Concurring Opinion.
Myers, J.I concur in all that is said in the prevailing opinion on the subject of adherence to the requirements of the township advisory board act, and the necessity therefor as sound and healthful, and it is for the reason that the lines on which the prevailing opinion travels must of necessity emasculate that statute, that I am impelled to state my reasons for concurrence in the reversal of the judgment, but on entirely different grounds.
This action is instituted by taxpayers in the name of the State on their own relation, after the expiration of the term of office of a township trustee, and the induction of his successor into office, and after thirty days’ notice to the incumbent trustee and the advisory board, and their failure to institute a suit against the former trustee and his bondsmen “in the name of the State, to recover each of the aforesaid sums for the use of said township,” the funds specified in the notice being various funds of the civil and school townships. The sufficiency of the complaint is challenged by demurrers, both on the ground of the complaint not stating facts sufficient to constitute a cause of action, which challenge the right of the relators to sue, and whether they sue in their individual, or in a representative capacity (Kinsley v. Kinsley [1898], 150 Ind. 67, 49 N. E. 819; Farris v. Jones [1887], 112 Ind. 498, 14 N. E. 484; Sinker v. Floyd [1885], 104 Ind. 291, 4 N. E. 10; Wilson v. Galey [1885], 103 Ind. 257, 2 N. E. 736; Pence v. Aughe [1885], 101 Ind. 317; Toner v. Wagner [1902], 158 Ind. 447, 63 N. E. 859); *529also, by direct assignment of want of capacity of relators to sue.
The position of appellants is that §6 of the township reform act (Acts 1899 p. 150, §9595 Burns 1908) only authorizes an advisory board or taxpayer to sue during the term of office of a trustee, for the reason that he cannot sue himself, if in default, or if a successor or advisory board refuses to sue after notice, a taxpayer may, but that in such case he does not sue on his own relation, but that the suit must be in the name of the State for the use of the civil or school township, as the case may be, or if he could sue as an individual, it could not be a suit at law on the bond, but a suit in equity in analogy to bills in equity by shareholders in a corporation,, to conserve its funds.
The original act of 1899 (Acts 1899 p. 150, §9590 et seq. Burns 1908) arose out of a wide-spread demand, if not a necessity, for such legislation, and is as important now as when enacted. By §4 of said act (§9593 Burns 1908) an annual meeting of the township advisory board is provided for, at which the trustee is required to furnish a detailed and itemized statement in writing of his estimated expenditure on every account for the ensuing year. The advisory board is authorized to appropriate "for any purpose a sum not greater than that estimated in the item therefor, except by the unanimous vote of the board, and not otherwise, an appropriation may be made for an item not contained in any estimate, or for a greater amount than that named in any item of an estimate. ’ ’ This section clearly contemplates appropriations from funds on hand, or funds which will be realized, and available from the tax levies, without creating a debt or deficit.
By §8 of said act, as amended in 1901 (Acts 1901 p. 415, §9597 Burns 1908), it is provided that "the expenditure of any fund, in whole or in part, to any account for which it was not appropriated by said board, shall be deemed by the *530board a balance of such fund unexpended in the hands of the trustee, for which he shall be liable upon his bond. ’ ’
If, will thus be seen that §8 is closely related to and supplements §4, in requiring appropriations from available funds only, in order to authorize payment, and declaring the result, the liability, if the requirement is not observed.
"We next come to §6 of said act, as amended in 1901 (Acts 1901 p. 415, §9595 Burns 1908). As originally enacted it dealt wholly with proceedings, emergencies and requirements, not covered by the annual meetings, and expenditures not included in the “existing estimates and levy.”
If the emergency is found to exist, after notice to all, an appropriation may doubtless be made if 'there are funds available, but the subject oE the section, as well as its object specifically, is the borrowing of money to meet emergencies, and creating a debt.
