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OFFICIAL AOT) JUDICIAL DECISIONS. 177

cause. The teacher possesses the power and has the right to
control the school by means of proper punishment ; and it is his
duty to coerce obedience to the rules of the school bj proper and
reasonable punishment, if it can be done, before the pupil is expel-
led from the school. It is only when reasonable means or pun-
ishment of the refractory scholar have failed to induce obedience
that he can be justified in expelling such scholar. If, however,
a scholar ^grs^sfe in disobeying the teacher, after proper admoni-
tion or punishment, to such an extent as to justify the belief that
the course of disobedience will be persisted in, then the board
will be justified in expelling the scholar. ( § 48.)

34. Continuance of Schools. — By section 48, directors are re-
quired to establish and keep in operation free schools for at least
six months in each year, and longer^ if jpracticable. Six months
is merely the minimum duration of schools, which every district
must maintain to be entitled to the public funds. It is not only
the right of directors to extend schools beyond that time, but it is
plain, from the very language of the law, that it is their duty to do
so when practicable. Whenever the public funds (by which is
meant all funds except special district taxes) are sufiicient to pay
the expenses of the school beyond six months, the right of the
directors to so extend them is. unquestionable. JSTo vote of the
people is necessary in such case. It is only when it is necessary
to levy a tax to continue schools, that a vote of the people is re-
quired. (§48.)

35. Number of Schools in a District. — Directors must estab-
lish a sufficient number of schools for the proper accommodation
of all the children in the district between the ages of six and

_ twenty-one years. It is the imperative duty of the directors to
establish as many schools as the wants of their district require.
If they should fail or refuse to do this, the inhabitants have un-
doubtedly a legal remedy. The language of the law is peremp-
tory: The directors ''^ shall establish and keep in operation, for at
least six months in each year, a sufficient number of free schools
for the proper accommodation of all the children in the district,
over the age of six and under twenty-one years." They have no
right to crowd fifty children into a house which can ^properly ac-
commodate only thirty. If one school house is not sufficient, the
directors must build another, and yet another, if necessary; or,
until this can be done, they must hire or rent suitable rooms or
—13



178 SCHOOL LAWS OF ILLINOIS, WITH

houses for schools. In li^e manner, when one school house is
inaccessible, or too remote for the, proper convenience of all, it
becomes the duty of the directors to provide a second house, soi
that ail may be accommodated, as far as possible.

36. Use of School Houses. — The guardianship and control of
school houses, and of the school property of a district, are vested i
exclusively in the board of directors, and not in the teacher nor
the inhabitants of the district ; but they are vested in them only for .
the purposes contemplated by law. It follows that, viewed purely ■
as a legal question, school houses can only be used for school pur -
poses; and, if used otherwise, any voter of the district has the^
right to object. But, in the present condition of our country, it is :
often a matter of great public convenience to have the use of a i
school house for religious meetings, and other purposes of public j
utility, and such use should not be denied, except for abuse. It [
must be always understood, however, that all damages and ex-
penses must be borne by those thus using the house, and not by :
the district; and that such use is a matter of favor and not of j
right (§39.)

37. Use of District Tax Funds. — Money raised by district i
taxation for specific purposes should be faithfully devoted to those j
purposes. But any surj^lus remaining may be used by the direc-
tors for any legitimate school purpose. If money is raised for a :
particular purpose, such as building a school house, etc., and cir-:
cumstances subsequently occur rendering it unwise or inexpedient i
to use it for said purpose, it is competent for the people of the dis-
trict to determine, by vote, to what other use the money shall be
devoted. Thus, it may chance that before the money is collected
or expended, it may be deemed best to consolidate or otherwise ;.
change the district, thereby obviating the necessity of a new house,
or requiring an entirely different sort of a building — or the cost of
building may be so enhanced as to make it expedient to postpone
the work, etc. In such cases it cannot be wrong for the people to
act with reference to the changed circumstances and conditions of
the district. But the rule is as first above stated, and it is not
believed that circumstances will often occur of such a nature as to
authorize a diversion of the funds from the original purpose for
which they were levied.

