A. H. Andrews Co. v. Delight Special School District

Decision Date02 May 1910
Citation128 S.W. 361,95 Ark. 26
CourtArkansas Supreme Court

Appeal from Pike Circuit Court; James S. Steel, Judge; reversed.

Judgment is reversed and cause remanded.

McMillan & McMillan, for appellants.

If the contract was made at a board meeting by the three directors the fact that it was signed by only two does not affect its validity. 83 Ark. 491; 52 Ark. 511. The school district is estopped to deny the validity of the contract. 87 Ark. 389; 40 Ark. 105; 61 Ark. 397; 67 Ark. 236; 81 Ark. 244; 82 Ark 531; 81 Ark. 143; 83 Ark. 275. Such a contract may be ratified, and thus made binding on the school district. 39 Kan. 347; 35 N.H. 477; 38 Me. 164; 4 Cush. 494; 1 Beach, Pub Corp. 248, 250; 11 Ark. 189; 21 Ark. 554. The unauthorized act must be ratified or repudiated in toto. 54 Ark. 216; 49 Ark. 320; 55 Ark. 112. It matters not that the promise was to pay in a manner not authorized by law. 96 U.S. 341.

McRae & Tompkins and D. L. McRae, for appellee.

The board of directors can do nothing except that which is expressly authorized. 32 L. R. A. 413; 49 Ark. 98; 87 Ark. 93; 84 Ark. 516; 60 Conn. 230. They cannot ratify a contract which they have no power to make. 58 Ark. 270; 10 Wall. 676; Dill. Mun. Corp., § 548. The contract being void, the contract price is not the measure of recovery. 123 Ind. 1; 114 Ind. 210.



The appellant is a foreign corporation with its place of business and domicil located in the State of Illinois, and School District No. 47 was on June 24, 1904, one of the duly formed common school districts of Pike County. On that day two of the directors of that district entered into a written contract with appellant, by which they agreed to purchase from it a number of school desks for the school district. It was therein agreed that the purchase price should be $ 344.77, and payable on September 1, 1905; and, inasmuch as the payment for the desks would not be made until said day in the future, the cost of the desks was arrived at and agreed upon by adding interest to the cash price thereof. The third director was not present at the making of said contract, and had no notice of the meeting at which it was made. The contract, however, provided that it might be countermanded within fifteen days from its date; and in about three weeks thereafter there was a meeting of the board of directors of the school district at which the three directors were present. At that meeting the three directors agreed to and ratified the contract for the purchase of the desks and authorized the issuance of a warrant therefor upon receipt thereof. At the annual school meeting held previous to the making of this contract the electors of the school district voted a five mill tax for building purposes, but gave no expression relative to the purchase of desks. After the contract was agreed to by the three directors appellant shipped the desks, which were received and accepted, and a warrant of the school district was issued therefor. This warrant was executed by the three directors for $ 344.77 in common form, and stated that it was due September 1, 1905. The desks were used by School District No. 47 from the time they were received until in 1905 when said school district was organized into a special school district, under the provisions of sections 7668 et seq. of Kirby's Digest, known as "Delight Special School District." From that time up to the trial of this case the desks were in the possession of and used by said special school district, and at no time did either of these school districts ask or offer to return the desks. The cause was tried by the court sitting as a jury, who declared the law to be that the contract made by the directors of School District No. 47 for the purchase of the desks was beyond their powers and therefore invalid; and that the warrant executed therefor was void. It entered a judgment in favor of appellee, from which the A. H. Andrews Company has appealed to this court.

The question involved in this case is whether or not the directors of a common school district have the power to purchase school desks for the district without being expressly authorized to do so by the electors at its annual meeting. A school district is a quasi corporation created pursuant to legislative enactment, and it can exercise only those powers which are expressly conferred by statute or which arise therefrom by necessary implication. The powers of the school directors are likewise derived only from the statute, and they can exercise no power which is not therein expressly granted or which does not arise as a result from fair implication. The directors can enter into contracts only in the mode prescribed by the statute; and where the directors proceed in a mode prohibited by statute, or enter into a contract which is in excess of their powers, the district will not be bound by their acts. Thus, it is provided by statute that, before the directors shall purchase a school site or charts, they must be impowered to do so by a vote of the electors of the district. A contract made by the directors for the purchase of such property without a vote of the electors authorizing it would be made in a mode contrary to the statute, and would be in excess of the powers of the directors. First National Bank of Waldron v. Whisenhunt, 94 Ark. 583, 127 S.W. 968.

But school directors are authorized, not only to exercise the powers that are expressly granted by statute, but also such powers as may be fairly implied therefrom and from the duties which are expressly imposed upon them. Such powers will be implied when the exercise thereof is clearly necessary to enable them to carry out and perform the duties legally imposed upon them. School directors are public officers, and the rules respecting their powers are the same as those that are applicable to the powers of public officers generally. "The rule respecting such powers is that, in addition to the powers expressly given by statute to an officer or board of officers, he or it has by implication such additional powers as are necessary for the due and efficient exercise of the powers expressly granted or which may be fairly implied from the statute granting the express powers." Throop on Public Officers, § 542; 25 Am. & Eng. Enc. Law, 56; 28 Cyc. 307.

By the express provisions of section 7614 of Kirby's Digest the directors "have charge of the school affairs and school educational interests," and the care and custody of all its properties. By section 7590, Kirby's Digest, the electors determine the length of time that the school shall be taught during the year. But it becomes then the duty of the directors to make the necessary arrangements to have the school carried on. As a fair implication from this express power to manage the affairs and educational interests of the district and to make the arrangements for carrying on the school, the power arises to provide all those things that are clearly necessary in order to have the school conducted and taught. Thus, stoves, fuel and receptacles for water must necessarily be furnished in order that a school may be carried on; and, although there is no express power given by statute to the directors of common school districts to make purchases of these articles, yet it is fairly implied, from the duty imposed upon the directors to have the school carried on, that they may exercise such power; and so, too, they may purchase other articles that are clearly necessary in order to have the school taught. By section 7631 of Kirby's Digest it is provided that the clerk of the school board shall keep an account of the expenditures made by the board in having the school taught, and present same at the school meeting. These items of the expenses of the school include what has been expended for "houses, fences, stovewood, maps, charts, blackboards, dictionary, and other necessaries for a school." These items, thus mentioned in the statute, include those which the directors have the power by express grant to purchase and also those they have the power by fair implication to...

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