contended that it was not sufficient upon which to find a verdict by a jury, or a finding of fact by the court. In the case of Stratton v. Hawks, 43 Kan. 542, 23 Pac. 591, it was said, in a case upon which the contention was as to whether or not a deed was delivered, that the "direct evidence bearing upon it was conflicting. Many circumstances were shown from which strong inferences arose tending to support both theories. The judgment rendered by the trial court necessarily includes a finding that there was a delivery of the deed to Thompson, because, if the trial court had been of the opinion that there had been no delivery of the deed, the inevitable result would have been that the judgment would have been rendered in favor of the party now here complaining. It is true beyond all qualification that there is some evidence to support the finding contained in the judgment that there was a delivery of the deed to Thompson; hence we cannot disturb the judgment for the reason urged, without entirely disregarding well-established rules." To a similar effect are Mullaney v. Humes, 48 Kan. 368, 29 Pac. 691; Gardner v. King, 37 Kan. 671, 15 Pac. 920; Harrington v. Stone, 39 Kan. 176, 17 Pac. 853. Evidence was adduced below upon all the points included in the findings of fact made by the trial court, and accordingly such findings will not be disturbed. Light v. Canadian Co. Bank (Okl.) 37 Pac. 1075.

The second proposition is one not involved in the determination of this case. By the fourth subdivision of section 5136 of the Revised Statutes of the United States, in which the corporate powers of national banking associations are enumerated and specified, it is provided that they shall have power: "Fourth. To sue and be sued; complain and defend in any court of law and equity, as fully as natural persons." In order to the due and proper exercise of the power herein provided for, a national bank has the power to employ and pay attorneys skilled in the law to "complain and defend" in the courts in any suit to which the bank may be a party. This power is not limited by the character of the complaint or defense. If the particular bank in question should bring a suit to enforce a transaction, or to defend one like the one at bar, in which the authority of the bank to engage in such a transaction is involved, it would not affect the right of the attorney to recover compensation for services rendered at the request of the bank in relation to such suit. The power to complain

and defend is not limited to suits in which the bank may be successful, nor is the right of the attorney to recover limited by the character of the questions which may arise in the case. Upon the findings of fact made by the court below the defendant in error acted under an agreement made by him with the president of the National Bank of Guthrie on behalf of the National Bank of Guthrie. The authority given to the de

fendant in error to appear and defend the replevin cases for E. T. Patton & Co. by L. De Steiguer, president of the National Bank of Guthrie, was a sufficient authorization and employment on behalf of the National Bank of Guthrie, and the bank will be bound thereby; and, even if there were any doubt of such employment by De Steiguer as president, the acceptance of the services of the attorney would estop the bank from denying compensation for the services so rendered. Canal Co. v. Swan, 5 How. 83; Insurance Co. v. Oakley, 9 Paige, 496; Boom Co. v. Lamson, 16 Me. 224; Weeks, Attys. at Law, § 190. The conclusion of the trial court that the plaintiff is entitled to recover the sum sued for from the defendant is therefore affirmed. All of the justices concur, except DALE, C. J., not sitting, having presided below.

1. The motives of taxpayers in bringing a suit to enjoin the collection of a tax will not be considered.

2. In an action to enjoin the collection of a school tax in favor of which the taxpayers have voted, the court will not consider the number of persons in favor of or opposed to the tax at the time the suit was commenced, nor how much the school district may gain or lose by enjoining the collection of the tax.

3. As the clerk of a school district has the right to amend the minutes of a district meeting so as to make them conform to the proceedings, a demurrer to the part of the answer of a school district, in an action to enjoin the collection of a school tax, which asks the court to allow the clerk to correct the minutes of the meeting at which the tax was voted, was properly sustained.

