ON REHEARING.
We see no reason to alter our views in this case. On the contrary, we are strengthened in our opinion. We will discuss the new arguments advanced by appellant’s counsel. It is said that the statute designates three distinct school district funds — one for the erection of school houses, etc., for the purchase of school-sites, and the payment of debts contracted for that purpose and called the “school house fund;” a second for rent, repairs, fuel, etc., known as the “contingent fund;” and a third for the payment of teachers’ wages, named -the “teachers’ fund.” § 52. And it is then insisted that when the statute limits the power of the district board to build a school house out of the funds pro*492vided for that purpose the only object of the statute is to point out the particular fund among these three funds out of which the school house shall be built. In the first place no necessity for such a provision existed, if that was designed to be its scope and meaning. The legislature had already in explicit terms provided how each of these three funds should be applied, and the use of any portion of these funds for a purpose not authorized would have been illegal without additional legislation. Neither the teachers’ fund nor the contigent fund, except by •virtue of some special provision authorizing such a course, could be -used to> build a school house. “The. district treasurer shall separate the moneys received from the county treasurer by district tax into the different funds in proportion to the rates of taxes levied by the district, and shall keep a separate account with each fund in a suitable and permanent book of record to be provided by the district board. He shall pay no order which does not specify the fund on which it is drawn, and the use to which the money is applied.” Id. Moreover, the language of § 56 is fatal to this construction. The section does not provide that the district board shall build the school house out of the ‘■‘fund” provided for that purpose, but out of the “funds” provided for that purpose. If the object of the legislature was to designate the particular fund as contradistinguished from the two other funds, the singular, and not the plural, of the word would have been employed. All through § 52 the singular is employed in designating each fund; and in § 44 the same care in the use of the word is manifested. So long as it is used to distinguish these three funds the singular is employed. But when we reach the provision authorizing the treasurer to make an indorsement upon a warrant because not paid for want of money the statute speaks of “funds.” “Each order shall specify whether the money is to be paid from the teachers’ fund, the contigent fund, or the school house fund; and in case the treasurer has no money in the fund drawn upon to pay such school warrant, he shall indorse it, Not paid for want of funds.’”
It is apparent that whenever the legislature intended in this act to refer to a particular fund to the exclusion of the other funds they used the word “fund” for that purpose; and on the *493other hand, when they employed the word “funds” their purpose was to refer to moneys generally, and not to refer to any special fund, as distinguished from all others. Nor can it be inferred from this provision imposing the duty on the treasurer to make the endorsement “Not paid for want of funds” that it was the purpose of the legislature that debts might be contracted to any extent, and therefore in excess of the ability of the district to meet them out of the taxes of the current year. This pró-' vision has reference solely to those frequent, but temporary, deficits in the treasury, arising from the fact that debts, although contracted subsequently to the levy of a tax to pay them, may fall due before the taxes are collected. Even when the last day of payment has arrived there is no certainty that it will witness the full discharge of this important duty to the government. The experience of mankind justifies the conclusion that some portion of the tax will be withheld until payment is coerced. Inability to pay, a determination to test the legality of the tax, the injunction of a court restraining its collection, are among the many causes which almost invariably keep a portion of the levy from the public treasury beyond the day when it should have been paid in. It, may be stated as a rule practically without exception that some portion of the debts of a school district will become payable before the funds provided for that purpose are on hand to be applied in extinguishment of such debts. It is in the light of these facts that we are to construe the requirements that the treasurer shall make the endorsement, “Not paid for want of funds.” Nor is there anything in that provision authorizing the levy of a tax of five mills,to pay, among other things, “debts or liabilities of the district lawfully incurred” to warrant the contention of appellant. The insignificance of this tax, especially when it is considered that it is the only tax that can be levied for the purpose of furnishing the school house with school furniture, apparatus, etc., is conclusive that the object was not to provide means of discharging debts unlimited in amount; but to meet these liabilities which, through the failure to collect in full the amount of a levy for any other purpose, or by reason of any other peculiar cause, might find no funds for their payment. Suppose the debt for *494building a school house is precisely the amount of the levy for that purpose, but because it falls due before the funds are on hand, and because the warrant issued to represent it is indorsed ‘Not paid for want of funds,” the debt bears interest at the rate of 10 per cent. The collection of the full amount of tax would leave the interest unprovided for; and, being a valid claim, it was entirely proper that some provision should be made for its payment. "We have that provision in the section which declares that the tax of five mills may be used for the purpose, among others, of discharging any debts or liabilities of the district lawfully incurred.
