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ors, are removed by the provisions of this section, as amended ;
such a per centage cannot lawfully be claimed or retained by
county treasurers under the present law. It will be observed
that school officers are no longer exempt from serving on juries ;
their other immunities remain as before, but they will hereafter
be liable to duty as jurors in courts of record.

KEMAEKS ON AMENDMENTS TO SECTION 82.

The amendments to this section are drawn with such fulness
and care as to leave but little to be supplied by way of comment.
The first point that will be observed is, that the lines, penalties
and forfeitures reverting to the school fund, under the provisions
of this section, are to be paid to the school superintendent of the
county in which said fines, etc., have been imposed or incurred
instead of the superintendent of the county in which they were
collected,, as was the case prior to the amendment. The propriety
of this change is obvious, since the place of collection is not al-
ways identical with that where the line is imposed or the forfeit-
ure incurred, and it is plain that the latter, and not the former,
should determine the county superintendent to whom the money
should be paid.

Another very important provision is, that the duty of enforcing
the collection of these debts due the school fund, is specially de-
volved upon the state'' s attorney of the respective judicial circuits,
instead of being left to the county superintendents, as heretofore.
The state's attorney is familiar with the forms of legal proceed-
ings to be instituted ; he is entitled by law to fees and commis-
sions for such collections, and therefore professionally interested



110 SCHOOL LAWS OF ILLINOIS, ETC.

in enforcing them, and hence is the proper officer to whom the
business should be entrusted, so far as courts of record are con-
cerned. Justices of the peace are also enjoined to enforce the
collection of all fines imposed by them, and the officer charged
with the collection is directed to pay the same, when collected, to
the school superintendent of the county in which said fines were
imposed.

But the most essential provision- is that which requires clerks
of courts of record, and justices of the peace, to report^ under
oath, to the proper county superintendent, annually, the amount
of fines, penalties, and forfeitures, imposed or incurred in their
respective courts, and also the amount collected, together with
the names of the officer or officers charged with the collection
thereof, under a penalty of twenty-five dollars for each failure to
make such report. These reports will furnish county superin-
tendents with the necessary information and data upon which to
act, the lack of which, under the old law, rendered its provisions
practically almost a dead letter. Eeports must be made annually,
whether any fines, etc., have been imposed or not ; the reports in
that case, being in blank. Hardly less important is the stringent
and highly penal provision by which the officer having collected
said fines, penalties and forfeitures, or having the same in his
possession, is compelled to pay the same over to the person au-
thorized by law to receive them. The penalty for each default is
double the amount of the funds illegally withheld. The kind of
action {qui tarn) by which the forfeiture is to be recovered, is the
one best adapted to secure the end in view. •



OFFICIAL AND JUDICIAL DECISIONS.



Having now presented the school law, as amended, and con-
sidered in detail the several sections of the amendatory act, it
remains to embody the official and judicial decisions, now in force,
in .relation to common schools. The plan of this Compend re-
quires that these decisions be given in the briefest form ; it does
not admit of extended argument and illustration, and it is be-
lieved that for the practical purposes contemplated in the prepara-
tion of this Hand-Book, the plan adopted will be found more
convenient and useful than an elaborate statement of the reasons
and discussion of the principles upon which each decision is
founded. The extended survey of the whole field involved in
the latter plan, falls more properly within the province of the
larger and more philosophical library and reference work which
I have in preparation.

The decisions that follow embrace the substance of all that
have been rendered by the department of public instruction, and
the supreme court, in relation to common schools ; those only
being omitted which have been superseded or rendered inopera-
tive by recent legislation. They are purposely thrown into this
condensed form, so that, being general, and embracing only ab-
stract legal principles, they may be of universal application. For
facility of reference, the decisions are grouped into general classes,
and arranged under appropriate sub-heads ; those of each general
class being consecutively numbered.



DECISIONS RELATING TO COUNTY SUPERINTENDENTS.

