School Directors of District No. 3 v. Fogleman , 76 Ill. 189 ( 1875 )

Mr. Justice Breese

delivered the opinion of the Court:

This was assumpsit, in the Cumberland circuit court, counting upon three orders drawn by a majority of the school directors of district Mo. 3, in township 9 north, range 8, in that county, in favor of A. Fogleman or order, on the treasurer of that town, one for seventy-five dollars, and two for fifty dollars each, all bearing interest at ten per cent, each of them purporting to be in part pay for building a school house in that district, and drawn payable out of any money belonging to the district specified.

The general issue was pleaded, and also a special plea averring that no vote of the people of the district was had authorizing the building of the school house, and a plea of failure of consideration.

A. jury was waived, and the cause tried by the court, who found for the plaintiff and assessed the damages at two hundred thirty dollars forty cents, and rendered judgment for the same. The school directors appeal.

Appellants are the successors of the drawers of these orders, and have a clear right to question their legality, and the authority of their predecessors to draw them.

It is conceded no vote of the people of the district was had authorizing the building of this school house. The orders purport, on their face, to be for such purpose, and it was no difficult matter for any person about negotiating them to ascertain if a vote had been taken. The returns of such an election are, by law, made to the town treasurer, the officer on whom they are drawn, and if inquiry had been made of him as to this fact, he would have informed the inquirer, as he testified, that no vote had been taken.

Section 48 of the act of 1865, which was in force when this contract was made, is most explicit. It declares it shall not be lawful for a board of directors to purchase or locate a school house site, or to purchase, build or remove a school house, etc., without a vote of the people, at an election to be called, etc. If this is the lawful course to be pursued, any other course to accomplish the object was necessarily unlawful, and the act null and void. These bodies can exercise no other powers than expressly granted, or such as may be necessary to carry into effect a granted power. Glidden et al. v. Hopkins, 47 Ill. 529. And it is fortunate for the people this power is so restricted. If, in the face of this law, a board of directors can lawfully contract for building a school house, to cost six hundred dollars, the contract price of the one in question, what is to prevent them to contract for a structure to cost sixty thousand dollars, or any other sum, and draw their orders on the treasurer at ten per cent in payment? We know of no limit to their power.

It is said by appellee a tax was levied to defray the expense, but that is not so, and if it was the fact, the action of the directors would not thereby be legalized. ' Ho tax-payer would be bound to pay a tax levied for such purpose.

It is also urged by appellee that the school house was accepted by the directors who incurred the debt, and that school was kept in it. That does not legalize the act, or bind the tax-payers. The question here presented is a question of power, and no act of the kind set up can make it valid for any purpose. Nor can .the beneficiary in this case resort to such acts in support of his claim. In the absence of power to do the act, there can be no innocent holder of this paper. He should have looked to the authority to make the contract in satisfaction of which the orders are drawn.

• There is no ground on which a recovery can be had against this board of directors, the appellants. As to the personal liability of those who drew these orders, and made this contract with appellee, we express no opinion.

For the reasons given, the judgment is reversed.

Judgment reversed.

Mr. Justice Scholfield

took no part in the decision of this case.