Then follows a provision that “in no event shall a debt of the township, not embraced in the annual estimates fixed and allowed, be created without such special authority, and any payment of such unauthorized debt from the public funds shall be recoverable upon the bond of the trustee in a suit, which it is hereby made the duty of said Board to institute and prosecute in the name of the State for the use of said toivnship. And said Board is hereby empowered to appropriate, and the township trustee shall pay out of the township funds a reasonable sum for attorneys’ fees for such purpose. And if the Board on a written demand of any taxpayer, fails for thirty (30) days to bring such suit, then such or any other tax payer may bring the same, in the name of the State, for the use of the Township.” (Our italics throughout this opinion.)
The act of borrowing segregates that debt from the annual apijropriations, and all others, and the statute requires a levy at the next annual session “to cover and pay the debt so created.”
*531The general provision of §8, in declaring that all unappropriated moneys shall be deemed “a.balance of such fund unexpended, in the hands of the trustee,” etc., covers any case except a payment of a debt created under §6, and there was no necessity for that sweeping legislative enactment, if appellees’ theory that actions on any account may be brought under §6. This is the more apparent when we come to the amendment of §6 in 1901, which is identical with the original §6 down to the proviso, by which it is enacted that if at any annual or special meeting, etc., it shall be found “'indispensably necessary” to construct a school building, “the cost of which * * * will be in excess of the sum available, therefor out of the annual levy,” then township warrants or bonds, the character of which is described, may issue. The amendment consists in providing for meeting emergencies at any “annual or special meeting,” and, by reason of the possible inadequacy of one year’s levy to meet the obligation, extending it over a term of years, and authorizing a special levy to meet the obligation. The fund arising from such a borrowing would not be in the same class, whether provided at a regular or special meeting, because it is not an appropriation in the general or specific sense, that the annual levy and appropriations are, but is in a special class, in that it is exactly what the statute indicates and specifies as an emergency loan, and an appropriation therefor, and not being in the general class, it is not covered by the general provisions of §9597, supra, with respect to the disbursement of the non-appropriated funds, and hence the necessity for the provisions in regard to suit for payment of such debt, if it shall not have been authorized. The only debt a township is authorized to create is under §9595, supra, and the only debt authorized by that section is an emergency debt, and it must be provided for by a special levy the next year, or extend ing over a term not to exceed five. In case of sejioolhouses, *532the statute specifically provides that the trustees “shall apply such annual tax to the payment of such warrants or bonds each year,” and it is a fair construction, that the fund created to meet any loan authorized by the statute is also a setting aside of the fund for that purpose only.
If the provisions of §9597, supra, could have any relevancy to the fund created by a loan under §9595, supra, it would be in the diversion of the fund to some other purpose. The suit, however, is grounded on said §9595, and as that is the theory of the complaint, it must be good on that theory. Oölitic Stone Co. v. Ridge (1908), 169 Ind. 639, 83 N. E. 246, and cases cited; Mescall v. Tully (1883), 91 Ind. 96.
The language of the act itself is plain, and needs no construction. It is, Avhether the suit is brought by the advisory board or by a taxpayer, it shall be brought “in the name of the State, for the use of the township.” Ve perceive no reason for a suit at the instance of the advisory board, except against a trustee while in office, because of the payment of a debt not authorized to be created under that section. We say this, because it will not be presumed that the officer will sue himself while in office, and because the statute provides that the advisory board shall, or on its failure a taxpayer may, bring the suit. But giving the clause of the statute the broadest application, and treating it as broad enough to authorize a suit for the illegal disbursement of any fund during the term of office, we still have the reason for. the suit being brought by the advisory board, or by a taxpayer on failure of the former, but in such case, how shall it be brought? The statute points out how it shall be brought. It may not be brought on the relation of a taxpayer under §253 Burns 1908, §253 R. S. 1881, providing that “actions upon official bonds, payable to the State, shall be brought in the name of the State of Indiana, upon the relation of. the party interested, ’ ’ for the reason that a taxpayer is not ‘ ‘ a party interested, ’ ’ within the meaning of the *533statute: that is, as a part of the public he has no interest different from all other taxpayers. In saying this we do not overlook the ease of State, ex rel., v. Holt (1904), 163 Ind. 198, 71 N. E. 653. That action was one by the State by an individual as relator and the same person as an individual. The grounds of demurrer to the complaint were the same as here, except that the demurrer for want of legal capacity to sue was that plaintiffs neither jointly nor severally had legal capacity to sue. It was clearly held, and rightly, in that ease, that Stuart as an individual could not sustain an action on the bond: (1) Because the statute forbids a personal action, even by a taxpayer on the bond; (2)because as an individual he has no separate and divisible interest in the subject-matter, just as appellees here, as taxpayers have not. The complaint was held bad, because as relator he was suing for the benefit of all the people in the county, and as an individual, for his personal use for expenses incurred.
