Weare v. School District , 44 N.H. 189 ( 1860 )

Bellows, J.

The first question is, whether, prior to the law of July 9, 1855, school districts had the power to borrow money to build school-houses. By the law of December, 1805 (Lawrs of 1815, 366), power was given to divide a town into school districts; and such districts were empowered to raise money to build or purchase school-houses in their respective districts; and by the express provisions of the act the money so raised was to be assessed and collected in the manner therein provided: namely, by a tax upon the inhabitants and property of the district. The laws of July, 1827 (ed. 1830, 432), and the Rev. Stat. (ch. 71), are substantial reenactments of the law of December, 1805; prior to which the duty seems to have rested upon the town at large. Law of December, 1804, ed. 1805, 295. Under these provisions it is obvious that no power is conferred upon school districts to borrow money, and none has been acquired by usage; and therefore we are of the opinion that prior to the law of July 9, 1855, no such power existed. There is between towns and school districts but little similarity. Towns are authorized to purchase and hold real and personal estate for the public uses of the inhabitants, and to sell and convey the same, and may make any contract which may be necessary and convenient for the transaction of the public business of the town. That public business includes, among other things, the raising, assessment, and collection of all the public taxes, except the raising, simply, of the State and county taxes; the support of the poor, the laying out, building, and support of public highways, and the raising of money for schools, constituting a very large and important part of what may be regarded as the domestic functions of a government. At an earlier period of the existence of these corporations their functions were even much more comprehensive; and accordingly, by long usage, they have exercised the power of borrowing money. On the other hand, school districts have always been regarded as possessing very limited powers, being authorized to hold and convey real and personal property for the use of the district, and to make and enforce all necessary contracts in relation thereto ; and the mode of raising the money to purchase or obtain such property is specially marked out.

¥e think, therefore, there is no such analogy between the two corporations as to furnish a guide upon this point. The general nature of the powers of such districts is shown in Johnson v. Dole, 4 N. H. 480 ; Harris v. School District, 28 N. H. 58, and Wilson v. School District, 32 N. H. 126.

The next question is, whether the vote of September 15, 1855, can be regarded as passed at a meeting duly called for that purpose. The article in the warrant, “ To see if the district will vote to build a new school-house, and to raise money and take the necessary measures therefor,” must be construed in reference to the law existing at the time the warrant was posted or served, and would of course authorize a vote to raise money by taxation. Indeed, as that was the only method then existing to raise money for such a purpose, the warrant might well be regarded as a call to act on the subject of raising money by taxation alone. Nothing else, in fact, could have been understood at the time the notice was given, and nothiug more could have been done on the day'of the meeting; and therefore we think that the call was limited to that mode of raising the money. It is urged that the call is broad enough to embrace the raising it by loan; and in this we should concur, had such a power existed when the notice was given ; but as it did not then exist, the general terms of the call can avail nothing. Between the two modes there is a substantial distinction; and it well might be, that voters who were willing to take the risk of the action of the district in raising money by taxation, would feel called upon to attend and watch with some care the less provident method of raising it by borrowing. At all events, we think the voter is entitled to notice of the purpose to raise the money by hiring; and this he can in no just sense be deemed to have had, when, at the time he received his notice, as well as at the time of the meeting, no such power to raise money existed. It is true that at the time of the adjourned meeting such a power did exist, but of that adjourned meeting those at least who were not present at the first had no legal notice.

Under these circumstances we are constrained to hold that the vote in question was not passed at a meeting duly called for that purpose, and therefore the vote declared on is not binding upon the district. Should it, however, be made to appear that the money so obtained had come to the use of the district, the note having been made after the new law had taken effect, it would be evidence of a ratification; especially, if the district had knowledge of the way the money was obtained; but enough is not now shown to authorize a legal inference of ratification. See Wilson v. School District, 32 N. H. 126, and Harris v. School District, 28 N. H. 58.

There must, therefore, be judgment for the defendants, unless further proceedings are desired.