1. Bond. — Before county superintendents can legally enter
upon the discharge of their official duties, they must take an oath
for the faithful discharge of the same, and execute a bond, as pre-
scribed in the eleventh section of the act.



112 SCHOOL LAWS OF ILLINOIS, WITH

2. Examination of Treasurer's Bond. — It is the duty of
county superintendents carefully to scrutinize the bonds of town-
ship treasurers before accepting and filing them, and if found in
any respect defective to return them for correction. (§ 15.)

3. To withhold funds until bonds are filed. — County superin-
tendents can pay no school funds to any township treasurer who
has not on file a good and peifect ofiicial bond. (§ 16.)

4. Apportionment rf Funds. — Townships and parts of town-
ships, in which no schools have been kept according to law, can-
not share in the distribution of the school fund. But, if a single
school of a township has been kept as the law requires, that town-
ship is entitled to the benefit of the school fund. (§ 16.) Where
a township in divided by a county line, leaving one or more dis-
tricts on each side of said line, the treasurer of said township is
entitled to funds from each superintendent, provided that schools
have been kept according to law in each fraction of the township;
but not otherwise. If the district or districts in the part of said
township lying in one county, have complied with the provisions
of law, while the district or districts of said township which lie
in the other county, have not so complied, then the treasurer of
said township is entitled to funds from the superintendent of the
former county, but not from the superintendent of the latter
county.

5. Basis of Apportionment. — County superintendents can ap-
portion no funds to townships upon any other basis than that pre-
scribed in section sixteen of the act. They must always take as
the basis, the latest ofiicial enumeration of persons under twenty-
one, on file in their offices. Where officers fail to report the num-
ber of white children under twenty-one, the county superintendent
will adopt the census of those townships whose ofiicers have com-
plied with the law and made a return, and take the last enumera-
tion of those townships from which no returns were received, as
the basis of distribution. The township whose ofiicers comply
with the law are entitled to the -full benefits of their increased
population. Ofiicial census returns must be received, unless >;:
known to be false and fraudulent, in which case they may be re-
jected and the funds withheld until true returns are made; or the
latest returns on file may be taken as the basis, as aforesaid.

6. Examination of Teachers. — County superintendents must :
hold at least four public examinations of teachers annually, and



OFFICIAL AND JUDICIAL DECISIONS. 113

more if necessary, at sucli times and places as will accommodate
the greatest number of persons desiring examination. They are
not forbidden to examine teachers privately. Due notice must
be given of all public examinations, (§ 51.) County superin-
tendents are authorized to appoint boards of examiners, for the
examination of teachers, but such examiners are not school offi-
cers, nor entitled to the immunities granted in section seventy-
two of the act. It is the duty of the county superintendent or
board of examiners, when requested by the directors of any district,
to examine teachers in the higher branches; in which case they
shall certify to the additional branches proposed to be taught;
but no certificate can be given unless the teacher is qualified to
teach the several branches enumerated in the law. {See reniarhs
on section 51.)

1. Teachers' Certificates. — Certificates can only be granted to
persons of approved moral character, and who, upon due examina-
tion, shall be found qualified to teach all the branches enumer-
ated in the act. On the question of character, the superintendent
must be governed by his own knowledge, when that knowledge
is in conflict with testimonials. The date of a teacher's certificate
must strictly conform to the facts; it cannot be dated back. Only
two grades of certificates are authorized by law. The first is
valid in the county for two years, the second for one year. At
the expiration of a certificate the superintendent may renew the
same by endorsement, without examination, or he may require
further examination, as the condition of such renewal, at his op-
tion. He is not authorized to renew certificates unless granted
by himself. (§50.)

8. Fees for Oertificates. — All fees for teachers' certificates are
abolished, whether granted at public or private examinations, but
the expense of the blank forms used may be defrayed out of the
school funds. ( § 61.)