We do not see how it is possible to subject the school district to liability for the value received in this case without overthrowing what we regard as the settled policy of the legislature touching such districts. We believe that they were not to contract debts in building school houses beyond their present power to provide funds. An express declaration that such was the legislative purpose would not strengthen our convictions in this respect. The people were to be protected against their own temporary extravagance. A large body of non-voting tax-payers, women, minors, foreigners who had not declared their intention to become citizens, and non-residents, were to be saved from the extravagance of voters. Frauds might be easily perpetrated in sparsely settled districts. These were some of the considerations which led the legislature to confer only such power to create indebtedness as was commensurate with the ability of the district to discharge it by funds on hand or under the control of the district by reason of the levy of a tax for that purpose. There exists an intimate connection between the power of municipalities to create indebtedness and the ability to discharge it by taxation. In no other manner can municipal or quasi municipal corporations meet their obligations. Property used for public purposes cannot be touched; money must be brought into the treasury by taxation to pay debts. Having specially authorized the building of a school house out of funds provided for that purpose, the statute clearly prohibits the erection of school houses in any other manner or under any other circumstances. An express prohibition would have manifested the same purpose *495in only a different form. Said the court in Clark v. School-Dist. No 1, 78 Ill. 474: “The authority given to school directors by statute to ‘appropriate to the purchase of libraries and apparatus any surplus fund after all necessary school expenses are paid,’ is a limitation of their power to make such purchases to the circumstances named, and is an implied restriction of any power to purchase generally on credit. A purchase of such articles by the school directors on a credit when it does not appear that there were any surplus funds after all necessary school expenses were paid applicable to such purchase, is void, and there is no contract implied by law to pay fop articles thus purchased arising from their receipt and use. The only remedy of the seller under such circumstances is to reclaim the property itself.” See also, Dickinson v. City of Poughkeepsie, 75 N. Y. 65, cited with approval in People v. Gleason, 121 N. Y, 631-634, 25 N. E. Rep. 4; Addis v. City of Pittsburgh, 85 Pa. St. 379. In Farmers’ etc., Bank v. School-Dist. No. 53, (Dak.) 42 N. W. Rep. 767, the court, referring to this statute said: “School-districts are corporations created for special purposes, and have only such powers as are specially granted by the legislative enactment, and those that are necessarily implied to accomplish the objects for which they are created. The specification of these powers by the statute under which they are organized restrains them from the exercise of other powers than those granted, and such as must be implied to enable them to effect the object of the grant, and operates to restrain them from the exercise of other powers; and in the discharge of their duties and the exercise of the powers granted they are governed and restrained by the provisions of the law under which they are created. Where the law specifically defines their powers the legal presumption is that they are prohibited from the exercise of any others than those absolutely essential to enable them to accomplish the purposes of the grant.” Said the court in Gelpcke v. City of Dubuque, 1 Wall. 220: “What is implied in a statute is as much a part of it as what is expressed.” In City of Evansville v. State, 118 Ind. 426, 21 N. E. Rep. 267, the court states it as ■ well settled that “a law may be within the inhibition of the constitution as well by implication as by expression.”
*496It will be noticed that nowhere are the inhabitants generally authorized to build school houses. They have power to vote a limited tax for that purpose, and the district board shall build such school house as the inhabitants designate at a district meeting, not on the credit of the district, not by anticipating its revenues for years to come, but only out of funds then actually provided for that purpose. This is all the authority the inhabitants possess, and every tax-payer has a right to insist that it is all they shall exercise, and that his property shall not be burdened because of the receipt of value against this wise restrictive policy of the law. It is not strictly accurate to assert that a municipal corporation is invariably benefited to the extent of value received when that value has assumed the form of immovable property. It would be far from the truth to state that a school district poor in treasury and in the taxable property of its inhabitants, and requiring but a small school house to accommodate its pupils, would be benefited to the extent of its value by the erection of such a school building as would be a credit to some great metropolis. Private business corporations, when transcending their powers in the purchase of property, should be held responsible for the actual value of the property received, because, being organized for purposes of trade, they have power to dispose of such property in the same manner as individuals. School houses are not erected for sale or for speculation, and the benefit to' the district is not to be determined by any market price, but by their value for use for the specific purpose for which they were erected. For such purpose a school house costing many thousands of dollars might be no more valuable than one costing only as many hundred. There is, therefore, a good reason for making a distinction between private and municipal corporations in determining whether an act in excess of power is prohibited in the sense that it cannot form the basis of a claim even for value received. We do not, however, wish to be understood that in every case, and under all circumstances, no recovery can be had on quantum meruit where a contract of a muncipality is in excess of its powers. We decide merely this case. While satisfied that the defense which we sustain will work justice in this case, we are not unmindful of the fact that *497there may he instances in which to insist upon it will savor somewhat of repudiation — where a school house only commensurate with the needs of the district has been erected fairly and with the assent of all the people. We feel confident that in such cases a sense of honor will prompt the people to brush aside this particular defense of want of power, and move them to pay that which the law, indeed, but not conscience, would justify them in withholding. The judgment is affirmed.
All concur.