receive the same wages as for one day's teaching: Provided, that no teacher shall receive such wages unless he or she shall attend the full session of such institute and perform the duty or duties assigned.

7745. Emergency. § 2. Whereas, an emergency exists for the immediate taking effect of this act, therefore the same shall take effect and be in force from and after its passage.

AN ACT entitled "An act authorizing boards of school commissioners in all cities in which such board exists under and by virtue of an act of the general assembly of the state of Indiana entitled An act providing for a general system of common schools in all cities of thirty thousand or more inhabitants and for the election of a board of school commissioners for such cities, and defining their duties and prescribing their powers and providing for common school libraries within such cities," approved March 3, 1871, and all acts amendatory and supplementary thereto to issue bonds for the purpose of erecting buildings for library and school office purposes, repealing all laws inconsistent therewith and declaring an emergency. [Approved and in force February 26, 1891; S., 1891, p. 35. 7746. Library buildings - Bonds, issue of— Limit of - Conditions. SEC. 1. Be it enacted by the General Assembly of the State of Indiana, That in all cities in the state of Indiana where boards of school commissioners have been elected and are managing the school affairs of said city under an act of the general assembly of the state of Indiana entitled "An act providing for a general system of common schools in all cities of thirty thousand or more inhabitants, and for the election of a board of school commissioners for such cities, and defining their duties and prescribing their powers and providing for common school libraries within such cities," approved March 3, 1871, and the various acts of the general assembly amendatory thereof and supplemental thereto such board of school commissioners be and they are hereby authorized and empowered to issue bonds in any sum not exceeding one hundred thousand dollars, for the purpose of erecting buildings for library and school offices to be used in connection with the common schools of said city. Such bonds to bear interest, not exceeding five per cent. per annum, payable after eleven years from the date thereof and within twenty years from the date thereof, as follows, to wit: One-tenth thereof to be paid eleven years from date and one-tenth thereof to be paid each succeeding year until all are paid; the money obtained from the sale of such bonds shall be disbursed by said board of school commissioners in the erection of a building for the library and school offices to be used in connection with the common schools of said city. Such bonds shall be designated "library building bonds," and may be issued in such denominations, and in such sums, from time to time, as the board of school commissioners may deem expedient; and each of said bonds shall, upon its face, designate the date of the maturity thereof: Provided, that at no time shall the amount of bonds so issued for such purpose by any such board exceed the sum of one hundred thousand dollars; and that said board of school commissioners shall have no power to issue any renewal thereof, but the same shall be paid at maturity as hereinafter provided: And provided, further, that such bonds shall not be sold for less than their par value.

7747. Bonds - Provision for payment of. § 2. If the board of school commissioners in any city shall exercise the powers granted to it by

this act, it shall provide for the payment of said bonds as follows; at the time of the levying of the taxes for the year which shall be collectible immediately before the maturity of the first maturing of said bonds, said board of school commissioners shall levy, in addition to the levy of taxes they may be authorized to make for other purposes, a tax upon all property subject to taxation by it sufficient to pay the first maturing of such bonds, and apply the money raised thereby to the payment thereof; and each year thereafter said board of school commissioners shall levy such tax, and apply the proceeds thereof to the payment of the bonds successively maturing until all shall have been paid.

7748. Repealing clause. § 3. All laws and parts of laws inconsistent herewith are hereby repealed.

7749. Emergency. § 4. An emergency is hereby declared for the immediate taking effect of this act, and it shall take effect and be in force from and after its passage.