9. Revocation of Certificates. — Teachers' certificates may be
revoked, but only for just cause. In the exercise of this right
the greatest care should be taken to avoid injustice. The pro-
fessional reputation of a teacher should not be prejudiced by the
revocation of his certificate, except upon the most clear and posi-
tive proof; but whenever such proof is furnished, the duty of the
county superintendent is plain, and he must perform it. "When
the revocation of a certificate becomes clearly necessary, the su-

—9



lli SCHOOL LAWS OF ILLINOIS, WITH

periutendent should note the fact in his record of certificates
granted, (section 50), and request the teacher to surrender the
document. If he refuse to do so, the name of the teacher, date
and grade of his certificate, and the fact and date of its revoca-
tion, (with cause, if deemed expedient), should be published in
the county papers, or otherwise. This, in that case, would be
necessary for the information and protection of the public. The
directors, trustees and treasurer, of the district and township
concerned, should also be informed immediately and officially by
the superintendent, in writing, of his action, and duly notified
and warned that no public funds can lawfully be paid said teach-
er for services rendered from and after the date of said revoca-
tion. The law does not authorize county superintendents to
suspend teachers' certificates, nor do 1 think that the right to do
so is implied in the power to revoke. They may grant, renew,
and, for good cause, revoke certificates; their powers in the
premises would then seem to be exhausted.

10. School Visitation. — County, superintendents are required
by law to visit e^ich school in their respective counties, at least
once each year. No other duty is more expressly enjoined, and
it cannot be neglected without a disregard of the plainest require-
ments of the act. The law does not authorize the performance
of this duty by proxy. ( § 20.)

11. Controversies. — It is the imperative duty of county super-
intendents to hear all controversies and complaints arising in
their respective counties upon school matters, and, if possible, to
determine and adjust the same. E"o such cases can properly be
submitted to this department except by formal appeal from the
decision of the county superintendent. ( § 20.)

12. Reports. — County statistical reports are required to be
made to this office annually. For refusal or neglect to render
such reports, at the time and in the manner reqiiired by law,
county superintendents are liable to removal from office, and the
consequences of such failure, to the county, are no less than the
forfeitm-e of the state school fund for the ensuing year. ( § 17.)
They are also liable to a fine of twenty-five dollars for each de-
fault in making such report, under section seventy -six of the act.
And when a county loses its share of the pubhc fund by reason
of the failm-e of the county superintendent to make his report, he
is responsible for said loss. ( § 77.)



OFFICIAL AND JUDICIAL DECISIONS.



115



13. Sale of School Lands. — Sales of school lands by county
superintendents are invalidated by failure to give due and legal
notice thereof. All sales of school lands must be advertised in
the manner and for the length of time prescribed in section
eighty-seven of the act. The expenses of advertising sales of
school lands should be paid from the school fund of the township
for whose benefit the advertisement is published. It was held
by the earlier state superintendents that said expenses should be
paid by the county superintendent, and the decision has not
heretofore been traversed. But a careful examination of the
point has satisfied me that said opinion is not well founded. It
appears to be a well settled principle that the fees or compensa-
tion of a public oflicer for his services^ in any particular business,
are not to be reduced by the amount of his legal expenses in-
curred therein. The compensation mentioned in section 71 of
the act, in relation to the sales of school lands, are clearly for
'"'■ services'''' only, not for expenses. A diflferent construction would
work great wrong to the oflficer. For it is plain, in the case of
small tracts at low prices, that even if a sale is effected, the cost
of advertising may exceed the commissions allowed by law ;
while, on the other hand, the minimum price fixed by the trustees
may be so high as to prevent any sale at all, as is frequently the
case. And as this may happen several times before a given tract
is actually sold, the injustice of requiring the expenses to be
borne by the county superintendent is very manifest. This is
all the more apparent from the fact that the superintendent may
be obliged to make the sale on the premises, incurring an addi-
tional outlay for travelling expenses, which must also be repeated
as often as there is a failure to sell. The law never requires an of-
ficial to expend his private means for the public good. Hence,
whatever expenditures the law requires an official to make, the par-
ties for whose benefit the expenditure is incurred must pay the cost.
In this case, therefore, the cost of advertising must be defrayed
from the school fund of the proper township. ( §§ '71, 87, et al.)