38. School Directors as Witnesses. — If a teacher, or other per-
son, sue a board of school directors by their corporate name and



OFFICIAL AND JUDICIAL DECISIONS. 179

style, then eitlier or all of the directors maj be witnesses gener-
ally in the case. In all cases where corporations which are of a
public nature are parties on record, or interested in the suit, the
members of such corporations are competent witnesses. But when
school directors are sued in their private capacity they cannot be
witnesses in the case, except as other private parties may become
witnesses in cases in which they are interested. {Swiff s Evi-
dence, 5Y. 1 Green., 438-9.)

39. May Acquire and Hold Real Estate. — Boards of school
directors may, whenever, in their judgment, the interests of their
district require it, receive conveyances of real estate in satisfaction
oj:" debts due the district, acquire and hold property, and maintain
actions in their own corporate name to obtain possession of land
or other property that has been conveyed to them.

40. Use of Schedules — Right to Tax. — The object of schedules
is two-fold : First, to enable the trustees to determine how much
of one-half of the public fund each district is entitled to, ( § 34 );
and second, to make it lawful for the directors to draw an order
on the treasurer in favor of the teacher, (section 53, last clause) ;
the rendition of a schedule being by law a condition j^recedent
to any teacher's claim to the public funds, ( § 52.) When a
chedule has been returned to, and accepted and filed by, the
township treasurer, the teacher has henceforth a clear and per-
fect claim upon the district for the whole amount certified in
said schedule to be due him, and if the whole is not paid in April
or October, when due, the balance must be paid "out of the first
moneys coming into the hands of the township treasurer to the
credit of said district", with interest at the rate of ten per cent,
per annum. ( § 54.) The intention of the law is to prevent the
accumulation of back debts, and the withholding of what is due
to one creditor in order to pay another. The directors of every
district have full power, ( § 43), to levy sufiicient local tax, annu-
ally, to pay all the expenses, of every description, for a six months'
school. No vote -is required. The power is expressly conferred
and their duty to levy the tax is peremptory. There can be no
excuse whatever for not paying all schedules in full when due,
and all other expenses connected with a six months' school. In-
stead of indebtedness for past services of teachers, and for inci-
dental expenses, there should always be a surplus in the treas-
ury. The amount levied should always be a little more, rather



180 SCHOOL LAWS OF ILLINOIS, WITH

than a little less, than the estimated annual expenses, and then
no district will be harassed with petty debts from year to year,
and no teacher compelled to wait for petty balances due him.
"Pay as you go" is the only true rule for directors, as for indi-
viduals. Every farthing has to be paid sometime; the whole
taxable property of the district is bound for it ; and it might as
well be provided for and paid first as last. There is no limitation
upon the rate of taxation for school purposes under section 43.
In cases where the power is given to the directors to make the
levy, (§ "iS), there is no limit but the amount required for the pur-
poses for which it is levied; and the same is true where the power
is conferred upon the voters of the district, ( § 48.) {Merrit v.
Farris, 22 III., 303.)

41. District Taxes Must he Uniform. — When a district lies
partly in two or more townships, all the funds accruing to said
district from the several townships, must be merged into and
considered as one common fund, regardless of the fact that one
township may have a large township fund and another a small
one. And when said common district fund is exhausted, and a
tax becomes necessary, for any purpose, said tax must in all cases
be levied imiformly ujpon the whole district, regardless of town-
ship lines. Section 45 of the act is conclusive upon this point.
Every school district must be treated as a unit, in taxation. Di-
rectors must base their estimates ( § 44 ) upon the taxable property
of the whole district, and report the names of all the tax payers.
And county clerks must assess one unifor a tax upon the whole
district. It would be as illegal to tax one part of a school district
and not another part; or to levy one rate upon one part, and a
different rate upon another part, as to do ttie same thing in the:
levy and assessment of state, county, or municipal taxes. It
does not matter if the principal of the township fund of one of the'
townships concerned is ten thousand dollars, while another of
said townships has no townshijD fund at all, apportionment must:
be made upon each separate schedule in strict accordance withi
the attendance certified, as required by section 34, and with'
the enumeration of children under twenty-one, the same precisely
as if the whole district lay in the same township. If a house is
to be built, the inhabitants of that part of the district which
chances to be in a wealthy township, cannot escape their due
proportion of the necessary tax. All district taxes must be uni-