True, it is there said that the suit was properly brought by Stuart as a taxpayer relator, and Zuelly v. Casper (1903), 160 Ind. 455, 67 N. E. 103, 63 L. R. A. 133, and Kimball v. Board, etc. (1904), 32 Ind. App. 377, 66 N. E. 1023, are cited in support of the proposition. In the first place, in the Zuelly ease the action was not on the bond, and not as relators, but as individual taxpayers, in behalf of the county ; and in the second place, in the case of the same parties as relators, in a suit not on the bond (State, ex rel., v. Casper [1903], 160 Ind. 490, 67 N. E. 185), it was held that they could not maintain a suit as relators, but might do so in their own names, and that as the State had no interest, it was not a proper plaintiff, and the complaint was not aided by the taxpayers being joined as relators. In the Kim-ball case, certain citizens of Franklin county brought suit for the recovery of money allowed and paid through inadvertence of the commissioners, for the use of the county, and retained from the fund recovered by their efforts the expense of the litigation, and the board brought suit *534for the money retained. It was held, and properly, that the suit being of an equitable character, the defendants were entitled to reasonable reimbursement.
It will thus be observed that neither of those eases is authority on the proposition that a taxpayer may bring a suit on his own relation on the bond of a public officer under §253, supra. If they decide anything on that subject, it is that he may not do so. Section 5962 Burns 1908, Acts 1899 p. 343, §45, provides in case of payments of money out of the county treasury, suit may be brought “in the name of the Slate of Indiana, on the relation of the hoard of commissioners,” or on its failure upon thirty days’ notice, and failure of the board of commissioners to sue, ‘ ‘ any citizen or taxpayer # * * may * * * institute such suit in the name of the State of Indiana, on his own relation for the benefit of the county. ’ ’ There is express authority for suits on relation of citizens or taxpayers, but the cases cited are not authority for so doing, and it is not by virtue of §253, supra, in relation to suits on official bonds, but by virtue of said act.
Again, by §6010 Burns 1908, Acts 1897 p. 187, §6, any citizen or taxpayer, after sixty days’ demand on the board of commissioners “may in his own name upon giving bond for the costs, prosecute and maintain for the use and benefit of such county the proper suit for the recovery of any illegal, unwarranted or unauthorized allowance made by such board,” etc. But when we come to the statute under consideration, we have an entirely different, and specific declaration as to who may bring such suits, with respect to township funds, and how, and the fact of the difference in the statutes is not without force, when we reflect on the difference in the provisions, and on the further fact that the township advisory board act is the later statute.
After the expiration of the term of office of a trustee, the presumption is that his successor will bring the proper suit. But it is claimed that the presumption is overcome *535in this suit by the fact of the failure and refusal of the trustee on demand, to bring the suit, and that the township ought not to be without remedy.
Conceding for the purpose of a remedy, that there ought to be a right to bring a suit, and that a case is thereby made authorizing a taxpayer to maintain a suit on the bond, the .question is, how shall be bring it ?
By parity of reasoning, he cannot bring a suit at law on his own relation under §253, supra, because he is not “a party interested.” The State is not interested, and he has no individual interest, and he may not bring a suit on the bond on his own relation, for that reason, but above and beyond all, the statute points out just how he may bring it,' and that is “in the name of the State for the use of the Township. ’ ’
In this ease, the allegation is that “they file this suit for the use and benefit of the said Civil and School Townships of Jackson, both of which are made defendants, that a recovery may be had in their favor.”
