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the land is sold, the rate of interest to be determined as provided
in section 57 of the act. The statute is not explicit as to whether
the notes should be made payable to the trustees or county super-
intendent, but a careful examination of the law will, I think, sus-
tain the foregoing opinion. The notes in question are certainly
for money "to become due the township", which section 57 de-
clares " shall be payable to the board of trustees, by their cor-
porate name". Again, if default is made in the payment of the
notes, the trustees may bring suit for the recovery of the money,
(§§ 57 and 62.), and it is reasonable to conclude that the party
who has the right to sue for the money should be the payee of
the notes. The county superintendent would seem, in such cases,
to be merely the agent of the board of trustees. But it is also
clear that should the notes be made to the county superintendent,
instead of the trustees, they would nevertheless be "valid to all
intents and purposes". (§ 57.)

21. Commissions, How Computed. — By sections 71 and 72,
county superintendents and township treasurers, are allowed to
retain, as commissions, "two per cent, upon the amount of all


sums distributed, paid or loaned out bj them ". A literal con-
struction of the language of the law would require the commis-
sions to be computed on the amount actually disbursed, and not
upon the whole amount on hand. In other words, that construc-
tion would require the distribution of a sum which, when in-
creased bj two per cent, of itself, would equal the whole amount
on hand. To find the commissions on this principle : divide the
whole amount by 102 ; the quotient will be the sum to be distri-
buted, which taken from the whole amount, leaves the commis-
sions. But the rule sanctioned by universal custom, is, simply
to deduct two per cent, of the amount on hand, as commissions,
and distribute the balance. The difference in the results of the
two modes of computation is unimportant, being less than four
cents on the one hundred dollars.

22, Fer Diem Account, How Collected. — The mode of proce-
dure, nnder sec. 71, in relation to the per diem account of county
superintendents is not specifically pointed out in the act, but the
common practice in the state is for the county superintendent to
present his account, duly certified and sworn to, to the board of
supervisors, or county court, for then* approval. If approved,
they instruct their clerk to draw an order for the amount, on the
county treasurer, in favor of the superintendent, which order con-
stitutes the proper voucher of the treasurer, who thereupon pays
the same. This course seems to accord with the spirit and intent
of the school law, and with the statutes regulating the official ac-
tion of county treasurers. It is also approved by eminent judi-
cial authority. It is held, however, by some of our circuit judges,
that the per diem account can be paid without an order from the
supervisors or court, the certificate of the superintendent being,
in their estimation, a sufficient voucher for the treasurer. If the
treasurer deems the certificate an adequate voucher, he will of
course act accordingly. This mode of payment is certainly the
most direct and convenient, and, if satisfactory to the officers con-
cerned, there can of course be no objection to its adoption. In
either case, the sworn statement of the county superintendent is
to be deemed conclusive as to the amount justly due. The ac-
count, the correctness of which is vouched for by the oath of the
superintendent, cannot be reduced or changed, except upon proof
of deliberate falsification or fraud. The law provides that the ac-
count, the whole amount, when certified and sworn to ^^ shall he


paid''\ The compensation is inadequate, at best, for the services
of a faithful and competent superintendent, and payment must be
fidl and prompt, and should be cheerful^ for, whether appreciated
or not, the labors of no other county officer do more to promote
the public welfare. The law itself recognizes the insufficiency of
the compensation, in the case of able and faithful superintendents,
by authorizing "additional appropriations" in certain cases — a
discretion, the exercise of which, in an enlightened and liberal
spirit, is earnestly recommended to county courts and boards of

