Mitcheltree School Township v. Baker , 53 Ind. App. 472 ( 1913 )

Ibach, J.

— There is but one question presented by this appeal in addition to those decided in the ease of Rutherford School Tp. v. Craney (1912), 51 Ind. App. 236, 99 N. E. 485. Appellee by this action seeks to recover the difference between the contract price for teaching' one of the township schools and the minimum wage declared by statute, which latter amount, it appears, was paid him. To the complaint containing these facts appellant filed answer in which it is averred in substance that the contract sued on, was for a sum of money in excess of the funds in the hands of the trustee and in excess of the funds obtainable from the various levies made for school purposes and that the wages per diem set out in the written contract between the trustee and appellee, had not been authorized and were in excess of the amount allowed by law for the minimum wage for the teaehfers of township schools and that under the regulations made by tbe Auditor of State it was impossible for the school township to receive assistance from the state common school fund to pay his per diem in excess of the minimum, which in the ease of appellee was $2.791-5 per day, all of which facts the plaintiff knew at the time of entering into said contract and continuously during the performance thereof. A demurrer filed to this paragraph of answer was sustained and this action of the trial court is one of the errors assigned for reversal. Consequently, the question which we are called upon to determine is whether appellant’s answer shows the contract sued on, was one within the statutory power of the trustee to make.

1. The power and authority of a township trustee is purely statutory and his acts create no binding obligation upon his township unless they are within the scope of his statutory power and all persons who enter into a contract with such officer are bound to know the extent of his authority, and that beyond the limit of such authority he can not bind the township, either civil, or school. Indiana Trust Co. v. Jefferson Tp. (1906), 37 Ind. App. 424, 427, 77 N. E. 63; Clinton School Tp. v. Lebanon Nat. Bank (1897), 18 Ind. App. 42, 45, 47 N. E. 349.

2. The statute with reference to the employment of teachers by a township trustee does not differ in any essential respect from statutes relating to other contracts of township trustees, and the “Township Reform Act” (§§9590-9602 Burns 1908, Acts 1899 p. 150, Acts 1901 p. 415) applies to contracts made by the township trustee with his teachers, as well as to all other contracts made in behalf of the township. It is held however, in the case of Rutherford School Tp. v. Craney, stvpra, that the minimum wage which must be paid the teacher and the minimum school term are matters definitely fixed by statute, which can. not be reduced by a contract with the trustee, and to this extent the legislature has made the contract for the parties. But as to the excess of pay over these minimum requirements all such contracts must be held to fall within the provisions of the township reform act. By that act it is provided, “The trustee shall * * * present a detailed and itemized statement in writing of his estimated expenditures for which appropriations are ashed, specifying the number of teachers necessarily employed, their salaries respectively * * *. The advisory board shall have full power * * * to appropriate for any purpose a sum not greater than that estimated in the items therefor.” §9593 Burns 1908, Acts 1899 p. 150, §4. “Upon a special call of the township trustee * * * said board may * * * determine whether an emergency exists for the expenditure of any sums not included in the existing estimates and levy. In the event that such an emergency is found to exist, said board may authorize * * * the trustee to borrow a sum of money * * * sufficient to meet such emergency. * * * In no event shall a debt of the township be created except by the advisory board of such township, and in the manner herein specified, and any payment of any debt not so authorized from the public funds of such township shall be recoverable upon the bond of the trustee * * *.” §9595 Burns 1908, Acts 1901 p. 415. Since it is made to appear that the township trustee entered into the contract in suit without sufficient funds on hands at the time the contract was made and without making provision therefor in the manner provided by law, such contract was without the authority of the trustee to make, except as to that part thereof which the statute commands.

3. The township reform law was enacted to prevent unwise and unnecessary expenditure of the public funds and the legislature in its wisdom has seen fit to provide for the election of advisory boards in the various townships of the State that are alone authorized by law to allow the contracting of debts against such townships and then only in the manner allowed by statute.

4. The answer not only shows the executing of the contract at a time when the trustee did not have sufficient funds on hand to meet it, and that sufficient funds were not available from all sources provided by law from which school funds are derived to continue the school term beyond the period of 120 days and then only by paying the minimum wage to each teacher, and that the contract sued on was unauthorized and wholly without the power of the trustee to execute. It seems therefore that this paragraph of answer stated a good defense to plaintiff’s complaint, wherein wages in excess of the statutory minimum wage were sought to be recovered, and the demurrer thereto should have been overruled.

Judgment reversed, with directions to overrule appellee’s demurrer to appellant’s answer and for further proceedings not inconsistent with this opinion.

Note. — Reported in 101 N. E. 1037. See, also, under (1) 38 Cyc. 627; (2) 35 Cyc. 1080; (3) 38 Cyc. 645; (4) 35 Cyc. 1103, 1106. As to the requirements that the duties of a public officer must be public duties and prescribed by law, see 63 Am. St. 188. For a discussion of the right of a school teacher to compensation as dependent on the validity of his contract of employment, see Ann. Cas. 1913 C. 372.