"We have had a statute since 1865 (§6664 Burns 1908, §4534 R. S. 1881) providing that “suits brought on behalf of the schools of any township, town or city, shall be brought in the name of the State of Indiana for the use of ■such township, town, or city”—the same language used in the statute before us. And in this case, funds of both the school township and the civil township are alleged to have been paid out in large sums, in violation of the law.
The case of Hadley v. State, ex rel. (1879), 66 Ind. 271, is directly in point. The reporter has taken liberties in entitling the cause, which are not warranted. It might seem from the title that the cause was instituted by a relator, but an examination of the original record, as well as the language of the opinion, discloses, that the action was “The State of Indiana for the use of the School City of Eichmond,” and was based on §6664, supra.
In State, ex rel., v. Wilson (1888), 113 Ind. 501, 15 N. E. *536596, it was held that either a township trustee or the civil township may institute a suit on a bond, under the general statute, on the express ground that the fund is the fund of the township in the one case, and the trustee, as trustee of an express trust, in the other, is entitled to its possession, and to sue as ‘ ‘ a party interested. ’ ’
It is pointed out in that case that it was held in Johnson v. Harris (1834), 3 Blackf. 387, 26 Am. Dec. 424, that a township trustee could not sue bn the bond of his predecessor, but it is held that, under the general statute, he is entitled to sue as a beneficiary and a party in interest.
The distinction between the two corporate entities, the civil township and the school township, has been so often declared that it is unnecessary to cite authorities, or do more than to point out that as to school matters the suit must be brought against or by the school corporation, or for its use, and as to other matters, against or by or for the use of the civil township, and as the statute is specific (§6664, supra) that suits brought on behalf of the schools shall be brought “in the name of the State of Indiana for the use of such [school] township, town, or city, ’ ’ and the language of the act in question is practically the same. That must be taken to be the manner in wrhich, at least as to the school funds, and by the force of the statute, and under the conditions here presented, suits in behalf of the civil township must be brought, because of the plaintiffs not being within the general statute as relators, and to the same effect is State, ex rel., v. Karr (1906), 37 Ind. App. 120, 76 N. E. 780.
A suit brought on the relation of a taxpayer is not a suit in the name of the State of Indiana, for the use of the township, and as to school funds, an action on relation of a taxpayer is unauthorized, and even if as to the civil township a suit will lie on the relation of a taxpayer under some conditions, the conditions are not here, and such a suit as is *537here sought to be maintained must be in the name of the State, for the use of the township.
The difference is a marked one, and its purpose is not far to seek. As a relator, a taxpayer is liable for costs, while under this statute, by'a suit in the name of the State, there is no liability for costs, and there is the broadest invitation to taxpayers to investigate as such, without incurring liability for costs.
Under §6010, supra, applicable to counties, taxpayers are not let in to prosecute suits in their own names, without giving bonds for costs, thus discouraging the taxpayer, while §5962, supra, a later act, authorizes an allowance for bringing and prosecuting suits, thus encouraging investigation, without incurring liability, and the act in question is still later, and extends further encouragement, by requiring suits in the name of the State.
• In my judgment the suit cannot be maintained by appellees as relators in any event under this statute, either as to civil or school corporations, and they cannot maintain suit on the bond as relators, under the general statute, for lack of such interest as that statute means and intends. Whether suit might be brought in equity by taxpayers in analogy to bills in equity by shareholders of a corporation, we do not determine. It is sufficient to say that, under this statute, whether the provision for suit by an advisory board or taxpayer applies only to the fund borrowed under §9595', supra, or to any fund under the general provision of §9597, supra, it must be brought in the name of the State, for the use of the proper and interested corporation.
As no suit can be maintained by them as relators as to the school township funds, and if it could be maintained as relators as to the civil township funds, one of two things must be true: either that it is an action' wholly by the civil township, or that it is an action by them as relators for the civil township, and as individuals as to the school township, and *538in either event the complaint is bad, because they do not bring the suit in the same right or capacity, one being representative and the other individual. State, ex rel., v. Holt, supra; Toner v. Wagner (1902), 158 Ind. 447, 63 N. E. 859; Neal v. State, ex rel. (1874), 49 Ind. 51.