23. ■ Entitled to Full Amount of Auditor's Warrants. — The
warrants issued by the auditor of public accounts to county super-
intendents of schools, upon county collectors, both those for the
school tax fund and for the interest on the school fund, must in
all cases be paid in full by said collectors. No deduction can be
made for commissions. Those warrants are issued simply as a
matter of convenience, to save the trouble of paying the money
into the state treasury and then paying it out again to the county
superintendents of schools. Collectors take receipts of county
superintendents for the full amount of the warrants paid, and on
settlement with the auditor they are credited with the full amount
specified in said receipts, the same as if the money had been
actually paid into the treasury. County superintendents have
nothing whatever to do with the commissions of collectors ; said
commissions are allowed and paid by the auditor on final settle-
ment of collectors with the state ; and if any collector withholds
any part of the sum specified in the warrants, on account of com-
missions, or on any other account, after the amount of said war-
rants is collected and payable, it is the duty of the superintendent
to proceed against said collector and his securities, in an action of
debt, in the county court, which has full and complete jurisdiction
in the premises. And the collector must pay, as penal damages,
twelve per centum upon the amount due and in default. ( § TO.)

24. LiaUe for Loss of Funds. — The supreme court, 30th 111.,
page 99, in reference to the liability of township treasurers for
the safe-keeping of all funds coming into their hands as such
treasurers, hold the following strong language : " Township trea-
surers are made insurers of the funds coming to their possession,
and nothing should or can excuse them but the act of Cod, or of
the public enemy. A distinct and well defined liability is im-


posed on them by statute, and if it be not met, to its fullest extent,
the fact that the omission occurred from misfeasance, or negli-
gence, or unavoidable accident^ or b}^ a felony committed hy an-
other, furnishes no defense to the action on the bond." The offi-
cial relations of county superintendents to the public funds coming
into their hands as such, being identical in nature with those of
township treasurers, the same stringent rule of responsibility ap-
plies to the former as to the latter — they are equally liable on
their official bonds for the loss of any trust funds in their hands,
even though caused by accident or the felony of another. I do
not see any mode of relief in any such case, except by the special
interposition of the legislature. In the case of the public funds
distributed by county superintendents under sec. 16 of the act,
the liability does not cease with the expiration of the time within
which it is the duty of township treasurers to call for their re-
spective amounts, but remains in full force so long as any part of
said funds remains in their hands. Prudence, therefore, dictates
that all of said funds, when received and payable, should be paid
over and receipted for with as little delay as possible.

25. Security for School Moneys Loaned. — Section 59 of the
act, in relation to the loaning of school funds by township treas-
urers, provides that, " in estimating the value of real estate mort-
gaged to secm'e the payment of money loaned under the provi-
sions of this law, the value of improvements liable to be destroyed,
shall not be included''''. Section 19 provides that all school
moneys loaned by county superintendents, shall be, "upon the
same security as is provided by this act in relation to the town-
ship treasurers ". The same rule, therefore, applies to county su-
perintendents, as to township treasurers, in regard to the kind of
security that can be taken for school moneys loaned. It must in
both cases, and in all cases, be real estate, not liable to destruc-
tion, unincumbered, and in value double the amount loaned.
Houses, of all kinds, are "liable to be destroyed", hence they
cannot be included in estimating the value of the real estate given
as security for funds borrowed from either county superinten-
dents of schools, or township treasurers. The fact that a build-
ing may be insured, and that the borrower will assign the policy
as additional security, does not relax the rigor of the law in the
case. Experience proves that insurance companies themselves
are "liable to be destroyed".


. 26. Entitled to Whole Amount of Fines. — In cases of as-
sault, tlie complainant is not entitled to any part of the fine, or
to any pay whatever, except for attendance as a witness. The
only cases in which the complainant is entitled to one-half the fine
is in what are known as '^'■qui tarn'''' actions. When a statute im-
poses a penalty for the doing or not doing an act, and gives part of
that penalty to whoever will sue for the same, and the other part
to the commonwealth or to some worthy object or institution,
and makes said penalty recoverable by action, such actions are
called "^m2f«m" actions. Hence, unless the statute expressly
provides for the recovery of penalties by qui tarn actions, the in-
former or complainant is entitled to no part of the fine. Section
82 does provide for the recovery, by such actions, of penalties
against officers failing to pay over fines etc. when collected, and
also, alternatively, in the case of trespassers on school lands ; but
the words, "and all other fines, penalties and forfeitures", in said
section, do not refer to qui tain actions, but to fines etc. recovera-
ble under the general statutes, and the whole amount of such fines
must, therefore, when recovered, be paid to the county superin-