4. Hill's Code, § 2602, subd. 3, provides that a school district, by a majority vote of its voters, may, to build a schoolhouse, contract a debt in behalf of the district not to exceed twothirds of the proposed expenditure. Held, that a vote to issue bonds in excess of two-thirds of the cost of a proposed schoolhouse is sufficient authority for the issue of bonds up to twothirds of such cost.

5. Where a notice of a meeting of the voters of a school district stated that the object thereof was to levy a tax of 81⁄2 mills for building a schoolhouse, and a tax of 11⁄2 mills for the teachers' fund, a motion at the meeting that "we proceed to vote on the 10-mill tax" sufficiently indicates that the tax referred to was that mentioned in the notice.

6. The resignation of a director of a school district, made to and accepted by the voters of the district, is of no effect, but it must be made to a member of the board, who, under Hill's Code, § 2604, may call an election to fill the vacancy.

Appeal from circuit court, Tillamook county; George H. Burnett, Judge.

Action by W. N. Vaughn and others against school district No. 31 of Tillamook county and others to enjoin the collection of

a school tax and the issue of district bonds. Judgment was rendered for plaintiffs, and defendants appeal. Judgment modified.

This is a suit to enjoin the issue of schooldistrict bonds and the collection of a school tax. The facts show: That the defendant J. J. Pye, the clerk of school district No. 31 of Tillamook county, by order of the board of school directors of said district, duly posted notices calling a special meeting of the legal voters to convene at the schoolhouse in said district on April 9, 1892, for the following objects: "To levy an eight and one half mill tax (8%) for the purpose of raising one-third of the amount proposed to be expended in the building of a new schoolhouse in this district, and a one and one-half mill tax for the teachers' fund and incidental expenses, making a ten-mill (10) tax in the aggregate; also for the purpose of bonding this district for the sum of $3,000." That said voters met pursuant to the notice, and, without doing any business, adjourned to meet on the 11th of said month, at which time they again convened, and, after duly organizing, the record made by the clerk shows, among other things, that they transacted the following business: "Moved by Ed. Walker, and seconded, that we proceed to vote on the ten-mill tax by the ayes and nays. Carried: Ayes, 43; nays, 3. [Here follow the names of those who voted for and against the motion.] Motion by J. H. Bridgeford, seconded by Hooper Dyer, that this district issue bonds for the sum of three thousand dollars ($3,000) for the purpose of building a schoolhouse in this district, to run for a term of ten years, and that the bonds be placed on the market, and disposed of at the lowest rate of interest offered. Carried. Motion by A. M. Hare that the school board be authorized to purchase the schoolhouse site mentioned, consideration one dollar, and build and furnish a new schoolhouse, and the sum of three thousand dollars be expended for said purpose. Seconded by several, and carried." That, within 30 days after the adjournment of said meeting, the clerk made an assessment roll of all the taxable property within the district, and delivered it to the board of directors, which gave notice that on May 21st, at the schoolhouse in said district, it would sit as a board to equalize the assessment so made; and on the 24th of said month it returned said roll to the clerk, with a warrant attached thereto commanding him to collect the ten-mill school tax voted on April 11th, and return said roll, with the record of his collections indorsed thereon, within 60 days. That the clerk, having given notice that said taxes were due and payable at his office, collected a portion thereof, and, within the time required, returned said roll, with the amount collected and delinquent indorsed thereon. That on July 28th, at a special meeting of the legal voters of said district, the defendants W. C. Morton and A. Dean tendered