OmCIAL AXD JUDICIAL DECISIOifS. ISl

form thi-Qugliout the district. The only possible vraj for any
inhabitanc of a school district to avoid payment of his proportion
of whatever tax may be levied on the district, is to be set off to
some other district. Ml these things must be considered when
such a district is proposed to be formed, and if all are not willing
to bear their share of the common burdens, they can seek to pre-
vent the establishment of the district.

42. District should oion School Site. — A school house should
never be erected upon land not owned by the district, except in
case of absolute necessity. The law does not forbid the building
of a school house upon leased ground, or where the district does
not possess the fee, but it is a bad practice, and almost sure to re-
sult in trouble and loss to the district, sooner or later. ]!Sro site
should be voted for until it is ascertained whether a clear warran-
tee deed can be obtained or not. If a site is voted for, and it is
afterwards found that a clear 'title cannot be obtained, it is better
to select another site. It is impolitic to build and expend the
money of the district upon lots in which the district has only a
conditional estate, as where the lots, by the terms of the deed,
revert to the former owner when they cease to be used for school
pm-poses, etc. Where the ground upon which existing school
houses stand, is in that condition, the directors should secure quit
claims, if possible, from the makers of the deeds, so as to pass
the titles which they might acquire by reversion. The property
may become very valuable, and the directors may wish to change
the site of the school house, in which case the land should be
held by such a tenure that the district could sell and have the
benefit of the proceeds for the new house and site. A clear title,
in fee simple, is always the best policy.

■13. Tvjo Directors may Act. — Bj section 48, two directors
are declared to be a quorum for business. This is general, and
applies to any and all school business requiring the action of the
board of directors. The action of two is the action of the board,
and binds the boai-d, as firmly as the action of all. Any contract,
order, stipulation, bond, agreement, or other official instrument,
signed by two members of the board of directors, is legal and
valid. And equally so is a verbal contract, agreement, etc., made,
before witnesses, by two members of the board. It is not essen-
tial to the validity of a contract, etc., signed or approved by a
majority of the board, to prove that said contract, etc., was made



182 SCHOOL LAWS OF ILLINOIS, WITH

at a formal meeting of the board, and that all the members of the
board were notified of said meeting. The law does not go be-
hind the fact that the act was performed by a majority of the
board — it does not ask how the action of that majority was ob-
tained, whether at a meeting to which all the members were invi- '
ted, or by the individual action of each member. It assumes that
the action of the majority was lawfully obtained, unless proof to
the contrary is produced. [Trustees v. Allen, 21 111., 120.)
[Schojieldv. WatJcins, 22 III, 6Q.)

But while the above is the rule of the law in the premises, it
does not in the least lessen the moral obligation of the clerk of
the board, and each member thereof, to see that all the members
are duly notified of every meeting of the board, and of every
official act which it is proposed that the board shall perform. An
act may be technically legal, and yet outrageously wrong, mor-
ally. Such is the willful withholding fi-om one member of the
board, all knowledge of an act which the other two intend to per-
form, and which the knowledge or presence of the third director
might defeat. All important school business, such as employing
teachers, making contracts of any kind, examining schedules,
drawing orders for any purpose on the treasurer, etc., should be
done at a meeting called for the purpose, due notice having been
given to all. The practice of transacting such business by the
individual action of the members of the board, without calhng a
meeting, is very reprehensible, and opens the door to fraud and
imposition. A director is approached in the street or at his place
of business, and urged to sign a contract in favor of a teacher, or
an order on the treasurer in favor of some map or book peddler,
and, without due reflection, it is done. The interested party
takes the paper, and hurries off' to another director, whose signa-
ture, with the help of the one already obtained, is quickly secured*.
And thus the board may be committed to an incompetent teacher,
or to the purchase of a worthless article, and the best interests,
and money, of the district be sacrificed. Every motive of pru-
dence, of propriety, and of regard for the trusts committed to
them, should deter school directors from doing business in that
way. The fact that an instrument procured in that way holds good
in law, does not make the transaction itself less reprehensible.