14. Commissions on Sales. — The county superintendent is en-
titled to three per cent, of the amount realized from all sales of
school lands made by him. "When a sale of school lands is made
by the superintendent, and the amount for which the lands are
sold is not actually paid in, but loaned to the purchaser or pur-
chasers, he is entitled to three per cent, for selling and two per



116 SCHOOL LAWS OF ILLINOIS, WITH

cent, for loaning. ( §§ Yl and 86.) When the purchaser of school
lands pays the full price of the land to the commissioner in cash,
the money so received should be paid to the township treasurer^
to be loaned by him.

15. Omission to take Mortgage. — When school lands are sold
by county superintendents, and the money is loaned to the pur-
chaser, security is required by notes and mortgage as in the case
of money loaned by township treasurers; but should the super-
intendent neglect to take such mortgage, the lien is not waived,
as the law expressly provides that it shall be reserved. In such
a case the trustees of schools can assert a lien as against a pur-
chaser, and also as against those claiming under him, with notice,
if proceedings are instituted within a reasonable time. {Trusteei
of Schools vs. Wright et al, 12th III, 432.)

16. Failure to Record Proceedings. — The act makes it the
duty of superintendents to record in full the proceedings of all
sales of school lands, but it is held by the supreme court {Trustees
of Schools vs. Allen et al.^ 21s^ lll.^ 120,) that failure to make
sucb record, provided the lands are legally and fairly sold, doe$
not invalidate the title of the purchaser. In the absence oi
fraud, non-compliance with the unessential and advisory provi
sions of the act cannot alienate the just rights of the purchaser.

17. Convpensation. — County superintendents are entitled to
compensation, as follows : 1. Three per cent, upon amount of all
sales of school lands, and real estate taken for debt. 2. Two pei
cent, upon amount of all sums distributed, paid, or loaned out by
them. 3. At the rate of three dollars per diem for any number
of days, not exceeding two hundred in any one year, for all servi-
ces legitimately devolving upon and performed by them as super-
intendents of schools, except for those services for which they
are by law entitled to commissions, as above. In visiting schools,
etc., the time necessarily spent in travel is as much ^ part of the
"day" for which payment is due, as the time actually spent in the
school-room, or other business for which the journey is underta-
ken. Whenever the superintendent appoints a day for the public
or private examination of teachers, and is present for that purpose
at the appointed time and place, he is entitled to his per diem,
whether any person appears for examination or not ; and, in like
manner, when a superintendent gives public notice that he will
be in his office on certain stated days, for the examination of



OFFICIAL AND JUDICIAL DECISIONS. 117

teachers and the transaction of other public business, and accor-
dingly remains in his office for that purj)ose, he is entitled to
the per diem allowed by law, whether any one calls for examina-
tion, or for the transaction of other public business, or not. This
is a familiar and wxll established rule in relation to the obligations
and compensation of public officers. {See remarks on section Yl.)

18. Whjxt Fines, Forfeitures and Penalties, go to the School
Fund. — AmoDg the fines, penalties and forfeitures, which, by
section 82, are required to be paid to the county superintendent
for the benefit of the school fund, are the following : 1. All fines
collected by justices of the peace. 2. All fines collected by other
county officers. These are the sheriff, the probate judge, the
county court, or board of supervisors — but not the moderator of
a town meeting. 3. All fines, penalties and forfeitures, imposed
or incurred in any of the circuit courts of this state. This last is
by far the most important. It includes, among others, all fines for
violations of the criminal law. For selling liquor, illegal voting,
assaults, afirays, contempts, arson, altering marks, removing land-
marks, assisting prisoner, and so on, for the thousand oftenses
punished by fines. All forfeitures of recognizances are included.

