insufficient to constitute a cause of action. The demurrer was sustained, and the petition dismissed. On error, the district court affirmed the judgment of the common pleas. Leave is here asked to file a petition to reverse both judgments.

BOYNTON, J. The contract sued upon having none of the attributes or immunities of commercial paper, the plaintiff, by the assignment by Wachob of his claim against the defendants, secured and succeeded to such rights, and such only, as Wachob possessed at the time of the transfer.

Such defenses as would have been allowed had he retained the claim and brought suit upon it himself, are now admissible against the plaintiff. Assuming, without deciding, that by the understanding of the parties to the agreement the defendants incurred a personal liability, it is quite clear that there was no error in the action of the common pleas in sustaining the demurrer and dismissing the petition. The request to Wachob to forward the globes, provided a majority of the board signed the order; the agreement to pay for the same on or before September 1, 1871; the direction to the township clerk to "issue" an order on the township in favor of Wachob for the amount agreed upon; the request to the clerk to call a special meeting of the board for action upon the matter, and the agreement among the members signing the contract to ratify the same at such meeting, were all elements of the same transaction. The paper on which they were written contained the price-list of school apparatus belonging to Wachob, and it was delivered to him after it was signed by the defendants. He was not only cognizant of its contents, but a party to its stipulations. The promise or agreement of the members of the board, inter sese, to ratify the contract at the meeting to be called, was to the knowledge of Wachob a material inducement to the agreement to purchase, and made for his benefit. He accepted an order drawn on the treasurer in anticipation of such ratification. It was an agreement to avoid or evade personal liability, if any was incurred, by shifting it to the township. It is not unlike, in its legal aspect, a promise or agreement by a legislator, or member of a city or town council, to act and vote upon a pending measure, in a certain way, for a consideration paid. Such promise or agreement was clearly contrary to public policy, and therefore illegal and void. Its effect is to vitiate the whole instrument.

The board is constituted, by statute, a body politic and corporate in law, and as such is invested with certain corporate powers, and charged with the performance of certain public duties. These powers are to be exercised, and these duties discharged, in the mode prescribed by law. The members composing the board have no power to act as a board, except when together in session. They then act as a body or unit. The statute requires the clerk to record, in a book to be provided for that purpose, all their official proceedings. They have, in their corporate capacity, the title, care, and custody of all school

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property whatever within their jurisdiction, and are invested with full power to control the same in such manner as they may think will best subserve the interest of the common schools and the cause of education. They are required to prescribe rules and regulations for the government of all the common schools within the township. Clothed with such powers, and charged with such duties and such responsibilities, it will not be permitted to them to make any agreement among themselves, or with others, by which their public action is to be, or may be restrained or embarrassed, or its freedom in any wise affected or impaired. The public, for whom they act, have the right to their best judgment after free and full discussion and consultation among themselves of, and upon, the public matters intrusted to them, in the 55x session provided for by the statute. This cannot be when the members, by pre-engagement, are under contract to pursue a certain line of argument or action, whether the same will be conducive to the public good or not. It is one of the oldest rules of the common law, that contracts contrary to sound morals, or against public policy, will not be enforced by courts of justice ex facto illicito non oritur actio; and the court will not enter on the inquiry, whether such contract would, or would not, in a given case, be injurious in its consequences if enforced. It being against the public interest to enforce it, the law refuses to recognize its claim to validity.

Leave refused.

PEOPLE EX REL. HOFFMAN v. BOARD OF EDUCATION.

1894. 143 N. Y. 62.

EARL, J. The relator was principal of one of the public schools i the city of New York, and she was fined by the board of educatior "fifteen days' pay for disobeying the instructions of the city superin tendent"; and she instituted this proceeding by certiorari to review and reverse the imposition of that fine. She claims that the board had no authority to impose the fine, and in this we think she is clearly right.

The imposition of a fine is a species of punishment, and before any body, tribunal or officer can impose it, authority therefor must be clearly found in some statute.

Sections 1022 and 1026 of the New York City Consolidation Act of 1882 provide that the board of education "shall have full control of the public schools and the public school system of the city, subject only to the general statutes of the state upon education"; and this is the sole provision of law invoked by the respondents as authority for the imposition of the fine. Under it the board of education may

1 Arguments omitted. - ED.

establish schools, regulate the course of instruction therein, and shape the entire educational system for the city. It may provide for the discipline and government of the scholars in the schools. But could it impose pecuniary fines upon them for any misconduct or dereliction, and thus deprive them of their property? Could it imprison them or sit in solemn judgment upon them and order the infliction of corporeal punishment? If it could not do these things, much less could it discipline or punish teachers in these ways. The relator never in any way submitted herself to such a jurisdiction, and there is no general law which confers it. If the board could thus deprive her of fifteen days' pay, where is the limit? Why could it not deprive her of one month's pay or a whole year's salary already earned? If it could compel her to forfeit money already earned, why could it not enforce a fine against her other property? If the board has such a power, where are its limits and who is to define them?

If the board had adopted by-laws for the regulation of the schools. and the teachers therein, and the relator had assented to them, then they might have become binding upon her as part of her contract with the board, and under such by-laws it might have had power of discipline and control over teachers which it could not otherwise have or possess. But here there was no by-law, rule or regulation known or assented to by the relator under which any fine could be imposed upon her. The board of education can, under certain conditions mentioned in the laws, remove teachers, and by the exercise of that power it can protect the schools against the incompetency and the improper conduct of teachers.