their resignations as directors, which were, upon motion, accepted, but they continued thereafter to act as such officers, and gave orders to the school clerk, who, in pursuance thereof, certified the said assessment roll and delinquent list to the defendant W. W. Condor, the county clerk of said county, who made a transcript thereof, and attached a warrant thereto, commanding the defendant John Edwards, the sheriff of said county, to collect the delinquent taxes charged in said list. The plaintiffs, in substance, allege that they were and are resident taxpayers of said school district, and bring this suit, not only for themselves, but for all others having a like interest in the questions at issue, who are too numerous to be made parties hereto; that no tax was levied, nor was any vote taken to levy a tax, at the meeting of the electors of said district held April 11th, or at any other time in 1892; that the defendants Morton and Dean having resigned their respective offices, and the defendant S. G. Custis, the other school director, having been absent, the said district was without a school board, and no authority existed to order the district clerk to certify the delinquent roll to the county clerk; that the said school board wrongfully selected a site for the proposed schoolhouse on a high hill, difficult of access, and far from the center of said district, and, unless restrained, the directors would erect a schoolhouse on said site; that the transcript of said assessment roll, prepared by the county clerk, created a cloud upon the title to their lands, and, unless restrained, the county clerk would deliver said transcript to said sheriff for the collection of the taxes listed therein; and pray that the defendants might be enjoined from collecting said tax and from issuing said bonds. The defendants, after denying these allegations, for a separate defense allege that the plaintiffs constituted only a small portion of the taxpayers of said district, a majority of whom were in favor of said tax; that there was no schoolhouse in said district, and, if the injunction were granted, it would lose the site, valued at $2,500, which had been donated, together with improvements made thereon, of the value of $100; that plaintiffs' objection to said tax was based upon their desire to divide the district; that the minutes of the meeting of April 11th do not fully show the action of the legal voters as clearly as they should; and pray that the district clerk might be allowed to correct the record to make it correspond with the facts. A demurrer to the separate defense having been sustained, and the defendants refusing to further plead, a decree was rendered perpetually enjoining the collection of said tax and the issue of said bonds, from which decree the defendants appeal.

Wirt Minor, for appellants. W. M. Ramsey, for respondents.

MOORE, J. (after stating the facts as above). It is contended that the court erred in sustaining the demurrer to the separate defense. The facts set up as new matter in the answer, except the application for leave to amend the record, may have presented valid reasons to the school board, and been sufficient to induce it, if clothed with power, to build a schoolhouse, but a court cannot take cognizance of the issues tendered. It is not the province of a court to inquire into the motives which prompt parties to bring or defend suits or actions, or speculate upon the effect of its judgments and decrees. It considers only the purely legal or equitable rights involved in the issues before it, and awards the remedies prescribed by law. The court could not consider the question of how many taxpayers of said district were in favor of or opposed to the tax after the vote had been taken upon the subject, nor how much the school district might gain or lose in consequence of the injunction, nor whether the motive that prompted the plaintiffs to bring the suit was a desire to divide the district.

We now come to the question as to whether the court had any authority to allow the clerk to correct the record of said district meeting. It is made the duty of the school clerk to record all proceedings of the board of directors and of the meetings of the qualified electors of the district, when properly convened (Hill's Code, § 2619, subd. 1), and such record, in a collateral proceeding, is conclusive evidence of what was done at any such meeting, and cannot be contradicted or varied by parol. The power to make and keep a record carries with it, while the school clerk is in office, either at that or a subsequent term, the right to amend it until such record conforms to the proceedings of the school board or electors; and this power of amendment is derived solely from the official character of the clerk, and does not depend upon the permission of the court in which the record is offered as evidence. Boston Turnpike Co. v. Town of Pomfret, 20 Conn. 590. The clerk of a school district is not an officer of the court, and hence it is not necessary for him to secure its consent to do what the law expressly grants or impliedly permits. The court has charge of its own records and process, and may correct them, or permit its officers, upon motion, to do so; but it cannot, in a collateral proceeding, either grant or deny the right to any person, not such officer, to amend a record kept by him. The right to amend a record exists only while the clerk is in office, and his power ceases with his term; but it is revived by his subsequent re-election, and he may then amend what was done by him when he was in the same office before. Welles v. Battelle, 11 Mass. 476; Hartwell v. Littleton, 13 Pick. 229; Chamberlain v. Dover, 13 Me. 466. The pleadings show that the defendant J. J. Pye is, and on

April 11, 1892, was, the duly elected, qualified, and acting clerk of said district. As such officer, he had authority, and it was his duty, while in office, without leave of the court, to correct the record of the district meeting if it did not correspond with the actual proceedings of that date, and hence no error was committed by the court in sustaining the demurrer to the new matter contained in the answer.