AN ACT authorizing boards of school commissioners in cities having thirty thousand or more inhabitants, according to the census of 1870, to levy tax for library purposes and declaring an emergency. [Became a law, by lapse of time, without the governor's approval, March 11, 1889; S., 1889, p. 432. 7750. Large cities Libraries, care of- Tax levy. SEC. 1. Be it enacted by the General Assembly of the State of Indiana, That the boards of school commissioners in cities having thirty thousand or more inhabitants, according to the United States census for the year 1870, is hereby authorized to levy a tax each year not exceeding two-fifths of a mill on each dollar of taxable property, shown by the certificate of the auditor of the county in which such city is situated, of taxable, real and personal property, returned by said auditor to said board of school commissioners as required by law for the support of free libraries, in connection with the common schools of such city, and to disburse any and all revenues raised by such tax levy in the purchase of books for and in fitting up of suitable rooms for such libraries, salaries to librarians and other expenses necessarily incident to the maintenance of such library; also, to make and enforce such regulations as they may deem necessary for the taking out of and returning to and for the proper care of all books belonging to such libraries, and to prescribe penalties for the violation of such regulations. 7751. Repealing clause. § 2. All laws and parts of laws inconsistent with this act are hereby repealed.

7752. Emergency. §3. Whereas, there is an emergency for the immediate taking effect of this act, it shall be in force from and after its passage.

NOTES TO CHAPTER 52.

EDUCATION-COMMON SCHOOLS.

ARTICLE 1-THE FUND.

4328. Custody of funds - Report of income. It is the duty of a board of county commissioners to prosecute an action against a township trustce who refuses to account for the income of land belonging to the congressional township fund. In the discharge of that duty it is proper for such board to employ attorneys and pay reasonable fees for their services out of proper funds. Such fees, however, can not lawfully be paid out of the moneys recovered in the proceeding, as such moneys, under the compact between the United States and the state of Indiana, and under the state constitution (184) are inviolably appropriated to the inhabitants of the proper township for the use of common schools, and, for any deduction made therefrom, for attorney's fees or otherwise, the county is liable with interest from the date of diversion; Board etc. v. State, ex rel., 116–334.

4345. Order and conduct of sale. S., the assignee of a certificate of purchase of school lands sold pursuant to this section, occupied the land until he died. At his death his children inherited the land, as tenants in common, subject by the terms of the will to the widow's life estate. Instalments of interest remaining unpaid after the death of the widow, the land was resold, under section 4347, and A. S., grantee of one of the heirs, became the purchaser. A. S., being, at the time sale was made, the owner of an undivided interest in the land, by purchase from one of the heirs at law, could not by purchase at such sale acquire title against the owner of an undivided interest by another of the children. One tenant in common can not, by purchasing an outstanding lien, acquire a title which will evict his co-tenant; unless in such case as falls within some exception to the general rule; M'Pheeters v. Wright, 124–569.

4346. Terms of sale - Timber. This section is free from obscurity and ambiguity; there is no room for construction and nothing remains but to enforce it as it is written. The words are “and deferred payments shall be regarded as part of the congressional school fund," and "shall be reported as such." The deferred payments go in to the fund and are part and parcel of it. This section provides that the deferred payments as well as the one-fourth of the purchase money to be paid in advance on lands set apart to the school fund by the act of congress and sold by authority of the legislature shall be regarded as part of the congressional school fund," and the county is chargeable with interest on the entire amount of the price of the land. The default of a purchaser of the land in paying deferred instalments and the consequent forfeiture of the land to the school fund does not relieve the county from liability for interest on the entire amount; Board etc. v. State, ex rel., 120-442.

4347. Forfeiture Resale. A forfeiture, under this section, does not operate to divest the title of the purchaser to the real estate; it simply authorizes the state to sell the real estate for its own reimbursement; the surplus, after principal, interest, costs and damages are paid, to be paid to the purchaser of the land or his legal representative. The real estate returns to, or falls back in to, the possession of the state, to be disposed of, for the benefit of the school fund, the mortgagor or his grantee, so after the lawful charges are paid the surplus goes to the owner foreclosed; M'Pheeters v. Wright, 124-561.

A forfeiture, under this section, on a failure of the purchaser of school lands to make payments, does not divest the title of the purchaser to the real estate. It, simply, authorizes the state to sell the real estate for its own reimbursement; the surplus is payable to the purchaser; M'Pheeters v. Wright, 124-576.