27. Should Not Serve as Toimishi]) Treasurer . — A county su-
perintendent should not, at the same time, hold the office of
township treasm-er. It is true that the only express legal restric-
tion is that the treasurer "shall not be a director or trustee'"'.^
( § 32.) But although not contrary to the letter of the law, the
holding the position of township treasurer by a county superin-
tendent, is in conflict with the well established principle that the
same person should not hold two such offices as will oblige him
to pay over public moneys to himself, and be the judge and cus-
todian of his own securities and vouchers. This, a county super-
intendent, acting as township treasurer, would be compelled to
do. ( §§ 15 and 16.)

28. May Negotiate Loans in Certain Cases. — When common
school lands are sold, and the purchaser pays down the price, or
a part thereof, in cash^ it is the right of the township treasurer
to demand that the amount so paid shall be turned over to him-
self, to be loaned ; and it is, of course, the duty of the county
superintendent to comply. But if the former waives his right to
receive and loan said funds, and the township trustees request it,
the county superintendent, acting as the agent of the trustees,


may negotiate the loan and perform all tlie services connected
tlierewith, retaining the commissions allowed by law, being the
same that the treasurer would have been entitled to had the busi-
ness been transacted by him. The notes, mortgages and other
securities, in such cases, must be made payable to the board of
trustees, by their proper corporate name, the same as if the loan
had been made by the township treasurer, as required by section
57. ( §§ 57, 58, 62, et al.)

29 3£ay Examine and Correct School Land Records. — The re-
cords of the sales of school lands, which are required by section
14, are of great importance. Harrassing litigation, and vexatious
uncertainties of title, etc., are sure to result, sooner or latter, un-
less these records are full and clear. The statute requires them
to be kept in three well bound books. A book of certilicates and
plats, a sale book, and a cash book. In violation of this re-
quirement, it is known to this department that in some counties
the sale books show but a small part of the actual number of lots
disposed of; the cash books are incorrect ; and the plats, etc., are
not recorded in book A, or any other book, but on scraps of pa-
per and in other unwarrantable forms. Wherever those valuable
records are found to be in this condition, county superintendents
will be justifiable in putting them in proper shape, or causing the
same to be done, and in taking such steps as may be necessary to
that end, by inspecting the records of other counties, and securing
reliable data wherever and however it can legitimately be ob-

30. Holds Over in Certain Cases. — "Where a county superinten-
dent elect, dies before being duly qualified, it would seem, from
the following considerations, that the former incumbent should
hold over. The power of a county court or board of supervisors
to a])j>oint, is conditioned upon there being a vacancy. ( § 13.)
But if the person elected does not qualify, there is no vacancy, and
hence the county court or board of supervisors cannot appoint.
Neither does the law, as I understand it, give the county court
any authority to order another election. Hence, in such cases
the former incumbent holds over till the next regular election.
The foregoing principle has been recognized and applied by some
of the circuit courts of this state.

31. Elections in Townships Dividedhy County Lines. — Section
25 makes it the duty of county superintendents to order elections


of township trustees when treasurers fail or refuse to do so. In
townships divided by county lines, the election in such cases may,
if practicable, be ordered by the two superintendents jointly. If
this cannot be done, the election may be ordered by the superin-
tendent of the comity in which the sixteenth section of such
township is situated. The election cannot be allowed to go by
default through supposed lack of jurisdiction on the part of the
respective superintendents. The foregoing rule, in such emer-
gencies, is sustained by the principle recognized in the last clause
of the 37th section of the act, and is the only perceivable mode
of procedure in such cases.