The complaint makes no claim of payment of any debt for borrowed money, or warrant or bond issued for construction of any sehoolhouse, which, was not authorized by the advisory board under §9595, supra. This is the more apparent because, by the complaint, it is sought to charge the trustee not only for moneys not appropriated, but for the expenditure of moneys paid for supplies, material and labor, without taking bids for such supplies and work. A ease is therefore not made under that section, and the suit cannot be maintained under that section, which is the theory of this complaint
Even under §9596 Burns 1908, Acts 1899 p. 150, §7, a suit cannot be maintained as to the school township by taxpayers as relators, and as to the civil township, it must be in the name of the State for the use of the township. I am wholly unable to concur in the views of the prevailing opinion, in the application of equity rules to a strictly legal question, under an express prohibition of the statute, on the ground of the contract being executed. There may be defined distinctions between executed and executory contracts, but I am unable to see the application of the doctrine to the case of an absolutely prohibited and unlawful thing by statute.
It is expressly provided in §9597, supra, that “the expenditure of any fund, in whole or in part, to any account for which it was not appropriated by said board, shall be deemed by the board as a balance of such fund unexpended and in the hands of the trustee, for which he shall be liable on his bond.”
The expenditures alleged to have been made by the trustee in this case were alleged to be made either without appropri*539ation, or without giving the required notice to make the expenditure, in violation of these express provisions.
Under such circumstances the provision that such expenditure shall be deemed “a balance of such fund unexpended and in the hands of the trustee, for which he shall be liable on his bond,” that is, shall be liable therefor' on his bond, the same as if it had not been expended, and he had failed to account for and pay it over to his successor, the statute clearly fixes this liability.
In the prevailing opinion it is held that even if the trustee makes expenditures, without appropriation by, or not authorized by the advisory board, he may defend on his bond, if he shows that the public money was expended on a contract with one legally authorized to enter into it, and that the expenditure was made for a subject in itself lawful, and that whatever was paid was necessary, and of a value equal to the expenditure, and was received and used or retained by the township, and that the transaction was without fraud. The holding is not based on the act of 1911, for the relief of township trustees (Acts 1911 p. 693), but what is termed relief extended by a court of equity. This holding is in direct conflict with the provisions of §9597, supra, That act provides that such expenditures shall be “deemed a balance of such fund unexpended in the hands of the trustee.”
The provision expressly excludes the defense that the alleged illegal expenditures were proper ones, because the public moneys were paid out on account of a public purpose, and for which the advisory board had made no appropriation, or for work done or supplies furnished contrary to express statutes. But should the provision of the statute work a hardship to individuals, that by no means warrants the violation of a plain and emphatic provision thereof.
The liberty of the citizen, and his security in all his rights, depend, in a large degree, on the rigid adherence to the provisions of the Constitution and the laws, and their faithful. *540performance. If courts, to avoid, hardship, may disregard and refuse to enforce their provisions, then the security of the citizen is imperiled. Then the will of the judge would usurp the place of the Constitution and the laws, and the violation of one provision is liable speedily to become a precedent for another, perhaps more flagrant, until all constitutional and legal barriers are destroyed, and no one is secure in his rights. Nor are we justified in resorting to a strained construction, or astute interpretation, to avoid the intent of the legislature as expressed in statutes, even to relieve against individual or local hardships. While courts have the power to interpret statutes, and determine as to their constitutionality, they have no power to amend or repeal them. If unwise or hard in their operation, the power that adopted, can repeal or amend, and remove the inconvenience, if any. The power to do so has wisely been withheld from the courts, their function being to enforce the laws as they find them enacted.
To say that if a contract has been entered into, or has been entered into and performed, between a contractor and a township trustee, the contractor may not recover, and is without remedy, but that if the trustee has paid the contractor, he is entitled to credit, will destroy the statute.
