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"in a just and equitable manner." The object is simply to make
a fair estimate of the present vcdue of the school property. Of
course the directors and people of the district owning the pro-
perty, are the most interested parties. If they are satisfied to
allow the trustees to set a value on the property, as is generaUy
the case, and as the law contemplates, weU and good. If not,
then the following is suggested as convenient and equitable :
Let the trustees select some disinterested person as an appraiser ;
let the directors of the district owning the property, select a second
person ; and they two a third. A similar course may be pursued,
if necessary, when the new district is formed out of parts of two
or more districts ; or out of territory lying in more than one town-



OFFICIAL AND JUDICIAL DECISIONS.



139



ship. It is due to the people of the old district, and to fairness,
that the appraisers should all be free from any personal interest
or bias in the matter. After the present worth of the property
is determined, the law prescribes the basis upon which said esti-
mated value shall be distributed between the two (or more) dis-
tricts, viz : "in proportion to the amount of taxable property re-
maining in each."

The appraisement, in whatever manner the trustees may make
it or cause it to be made, is final and conchisive, as is also the
distribution of the appraised value among the districts concerned.
After the whole matter has been determined and adjusted by the
trustees, it is optional with the directors of the district in which
the school house is situated, to accept the terms proposed, or not.
If they accept, they must pay the other district the sum adjudged
to be its due, or levy a tax for that purpose, if necessary. If they
refuse to accept the terms within the time fixed by law, (three
months), or, after having accepted them, neglect or refuse to pay
or to provide for the payment of what is due the other district,
then the trustees may order the whole property sold by auction
to the highest bidder, and divide the proceeds of the sale between
the districts, on the basis provided by law. Or the recusant di-
rectors may be compelled, by writ of mandamus, on the suit of
the trustees, to levy a tax sufficient to pay what is due the other
district. (§4:9.) School houses and sites, and all other school
property belonging to a district at the time of its division, are
held to come within the meaning of the term "property," as used
in section 33. The appraisal and division must be made within
three months from the formation of the new district.

24. Failure to Organize in Ten Days. — The provision of the
23d section of the act w^hich requires trustees elect to meet, organ-
ize, draw lots, etc., within ten days, is to be understood as advi-
sory, not mandatory. That is, if the election was legally conduc-
ted, failure to meet and organize within ten days does not make
the election void; the trustees elect are legally in office and must
be recognized as such. Failure to meet in ten days does not,
ipso facto, vacate their offices, or authorize the treasurer to order
another election. The object of the meeting is to determine their
respective terms of office, etc., not to qualify for office. If the
statute made the drawing of lots within ten days a condition of
holding the office of trustee, non-compliance would vacate the



140



SCHOOL LAWS OF ILLINOIS, WITH



office. But the law imposes no sucli condition ; tlie requirement
to meet in ten clays is for a wholly different purpose, and while
failure to do so renders the trustees elect liable to the penalties
prescribed for non-performance of duty, (§76), it does not vitiate
the election, or work a forfeiture of office. The right to hold said
office is conferred by the election. After the poll book and cer-
tificate of the judges have been dehvered to the county superin-
tendent, the persons therein named are legally trustees of schools,
to all intents and purposes, and can only cease to be such by
death, resignation, or the setting aside of the election by due
course of law.

25. May Purdmse Books, etc., for Districts.— li is impera-
tively necessary that every board of school directors should have
suitable books, blanks, etc., for the proper transaction of the pub-:
lie business of their respective districts. This embraces whatever
is necessary for keeping a faithful and uniform record of their
official proceedings and financial accounts, or for instruction in
regard to their public duties. By section 42, directors are author-
ized and required to procure such books, and pay for them out
of the district funds. If they neglect or refuse to do so, it is held
that the township trustees, in virtue of their general supervisory
relations and duties to the school interests of the whole township,
may procure the necessary books, etc., and deduct the cost of
the same from the township fund, prior to distribution. It would
secure uniformity in the business records of the districts, while
the cost to each district would be less than if each district pro-
cured its own, as the books can always be obtained cheaper by
the quantity. But the right of the trustees to purchase accrues
only upon the refusal or neglect of the directors, and must be re-
stricted to articles authorized or warranted by law.