4347a, b. Forfeiture - Sale - Proceeds, disposal of. These sections (Act of 1883; take the place of section 4347 and relate to sales of congressional township lands; Board etc. v. State, ex rel., 122-342.

4370. Loan - Auditor's duty. An action to secure a cancellation of a school fund mortgage can not be maintained against a county auditor on the ground that the property mortgaged is the property of a wife executed to obtain money for her hus

band. The mortgage is executed to the state and the auditor is not a party in interest, but the state is the party in interest; Crooks v. Kennett, III-347. It is very doubtful whether a married woman who makes the statement required by the statute in order to obtain a loan from the school fund, can defeat a mortgage to secure such loan which she joins in executing; Snodgrass v. Morris, 123-426.

4392. Manner of sale. In the sale of mortgaged premises the sale is made under a naked power, not coupled with an interest, and the auditor is bound to a strict observance of the requirements of the statute. If there is a failure to. pursue the statu tory authority there is no valid sale. The county auditor, then, in making a sale of land in satisfaction of a school fund mortgage is powerless to act outside of the statute or to sell in any other mode than in that which is prescribed. It is not a question of good faith but of power and the law presumes injury to an owner if the statute is de parted from, wherefore the burden is cast on one who claims title under such a sale to show that the statutory requirements have been complied with. So, if the auditor, in selling less than the whole tract mortgaged it not being an in-lot or out-lot in a city or town- does not take the quantity sold out of the north-westerly corner of the tract, but, on the contrary, takes it from another and entirely distinct portion thereof, he exceeds his power and the sale is invalid. If, having offered the property for sale in the manner pointed out by the statute, no person bids the amount of the mortgage debt, he must bid the property in for the use of the fund secured by the mortgage; Haynes v. Cox, 118–191.

Á mortgage to secure a school fund loan being assumed by the purchaser of the mortgaged real estate, the mortgagor, to whom the loan was made, does not, by a subsequent purchase of the real estate, at a sale by the auditor to satisfy the mortgage, acquire the property divested of liens for taxes asserted by the city in which the property is situated; Logansport v. M'Connell, 121-417.

The auditor, on making a sale hereunder, has no authority to take payment of the mortgage in any thing other than money; nor has he authority to substitute one debtor for another, unless by cancelling the outstanding mortgage and taking another, according to law. He exercises a naked statutory authority and can bind the county or state only when he does that which the law requires in the mode the statute prescribes; Logansport v. M'Connell, 121-418.

4393. Auditor's bid. Money being loaned from the congressional school fund if the mortgagor fails to pay the interest for several years and during those years the county pays the amount thereof from its general fund and, later, the mortgage is foreclosed and the land bid in by the county auditor, on account of the school fund, on a subsequent sale and conveyance of the land to a third person the school fund is entitled only to the principal of the debt or loan and the interest thereon, until the county shall be reimbursed to the extent of the interest it has paid to the fund on account of the loan; Board etc. v. State, ex rel., 122-334.

4393-4. Auditor's bid - Sale of lands bid in. Each of these sections provide for the sale of land that has been bid in on account of the school fund; section 4393 for sales made before the passage of the act of 1865, and section 4394 for sales made before that date. In the section first cited there is no provision as to the demands the sale shall be made to satisfy; but, the sale, under either section, is made to pay the same debt, claim or demand. Section 4394 provides that the sum to be realized is to pay interest, damages and costs. A county is intrusted with the school fund and it is charged with the amount which it receives. If loss occurs the county is called on to make the loss good. If a borrower, to whom the fund is loaned, fails to pay the interest as it falls due, the county is bound to pay it. If the money is not loaned the county is chargeable with the interest thereon and must pay it. It was not the intent of the constitution that the obligation of the county should extend further than this and that the school fund should be enhanced at the expense of the county; but only that the fund should be preserved intact and the interest be annually paid. The provision in section 4394, in respect of the demands to satisfy which mortgaged lands bid in for the state shall be sold applies, also, to section 4393; Board etc. v. State, ex rel., 122-341.

