Opinion of the Court.

Congress having donated a large amount of land scrip to the State, for the purpose of founding a university, and the board of supervisors of Champaign county having offered to donate a college edifice and a large quantity of land if the State would locate permanently the "Illinois Industrial University" at Urbana, in that county, the General Assembly, on the 28th day of February, 1867, created a body corporate to govern the fund and university. The trustees were to be appointed by the Governor, and to be confirmed by the Senate. They are styled "The Board of Trustees of the Illinois Industrial University," and perpetual succession was conferred upon them by that name, and to have power to contract and be contracted with, to sue and be sued, to plead and be impleaded, etc. They were required to permanently locate the institution at Urbana, and to provide the requisite buildings, apparatus and conveniences; to fix rates of tuition; to appoint professors, etc. But it is expressly provided that the trustees shall not, in the exercise of any of their powers, create any liability or indebtedness in excess of the funds in the hands of the treasurer.

The General Assembly, at each session since the organization of the institution, have made appropriations for the erection of buildings for the use of the university. At the session of 1871, an appropriation of $150,000 was made for building purposes, and various sums for the different departments of education in the university. And by section 3 of that act it is provided, that "for the construction of said buildings the trustees shall not obligate the State for the payment of any sum of money in excess of appropriations made for that purpose." (Sess. Laws, 1871-2, p. 143.) And other appropriations might be referred to as showing that the General Assembly regard, and have always regarded, this as a State institution.

The fund was donated to the State, in the first place, for the establishment and maintenance of an institution of learning, which this represents; and we fail to find the slightest

Opinion of the Court.

indication of an intention, on the part of the State, to part with either the ownership of the property or control of the institution. It is true, that the General Assembly have created a body corporate, as the most convenient mode of controlling the institution, its property and affairs; but it will be observed that the State retains the power of appointing its trustees, and, no doubt, has power, through agents other than the trustees, to sell and dispose of the property of the institution, or they may, at pleasure, amend or even repeal the charter, as public policy or the interest of the university may require.

It will be observed that the persons appointed for the government of the university are created and called trustees. They derive all of their powers from the State, and they act for and on behalf of the State; and the power which conferred authority on them to act, may withdraw or modify it at pleasure. Had the General Assembly intended that the property might be sold for any purpose, some language indicating such intention, no doubt, would have been employed.

In any view in which we have been able to consider the case, we have been irresistibly impelled to the conclusion that this real estate, although conveyed to the corporate body, belongs to and is under the entire control of the State, when disposed to exercise the power; and, being property of the State, we have seen the constitution authorizes its exemption from taxation, and the General Assembly has exempted it. As an irresistible conclusion it follows, that the judgment of the court below is erroneous, and it must be reversed.

Judgment reversed.*

*ILLINOIS INDUSTRIAL UNIVERSITY V. THE PEOPLE, ETC.

Mr. CHIEF JUSTICE WALKER delivered the opinion of the Court:

This case, in all of its material facts, is similar to the case of The Board of Trustees of the Illinois Industrial University v. The Board of Supervisors of Champaign County, docided at the present term. We therefore deem it unnecessary again to state the reasons for reversing the judgment. That case controls, this, and the judgment of the court below is reversed.

Judgment reversed.

ABATEMENT—misnomer—striking plea from files. A defendant, indicted by the name of John Ammon, filed a plea in abatement, duly verified, setting forth that he was named and called John Amann, and that he had never been named and called John Ammon. The court, on its own motion, struck the plea from the files: Held, that the court erred in its action, as the plea was good in form and substance, and the defendant was entitled to have the issue tendered tried by a jury, or otherwise disposed of according to law.

WRIT OF ERROR to the Circuit Court of DeWitt county; the Hon. LYMAN LACEY, Judge, presiding.

This was an indictment against the plaintiff in error for selling intoxicating liquor to a minor.

Messrs. MOORE & WARNER, for the plaintiff in error.

