It is urged as an objection to the power to levy a tax in this district, that at the time it was formed, one of the trustees was absent in California, and that but two acted in its formation. The law constitutes two members of the body a quorum to transact business. And when they concur in any act, which the board may legally perform, no reason is perceived why the act is not as legally binding as if all were present. When the legislature designated that number as a quorum for the transaction of business, it conferred upon them full power to perform all the duties devolving upon the board. Even if their act was in this respect illegal, it purported to be regular and must be held binding until vacated by certiorari or some other direct proceeding. They can act as officers defacto, and within the scope of their authority, and for all that appears in the record this proceeding was perfectly regular in forming this district.
It is also insisted that the directors had no power to levy a tax for the purpose of erecting a school house, unless the inhabitants woted in favor of such tax. In the cases of Munson v. Minor and Merritt v. Farris, post, it is held that where the building proposed to be erected does not exceed the cost of one thousand dollars, the forty-eighth section of the act establishing a system of free schools, confers the power upon the directors to make such a levy, and a vote of the district is unnecessary. In this case the bill fails to allege that, it is for the erection of a school house to cost over that sum, and the amount levied being less than one thousand dollars they were authorized to make such a levy. Nor could a vote resulting in a 'majority against such a levy divest them of the power. They derive the power from the law and not from a vote of the citizens. If the power delegated to the directors is liable to abuse in its exercise, the correction is in the hands of the legislature, and not in the courts. The tax was levied by persons exercising and performing the duties of directors of this district, and these incorporations have the power to impose these taxes, and whether they held their office de ju/re or de facto, their acts in levying a tax will not be inquired into by a court of equity for mere irregularities.
It was likewise insisted that, the tax was void because persons and property liable to assessment were omitted from ,the assessment list. This question was also presented in the case of Merritt v. Farris, and held not to invalidate the assessment or tax. If such omission was intentional, or occurred from gross negligence on the part of the officer whose duty it was to make the assessment, or return the list, it would doubtless render them liable to an action for the damage sustained by tax pay-payers who had thus sustained injury.
It is alleged in the bill that this tax was levied by these directors for their own individual use, and not for the purpose of erecting a school house. And it was urged that the court erred in rendering the decree dissolving the injunction, and dismissing the bill. The certificate returned by them to the clerk states that a portion of the levy was for teaching, and an other portion was for incidental and building purposes, in the district. If this was not true, but was only using the forms of law, and an exercise of powers conferred by law for unauthorized purposes, and in fraud of the law, there can be no doubt that parties oppressed by such acts, have a right to relief from them. If the allegation in the bill is true, and it is sworn to, and remains undenied, it is a degree of corruption that is believed to be unusual, and the first that has occurred under the exercise of this power. And it would be such a fraud upon the rights of the citizens of the district, and upon the law as would invest a court of equity with jurisdiction to prevent its perpetration. Courts of equity may take jurisdiction to prevent, as well as relieve against a fraud. The fact that the parties injured have a remedy at law to recover damages they may sustain by such a fraudulent abuse of power, or that directors thus acting might bo indicted and punished for such corruption in office, does not divest a court of equity of its jurisdiction in case of fraud. Fraud vitiates and avoids all acts, and no reason is perceived why, if the exercise of a legal power to levy a tax is employed for corrupt and fraudulent purposes, that it should not be within the same rule, or why a court of equity should not exercise its jurisdiction. If the tax was levied by the proper officers, and for an authorized purpose, it would be otherwise.
It was however insisted that this tax was legalized by the act of the legislature adopted the 19th Feb. 1859. That act provides that all the acts of the trustees of schools in this township, and of the directors in this district, in uniting the districts out of which this one was composed, and the levying and collecting taxes for building school house and support of schools, are legalized, and that all proceedings may be had in the same manner as if the proceedings had been strictly regular and legal. This act took effect upon its passage, and there can be no doubt that the legislature have the power to form a school district, or may legalize the acts of officers in attempting to form a district, so as to render such district legal, and there can be as little doubt, that such was the operation of this enactment. If any irregularity had occurred in its formation by the trustees, which would have been grounds for reversing their order establishing it, those irregularities were cured by this enactment. And the power to cure irregularities in the manner of levying a tax, is equally undoubted, and so far as this tax was levied for the purposes specified in the act, there is no doubt that the levy is thereby made valid. But the act only professes to legalize a'tax to build a school house and to support schools in the district. It does not legalize a tax levied for the private benefit of the directors, and the bill alleges that such was the object of the levy of the tax. This act cannot bear the construction that it was intended to legalize this tax for such a purpose.
The decree was erroneous, and must be reversed, and the cause remanded, with leave to the defendants to answer the bill.
Decree reversed.