cery will interfere to restrain such authorities from the misuse of the fund entrusted to them, or its appropriation to a purpose not warranted by law. Adams v. Brenan, 177-194. 9. A board of education has no power to agree with the representatives of labor organizations to insert in all its contracts for work on school buildings, a provision that none but union men should be employed in such work or placed on its pay-rolls. Such contract is a discrimination between different classes of citizens, and of such a nature as to restrict competition and to increase the cost of work. It is unquestionable, that if the Legislature should enact a statute containing the same provision as this contract in regard to any work to be done for boards of education, or if they should by statute undertake to require this board, as the agency of the State in the management of school affairs, to adopt such a rule or insert such a clause in its contracts, or should undertake to authorize it to do so, the provision would be absolutely null and void as in conflict with the Constitution. Ibid. 10. There is no more reason or justification for such a contract than there would be for a provision that no one should be employed except members of some particular party or church. In any such case it might be said that the board entertained a bona fide opinion that the members of some political party were more intelligent and better capable of performing the work, so that better results would be attained; or that the members of a church, on account of their higher standard of morality, would more faithfully and conscientiously carry out the contract. The fact that the board may have been of the opinion that its action was for the benefit of the public, can not afford a justification for limiting competition in bidders and requiring them to abandon the right to contract with whomsoever they may choose for the performance of the work. lbid. 11. The board of education may stipulate for the quality of material to be furnished, and the degree of skill required in workmanship, but a provision that the work shall be done only by certain persons or classes of persons, members of certain societies, necessarily creates a monopoly in their favor. The effect of the provision is to limit competition by preventing contractors from employing any certain persons and by excluding therefrom all others engaged in the same work, and such a provision is illegal and void. A tax payer may resist an attempted appropriation of his money in execution of such a contract. Ibid. 12. A tax payer may enjoin the expenditure of a school fund under a provision of a contract for a public school building requiring the employment of union men only, although neither the contractor nor excluded laborers complain. The failure of a bill to show that it was filed before work was begun under the contract, does not affect the complaining tax payer's right to relief, where the contract under which the expenditure is attempted is against public law, which the contractor is bound to know. Ibid. 13. No question concerning the merits of labor or trades unions is in any way involved in this case. The right of organization for mutual benefit in all lawful ways is not denied. The question is, whether the board of education has a right to enter into a combination with such an organization for the expenditure of the tax payers' money for the benefit of members of the organization, and to exclude any portion of the citizens following lawful trades and occupations from the right to labor. It has no such right. Ibid. § 18. Any person having resided in any such city more than five years next preceding his appointment, shall be eligible to membership of such board of education. § 19. The said board of education shall appoint a president and secretary, the president to be appointed from their own number, and shall appoint such other officers and employés as such board shall deem necessary, and shall prescribe their duties and compensation and terms of office. § 20. The said board shall provide well bound books, at the expense of the school tax fund, in which shall be kept a faithful record of all their proceedings. The yeas and nays shall be taken and entered on the records of the proceedings of the board upon all questions involving the expenditure of money. § 21. The said board of education shall have charge and control of the public schools in such cities, and shall have power, with the concurrence of the city council First-To erect or purchase buildings suitable for school houses, and keep the same in repair. 1. A board of education erecting a school building in pursuance of the duties imposed upon it by statute, being merely the agent of the State, can not be made to respond in damages, as master, for the negligent acts of workmen employed upon the building. Kinnare v. City of Chicago, 171-332. 2. The board of education, with the concurrence of the common council, has power to erect school houses, and it is to be assumed the connection of the city with the construction of such buildings, is only such as arise out of the authority and power vested in the city by the provisions of this section. The erection of a school building is of no benefit to the city as a municipality, and whatever connection it has with the board of education in the matter of construction of a building is simply for the purpose of discharging a public duty cast upon it by the law making power of the State. That duty is governmental in its character. It is performed in obedience to a statute which was enacted because it was deemed expedient by the Legislature, in the distribution of the powers of the government, to require the city, nolens volens, to perform a public service in which the city, as a corporation, had no interest. Ibid. Second-To buy or lease sites for school houses with the necessary grounds. If said board of education shall be unable to agree with the owner or owners for the purchase of such site, then, with the concurrence of the