26. Cannot Loan Distributable Funds. — Funds liable to dis-
tribution cannot be loaned by the trustees under any circumstan-
ces. Section (SQ of the new school law is clear and positive on
that point. After moneys have once been apportioned, they
must remain subject to the order of the proper district, or, if for
any reason, such as the disorganization of a district, etc., funds so
apportioned should not be called for, they must be re-apportioned
to the other districts— they cannot be loaned as principal. On
the other hand, no part of the principal of the township fund can
be distributed or used under any circumstances whatever. (§ QQ.)



OFFICIAL AND JCTDICIAL DECISIONS. 14:1

27. May Bemove Treasurer. — Tlie statute gives to tlie trustees
power to remove the treasurer at pleasure, and the appointment
of another person is, of itself a removal of the incumbent from
that office. {School Law 1865, §§ 32 and 40. Holhrook et al. v.
iTownship Trustees, 22 III., 5M.)

28. Two Members a Quorum. — The law ( § 32) constitutes
two members of the board of trustees a quorum to transact busi-
juess, and when they concur in any act which the board may
legally perform, no reason is perceived why the act is not as
legally binding as if all were present. When the legislature de-
signated that number as a quorum for the transaction of business,
it conferred upon them full power to perform all the duties of the
board. If a legal act is concurred in by two members, said act
cannot be inquired into on the ground that the third member was
not notified, or that there was a vacancy in the board, or that it
was not done at a stated or special meeting duly called by the
proper officers or persons. Eegularity of procedure in other re-
spects must be presumed from the fact of concurrence by a legal
quorum. {Sohofield et al. v. Watkins et al. 22 III., 72.)

29. Liabilities. — For each and every failure to discharge the
duties enjoined upon them, or either of them, at the time and in
the manner required by the provisions of the law, township trus-
tees are liable to a fine of twenty-five dollars ; and for each and
every failure or refusal to make due returns of the number of
children in their township, as required by law ; and for every
false return, knowingly made, the trustee, or trustees, so offend-
ing, are liable to a special penalty of not less than ten dollars, nor
more than one hundred dollars ; and township trustees are also
liable, jointly and severally, for the sufficiency of the securities
taken from township treasurers. ( §§ 74 and 76.)



DECISIONS RELATING TO TOWNSHIP TKEASUEEKS.

1. Township Treasurer'' 8 Bond. — Every township treasurer,
before entering upon his duties, must execute a bond. If a treas-
urer serve two years and is re-appointed, he must execute a new
bond. If he resign or is removed, and another treasurer is ap.
pointed, said treasurer must execute a new bond. Every bond



142 SCHOOL LAWS OF ILLINOIS, WITH

must have at least two responsible freeholders as securities, who
shall not be members of the board of trustees. Every bond

1-3

must be approved and accepted bj at least two members of the |
board of trustees. The penalty of every bond must be at least
twice the amount of the moneys, notes, mortgages and effects in
the custody, or to be in the custody, of the township treasurer.
Township treasurers are appointed for tv^o years, and until their
successors are appointed. [School Law, section 32.) When a new
board of trustees is elected, the old treasurer continues in office
unless said board see fit to appoint a successor, in which case the
successor so appointed must execute a new hand and will hold the
office for two years from date of apj) ointment, or until his successor
is appointed and qualified, as aforesaid. It will thus be seen that
it is ojptional with a new board of trustees to appoint a new treas-
urer, or continue the old one ; and if they decide to make no
change, then the former treasurer goes right on the same as if no
new board had been elected. No appointment, or re-appointment
is required until the expiration of the two years for which the
treasurer gave bonds. The two years always date from appoint-
ment, and not from the election of trustees. A neiu treasurer
must always execute a nevj hond, and all bonds must be renewed
every two years. ( § 55.)