Mr. JUSTICE SCOTT delivered the opinion of the Court:

This was a prosecution for selling spirituous liquors to a minor. Plaintiff in error was indicted by the name of John Ammon. When arraigned, he filed a plea in abatement, duly verified by his affidavit, setting forth that he was named and called John Amann, and that he had never been named and called John Ammon. On its own motion, the court ordered this plea to be stricken from the files, which was done. The defendant excepted to the action of the court, and has preserved his exception in the record in due form.

A trial was then had, which resulted in a verdict of guilty. Motions for a new trial and in arrest of judgment having been overruled, the accused was sentenced to imprisonment in the county jail for a period of ten days, and adjudged to pay a fine of $20, together with the costs of prosecution.

It was error in the court, of its own motion, or for any cause appearing in the record, to strike defendant's plea in

Syllabus.

abatement from the files. It was good in form and in substance, and he was therefore entitled to have the issue tendered thereby tried by a jury, or otherwise disposed of according to law.

For the error indicated the judgment will be reversed and the cause remanded.

Judgment reversed.

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SCHOOL DIRECTORS OF DISTRICT No. 3, T. 9 N. R. 8.

V.

ANDERSON FOGLEMAN, for use, etc.

1. BUILDING SCHOOL HOUSE-vote necessary before. Under section 48 of the school law of 1865, it is unlawful for the school directors to build a school house without a vote of the people of the district on the question, and if they do so, their act will be null and void, and their orders drawn on the township treasurer in payment for building the same will be void even in the hands of an assignee, and the successors of such directors may question the same.

2. SCHOOL DIRECTORS-powers limited. School directors can exercise no other powers than those expressly granted, or such as may be neces sary to carry into effect a granted power.

3 SCHOOL HOUSE—whether the building of, legalized by subsequent acts. Where school directors had built a school house for their district, without any vote of the people, it was held, that the levying of a tax to defray the expenses, and the acceptance of the building and teaching school therein, could not legalize the act, or bind the tax-payers. The tax-payer was not bound to pay such tax.

4.

RATIFICATION OF UNAUTHORIZED ACT. Where public officers do an act in the absence of any power, it is void, and can not be subsequently ratified or made valid for any purpose.

5. ASSIGNEE when he takes subject to defense. Where public officers, such as school directors, issue negotiable paper of the corporation without authority of law, a purchaser of such paper can not be an innocent holder, as he is bound to look to the authority to issue the same.

APPEAL from the Circuit Court of Cumberland county; the Hon. J. C. ALLEN, Judge, presiding.

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Opinion of the Court.

This was an action of assumpsit, brought by Anderson Fogleman, for the use of Reuben Bloomfield, against the school directors of district No. 3, in township 9 N., range 8, in Cumberland county, Illinois, upon three orders drawn by previous directors on the township treasurer. The defendants pleaded, first, the general issue; secondly, that no vote of the people of the district was ever had, or attempted to be had, authorizing the building of the school house, in part payment for the building of which said orders were issued, and thirdly, failure of consideration. The orders on their face showed that they were given in part payment for building a school house in the district. A trial was had before the court without a jury, who found for the plaintiff and rendered judgment for the amount due on the orders, and from this judgment the defendants appeal.

Mr. J. W. WILKIN, for the appellants.

Mr. H. B. DECIUS, for the appellee.

Mr. JUSTICE BREESE delivered the opinion of the Court:

This was assumpsit, in the Cumberland circuit court, counting upon three orders drawn by a majority of the school directors of district No. 3, in township 9 north, range 8, in that county, in favor of A. Fogleman or order, on the treasurer of that town, one for seventy-five dollars, and two for fifty dollars each, all bearing interest at ten per cent, each of them purporting to be in part pay for building a school house in that district, and drawn payable out of any money belonging to the district specified.

The general issue was pleaded, and also a special plea averring that no vote of the people of the district was had authorizing the building of the school house, and a plea of failure of consideration.

A jury was waived, and the cause tried by the court, who found for the plaintiff and assessed the damages at two