(concurring specially). I concur in the conclusion that the judgment in this case should be reversed and a new trial granted for three reasons: First, because the court erred in excluding testimony offered, which, if admitted, would have tended to show that the arrangement for the transportation of the children of the plaintiff was made under the direction of the members of the school board; •or, if directed by one of them, it was with the knowledge and consent of all, and that transportation was furnished by the plaintiff under cir-•cumstanees importing knowledge not only on the part of the directors, but on the part of the individual members of the school corporation Itself. Second, because testimony was excluded which would have *526shown whether or not other persons in the district were compensated for transporting their children to the school. This testimony would have tended to establish the existence of an informal arrangement with the parents to transport their children. Third, for the reason that, under a proper construction of various sections of the statutes which provide for compulsory education and the conveyance of the pupils to the-schools, it is made the duty of parents to send their children to school, and a correlative obligation is imposed upon school districts in certain cases either to provide transportation or to furnish monetary compensation as an equivalent. See §§ 84 and 232 of chapter 266 of the-Session Laws of 1911, and, as later amended, §§ 1190, 1342, and 1344 of the Compiled Laws of 1913, and chapters 127 and 141 of the Session Laws of 1915.
The record discloses that the rulings of the trial court were made upon the theory that no recovery could be had in the absence of a formal contract entered into between the plaintiff and the school district, acting through its officers at a meeting. This, of course, is the general rule, according to which the contract liability of school districts and other municipal corporations must be determined, but it does not follow that a school district may not be liable as upon contract for benefits received for which no actual contract has ever been made; or that it may not be liable upon an oral contract actually made or upon an implied contract if shown to exist.
It is a settled law that a contract of a municipal corporation or a quasi municipal corporation need not be in writing unless there is some statute requiring it; also that such corporations may be bound by contracts made by those who are clothed with authority to act for it, such authority being delegated by the officers having power to act for the corporation. See 2 Dill. Mun. Co.rp. 5th ed. § 784. The law also recognizes and enforces the liability of municipal and quasi municipal corporations upon their implied contracts made within the scope of their powers, to the same extent that they would be liable on express contracts, provided always, however, that in enforcing the liability upon an implied contract no statute or rule of public policy, designed to protect the corporation against unauthorized or improvident acts of its officers or agents, is infringed. 2 Dill. Mun. Corp. 5th ed. ~§ 793; 35 Cyc. § 964.
*527It has been held that a school district is liable for supplies furnished with the knowledge and consent of the directors and under circumstances which would raise a presumption that they were furnished with the common consent of the district. Andrews v. School Dist. 37 Minn. 96, 33 N. W. 217; Kreatz v. St. Cloud School Dist. 79 Minn. 14, 81 N. W. 533; 35 Cyc. 953. See also on the ratification of unauthorized contracts with teachers by the acceptance of benefits, 35 Cyc. 1085, and authorities cited. It is true that in Bosard v. Grand Forks, 13 N. D. 587, 102 N. W. 164, a distinction was made between the liability of a municipality upon an implied contract for services and a similar contract for material or property received. But, in view of the statutes, particularly § 1342 of the Compiled Laws of 1913, as amended by chapter 141 of the Session Laws of 1915, which clearly makes it the duty of the school board to arrange for the transportation of pupils,— even going to the extent of providing'a minimum rate for .transportation payable to the parents themselves, — I am of the opinion that the rule stated in the case of Bosard v. Grand Forks, supra, does not apply. There was no statute making it the duty of a committee of the city council to employ counsel, as was done in the Bosard Case, and it further appears that in that case there was a city attorney who was an appointive officer serving upon a salary, whose duty it was to perform the services for which the plaintiff sued. In the instant case the duty not only devolved upon the board to furnish transportation, but the 1915 statute, as stated above, even fixed the rate and provided, as a condition of compulsory attendance, that the amount specified be tendered to the parents. Neither does this case conflict with the case of St. Luke’s Hospital Asso. v. Grand Forks County, 8 N. D. 241, 77 N. W. 598, where it was held that a county was not liable to one who voluntarily ministered to a pauper. The nonliability in this case was based upon the absence of a statute giving to the plaintiff the right to relieve the pauper at the expense of the county and upon the absence of any proceeding by officers authorized to give the relief at the expense of the county; while here, the statute (particularly the 1915 statute) runs in favor of the plaintiff, and there was evidence tending to show that the district knowingly accepted the benefits incidental to the discharge of its obligations to supply transportation, and this according to a method recognized by the statute as proper.
*528It is my opinion that, when a statute makes it the duty of officials of a municipality to perform a certain act in favor of one upon wbom a general duty is imposed, suck as devolves upon parents under our statute to send their children to school, the discharge of the latter obligation voluntarily does not put the beneficiary in any worse position in the eyes of the law than he would have been had he neglected his legal duty until compelled to perform it. To state the proposition another way, — one who voluntarily performs an obligation which the law imposes upon him is not, by reason of his voluntary act, to be deprived of the measure of compensation which the law itself contemplated shall be paid.
There are, however, some questions that will arise upon a retrial which are not free from difficulty, and the proper solution of them will depend upon the evidence adduced. If it should appear that the board of directors of the defendant school district had never, prior to the 1915 amendment to § 1342, Comp. Laws 1913, established a zone system or arrived at a definite basis for compensating parents for transporting their children to school, it is my opinion that there can be no recovery covering this period, for the reason that the statute left the amount of compensation to the discretion of the board. . It is true that it is a discretion which the board could have been compelled to exercise, but if it should appear that it was not exercised, the plaintiff must fail because he did not resort to the remedy he had to compel the directors to exercise that discretion. For transportation supplied by the plaintiff, however, subsequent to the 1915 amendment, he would be entitled, under a proper showing, to at least the minimum rate prescribed in the statute. For an authority construing an analogous statute, see School List. v. Atzenweiler, 67 Kan. 609, 73 Pac. 927.
It is not intended to intimate that the sole source of proof that the school board had performed its duty of providing a rate of compensation for transportation is the minutes of the meeting. Any evidence which tends to establish that compensation was made according to some plan, and this, with the knowledge and consent of all the members of the board, may be sufficient to warrant a jury in finding that the directors had fulfilled their obligations in this respect, though not to the plaintiff. The statute does not require any particular formality, but, of course, it contemplates that any action taken shall be board action. *529In the absence of a statute requiring that the action of the board must be attended with prescribed formalities, evidence which tends to show that the board had actually discharged the duties devolving upon it would be admissible as establishing a basis for a liability under the statute to the plaintiff in this action.