4424. County superintendent. This section requires the township trustees of the several townships in each county to meet at the auditor's office of their respective counties on the first Monday of June, 1873, and biennially thereafter, for the pur

pose of appointing a county superintendent etc. While the section makes it the duty of the trustees to meet at the time and place fixed and appoint a county superintendent, the manner of making the appointment and the number of trustees who shall be competent to exercise the power, are in no manner fixed by this statute. Other statutes and the settled rules of law, which regulate the conduct of similar bodies, under like circumstances, must be looked to for the purpose of ascertaining the number of trustees authorized in any given case to execute the power conferred in the statute. This is settled by section 240, "words importing joint authority to three or more persons shall be construed as authority to a majority of such persons, unless otherwise declared in the law giving such authority;" State, ex rel. v. Laughlin, 113-81. The election of county superintendent of schools being vested by law in the township trustees, one of such trustees can not lawfully vote for himself for that office. A vote so cast is contrary to public policy and is utterly illegal; Hornung v. State, ex rel., 116-462.

Township trustees met at the time specified by this statute to appoint a county superintendent of public schools to succeed W., who was the incumbent of the office on that day. Several votes were had until upon a balloting one-half of the trustees voted for E. and the other half of the trustees voted blank ballots. A resolution was then offered declaring the appointment of E., and on this there was a tied vote. The county auditor thereupon gave a casting vote in favor of the resolution and a certificate of election in favor of E. W. sued out a writ of quo warranto, claiming that no successor had been elected to the office he held and that he was entitled to hold over. The election of E. was void, for reason (1) that the trustees must determine, without dictation of the auditor, the manner in which the election of the superintendent shall be held. The action of the auditor in assuming to give in a casting vote on the adoption of the resolution was unwarranted dictation. (2) Under this section, the vote taken on the adoption of the resolution did not constitute a tied vote authorizing the auditor to give a casting vote. There could be no election under such resolution unless a quorum of all the trustees being present a majority of such trustees voted therefor; State, ex rel. v. Edwards, 114-583.

Where the trustees met and organized on the day prescribed by law, for the election of a county superintendent, and adjourned over to the following day, and at the time to which the adjournment was had five only attended the meeting- - the whole number of trustees being ten-and the five present voted for a superintendent, the auditor was without right to give a casting vote, there being no quorum of the township trustees present. Such an election can not be made unless a quorum of the trustees be present and the auditor can not be counted to make a quorum; State, ex rel., v. Porter, 113-79.

The township trustees of the county numbered eight; they met at the county auditor's office, pursuant to this section, for the purpose of electing a county superintendent. An irregular organization was effected, the irregularity consisting in the fact that the county auditor cast a deciding vote on the question of the election of chairman. One trustee moved that one D. be appointed county superintendent for the two years next ensuing. Four trustees voted affirmatively on the motion, four entered protest against the course pursued and declined to vote. The chairman announced a tie, the auditor voted in the affirmative, and the chairman declared that D. was elected. Afterward D. filed his bond, otherwise qualified and entered into possession of the office. D. was elected. There was a quorum convened; he received the vote of all those present who voted, which was a majority of the number necessary to constitute a quorum, and he received the necessary number without the vote of the auditor, who would only be entitled to vote in case of a tie; State, ex rel. v. Dillon, 125-67. 4438-9, 4444-5. Towns and cities. Construing these general statutory provisions in connection with the incidental powers of corporations as to the making of suitable rules, regulations, by-laws or ordinances for their own government and for the government of those over whom such corporations may have jurisdiction or control, the various school boards and other educational authorities of the state have the power to adopt appropriate rules and regulations for the government of the schools under their control and, when so adopted, such rules are analogous to by-laws and ordinances and are tested by the same general principles. This does not imply that all the rules, orders and regulations for the discipline, government and management of the schools shall be made a matter of record by the school board, or that every act, order or direction affecting the conduct of such schools shall be authorized