2. Form of Bond. — Every township treasurer's bond must be
in the form prescribed by law. ( § 55.) In the second line of
the form of bond the blank after the words " unto the board of"
should be filled as foUows : " Trustees of schools of township
'^o. — , Eange No. — ;" giving definitely the township and range.
The blank is sometimes filled with the single word " Trustees,"
which is too vague. There are a great many boards of trustees in
the county; and unless the blank is filled with a complete descrip-
tion of the township, as above suggested, there is nothing to show
the particular board of trustees to whom the treasurer is holden,
nor what particular board would be authorized to sue him on his '
bond for malfeasance in office, as provided in section 64, et al.
The blank in the second line of the form, should, therefore, be
filled as specifically as that in the eighth line, that the identity of
the two may be manifest.

3. Must he Executed or Renewed Before Funds Can he
Paid. — The due execution and approval of a bond, and delivery
of the same to the county superintendent, are conditions prece-



OFFICIAL AISTD JUDICIAL DECISIONS. 143

dent to the lawful payment of any scliool funds to a township
treasurer. The language of the law is, "that no part of the
state, county, or other school fund, shall be paid to any township
treasurer, or other person authorized by said treasurer, unless
said township treasurer has filed his bond as required by the
fifty-fifth section of the act, nor, in case said treasurer is re-ap-
pointed by the trustees, unless he shall have renewed his bond
and filed the same as aforesaid." ( § 16.)

4. Must Demand and Keep Township Funds. — It is the
right and duty of township treasm^ers to demand that all moneys,
books and papers of every description, belonging to his town-
ship, be delivered to. him, and he must receive and safely keep
the same according to law. ( § 62.)

5. Are the Legal Custodians of all District Funds. — Town-
ship treasurers are the legal custodians, not only of all township
funds, but of all district funds, including money borrowed under
section 47 ; and such district funds must therefore be left in their
hands until they are drawn out, upon legal orders of the direc-
tors. ISTo money can legally reach the directors or their credi-
tors, through any other channel than the township treasurer. He
is the only township school officer who is under penal bonds for
the safe keeping of the funds. The practice, therefore, of pre-
senting orders for district tax money, to the town or county col-
lector, and drawing payment thereon, before the money has
l^assed into the hands of the township treasurer, is in direct con-
flict with both the spirit and letter of the law, as expressed in
sections 34, 40 and 45, of the act, and must be discontinued. It
is a manifest infringement of the official rights and duties of the
township treasurer — is often unjust to a portion of the districts in
the township, and is fraught with danger to the safety of the funds.

6. Must Keep Funds at Interest. — Township treasurers are
required to keep the principal of their respective township
funds constantly loaned at interest, and no part of said principal
can be permitted to remain unproductive, without a violation of
law. (§62.)

7. May Loan Funds at from Six to Ten Per Cent. — Town-
ship treasurers are authorized to loan the principal of the town-
ship fund, at a rate of interest not less than six per cent., nor
more than ten per cent, per annum, payable half-yearly in ad-
vance. No action of the board of trustees is necessary to war-



144: SCHOOL LAWS OF ILLINOIS, WITH

rant loans at ten per cent., that being the maximum rate allowed
by law ; but no loans can be made at a rate of interest less than
ten per cent., without the apj)roval of a majority of the board of
trustees, by whom such less rate must be determined. Loans
heretofore made, at less than ten per cent., under instructions to
that effect from this oflice, were legalized by the late legislature.
{§5Y.)

8. May Loan to Boards of School Directors. — Township
treasm'ers are authorized, when, in their estimation, the same shall
be deemed expedient, and for the best interests of the township
funds, to loan said funds, or any part thereof, to boards of school
directors, in their corporate name, taking bonds therefor, as pro-
vided m section 47 of the act ; but except to boards of school
directors, as aforesaid, no loans can be made except upon the se-
curities prescribed in section 57 of the act ; nor is there any war-
rant of law whatever for the investment of the township fund, or
any part thereof, in government bonds, local war bonds, ar any
other description of bonds. (§ 57.) In case of loans to school
directors, the interest must be paid semi-annually in advance, the
same as in other cases. The intention of the ])Toviso to section
57, is simply to allow township treasurers to make loans to boards
of directors, as corporations, which they could not previously do,
and to receive district bonds as security, instead of notes and
mortgages. It is not the object of said proviso to authorize any
change in the rate of interest, or the manner of paying the same,
which said section elsewhere provides shall be half-yearly, in ad-
vance.

