Opinion of the Court.

Wire Co. v. Chicago, Burlington &c. Railway, 70 Iowa, 105; Sower v. Philadelphia, 35 Penn. St. 231; Gas Company v. San Francisco, 6 California, 190; First Municipality v. Cutting, 4 La. Ann. 335; Green Bay v. Brauns, 50 Wisconsin, 204; 1 Dillon's Municipal Corporations, (4th ed.,) § 307 and notes. Nor is there anything in the case in 35 Kansas in conflict with this. That simply holds that when a charter requires that certain things be done by ordinance, they cannot be done by resolution. In this act incorporating cities of the second class there is nothing which either in terms or by implication requires that the consent of the city council should be given only by ordinance. A resolution was, therefore, sufficient.

Neither is the other contention of any force. The record of the city council was produced, showing a series of meetings extending from October 5 to November 9, at some of which meetings general business was transacted. The act of 1868, section 13, provides that regular meetings of the city council shall be held at such times as the council may provide by ordinance. No evidence was offered showing what were the dates of regular meetings, as provided by ordinance. We are left to infer that these meetings were not regular meetings from the language at the commencement of the records thereof

"that council met pursuant to adjournment." The first adjournment was made by the city clerk alone, no member of the city council being present. We are not advised by the testimony as to what rules, if any, had been prescribed by the city council in respect to such matter. It is not an uncommon thing for legislative bodies, such as a city council, to provide by rule that in the absence of all members the clerk or secretary shall have power to adjourn. That probably such a rule as that was in existence is evidenced by the fact that at succeeding meetings — which, giving full weight to the language used at the commencement of the record, were simply adjourned meetings the council, all but one of whom were present at one of the meetings, approved the records. All these entries of meeting appear to have been kept upon the regular record of the city council, and it is obvious that either because an adjournment by the clerk in the absence of the council was

Opinion of the Court.

authorized by rule, or because the days of the subsequent meetings were, in fact, the regular days therefor, such meetings were accepted and recognized by the council as legal. Certain is it, that when bonds have been issued in reliance upon a consent thus evidenced, and when for years thereafter interest has been duly paid upon such bonds, the courts will not, after the lapse of twenty years, in a suit on the bonds, pronounce them invalid on such technical and trivial grounds. The cases cited from 16 and 27 Kansas do not militate against these views. In the case in 16 Kansas, which was an action by the county against the railway company to cancel a subscription for stock, and for the return and cancellation of bonds of the county on deposit with the state treasurer, the matter was submitted on demurrer to the petition, and that petition averred that the subscription was ordered at a special session of the board, at which only two of the three commissioners were present; that no call for such session was made, nor anything done to authorize a call; that B. M. Lingo, the absent commissioner, was in the county, at his residence, but had no knowledge or notice of such intended special session; "that knowledge and notice of such intended special session was intentionally and fraudulently concealed and kept from said B. M. Lingo by the said railway company and its agents; and said session was not a regular session of said board, nor was it an adjourned session from any regular session thereof, nor from any duly called special session of said board." The court held that the subscription ordered under those circumstances was not binding upon the county. In that case, the contract was executory, and the bonds had not been delivered, but were still within the control of the county. The special session, with only a fraction of the board present, was fraudulently intended and fraudulently brought about, and the railway company was the wrongdoer. The illegality of the session was not a matter of inference, but a fact alleged and admitted.

The case in 27 Kansas is even stronger. That was a suit on a written contract, signed by two members of a school district board, the board consisting of three. Such a contract could only be made by the district board, as a board. It appeared

Opinion of the Court.

affirmatively that there was no meeting of the board; that it was signed by the two members, not after consultation, but by each separately, and at a different time from the other.

