report in due form pursuant to sec. 462, R. S., showing the number of school children therein between the ages of four and twenty years to be twenty-seven. No report was made in respect to the time school had been maintained, or to the payunent of money derived from the school fund to teachers, because the district had not yet existed for a sufficient length of time to enable a report to be made covering such matters. The districts from which the territory was detached to form the new district complied with all the conditions precedent to the right to share in the school fund under sec. 558, R. S.

On the 9th of January, 1893, the town clerk of the town of Harmony apportioned the school fund to the several districts in his town except plaintiff district, in which apportionment he awarded to defendant $36.55 on account of the twenty-seven persons of school age reported by the clerk of plaintiff district as residing therein, which sum was after-wards paid to the defendant by the town treasurer. Demand was made by the treasurer of the plaintiff on the-treasurer of the defendant for thé money so paid, which demand was refused, and thereupon this action was brought to recover the same. The action in form is for money had and received by defendant for the use and benefit of -plaintiff. ‘ Defendant demurred to the complaint upon the ground that it does not state facts sufficient to constitute a cause of *610action. The court sustained the demurrer, and plaintiff appealed.

Eor the appellant there was a brief by *C. M. Butt*and *G. W.*Graves, and oral argument by *Mr. Graves.*

For the respondent there was a brief by *Smith <& Griffin,.*and oral argument by *C. J. Smith.*

Mabshall, J.

The sole question is, Does the complaint state facts sufficient to show that the $36.55 paid to respondent on account of the twenty-seven children resident in the appellant district on the last day of June, 1892, belongs to-the plaintiff?

By sec. 462, R. S., it is made the duty of the school district clerk between the 10th and 15th days of July in each year to make and transmit to the town clerk a report dated the 10th day of July of such year, showing, among other things, the number of children between the, ages of four and twenty years residing in such district on the last day of the preceding June; the number of days’ time any common school has been taught in the district, including holidays, and the whole number of days’ time such school has been taught by teachers qualified according to law, including holidays; and the amount of money received for the preceding year from the state school-fund income, and the manner in which the same has been expended.

Sec. 558, R. S., provides that “ the town clerk shall apportion all school money . . . raised by the town among the-several school districts and parts of districts within the town in proportion to the number of school children between the ages of four and twenty years residing in each, taking such number from the last annual reports of their respective clerks; ” that “ if, after the date of such reports, any district shall have been altered or a new one formed, so as to render an apportionment founded on such annual reports unjust between any district, the town clerk shall ascertain the num*611ber of such children, residing in each district thus altered and formed, by the best evidence within his reach, and apportion the school money to such districts in proportion to the number of such children residing therein at the time the apportionment, is made. . . . Mo money shall be apportioned to any district, or part of a district, . . . unless the last annual report thereof . . . shall show that all school money received from the state during the year ending with the date of such report, has been applied to the payment of the wages of a legally qualified teacher, and that a school has been taught in such district by such a teacher for at least sis months during the year ending with the date of such report. . . .”

Erom the foregoing it is obvious that the statute (sec. 558) makes no provisions for the apportionment of any part of the town school fund to any district, unless the report required by sec. 462, R. S., for the year such apportionment is made, shows that the school money received from the state by such district for such year has been applied to the payment of the wages of a lawfully qualified teacher, and that a school has been taught in such district by such teacher for at least six months during such year. Mo such report from plaintiff district was or could have been on file when the apportionment of town school money was made. It follows necessarily that plaintiff has no statutory right to the $36.55 for which the action was brought. In *Cassville v. Morris,*14 Wis. 440, to which our attention is called, only the question of whether a district loses its right to share in the apportionment of school money by reason of the territory comprising such district being set off, with other territory, to form a new town, the district organization remaining the same, was involved,— a different question than the one here presented. Our attention is also called to *School Directors of Pelican v. School Directors of Rock Falls,*81 Wis. 428, and *School Director's of Eagle River v. School Dist. No. 1*
      *612
      *of*Merrill, 81 Wis. 543, neither of which appears to have any-bearing on the question here presented. The right of the school board in both cases was based on a statute, not on the application of equitable principles.

It is conceded in this case, as we understand it, that the complaint does not state facts sufficient to show a right by-statute to the money claimed. That being so, the rule of the common law governs; i. e. when a portion of the territory of one political subdivision is detached to form a new one, the former retaining its organization, in the absence of a statute providing otherwise, it retains all its property, powers, rights, and privileges. *Milwaukee v.*Milwaukee, 12 Wis. 93; *Depere v. Bellevue,*31 Wis. 120; *Crawford Co. v. Iowa Co.*2 Pin. 368; *Briggs v. School Dist. No. 1,*21 Wis. 348.

It follows from the foregoing that the order of the circuit court must be affirmed.

*By the*Oourt.— Order affirmed.