§ 577. Same Subject-Previous Agreement as to joint Action void. Inasmuch as the law thus contemplates that all will meet together and that the public will have the benefit of their combined judgment and discussion, it follows that their previous individual agreement as to how they will act when they meet as a body is opposed to public policy and void.' Thus when the individual members of a school board had in writing agreed to a contract to purchase supplies for the district, and had in the same writing requested a special meeting of the board to be called, "at which meeting we agree with each other that we will ratify this contract," the court held the contract so agreed upon was void. "The board is constituted," said the court, "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 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 anywise 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 entrusted to them in the 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 1 McCortle v. Bates, 29 Ohio St. 419, 23 Am. Rep. 758. 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."1 § 578. Same Subject-All may ratify Act of Part.-But where a portion of the board or body have attempted to do an act not within their power but within the power of the whole body when lawfully convened, the act so done may subsequently be ratified and confirmed by the whole body when they are duly assembled as such.' § 579. Presumption of due Execution.—The law constantly presumes that public officers charged with the performance of official duty have not neglected the same but have duly performed it at the proper time and in the proper manner. In the absence of evidence to the contrary, this presumption will prevail, but it is not an indisputable one and may be overcome by countervailing evidence. Where the rights of the public require it the presumption in favor of due performance is liberal, and the evidence to overthrow it must be clear." This presumption is in accordance with the established and familiar maxim, Omnia presumuntur rite et solemniter esse acta donec probetur in contrarium—everything is presumed to be rightly and duly performed until the contrary is shown. 'BOYNTON, J., in McCortle v. Bates, 29 Ohio St. 419, 23 Am. Rep. 758. 2 In re Pearsall, 9 Abb. (N. Y.) Pr. (N. S.) 203. Hartwell . Root, 19 Johns. (N. Y.) 345, 10 Am. Dec. 232; Terry v. Bleight, 3 T. B. Mon. (Ky.) 270, 16 Am. Dec. 101; Farr v. Sims, Rich. (S. C.) Eq. Cas. 122, 24 Am. Dec. 396; Commonwealth v. Slifer, 25 Penn. St. 23, 64 Am. Dec. 680; The presumption is constantly indulged in support of all kinds of official action. § 580. Same Subject-Presumption not indulged to show other Officer in Default.-But the law will not indulge the presumption that one officer has performed his duty for the mere purpose of establishing the assumption that another officer has neglected his. As is said by COOLEY, J., "it would be a curious jumble of presumptions if we were to presume that one public officer had failed in his duty, because we could not presume that another had." In such a case the presumption applies with equal force to each. § 581. Same Subject-Exceptions-Presumption not indulged to support special statutory Proceeding in Invitum.-But to this presumption of the due execution of official authority certain exceptions exist. Thus where the officer acts under a naked statutory power with a view to divest upon certain contingencies the title or right of a citizen, as in the case of the sale of lands for taxes or its seizure under the right of eminent domain,' the 1 Weimer o. Bunbury, 30 Mich. 216; Supervisors v. Rees, 34 Mich. 481. 2 In Weimer v. Bunbury, 30 Mich. 216. 3 FIELD, C. J., in Keane v. Cannovan, 21 Cal. 291, 82 Am. Dec. 738. "It may be said to be the general rule," says Judge COOLEY, "that the party claiming lands under a sale for taxes must show affirmatively that the law under which the sale was made has been substantially complied with not only in the sale itself, but in all the anterior proceedings." Cooley on Taxation, 2d Ed. p. 472, citing Stead 4 See Lewis on Eminent Domain S$ 600-606; Martin v. Rushton, 42 Ala. 289; Nichols v. Bridgeport, 23 Conn. 189, 60 Am. Dec. 636; Harlow v. Pike, 3 Me. 438; Prentiss v. Parks, 65 Me. 559; Owings . Worthington, 10 G. & J. (Md.) 283: People v. Highway Commissioners, 16 Mich, 63: v. Course, 4 Cranch (U. S.) 403; Parker v. Rule, 9 Cranch 64; Williams . Peyton, 4 Wheat. (U. S.) 77; McClung v. Ross,5 Wheat. 116; Thatcher v. Powell, 6 Wheat. 