44. Districts Created hy Special Acts. — It is held that when a
school district is created by a special act of the legislature, out of



OFFICIAL AND JUDICIAL DECISIONS. 183

territory situated in one or more congressional townships, and a
special school board is created, with corporate powers, the inhabi-
tants of such special district cannot vote at the regular township
elections for township school trustees. The private law confer-
ring corporate powers upon a portion of a township, negatives
the right of the inhabitants to be regarded as a part of the body
politic of the school township. In a similar case in the city of
Galena, the court decided that the inhabitants had no right to
vote for school purposes outside of the city limits. A subsequent
law which is general, does not abrogate a former one which is
special ; nor does a general law operate as a repeal of a special
law on the same subject passed at the same session. (12 III. i?.,
pi 339.) But no private or special law can alienate or impair the
right of all the inhabitants of every congressional township to an
equitable share of the interest and profits of the township fund.
That is a vested right, being guaranteed by the express provisions
and conditions of the act of congress donating the lands by the
sale of which the township fund itself was created. The proposi-
tions of congress donating the 16th section, or its equivalent, in
every township, "to the State of Illinois, /br the use of the inhab-
itants of such townships, for the use of schools," were formally
accepted by the State, and the compact was solemnly ratified by
congress, and thereby made irrevocable. It is therefore an in-
alienable and indefeasible right, one which the legislature did
not give and cannot take away ; and hence all private laws crea-
ting school districts with special corporate powers, must be con-
strued in harmony therewith. This decision applies chiefly to
special school districts and school corporations in cities and towns.
{E. S. 1858, 43, 45, 57.)

45. When a District is Divided Pending the Collection of
Taxes. — If a district levies a tax, and before the same is collected
a portion of said district is cut off by the trustees and attached to
another district, the taxes collected from the territory cut off, go
to the district to which said territory is attached. But if the ter-
ritory is not detached by the trustees till after the tax is collected,
the detached portion does not take its taxes with it.

46. Debts of Districts. — Section 33 provides that when a new
district is formed out of one or more districts, said new district is
entitled to an equitable share of the school funds and property of
the old district or districts ; and also that when two or more dis-



184 SCHOOL LAWS OF ILLINOIS, WITH

tricts are consolidated into one, the new district siiall own all the
corporate funds and property of the several districts. The same
rnle should govern in respect to the debts of districts. If two
districts are made into one, either under section 33 or 35, the
new district is liable for the debts of said two districts. And if
two districts are made out of one, each of the new districts is liable
for its just share of the indebtedness of the old district. These
facts must be considered when the division or consolidation of dis-
tricts is contemplated. When a district is divided and a new one
formed, if the old district was in debt, the new district's share of
that debt should be deducted from the amount due said new dis-
trict as its distributive interest in the value of the property and
funds of the old district. The debts should be apportioned on the
basis of the amount of taxable property remaining in each district.