32. Reports of Justices and Clerhs Under Section 82. — All lines,
penalties and forfeiture due the school fund, no matter how long
ago they were imposed or incurred, must, if collected, be paid
over to the county superintendent, and may be recovered "in a
qui tarn'''' action, as provided in section 82. But the law requir-
ing clerks of courts of record, and justices of the peace, to rejport
the amounts of fines, etc., imposed and collected by them respec-
tively, should not be construed as retroactive. Said reports can
only be demanded from and after the passage of the law requiring
them, to-wit, February 16, 1865. These reports are for the infor-
mation of county superintendents, to keep them apprised of the
facts, whatever they may be, in relation to these funds, and said
reports must therefore be rendered by the first of March every
year, as required by law, whether any fines, etc., have been im-
posed and collected, or not. If there have been no transactions
since former report, it is important for the superintendent to know
that fact, which the hlank report will show. Superintendents are
enjoined to see that the reports are promptly rendered, and to pro
ceed against delinquents as provided by law. "l^To rule of inter
pretation is better settled than that no statute shall be allowed a
retrospective operation, unless the will of the legislature to that
effect is declared in terms so plain and positive as to admit of no
doubt." {Bruce vs- Schuyler^ 4 Gilm.^ 279.)

33. Action Under Section 21. — County superintendents must
see that township reports are returned to them at the time and
in the manner required by law, and in default should at once pro-
ceed as required by section 21. If imperfect or erroneous reports
are made, they should be returned for correction, if the time will
permit. If there is not time for the return of the reports for cor-


rection, or if the reports are sent back by the treasurer, still
imperfect or erroneous, superintendents should send an agent
into the delinquent township, the same as if no reports had been

34. May he Teachers. — Many county superintendents of schools
are also engaged in teaching. There is no legal impediment to
this, the two positions are not incompatible, and, with the inade-
quate compensation now received by them as superintendents, it
is absolutely necessary that they should teach, or engage in some
other remunerative employment, in order to realize an adequate
income. Since, then, county superintendents may at the same
time be teachers ; and since every teacher must have a legal cer-
titicate of qualifications, (§ 52); and since such a certificate can
only be granted by the superintendent of the county in which
the school is taught, (§ 50); it follows that a county superintend-
ent may teach under a certificate signed by himself. In such
case the certificate should be endorsed by the board of examiners.
(§50). The signatm'e of the superintendent, under such circum-
stances, is only a necessary legal formality. There are many
analogies: a collector must sign his own tax receipt, and be. its
custodian — a city clerk, if re-elected, must certify to his own elec-
tion, etc. The best way to avoid the seeming anomaly is for
superintendents desiring to teach to obtain state certificates,

35. May Procure and Furnish Office, etc. — It is held that the
county authorities should provide a suitable office for the use of
the county superintendent of schools, and supply the same with
furniture and fixtm-es necessary for the transaction of public busi-
ness, and the safe keeping of the public moneys, records and pa-
pers. It is not seen why this should not be done for the super-
intendent of schools, the same as for other county officers.
Among the articles necessary for the proper equipment of the
county superintendent's office, are, a convenient writing desk, or .
secretary, with as many pigeon-holes as there are townships and
parts of townships in the county, and enough extra ones for the
proper classification and filing of miscellaneous papers — one or
more common tables, and a complement of chairs, for the accom-
modation of applicants for certificates — a small book case, for
sample copies of text books, reference books, educational works,
reports, etc. — good maps of the county and state, etc., etc. If
the county authorities decline or neglect to provide and furnish


an office, the superintendent may do it, and pay the necessary
expense for rent, etc., out of the county fund. He is also author-
ized to use the same fund for the purchase of all books, blanks,
postage, stationery and printing, necessarily pertaining to, and
actually used in, the discharge of his official public duties — provi-
ded the same are not furnished by the county authorities as afore-
said. The strictest economy is, however, enjoined, and no ex-
pense must be charged to the school fund, the incurring of which
is not clearly legitimate and necessary. For any departures from
this plain and imperative rule, superintendents will be liable on
their bonds. All furniture, fixtures, books, etc., belonging to the
office, must be carefully preserved, and when a county superin-
tendent is about to turn the same over to his successor, he should
make an inventory of all such articles as are susceptible of enu-
meration, and take a receipt therefor, in duplicate, one for his
own use, the other for file with the county clerk.


