Templin & Son v. District Township of Fremont

Cole, J. — The' only error assigned is upon the legal conclusion from the facts found. No question is made respecting the correctness of the facts found by the court and set out in the statement preceding this opinion. The provisions of the statute respecting the power of the president of the township Doard to employ counsel, etc., are as follows: “ He (the president) shall appear in behalf of his district in all suits brought by or against the same; but when he is individually a party, this duty shall be performed by the secretary; and in all cases where suits may be instituted by or against any of the school officers, to enforce any of the provisions herein contained, counsel may be employed by the board of directors.” Acts 1872, ch. 172, § 36; also School Laws of 1868, p. 33, § 52. Conceding (but not deciding it) that the president has the power to employ counsel in all cases brought by or against the district township or its officei’S, involving its interests, we concur fully with the learned judge of the district court, that the proceeding in which the services sued for were rendered, was not a suit by or against the district township or any of its officers. It was simply an appeal from a decision made by the board of directors, and was, in no legal sense, a suit by or against the board or its officers. Although the State superintendent may have prescribed forms for appeals in such cases, whereby the district township is to be named as a party, yet this does not make the district township a party to a suit. It is simply a form of the proceeding, and does not operate to make the district township an adversary party. Further than this, such an appeal is not a suit within the meaning of the statute above quoted. Affirmed.