47. A Director may he elected Trustee^ and vice versa. — Bj
section 42, " no person shall be at the same time a director and
trustee." But it does not follow that a director may not be voted
for and elected trustee, or the reverse, as the case may be. It is
the holding and 2^ aT forming the duties of both offices at the same
time., that is forbidden by the statute. A school director is as
eligible as any other person to the office of township trustee, and
vice versa. But if a director is elected trustee, he must resign
the office of director before he can assume that of trustee — he
cannot act in both positions at the same time. So if a trustee is
elected director, he cannot act as director, until he resigns as trus-
tee. In either case the person may retain his present office and
decline the other, or resign his present office and accept the
other, as he chooses ; and he should do one thing or the other
without delay. If a director is elected trustee or the reverse, and
draws lots for his term as trustee, he by that act accepts the office
of trustee, and ceases to be director.

48. Districts Divided hy Township Lines. — "When a district
is divided by a township line, separate schedules must be kept of
the pupils from each township, as required by section 53, and the
amount due the teacher from each township must be computed
upon the basis of the total days attendance of the whole school,
as required by section 35, and said proportional amounts must be
certified in the respective schedules, and paid by the respective
township treasurers. If the public fund of one township is not
sufficient to pay in full the separate schedule for that township.



OFFICIAL AND JUDICIAL DECISIONS. 185

while the fund of the other township is more than sufficient to
pay its separate schedule, the surplus of the latter is subject to
the order of the directors in favor of the teacher, to make up the
deficiency of the former. If there is still a deficit, it must be
made up by a uniform tax upon the whole district. In no case
can a separate schedule after being partly paid by the proper
treasurer, be presented to the other treasurer for the balance due
thereon. Each separate schedule must be filed by the treasurer
of the township in which the pupils named in said schedule re-
side. The right of the directors to draw their order for any sur-
plus remaining after the amount certified in either of the separate
schedules has been paid, is based upon the fact that every district
is by law a unit, regardless of township or county lines. A frac-
tional district is unknown to the law. When, therefore, a district
is divided by a township line, any surplus remaining after the
payment of either separate schedule, is just as much subject to the
order of the directors, a^ if the district lay wholly in one town-
ship. It is much better in such cases for the directors to make
the treasurer who receives the district tcm money, ( § 45), the cus-
todian of all the public funds, also, of the district, and to so in-
form the trustees and treasurer of the other township, in writing,
under their hands as directors. In that case, the amounts appor-
tioned in April and October, on census and schedules, to that
part of the district lying in the other township, are paid by the
treasurer thereof to the treasurer selected by the directors as the
custodian of all their district funds, taking his receipt therefor.
The directors then draw their order on the treasurer so chosen,
for the whole amount due the teacher, and for all other school
purposes, and the financial arrangements of the district are much
simplified.

49. Limited to Amoimt Voted. — Where power is conferred
by the statute upon the voters of a school district to determine
what rate or amount of tax shall be levied for special school pur-
poses, such as building school houses, et cetera, under section 48,
the directors cannot levy a higher rate, or a larger amount, than
that voted for by the people. In such cases the directors simply
act as the agents of the voters at large, and must not transcend
their instructions. If they are authorized, by vote, to levy a tax
of one per cent., for instance, for building purposes, their power
is exhausted by the levy of said one per cent.; they cannot levy



186 SCHOOL LAWS OF ILLINOIS, WITH

an additional one per cent., without another vote anthorizing them
so to do. If, however, the people, by vote, clothe the directors
with discretionary power to levy such amount as may be ne-
cessary for building purposes, it is held that they may exercise
the discretion so conferred, and that their acts will be valid ; but
the conferring of such general powers upon the directors is liable
to many evils and is in no case to be recommended.
• 60. Deeds should he 'inade to Trustees. — By section 39 the title
of school-houses and school-house sites vests in the township
trustees, for the benefit of the proper school district. If a deed
is made by mistake to a board of school directors, instead of the
trustees, it should be canceled by the maker and a new deed
executed to the board of trustees as aforesaid.

51. ^\'hen there are Tioo or more School-Souses in a Dis-
trict. — By section 35, school directors may grant or withhold
their consent for pupils to come into or go from their district to
school ; and by section 48 they are authorized to make all neces-


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Online Librarystatutes Illinois. LawsSchool laws of Illinois → online text (page 20 of 26)