city council, it may acquire the title to said site in the manner that may be now or hereafter provided for by any law of eminent domain. Such proceedings to condemn shall be in the name of said city in trust for the use of the schools. (As amended by an act approved April 22, 1899.) Third-To issue bonds for the purpose of building, furnishing and repairing school houses, for purchasing sites for the same, and to provide for the payment of said bonds; to borrow money for school purposes upon the credit of the city. § 22. The said board of education shall have power First-To furnish schools with the necessary fixtures, furniture and apparatus. Second-To maintain, support and establish schools and supply the inadequacy of the school funds for the salaries of school teachers from school taxes. Third-To hire buildings or rooms for the use of the board. tion. Sixth-To prescribe the school books to be used, and the studies in the different schools. Seventh-To lay off and divide the city into school districts, and from time to time alter the same and create new ones, as circum stances may require, and generally to have and possess all the rights, powers and authority required for the proper management of schools, with power to enact such ordinances as may be deemed necessary and expedient for such purpose. Eighth-To expel any pupil who may be guilty of gross disobedience or misconduct. Ninth-To dismiss and remove any teacher whenever, in their opinion, he or she is not qualified to teach, or whenever, from any cause, the interests of the school may, in their opinion, require such removal or dismission. Tenth-To apportion the scholars to the several schools. Eleventh-To lease school property and to loan moneys belonging to the school fund. Twelfth-To grant the use of assembly halls and class rooms when not otherwise needed, including light, heat and attendants for public lectures, concerts and other educational and social interests free of cost, but under such provisions and control as they may see fit to impose. (As amended by an act approved May 13, 1903.) 1. It will be seen that no specific grant of power to furnish text books for the free use of all scholars can be found in the powers enumerated in section 22, article 6 of the general school law. Nowhere among the powers of the board of education can a specific grant of power to furnish free text books be found. If the power exists it must be found under the general grant of power in the seventh item of powers, or it must arise by implication from the body of the powers granted and the evident purpose the Legislature had in view in passing these statutes. Harris v Kill, 108A-305. 2. The board of education has for some years, purchased libraries and supplied school books for the children of indigent parents, and the exercise of this power has thus far gone unchallenged, although no specific provision authorizing the purchase of such books exists. The case of supplying text books to the children of parents too poor to buy them differs radically, if not in principle, certainly in reason and degree, from the case of furnishing text books free to the children of wealthy parents. The Constitution provides that all children of the State may receive a good common school education. It may be said that the behests of the Constitution cannot be complied with if the children of the very poor are not supplied with free text books. The same thing could not be said if the children of the wealthy were not supplied with free text books. Ibid. 3. It is insisted that the powers and authority required for the proper management of schools are placed with the board and that, of necessity, the judgment of the board must be accepted in determining what acts are necessary and expedient for the proper management of schools; that the board has found that they cannot carry out the constitutional command to provide a thorough and efficient system of free schools without supplying free text books to all pupils. It must be said, however, that the Constitution is not self-executing and that the Legislature must, either by general or specific grant, give the power to the board to purchase with public school funds, text books for the wealthy, before the court can hold that the board of education has such power. lbid. 4. It is a general rule that an attempted enumeration will limit the general terms. Upon an examination of the school law applicable to the various classes of districts it is found that the Legislature has most carefully limited the powers of boards of directors and boards of education in certain directions and the power of boards to purchase books for free general distribution cannot by any fair implication be recognized. Ibid. 5. The authority of the board of education must not be extended nor its powers enlarged, either by intendment or by any strained construction of the statute. The court has considered the compulsory education laws of this State, but it is unable to find therein any expression which by intendment or fair implication can be construed as giving the board of education authority to make free distribution of school books to all pupils. Ibid. 6. It is apparent that there is a marked dinstinction between purchasing books for a library, having its home in the school building, and from purchasing school books for the individual, exclusive and free use of all pupils. The library would be for the use of all the pupils as much as the maps or charts hanging on the walls of the school rooms. No well-defined policy with reference to furnishing free text books to all pupils can be found in this State, at least of so pronounced a character that we would be justified in engrafting it upon the school laws of the State. Ibid. 7. It is argued that the public policy of the State and a reasonable inference as to the intention of the Legislature drawn from the various statutes, are that under the general powers conferred upon the board of education under the seventh section of its list of powers, full authority