9. Cannot Borrow Township Funds. — That township treas-
urers should not and can not lawfully become borrowers of the
school funds of the townships of which they are treasurers, will
appear from the following considerations : The township treas-
urer is the agent of the board of trustees, through whom alone
all loans must be effected and all contracts connected therewith
be .executed. (§ 57.) In all valid contracts there must be at
least two parties — one empowered to negotiate, the other com-
petent to be negotiated with. These two parties cannot be
identical, nor the powers of each be merged in the same person.
This would be a contradiction in terms, and subversive of the
primary rules of mutual obligation. Kot only is there no one
with whom the treasurer can lawfidly make the contract in loan-



OFFICIAL AND JUDICIAL DECISIONS. 145

ing to himself, but another difficulty presents itself. The execu-
tion of securities may be denied by plea of non est factum. In
such case the testimony of the township treasurer is conclusive
as proof that the securities were duly executed. But suppose
that plea is made by the township treasurer himself in denial of
the execution of his own securities as a borrower of the fund ;
how or by whom shall the township prove them ? "What recourse
would there be in such an emergency ? All books, notes, bonds,
mortgages, and all other evidences of indebtedness belonging to
the township, are by law, in the exclusive custody of the treas-
urer, who is required to safely keep the same, and to lay them
before the trustees at their semi-annual meetings. (§§ 62 and
58.) If, therefore, the treasurer loans the funds to himself, he
must keep and hold all of his own notes and other written secu-
rities. But this would aflbrd strong temptation to fraud, and be
in direct conflict with the familiar doctrine in equity that temp-
tation should be removed, and a constant sense of personal re-
sponsibility be kept alive. This principle applies to all who, like
the township treasurer, act in a fiduciary capacity. The treasurer
must demand all moneys, papers, etc., belonging to the township.
(§ 62.) Can he make this demand of himself? And, if it should
be essential, how shall such demand be proved ? Again : If ad-
ditional securities shall be required by the trustees lor the pay-
ment of money loaned, section 60 commands the treasurer to in-
stitute suit for the recovery of principal and interest. Can he
institute proceedings against himself? If not, how shall the ad-
ditional security be obtained and the interest of the township be
protected ? Is protection to be found in the official bond of the
treasurer ? Certainly not. The bond simply obligates the treas-
urer to discharge all the duties of his office according to law. To
hold that the treasurer can go on and borrow the township funds
on said bond, without giving the securities required in section
58, would surely be the extreme of absurdity. The only ground
on whi<;h the treasurer would be liable on his bond, in the premi-
ses, would be that of illegal conduct in loaning the funds to him-
self; but this would be fatal to the assumed right in question,
and conclusively sustain the position here taken, that such loans
are not legal, for that cannot be lawful, for doing which an officer
would be liable on his own bond. Again : If default be made
in the payment of the half-yearly interest due on township loans,
—11



146 SCHOOL LAWS OF ILLINOIS, WITH

section 61 commands the treasurer to bring appropriate action for
the recovery of said interest ; and the question arises, as before,
shall he sue himself? If he cannot bring an action against him-
self to recover the principal as required in section 60, neither can
he, to recover the interest as required in section 61 ; the reasons
applicable to the former case are, mutato nomiine^ just as appli-
cable to the latter. The treasurer is the creature and agent of the
trustees ; and if thej may loan to him, or allow him to loan to
himself, it is difficult to see why he may not loan to them, or
allow them to loan to themselves or to each other; and thus
every vestige of security for the money would be gone; the
township officers might speculate in the school funds without let
or hindrance ; the desire to get control of the money would in-
cite to fraud and corruption in the election of trustees and the
appointment of treasurers; avarice, bribery, dishonesty, and de-
ceit, would mark the history of the management of the funds,
and the beneficent purpose of the legislature be utterly defeated.
Courts of equity will scrupulously examine the conduct of per-
sons acting in fiduciary or trust capacities, to see that the property
confided to their care is protected from waste. Moore v. School
Trustees, 19 111, 86.)

