Folsom v. School Directors of District No. 5

Mr. Justice Dickey delivered the opinion of the Court: No objection is perceived to the common counts, and it was plainly error to sustain a demurrer to a declaration containing these counts. The judgment in this case, therefore, must .necessarily be reversed. ■ It. is insisted by counsel for appellees, that in declarations against a quasi corporation of limited powers, such as the school directors of a district, the cause of action must be specifically set out, so that the court may see affirmatively that the liability sued upon is one authorized by the statute. No authority is produced in support of this position on the question of pleading. It would seem that if there be any case embraced in the common counts, for which the defendants under any circumstances could become liable, the allegation contained in the common counts must be held to embrace everything in detail necessary to sustain the action. It is insisted by appellant, that the first count in the declaration is good, and in this we are inclined to think that he is correct. In the case of Clark v. The School Directors, 78 Ill. 474, it was held that the purchase by school directors of libraries and apparatus on credit was not authorized by the statute, and that money for that purpose could only be appropriated generally when the district had “ surplus funds, after all necessary expenses are paid.” An examination of the statute which led to that decision shows that the mode of procuring furniture, fuel, libraries and apparatus by the directors, which is authorized by the statute, was to levy an annual tax on the taxable property of the district or to appropriate surplus funds for that purpose. In that ease the apparatus was purchased upon a credit, there being no evidence that there was a tax levied to raise a fund for that purpose, or that there were surplus funds in the treasury at the time of the making of the contract. The contract was held to be ultra vires. The statute provisions in relation to the subject matter stated in this declaration are far otherwise. Sec. 47, p. 962, Rev. Stat. 1874, provides that “for the purpose of building school houses or purchasing school sites, or for repairing or improving the same, the directors, by a vote of the people, * * * may borrow money,” (issuing bonds executed by two officers, or at least two members of the board.) The declaration alleges, that the defendants, by a vote of the people, properly held, were authorized to complete the school house and to borrow money for that purpose, and that they did borrow the money of one Holbrook and executed and delivered to him the orders stated in the declaration for such sum of money. It is suggested that the use of the words in sec. 47, “ issuing bonds by the officers,” etc., is a limitation upon the powers of the board of directors. This we think a misconception of the statute. Power to borrow money carries with it, at common law, the power to give evidence of the loan,—usually carries with it the power to execute promissory notes and simple contracts incident to the loan; but mere power to borrow money does not carry with it as an incident the power to execute a bond, or an instrument under seal. These words, therefore, authorizing the school directors to execute bonds for borrowed money, instead of being used as a limitation of the power and a declaration that they were incapable of borrowing money unless a bond be given, when properly construed are an enlargement of the power, authorizing the directors, not only to give those assurances which were necessarily incident to the power of borrowing money, but to go further and execute a higher grade of securities,—to execute bonds under seal by which the directors might be bound. The majority of the court are of opinion that the first count in the declaration is good. The judgment must be reversed and the cause remanded. Judgment reversed.