is given it to distribute school books for the free use of all pupils. Such power to expend school moneys in ways new and untried in this State should first be clearly granted by the Legislature and not assumed by the zeal of boards of education or by the construction of courts. Ibid. § 23. It shall be the duty of such board of education— First-To take the entire superintendence and control of the schools in such cities. Second-To examine all persons offering themselves as candidates for teachers, and when found well qualified to give them certificates gratuitously. Third-To visit all the public schools as often as once a month. Fourth-To establish all such by-laws, rules and regulations for the government and for the establishment and maintenance of a proper and uniform system of discipline in the several schools as may, in their opinion, be necessary. Fifth-To determine from time to time how many and what class of teachers may be employed in each of the public schools, and employ such teachers and fix their compensation. Sixth-To take charge of the school houses, furniture, grounds and other property belonging to the school districts, and see that the same are kept in good condition and not suffered to be unnecessarily injured or deteriorated. Seventh-To provide fuel and such other necessaries for the schools as, in their opinion, may be required in the school houses, or other property belonging to the said districts. Eighth-To inquire into the progress of scholars and the government of the schools. Ninth-To prescribe the method and course of discipline and instruction in the respective schools, and to see that they are maintained and pursued in the proper manner. Tenth-To prescribe what studies shall be taught, and what books and apparatus shall be used. Eleventh-To report to the city council, from time to time, any suggestions they may deem expedient or requisite in relation to the schools and the school fund, or the management thereof, and generally to recommend the establishment of new schools and districts. Twelfth-To prepare and publish an annual report, which shall include the receipts and expenditures of each school, specifying the source of such receipts and the object of such expenditures. Thirteenth-To communicate to the city council, from time to time, such information within their possession as may be required. § 24. None of the powers herein conferred upon the board of education of such cities shall be exercised by them except at a regular meeting of such board. § 25. All conveyances of real estate shall be made to, and the title of all such as shall be acquired by condemnation shall rest in the city in trust for the use of the schools, and no sale of real estate or interest therein used for school purposes or held in trust for schools shall be made, except by the city council upon the written request of such board of education. (As amended by act approved April 22, 1899.) 1. It seems clear, from all the legislation on the subject, it was the intention of the Legislature that the city, in cities having over 100,000 inhabitants, should have the title to all real estate held for school purposes, and the city treasurer should have the custody of all school funds, no matter from what source derived. The board of education in such cities is given no independent powers as to the real estate held or to be purchased for school purposes. Whatever the board can do in reference to buying or leasing sites for school houses, or issuing bonds for the erection of buildings thereon, can only be done with the concurrence of the common council. People v. Roche, 124–9. 2. The powers and duties the board may exercise, independently of the common council, relate mostly to furnishing school houses, the employment of teachers, and the management of schools generally. But all school property and funds are placed in or under the care of the common council or some city officer. There is no express provision of the law that authorizes the board of education to take to itself the conveyance of any real estate, for the purpose of holding the title as an actual owner might do, nor is there any express statute giving the board authority to hold the title to real estate by way of pledge or security for the payment of indebtedness, and if they have any such power, it must arise, by implication, from other powers expressly conferred. Ibid. 3. As respects the sale of real estate held for school purposes, the statute is so plain it admits of no construction. It can only be sold on two express conditions,-first, the sale must be made by the common council; and second, it must be made by the council on the written request of the board of education. In case it is necessary to take a mortgage to secure any portion of the purchase money, the statute is silent as to what corporate body it shall be made. Ibid. 4. Ordinarily it is the vendor that takes the mortgage to himself, to secure the unpaid purchase money, and following the custom that prevails with private individuals in this respect, it would seem the corporate body authorized by law to convey school property should take to itself the mortgage to secure the balance of the purchase money, if any remain unpaid. It would be competent for the Legislature to provide, by statue, on the sale of school lands by the common council the mortgage to secure the unpaid purchase money might be made to the board of education; but no provision has been made, by statute, for giving a mortgage in such cases to the board of education. Outside of statutory provisions, considerations of convenience would seem to require the mortgage should be given to the city. Ibid; Brenan v. The People, 176-630. $ 26. All moneys raised by taxation for school purposes or received from the State common school fund, or from any other source for school purposes, shall be held by the city treasurer as a special fund for school purposes, subject to the order of the board of education, upon warrants to be countersigned by the mayor and city |