2. It is contended that the complaint does not state facts sufficient to constitute a cause of suit. This presents the question whether the facts alleged and conceded authorized the court to render the decree complained of. The directors of any school district, when authorized by a majority vote of the legal voters present at any legally called school meeting, may, for the purpose of building a schoolhouse, contract a debt in the name and on behalf of said district by borrowing money or otherwise, not exceeding two-thirds of the proposed expenditure. Hill's Code, § 2602, subd. 3. It is conceded that the legal voters of said district convened at the time and place appointed in pursuance of legal notice, and the record shows that at said meeting the school board was authorized to build and furnish a new schoolhouse, and expend the sum of $3,000 for said purpose. Two-thirds of the proposed expenditure is the measure of the power to issue district bonds, and the school board, although instructed to issue such bonds in the sum of $3,000, had no authority to issue them in behalf of said district in any greater amount than $2,000. The law having fixed the limit, the vote of the electors was sufficient authority for the issue of bonds to the extent of two-thirds of the proposed improvement, and the school board will be permitted to issue them in that proportion.

The next question is whether the record: "Moved by Ed. Walker, and seconded, that we proceed to vote on the ten-mill tax by ayes and nays. Carried: Ayes, 43; nays, 3," shows that any tax was voted at said meeting. The plaintiffs' contention is that a method of voting only was adopted by such vote, and that there is no evidence that any tax was voted. "Every essential proceeding in the course of a levy of taxes," says Campbell, J., in Moser v. White, 29 Mich. 59, "must appear in some written and permanent form in the records of the bodies authorized to act upon them. Such a thing as a parol levy of taxes is not legally possible under our laws." The evidence of the levy of a tax must therefore affirmatively appear from an inspection of the record of the meeting of the electors or their representatives making the same, and parol testimony is not admissible to aid, vary, or contradict it. These records, however, are often made by persons not familiar with legal terms, nor skilled in the use of technical or exact language; and, when they are offered in evi

dence of the levy of a tax, it is the duty of the courts, in construing them, to disregard irregularities, and uphold the tax, so long as the substance of a good vote sufficiently appears. Cooley, Tax'n, 337. The meeting having been called for the purpose of votIng a tax, it does not necessarily follow that a tax was voted because the record might fail to show that the proposition was defeated. If this were the rule, then no record of the vote levying a tax would be necessary, and proof that the qualified electors convened pursuant to legal notice, which specified the object of the meeting, would be all that was required. Such is not the rule, and the record, when favorably construed, must affirmatively show that a tax was voted by a majority of the legal voters of the school district. The legal voters of any school district, when duly convened, have authority to levy a tax for any legal purpose, the object of which is specified in the notice calling the meeting. Hill's Code, § 2610. The notice in the case at bar specified the rate of taxation to be levied for the purpose of building the schoolhouse and for the teachers' fund and incidental expenses, "making a ten mill (10) tax in the aggregate"; and the motion to vote "on the ten-mill tax" would seem to be responsive to the object of the meeting, as specified in the notice. The intent to levy the 10-mill tax, and have it collected, is apparent from the record; and, where such intent is manifest, it is equivalent to a present levy. West v. Whitaker, 37 Iowa, 598; Snell v. Ft. Dodge, 45 Iowa, 564. While the record of the district meeting is ambiguous, we think it affirmatively shows that a vote was taken upon the question of levying the 10-mill tax specified in the notice, and that the substance of a good vote sufficiently appears therefrom.