10. Liable for Loss of Funds. — Township treasurers are
held to a stringent liability for the safe custody of all the funds,
assets, and other property of the township, entrusted to them by
the board of trustees and the inhabitants of the township. The
liability of the treasurer arises out of his official bond. By that
bond he makes an express contract with the trustees that he will
keep safely the moneys that shall come into his hands, and con-
siderations of public policy forbid that he should be permitted to
avail himself of any extraneous fact outside of the condition of
the bond. Every treasurer well knows and understands the con-
tract he enters into, and the extent of the obligation he voluntari-
ly incurs, and he obtains the consideration of the contract, viz ': j
The possession of the office with the emoluments attached to it. *
the contract being absolute, there is no principle on which a
treasurer can be released from his obligation for the loss of town-
ship funds entrusted to him. Public policy demands that deposi- '
taries of the public money should be held to the most rigid ac-
countability within the terms and scope of their covenants. They
well know the hazards to which they are exposed, and they vol-



OFEICIAL AND JUDICIAL DECISIONS. 147

untari] J assume the risks, and are paid for so doing. Township
treasurers are made insurers of the funds coming into tlieir pos-
session, and nothing should excuse them but tlie act of Grod, or
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 omission, whether resulting from misfeasance or negligence,
or unavoidable accident, or by felony committed by another, fur-
nishes no defence against an action on the bond. {Andreia J.
llioinpson et al, v. Township Trustees, 30 Til., 99.)

If directors borrow money, (§4:7,) but do not place it in the
treasurer's hands, he is not liable, of course, for any loss of said
money; nor can he demand commissions on said funds, or on
any others not paid over to and disbursed by him.

11. To Loan Funds Received from Sale of School Lands. —
By section 62 of the act, township treasurers are required to de-
mand and receive all moneys, etc., belonging to their townships ;
and by the same section they are required to keep the townshio
funds loaned at interest. It follows from the above provisions,
that when the purchaser of school land pays the full price there-
of to the county superintendent in cash, said superintendent
should not loan the money, but pay it over, on demand, to the
treasurer of the township in which the land was sold, to be loaned
by him.

12. Must Distribute Interest, etc. — The principal only of the
township fund can be loaned. ITo part of the interest or other
income accruing from said principal can be added thereto, but all
of such income must be distributed in the same manner as the
state and county funds are distributed. The law upon this point
is peremptory, declaring that the interest, rents, issues and profits
arising and accruing from the principal of the township fund,
shall be distributed in the manner and at the times provided by
law, and that no part of such interest, rents, issues and profits,
shall be carried to the principal. ( § ^^^

13. No Distinction to he Made in Funds. — Township treas-
urers will make no distinction between the funds apportioned to
[districts upon census of children, and upon schedules. The whole

must be placed to the credit of the several districts, and held, on
precisely the same conditions, subject to be paid out on orders
drawn by the directors. The object of the legislature, in pre-
scribing this basis of apportionment, was to benefit sparsely set-



14:8 SCHOOL LAWS OF ILLINOIS, WITH

tied districts, wliicli caunot have as many montlis school in a year
as districts in towns and villages — not to create two distinct funds
subject to different regulations. In like manner, if a township
lies pai'tly in two different counties, and the treasurer receives a
certain sum. from each county superintendent, the funds so re-
ceived must be merged and treated as one fund, the same as if
the township lay wholly within the same county. ( §§ 34, 37 and
io.)

14. Must Fay on Order of Directors. — Funds accrcdng from
special taxes, levied by orders of school directors, and funds
arising from the sale of property belonging to school districts, do
not pass through the hands of the township trustees, but are paid
directly to the township treasurer, who must pay them out, at any
time, upon the presentation of proper orders from the dii'ectors.
State, county and township funds, must first be duly apportioned
by the trustees, after which they also must be paid out upon the


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