119; Games . Stiles, 14 Pet. (U. S.) 322; Pillow ⚫. Roberts, 13 How. (U. S.) 472; Moore . Brown, 11 How. 414; Early . Doe, 16 How. 610; Parker v. Overman, 18 How. 142; Little v. Herndon, 10 Wall. (U. S.) 26; Hughey. Horrell, 2 Ohio 233; Holt v. Hemphill, 3 Ohio 232; Lafferty v. Byers, 5 Ohio 458; Thomp son v. Gotham, 9 Ohio 170; Kellogg v. McLaughlin, 8 Ohio 114; Polk •. Ells v. Pacific R. R. Co. 51 Mo. 200; Zimmerman v. Snowden, 88 Mo. 218; White v. Memphis, &c., R. R. Co. 64 Miss. 566; Gilbert v. Columbia Turnpike Co., 3 Johns. (N. Y.) Cases 107; Harbeck v. Toledo, 11 Ohio St. 219; State v. Officer, 4 Oreg. 180. regularity of the proceedings will not be presumed, but it is incumbent upon the person claiming by virtue of them to show that every preliminary step required by the law has been taken. § 582. Public Officer Acts in Name of Government.-The government being the source of the authority of the public officer from which all his rights and powers are derived, it follows that the execution of his authority and the justification of his lawful act should be in the name of the government. By the express terms of the constitutions of many of the States, the style of all process shall be: "In the name of the People of the State," or other equivalent expression.1 § 583. Should not make Contracts or transact Business for Public in his own Name.-In transacting business and making Rose, 25 Md. 153, 89 Am. Dec. 773; 349; Hall v. Collins, 4 Vt. 316; Bellows v. Elliott, 12 Vt. 569; Brown v. Wright, 17 Vt. 97, 42 Am. Dec. 481; Waldron v. Tuttle, 3 N. H. 340; Cass . Bellows, 31 N. H. 501, 64 Am. Dec. 347: Harvey v. Mitchell, 31 N. H. 575; Annan v. Baker, 49 N. H. 161; Scott v. Detroit, &c. Society, 1 Doug. (Mich.) 119; Latimer v. Lovett, 2 Doug. (Mich.) 204; Scott v. Babcock, 3 Greene (Ia.) 133; Gaylord v. Scarff, 6 Ia. 179; McGahen v. Carr, 6 Iowa 331, 71 Am. Dec. 421; Morton v. Reeds, 6 Mo. 64; 8. c. 9 Mo. 868; Nelson v. Goebel, 17 Mo. 161; Kelly v. Medlin, 26 Tex. 48: Cummings . Holt,56 Vt. 384; Woodbridge v. State, 43 N. J. 262. This provision in Michigan applies only to writs issued by courts or judical officers; Tweed v. Metcalf, 4 Mich. 579; Wisner. Davenport, 5 Mich. 501, and so in Illinois, Ferris v. Crow, 5 Gilm. 96; Missouri, Little . Little, 5 Mo. 227. contracts in behalf of the public, the officer should make all contracts and take all obligations in the name of the public. Public policy forbids that he should transact public business in his own name.1 So all accounts, vouchers and other evidences of public rights and transactions should be kept and made in the name of the public and in such a manner as to be readily distinguishable from his own.' § 584. In whose Name Deputy should act. The question in whose name a deputy officer should act is one of much importance and of considerable apparent uncertainty. The conflict in the cases is, however, believed to be more apparent than real, and to be readily settled by reference to principles already considered. In several of the States the authority to act in an official capacity is given to the principal alone, or, if the appointment of deputies is recognized or authorized by law, they are regarded as the mere private agents or servants of the principal and not as independent public officers deriving independent authority from the law. Where such is the case, the authority exercised by the deputy is, manifestly, a derivative and subsidiary one,-it is the authority conferred upon the principal and not an authority inherent in the deputy. It follows then, logically and legally, that the authority should be exercised in the name of him in whom it exists and not in his name who of himself has no recog nized authority at all. The execution should, therefore, be in the name of the principal alone or in the name of the principal by the deputy. Hunter v. Field, 20 Ohio 340; Gilmore v. Pope, 5 Mass. 491; Irish v. Webster, 5 Greenl. (Me.) 171. Hunter . Field, 20 Ohio 340. Returns of the service of process, &c., must be in name of the principal, and 8 return in the name of "A. B. Deputy," &c., is invalid; Joyce v. Joyce, 5 Cal. 449; Rowley v. Howard, 23 Cal. 402. (In California the official power is vested in the principal.) Ryan v. Eads, Breese (Ill.) 168; Ditch . Edwards, 1 Scammon (Ill.) 127, 26 Am. Dec. 414; Village of Glencoe . People, 78 Ill. 382. (In Illinois the statute gives effect to the acts of the deputy when done in the name of his principal.) Arnold ». Scott, 39 Tex. 378. (The earlier Texas cases were the other way. Miller o. Alexander, 13 Tex. 497, 65 Am. Dec. 73; Towns v. Harris, 13 Tex. 507. See also State v. Brooks, 42 Tex. 66.) Simonds . |