1. Basis of Ajyj^oriionment. — Trustees must apportion school
funds to districts upon the basis prescribed in section thirty-four
of the act ; one-half upon census of white children under twenty-
one, and the other half upon the attendance certified in the sched-
ules. ISTo other rule or mode of distribution is legal.

2. Grounds of Claim To. — A six months free school, kept
according to law, is the only ground upon which a district can
claim a distributive share of the public school fund. Trustees
'must withhold the public funds from any district which has not
complied with this fundamental rule. The rule has reference to
i\iQ/preceding school year, and does not apply to newly organized
districts. The school year begins Oct. 1, and ends Sept. 30. If
any district has a six months school between Oct. 1 and Sept. 30,
of any school year, that district is entitled to its share of the
school fund, both on census and schedule, at the April and Octo-
ber distributions of the following school year. A six months
school must be kept in each and every year. It will not satisfy
the law to average the time of two or more years, taking the sur-
plus months of one year to make good the deficiency of another.


To comply witli the law, a school must be kept for six different;
months in each year. Hence the requu'ement is not satisfied byj
having two different schools in a district during the same three*
months. Each school in snch a case mnst cover a period of
three different months to constitute the legal six months. Since
only those districts which have complied with the law can receive
public funds, and, since all the public money on hand must be
apportioned semi-annually, it follows that a portion of the dis-
tricts of a township, or even a single district, may be entitled to
the whole amount of funds on hand ; thus, if but one district in ^
a township complies with the law, that district will receive the '■
whole distributive fund of the township.

3. Surjjlus District Funds. — If any district have a surplus of'
public money remaining after paying schedules and other school
expenses, said surplus does not go back into the township fund, ,
but belongs to the district, and will be held by the township -
treasurer subject to the orders of the directors thereof. Money
once apportioned to a district is ever after subject to the exclusive
orders of the directors of that district.

4. Funds of Townships lying partly in two Counties.- — When
a township lies partly in two or more counties, and the treasm-er ■
receives public money from the superintendents of each county,
the funds so received should be merged and treated as one common
fund. It is clear from the 3-±th section of the act that in the dis-
tribution of the state, county and township funds, every township ^
is to be taken as a unit, and the distribution must be made to all
the districts which have had schools according to law, without
regard to county lines. Trustees cannot cause the portion of
county fund received from each superintendent to be expended
exclusively in that part of the township which lies in the county ;
of that superintendent, but must make one common fund of the
amount so received, and distribute as aforesaid. The apportion- i
ment being made under one uniform state law, the accidents of ,i
county lines are not to be taken into the account. The case of
swamp land funds, which have recently accrued in some of the
counties, seems to form an exception, and the only one, to the
foregoing rule. The interest of such funds may be apportioned
exclusively to the districts of that part of the township which is
in the county having such swamp land fund, when specifically so
ordered by the county court or board of supervisors. These are


special cases. But the swamp land commissioner should not pay
the money to the directors, but to the township treasurer, to be
by him distributed to the districts of the proper county. Direc-
tors are not authorized to act as the custodians of that fund, or
any other. When the swamp land fund is placed in the hands
of the county superintendent, to be by him invested, and the in-
terest to be distributed with the other state and county fund, the

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Online Librarystatutes Illinois. LawsSchool laws of Illinois → online text (page 14 of 26)