It is said in Magniac v. Thomson (1853), 56 U. S. 281, 299, 14 L. Ed. 696: ‘ ‘ That wherever the rights or the situation of the parties are clearly defined and established by law, equity has no power to change or unsettle those rights or that situation, but in all such instances.the maxim equitas sequüur legwm is strictly applicable. # * * Equity may be invoked to aid in the completion of a just but imperfect legal title, or to prevent the successful assertion of an unconseientious and incomplete legal advantage; but to abrogate or to assail a perfect and independent legal right, it can have no pretension. In all such instances, equity must follow, or in other words, be subordinate to the law.” *541In a case in our own court it is said: “Equity has no jurisdiction of its own.”
In Hart v. City of New York (1911), 201 N. Y. 45, 55, 94 N. E. 219, it is said: “It is, however, urged that the principles which have been stated and referred to do not apply to an executed contract where the municipality does receive and is enjoying the benefit of the work done or materials furnished under the contract. It is very clear that such is not the law applicable to the facts presented here. This is not a case where there has been mere irregularity in letting the contract, but is a ease where, if I am correct, the municipal authorities have attempted to let a contract which was not only not authorized, but which was in violation of the law and ordinances which govern them and which was utterly and jurisdictionally illegal. The action is explicitly based on contract and not brought to recover on a quantum meruit, and I regard it as well settled that it cannot be maintained simply because the contract has been executed, some of the decisions here cited having reference even to actions based on a quantum meruit.” Citing cases.
I am unable to see the application of eases arising under statutes somewhat similar to our own, but in which our own has gone far beyond those statutes, of the cases cited in the prevailing opinion.
In Flowers v. Logan County (1910), 138 Ky. 59, 127 S. W. 512, 13 Am. St. 347, it was said: ‘ ‘ The vice in the proceeding was not in doing something not authorized by, or forbidden by the law, but was doing that which was allowed, in a manner not authorized by law. ’ ’
In the case of Riverside County v. Yawman & Erbe Mfg. Co. (1906), 3 Cal. App. 691, 86 Pac. 900, it was held that the section of the statute sought to be invoked did not contemplate recovery of property which a public corporation had received and retained, and that “the right there sought to be conferred was to recover money paid without authority of law.”
*542Frederick v. Douglas County (1897), 96 Wis. 411, 71 N. W. 798, was a case of the employment of an attorney by a taxpayer to restrain the illegal payment of money by the county and. its officers, when there was a district attorney whose duty it was to institute such suit, and the question was whether the secondary attorney so employed could be compelled to pay back a sum which he had been paid, and which was the fair value of the services rendered in protecting the fund, and to enjoin payment for a further sum. The question arose over the employment of the attorney to do what it was the duty of the district attorney to do, and the further payment was prohibited, but recovery of the money paid was denied, on equitable grounds. In this case, the employment of the attorney was unauthorized, but not expressly prohibited, as in the case at bar.
There is a marked distinction between cases in which an act is simply unauthorized, or an authorized act is done in an unauthorized manner, and one in which the thing is absolutely prohibited by a positive statute, and in which statute there is also a positive mandate against credit being given to the officer, and a like mandate as to bringing suit for its recovery if credit is claimed or has been given the officer, and that distinction runs through all the cases, including those cited and relied on in the prevailing opinion, as I read them. Many of the cases founded on equitable estoppel are those of municipal corporations, as distinguishable from public corporations, such as counties and townships, as arms of the state government, and others have arisen without that distinction being noted, or in exceptional cases, and without noting the distinction between acts prohibited by statute or in violation of public policy and those not so prohibited. Moss v. Sugar Ridge Tp. (1903), 161 Ind. 417, 425, 68 N. E. 896; Schipper v. City of Aurora (1889), 121 Ind. 154, 22 N. E. 878, 6 L. R. A. 318.
But we have a clear and explicit statute, declaring the *543legal effect of given conditions; and the effect of the prevailing opinion, as I see it, is to amend it out of existence. It is vain to say that we do not intend a construction to have an effect which it inevitably has. When a statute declares a thing to be unlawful, unless done in a certain way, or under certain authorities, it can go no further, but the thing so done is unlawfully done. It is in violation of the law. It is just as unlawful as if it were declared a crime. The thing itself is unlawful, and it is not a question of doing a lawful thing in an irregular or unlawful manner. There is no room for the interposition of an equitable defense. If this is not true, the statute itself is of no force or validity. If the rale is as declared in the prevailing opinion, the enactment of 1911 (Acts 1911 p. 693) was wholly unnecessary to extend relief.