19. Dejputies. — The law, section 50, authorizes the county
superintendent to appoint a board of examiners for the examina-
tion of teachers, and, of course, to grant certificates upon the re-
commendation of said board. It would also seem that the super-
intendent should be warranted in paying his examiners at the
same rate per day that he would himself be entitled to for the
same service. This is the only instance in the act where the su-
perintendent is exjpressly authorized to act by deputy, and it is to
be regretted that power to so act is given at the very point where,
above all others, the personal attention of the superintendent is
most important. It is certain that if authority to examine teach-
ers by deputies, were not plainly conferred by the statute, it
could not be done ; for no other duty demands to the same ex-
tent the exercise of that care, ability and judgment, which the
superintendent is presumed to possess. It is therefore earnestly
recommended that authority to examine teachers should not be
delegated to others, notwithstanding permission to do so is con-
ferred by law. Let the superintendent himself perform this most
important duty, except in cases of emergency or necessity.

Although no direct authority is given to a superintendent to



118 SCHOOL LAWS OF ILLLN'OIS, WITH

act by an agent, except in tlie examination of teachers, it can-
not be donbted that there are services connected with his office
which may properly be performed by another. There is a fami-
liar principle which determines what services may be entrusted
to others, by a public officer. It is this : In aU those duties in
which a special trust is reposed in the abilities, judgment, skill
or learning of the officer himself, his powers cannot be delegated ;
whilst in the discharge of those duties which are of a merely
clerical, formal or ministerial nature, in which no special confi-
dence is reposed in the peculiar qualifications of the officer, a
competent deputy or clerk may be employed. No one supposes
that a.judge^ for example, can act as such through a deputy.
On the other hand, in matters purely ministerial, where the law
prescribes definitely the manner in which the thing must be done,
such as the extension of taxes, making out collectors' books, re-
cording of deeds, making up of records, etc., the officer de jure
is entitled to compensation therefor, although performed by a
deputy or clerk.

ISTow, some of the duties of a county superintendent, such as
the visitation of schools — giving directions in the science, art and
methods of teaching — advising with school officers — deciding
questions under the school law, etc., (and, did not the statute
provide otherwise, the examination of teachers), are in the nature
of a specia,! trust or confidence in the intelligence, learning and
judgment of the superintendent himself, and cannot be delegated;
whilst other duties, such as the collection of statistics — making up
statistical reports and tables — recording, copying, arranging, ab-
stracting and filing official papers, etc., may be performed by a
clerk or deputy, for whose services the superintendent would be
entitled to the same pay as if performed by himself.

It seems safe to conclude, therefore, that the idea of a general
deputy, with power to perform all the duties of the office, is
wholly incompatible with the intent of the law ; whilst in the
class of duties above enumerated, ~ the superintendent may em-
ploy a competent deputy or clerk, for whose services the superin-
tendent would be entitled to the regular pay, whenever the em-
ployment of such deputy is necessary, or will promote the inte-
rests of the schools. And for this purpose the county court or
board of supervisors may also allow the superintendent additional
compensation, under sec. Yl of the act, and should do so, when



OFFICIAL AND JUDICIAL DECISIONS. 119

necessary to enable him to devote liis special attention to the
more important educational duties of his office. It is believed
that in many cases it would be not only advisable, but highly
advantageous to the schools, for the superintendent to pursue
such a course. It will enable him to choose the most favorable
times for the all-important work of school visitation, which chance
to be the very periods when the statistics are to be collected and
tabulated for the annual report, and the public funds apportioned
and paid out. These latter duties could be performed by a deputy,
while the superintendent is engaged in the more important work
of visiting the schools, to the great benefit of the public interests.
Many of the counties are too large for any superintendent to do
all the work, as it should be done; in such cases the county
authorities are earnestly urged to afford the needed relief, by a
suitable appropriation for such services as can be properly per-
formed by a clerk or deputy.

20. WJieoi a Purchaser of School Land Borrows his Bid. —
When the purchaser of common school lands borrows the amount
of his bid, as authorized by sec. 86, the notes, mortgages, etc.,
given as seijpurity for the money so borrowed, should, I think, be
made payable to the trustees of the township for whose benefit


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Online Librarystatutes Illinois. LawsSchool laws of Illinois → online text (page 13 of 26)