An issue is made upon the question of the alleged resignation of the defendants Morton and Dean; and as the pleadings show that the defendant Custis, the remaining member of the school board of said district, was not at said meeting of the legal voters held July 28, 1892, nor in the district at that time, the question is presented whether the tender to and acceptance of their resignation by the legal voters vacated their respective offices. When a vacancy occurs in the board of directors, the remaining member or members shall forthwith authorize the clerk to call a special meeting to fill the vacancy (Hill's Code, § 2604); and district meetings, when legally called, shall have power to supply all vacancies in their district offices (Id. § 2607). "Where the statute is silent on the subject," says Mr. Throop, in his work on Public Officers (section 408), "a resignation must be made to the appointing power, or, if the office is elective, to the power authorized to call an election to fill the vacancy." The statute being silent upon the subject, and the alleged resignations not having been made to a member of the

school board, whose duty it would be to order a special election to fill the vacancy, and no election having been held for that purpose, it follows that said directors did not resign their respective offices, and had authority to order the school clerk to certify the delinquent assessment roll to the county clerk.

It is made the duty of the board of school directors, in selecting a site for a schoolhouse, to consider the prospective as well as the present convenience of the people interested, and to locate it at such place as, in its judgment, will best subserve the present and future needs of the district. Hill's Code, § 2602, subd. 21. The location of a schoolhouse site is therefore a matter within the discretion of the school board, subject to the advisory power of the county school superintendent (Id. § 2590, subd. 16); and, since the transcript fails to show that the superintendent was consulted upon the matter, it would be out of place for the court to interfere. The decree of the court below will therefore be modified, and one here entered enjoining the defendants from issuing the contemplated bonds on behalf of said district in excess of $2,000, and as to all other matters contained in said decree the injunction will be dissolved; the plaintiffs to recover their costs and disbursements in this court and in the court below.

(27 Or. 33)

SHIVELY v. PENNOYER et al. (Supreme Court of Oregon. March 4, 1895.) MANDAMUS-TO COMMISSIONS OF PUBLIC LANDSTO COMPEL CONVEYANCE- SUFFICIENCY OF ALTERNATIVE WRIT-APPLICATION TO PURCHASEESTOPPEL.

1. The alternative writ, not the petition, is to be deemed the complaint in mandamus proceedings for determining the sufficiency of the allegations to sustain the proceedings.

2. A recital, in an alternative writ to a board of commissioners for sale of public lands to compel it to give him a deed, that plaintiff made a written application "in the manner prescribed by law," is a conclusion of law, and not a statement of facts from which can be determined the sufficiency of the application which Hill's Ann. Laws, § 3600, provides shall contain allegations as to age, citizenship, and other facts, without which the board is prohibited from acting.

3. The entering of an order on its minutes by the board accepting an application to purchase land does not estop it, at any time before execution of deed, to question the sufliciency of the application.

4. After acceptance of an application to purchase certain lands as tide lands, and after entry of crder in its minutes directing execution of a deed, it may suspend execution of the deed till applicant show that the lands are actually tide lands, and that no previous deed therefor had been issued by the state.

Appeal from circuit court, Marion county; R. P. Boise, Judge.

Mandamus by Charles W. Shively against Sylvester Pennoyer and others. A demurrer to the petition was sustained, and plaintiff appeals. Affirmed.

Sidney Dell, for appellant. C. M. Idleman, Atty. Gen., C. W. Fulton, and J. H. Smith, for respondents.

WOLVERTON, J. This is a mandamus proceeding to compel the board of commissioners for the sale of school and university lands to execute to plaintiff a quitclaim deed to tide lands in front of certain lots and blocks of the city of Astoria. The alternative writ issued upon filing the petition was attacked by demurrer, which being sustained the plaintiff filed an amended petition by leave of the court. The defendants thereupon interposed a demurrer to this petition, which was sustained by the court, and this action is assigned here as error. The alternative writ is deemed the complaint in mandamus proceedings, and by it their sufficiency must be tested, and not by the petition. We have here, then, for our determination the sufficiency of the alternative writ, challenged by the demurrer thereto. However, for the purpose of a