The board of education is a quasi municipal or governmental corporation, and no such corporation has power to impose fines or to pass ordinances authorizing the imposition of fines without the clear authority of some statute. In Dillon on Municipal Corporations, secs. 345 and 348, it is said: "A corporation, under a general power to make by-laws, cannot make a by-law ordering a forfeiture of property. To warrant the exercise of such an extraordinary authority by a local and limited jurisdiction, the rule is reasonably adopted that such authority must be expressly conferred by the legislature." "In this country, inasmuch as corporations derive all their power from charter or act of the legislature, the right to inflict a forfeiture must be plainly given, and cannot be derived from usage." In Kirk v. Nowill (1 T. R. 124) the question was whether a corporation which possessed a general power to make by-laws could make a by-law creating a forfeiture, and Lord MANSFIELD held that no corporation possessed such an extraordinary power unless it was expressly given; and Mr. Justice BULLER also said that construing it a by-law creating a forfeiture, the act of Parliament not having given the corporation power to make such a by-law, it was bad on that ground; and a similar doctrine was laid down in Hart v. Mayor, etc. (9 Wend. 571, 588), and Dunham v. Rochester (5 Cow. 462), and in many other cases. This fine was in

the nature of a forfeiture, if valid, as it compelled the relator to forfeit a portion of her salary earned.

As this fine was imposed upon the relator without authority it could do her no harm, and could not stand in the way of the collection by her of her salary as a teacher, and, therefore, it may well be doubted whether she could properly institute this proceeding by certiorari to review and reverse the utterly void and harmless proceeding of the board of education. But as this proceeding was entertained in the court below, and no objection has been made to its propriety, we will assume that it was proper; and our conclusion is that the order of the General Term and the proceeding of the board of education imposing the fine should be reversed and set aside, with costs to the relator in this court and the court below.

APPEAL from Superior Court, New Haven county; GEORGE W. WHEELER, Judge.

Information in the nature of quo warranto by the State, on the relation of Otto G. Stage, against Robert Mackie. There was a judgment ousting respondent from office and affirming the right of relator to it, and respondent appeals. Error, and judgment set aside. The charter of the city of Waterbury provided that its board of Charles & aldermen might, in a manner prescribed, make ordinances "to provide for the appointment of a building inspector and to prescribe s duties." It also conferred upon the board "the power to provide for the appointment or election of such employés as are not otherwise provided for, and as may be required for the proper transaction of ne business of the city, and to prescribe their duties and compensation." Having this authority, the board adopted an ordinance creating the office of building inspector, and defining the powers and duties of is incumbent. It was also provided that there should be a deputy building inspector, that he should act in place of the building inspector and exercise all of his powers during the latter's absence or disability, and in the event of the latter's death perform all of his duties until an appointment should be made to fill the vacancy, that he should be biennially appointed by the board in the month of January of the even numbered years, and that he should hold office for two years from the first Monday of February next following his appointment, and until his successor was duly appointed and qualified.

Under this ordinance one Smith was appointed for the term of two years from the first Monday of February, 1904. In April, 1905, the

General Assembly passed a special act (14 Sp. Laws, p. 619), which provided that the building inspector and assistant building inspector of the city of Waterbury then in office should hold their respective offices during good behavior subject to a power of removal in a manner prescribed. Smith died March 5, 1906, and the board in June elected the relator deputy building inspector to fill Smith's unexpired term. The relator thereupon qualified and entered upon the duties of the position. January 20, 1908, the board proceeded to the election of a deputy building inspector for the term of two years from the first Monday of February next following. The votes of the entire board were cast for the respondent, who was a member of the board, present, and voting for himself, and he was declared appointed. The respondent thereupon qualified, and entered upon the duties assigned to said

position, which he has since continued to perform to the exclusion of the relator. The board of aldermen took no action declaring said position vacant, or creating a vacancy therein, except said appointment of the respondent. The relator made ineffectual demand of the respondent for the office, which is one of profit. The relator claims the office, contending that his appointment thereto was one at the will of the board of aldermen, and that the board has taken no lawful action terminating his term. He contends that the attempted appointment of the respondent as his successor cannot have the effect of either terminating his term or of entitling the respondent to succeed him, since the respondent was a member of the board of aldermen and voted for himself, and for the further reason that his duties as inspector of buildings would be incompatible with his duties as an alderman.

PRENTICE, J. (after stating the facts as above). Quo warranto proceedings lie to prevent the usurpation of a public office or franchise. These were begun to try the title to a position attempted to be created by an ordinance of the city of Waterbury, and attempted to be filled by the board of aldermen of the city. They must fail for the reason that there is no such office. To justify a resort to the extraordinary remedy here invoked, there must be an office legally authorized and constituted. State v. North, 42 Conn. 79, 86; Commonwealth v. Dearborn, 15 Mass. 125; High on Extraordinary Legal Remedies, § 625. The position in question is one to which the ordinance creating it attempted to attach important powers and functions of government belonging to the sovereignty, and therefore was a "public office," as distinguished from a mere employment or agency resting on contract, and to which such powers and functions are not attached. Perkins v. New Haven, 53 Conn. 214, 215 1 Atl. 825; Seymour v. Over-River School District, 53 Conn. 502, 509 3 Atl. 552; Rylands v. Pinkerman, 63 Conn. 176, 182, 28 Atl. 110, 22 L. R. A. 653. "A public office is a right, authority, and duty created and conferred by law, by which an individual is invested with some portion of the sovereign functions of the government to be exercised by him for the benefit of the public." Mechem on Public Officers, § 1. "It implies a delegation of