Conklin v. School District No. 37

22 Kan. 521 | Kan. | 1879

The opinion of the court was delivered by

Beewee, J.:

The question in this case is as to the powers of the district board of a school district in reference to repairs on a school house. The repairs consisted in fixing a door and window, and painting over some obscene writing on the wall, and the contract price therefor was five dollars. The contention of the defendant is, that the district board is limited to the amount of money voted for repairs at the school meeting, and to the kind of repairs specified in such vote, and the testimony shows that the board had already exhausted the moneys voted for the repairs specified. Hence it claims that the powers of the board were exhausted, and the contract not binding on the district. The statute provides (Laws 1876, p. 248, §11) that the.school meeting shall have power — “Fifth, To vote a tax annually, not exceeding-one per cent, on the taxable property in the district, as the meeting shall deem sufficient, to purchase or lease a site, . . . and to build, hire or purchase such school house, aud to keep in repair and furnish the same with the necessary fuel and appendages.” And (p. 253, § 22) that “ the district board shall have the care and keeping of the school house and other property belonging to the district;” and (page 254, §25) that “the district board shall provide the necessary appendages for the school house during the time a school is taught therein, and shall keep an accurate account of all expenses thus incurred, and present the same for allowance at any regular district meeting.”

These two sections impose a duty as well as grant a power. “Shall have the care and keeping of the school house,” not merely authorizes but requires the board to preserve and care for the school house. And this duty is not like that of a janitor, one of personal attention and manual labor, but like that of trustees, one of supervision. They are not personally to sweep and dust and clean, or bring wood and make fires, but to see that it is done, and to that end may employ assistants, and bind the district for their pay. They are not chosen because of their physical strength and dexterity, but because of their good sense and intelligence. And “care and keeping,” when used in connection with a trust like this, imply the right to preserve the building in the condition in which it is placed in their custody, to make good the waste and injury to which all buildings, and especially public buildings like a school house, are subject; in other words, to repair. It may not imply the right to remodel or improve, but it implies the right to do all that may- come fairly and strictly within the term “repair.” They are to “keep” the school house, and to keep it in good order and repair. If a pane of glass be broken, they may employ a glazier to put in a new one. If the door be off the hinges, they may employ a carpenter to fix it. If some miscreant has defiled the walls with obscene writing, they may employ one to remove the writing or repaint the wall. And in this they are but performing the duty cast upon them of the “care and keeping” of the school house, and are creating a liability against the district, and not upon themselves personally. We do not think that the board can be considered as simply a special committee to expend certain moneys placed in their hands, and with no power beyond. The district is a corporation, (Laws of 1876, p.245, §2,) with the “usual powers of a corporation for public purposes,” and the board is its managing authority. “True, its powers are few and limited, but still reasonable construction must be given to the powers which are granted. And where a duty is imposed, especially one so vital as this to the well-being of the district, it will be understood that it is to be performed in the ordinary manner, and by the ordinary means. It will be noticed by § 21, p. 253, that when the board builds, hires or purchases a school house, it is expressly stated that it shall be done “out of the funds provided for that purpose,” but no such limitation is expressed when the duty is cast of the care and keeping of the school house. The reason is obvious. In mere matter of repairs and preservation, there is little room for expenditure; in building, hiring or purchasing, there may be great extravagance. Again, it is in the very nature of repairs, that they cannot be foreseen, and the necessary amount determined in advance. Who can tell when, and to what extent, just such injuries as appear in this case will occur? Discretion as to these matters must be vested somewhere, and nowhere more appropriately than in the district board. And so Ave understand the legislature has provided.

The judgment will be reversed, and the case remanded for a new trial.

All the Justices concurring.