re-examination of the questions considered by the court below, we will treat the alternative writ as though it contained all the allegations of the amended petition. These allegations are, in substance, as follows, omitting formal matters: That prior to the 20th day of December, 1890, the petitioner, Charles W. Shively, made written application to the commissioners for the sale of school and university lands in the manner and form prescribed by law and the rules of the board for the purchase from the state of Oregon of certain tide lands upon the Columbia river, in Clatsop county, Or., consisting of two tracts, one containing 4.71 acres and the other 1.85 acres. That prior thereto one John M. Shively made written application in like manner to purchase from the state certain other tide lands on said river, in the same county, consisting of six small tracts, ranging from 25/100 to 6.75 acres, and sold and conveyed all his rights therein to plaintiff. That all of said tide lands were surveyed by the county surveyor of Clatsop county, and certified as being of the value of $5 per acre. That on the 6th day of January, 1891, the board made an order accepting the applications of plaintiff and the said John M. Shively to purchase said tide lands, but raised the price thereof to $20 per acre, and by a like order offered to sell the same to said applicants at said price, and to convey the same by a deed to contain the provision that said tide land was "quitclaimed without prejudice to the rights of any person," which orders were duly entered of record in the minutes of the board. The plaintiff accepted the offer, and paid the full amount of said purchase price to the board, and took its receipt therefor, of date January 12, 1891, wherein it agreed to prepare the deeds, and forward the same as soon as possible. That on said 6th day of January, 1891, and prior thereto, the state was the owner of the legal title of said land, except as the same may have been con

veyed by an act of the state legislature passed October 11, 1862. That thereafter, on the 13th day of January, 1891, without previous notice to the plaintiff, the board made an order, and caused the same to be entered in its minutes, suspending the issuance of said deeds until such time as he should show to the board that the lands so purchased were actually tide lands, and that no previous deed therefor had been issued by the state of Oregon. That a demand had been made for the issuance of said deeds, and by the board refused. Counsel for defendants make the point that the alternative writ does not show that plaintiff has made written application for the purchase of said lands, according to law, nor does it appear therefrom that he is legally capacitated as such applicant, under the provisions of law regulating the sale of tide lands. Section 3600, Hills Ann. Laws Or., provides, among other things, that all applicatious to purchase any of the lands of this state shall be accompanied by the affidavit of the applicant taken before some notary public or county clerk, to the effect that he is 18 years of age, is a citizen of the United States, or has declared his intention to become such; that he is a citizen of this state; that he has not, directly or indirectly, made any previous purchase of lands from the state which, together with the lands described in the application, exceed 320 acres; that the purchase is for the actual use of the applicant, and not for the purpose of speculation; and that no contract or agreement, express or implied, has been made for the sale or other disposition of such lands in case such applicant is permitted to purchase the same. The alternative writ recites that plaintiff made a written application "in the manner prescribed by law." This is but a conclusion of law, and not a statement of facts from which the court can determine its sufficiency. The manner prescribed is that he shall make | application, accompanied by an affidavit showing that he is 18 years old, is a citizen of the United States, or has declared his intention to become such; that he is a citizen of the state, etc., as pointed out by section 3600. These are the facts without which the board is prohibited from acting, and, if they existed, should have been shown by appropriate allegations. And the court, even if the proceeding was otherwise proper and sufficient, will not compel the board to act upon any less showing. The alternative writ is clearly insufficient in this respect. Hildebrand v. Stewart, 41 Cal. 387; Woods v. Sawtelle, 46 Cal. 389. So far as the court is advised, he may be neither a citizen of the United States nor of this state, or may be a minor under the age of 18 years, and hence totally incapacitated to take the lands de scribed by purchase from the state. The plaintiff must show that he is a qualified claimant before he can become a purchaser from the state; that is, one of the persons entitled to the benefit of the laws under which