More in point is the case of Scott v. Paulen, 15 Kansas, 162, 167, in which a session of a board of county commissioners was held to be valid, at which only two out of the three members were present; and the record failed to show either an adjournment to that date, or a call for a meeting at that time, but did show that it was not held on the regular days of session; but its validity was not challenged until some time thereafter. In the opinion in that case, written by the same judge who wrote the opinion in the case in 16 Kansas, is this language: "Hence it seems to us that when a quorum of the county board, with the clerk, is present, assuming to act as a county board, and at a time and place at which a legal session is possible, and to such board in actual session a proper and legal petition is presented for a county-seat election, and an election ordered, and thereafter full and legal notice given of such election, two elections had, generally participated in by the electors, the result canvassed and declared, and no objection made thereto for more than a year, it will be too late to question the validity of the election on the ground that the record of the proceedings of the commissioners shows that the chairman was absent, and fails to show a session pursuant to a legal adjournment from a regular session, or that the session was a special session and duly called by the chairman on the request of two members." We think, therefore, that the bonds in suit were valid obligations, and that the Circuit Court did not err in overruling these objections to them.

But it is further insisted that even if the bonds were valid the coupons were not, because coupons are not named in the section of the statute authorizing the issue of the bonds. But coupons are simply instruments containing the promise to pay interest, and the express authority was to issue bonds bearing interest. While it is true that the power to borrow money granted to a municipal corporation does not carry with it by implication the power to issue negotiable bonds, (Brenham v. German American Bank, 144 U. S. 173,) we are of opinion

Opinion of the Court.

that the express power to issue bonds bearing interest carries with it the power to attach to those bonds interest coupons.

The final objection is, that the proper defendant is not sued. The claim here is, that while by the act of 1872 the public schools of cities of the second class were organized into a body corporate, by the name and style of "The Board of Education of the City of, of the State of Kansas," and at that time, if not before, the real debtor was this distinct corporate entity, yet, at the time of the commencement of this action, the city of Atchison had passed, by reason of the growth of its population, from a city of the second to a city of the first class; and that in such cities there was no separate school corporation, but the Board of Education was simply an administrative body, having charge of the school affairs of the city. The case of Knowles v. Topeka, 33 Kansas, 692, is a sufficient answer to this contention. Topeka, like Atchison, had been a city of the second class, and became by mere increase in population a city of the first class; and in the opinion of the court in that case, delivered by Chief Justice Horton, it is declared that "the Board of Education of the city of Topeka is a distinct corporation from the municipal corporation of the city of Topeka." That case came to the Supreme Court from the Superior Court of Shawnee County; and in the opinion in the latter court, delivered by Webb, Judge, an opinion which is found in the report of the case, and referred to with approval by the Supreme Court, is this discussion of the question: "Topeka remained a city of the second class until January, 1881, when it became a city of the first class. Article 10 of said chapter 122, Laws of 1876, relates to 'public schools in cities of the first class.' Its provisions, as to the powers and duties of the Board of Education, are very similar to those contained in article 11 relating to 'public schools in cities of the second class.' But there is no provision in said article 10, declaring that the public schools' or the 'school district' of cities of the first class shall be bodies corporate. Nor has the writer of this opinion been able to find any such provision in any act or statute, although the powers conferred by said article 10 are those usually conferred upon incorporated school districts, and the gov

Syllabus.

ernment of the public schools in incorporated cities has been in the hands of Boards of Education' since 1867. There has been no legislation respecting Boards of Education of cities of the first class since Topeka became a city of that class, except that which regulates the number of members, and fixes their terms. But it will hardly be contended that the corporate powers lawfully conferred upon the Board of Education of the city of Topeka, when said city was a city of the second class, have been lost or destroyed by reason of the transition of the city from a city of such class to a city of the first class. It will, therefore, be considered, for the purposes of this case, that the public schools of the city of Topeka are 'a body corporate under the name and style of the Board of Education,' and that, therefore, said chapter 56 of the Laws of 1885 is not void for want of a proper body corporate to which it can apply."

That which was true of Topeka is of course true of Atchison, and the Board of Education of the city of Atchison is a distinct corporation, and the proper one to be sued for the enforcement of a debt like this. Indeed, if it were not a corporate entity, by what right does it come into court and carry on this litigation?

We think this is all that needs to be said in reference to the questions presented. The defences interposed are purely technical, and, as we think, without foundation.

The judgment is affirmed.

SWAN LAND AND CATTLE COMPANY v. FRANK.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS.

A party having a claim for unliquidated damages against a corporation which has not been dissolved, but has merely distributed its corporate funds amongst its stockholders and ceased or suspended business, cannot maintain a suit on the equity side of the United States Circuit Court