Generally the rule is that public officials must have specific authority for the expenditure of public funds, but as applied to a school board or school officials, a distinction must be made, for by statute a discretion is vested in school boards whereby they may determine what constitutes a school purpose.
Herein the school board deemed service of doctors, dentists, and nurses a school purpose. Subsequently the court held to the contrary. (I think erroneously, for it is evident that an epidemic may render the school plant and a whole corps of teachers under contract utterly worthless as being without a personnel to receive instruction.)
Herein expenditures were made pending protest and final decision.
The demurrer was properly sustained, for, while allegations are deemed true when tested by a demurrer, herein the allegations specifically state the fact of payment pending protest and decision. Therefore, we need not conclude according to the general words of the allegation, but should consider the expenditure lawful and legal, in good faith as being within statutory discretion and authorized by law.
I would not apply a rule of law as unchangeable as that of the Medes and Persians, but indulge a corrective element even as to the product of courts and base this upon enlightenment and re-examination. I would not make the mistakes of yesterday the law of today.
While the statute relative to recovery of public funds illegally or unlawfully expended is the same as to all officials, that which is a school purpose and which is not is a thing upon which the best judgment of men may differ. Consequently, generally, authorization for expenditure must exist, but specifically as to school boards, a proper expenditure may be made when, within a discretion, unabused, the object is deemed to be a school purpose. Where good faith exists, *Page 405 I am not willing to penalize school officials for misjudgment.
When it is found that such an official may be rendered personally liable and his reputation seriously impaired because of lack of occult powers to foretell what is and what is not a school purpose, who will be found to occupy school offices? Then, none but the unworthy and designing would function, and regard for public offices in general will not be enhanced.
This court held in the Harmon County Case (Wade v. Board of County Com'rs of Harmon County, 161 Okla. 245, 17 P.2d 690) (without my concurrence) that even a board of county commissioners' expenditure based on a statute subsequently held unconstitutional could not be recovered from the members when expenditures were made in good faith. The rule may be properly applied to the case at bar.