But the fact that it was enacted is a legislative construction that the act will not bear the interpretation given to it by the prevailing opinion, as well as a declaration of the intention to preserve the act in its integrity by restricting it to past violations.
It seems to me a strange inconsistency to say that a party who has furnished the property which a township needs and retains, and in whom the equity is, if there be one, may not recover on the contract, or its value, while the trustee who has paid for it, in violation of the statute and his express duty, may be allowed for it. Under former decisions of this court, the contractor could not recover, and the statute is specific, that it should be “treated as money in his hands,” etc., a most sweeping declaration, and it was undoubtedly the purpose in the enactment of the act of 1911, supra, to provide relief for past transactions, as to which there otherwise could be no relief.
In Lee v. York School Tp. (1904), 163 Ind. 339, 71 N. E. 956, it was held, under a statute’ requiring contracts with teachers to be in writing, and declaring “that no action shall *544be brought upon any contract not made,” etc., in writing, that no recovery could be had on the quantum meruit, citing numerous cases.
In Boyd v. Black School Tp. (1890), 123 Ind. 1, 23 N. E. 862, decided under the act of 1881, in an action for supplies furnished a township trustee under that act, it ivas held that there could be no recovery on the contract, but a recovery was sustained on the ground of the receipt and retention of necessary supplies.
In Moss v. Sugar Ridge Tp., supra, under the act there in question, a recovery was denied for highway work, contracted by a trustee in violation of the statute. In that case the doctrine of the Boyd case and others was invoked, in which beneficial contracts had been made, but the court points out the distinction between cases of contracting in a manner not prohibited by the Constitution or the statute, and cases of express prohibition.
The court there said, on page 425: “Under our previous holdings it has been universally affirmed that contracts by municipal corporations which are either prohibited by statute, as in the case at bar, or which were in violation of public policy, could not result in creating an implied liability against such corporations. * * * A court, however, under the facts disclosed, must be controlled by the imperative demands of the law applicable thereto, and has no power to grant legal or equitable relief.” See, also, as presenting analogies, State, ex rel., v. Goldthait (1909), 172 Ind. 210, 87 N. E. 133, 19 Ann. Cas. 737; Sandage v. Studebaker Bros. Mfg. Co. (1895), 142 Ind. 148, 41 N. E. 380, 34 L. R. A. 363, 51 Am. St. 165; Boyd v. Mill Creek School Tp. (1890), 124 Ind. 193, 24 N. E. 661; Johns v. Town of Sheridan (1909), 44 Ind. App. 620, 89 N. E. 899; First Nat. Bank v. Van Buren School Tp. (1911), 47 Ind. App. 79, 93 N. E. 863; Independent School District, ex rel., v. Collins (1908), 15 Idaho 535, 98 Pac. 857, 128 Am. St. 76; McNay v. Town of Lowell (1908), 41 Ind. App. 627, 84 N. E. 778; Caldwell *545v. Board, ctc. (1908), 41 Ind. App. 40, 83 N. E. 355; Lincoln School Tp. v. American School Furniture Co. (1903), 31 Ind. App. 405, 68 N. E. 301; Peck-Williamson, etc., Co. v. Steen School Tp. (1903), 30 Ind. App. 637, 66 N. E. 909; City of Detroit v. Michigan Pav. Co. (1877), 36 Mich, 335; City of Detroit v. Robinson (1878), 38 Mich. 108; Floyd County v. Allen (1910), 137 Ky. 575, 126 S. W. 124, 27 L. R. A. (N. S.) 1125; Bechtel v. Fry (1907), 217 Pa. St. 591, 66 Atl. 992; McDonald’s Admr. v. Franklin County (1907), 30 Ky. Law 1245, 100 S. W. 861; City of Winchester v. Frazer (1897), 19 Ky. Law 1366, 43 S. W. 453; Trustees, etc., v. Hohn (1884), 82 Ky. 1; Chippewa Bridge Co. v. Durand (1904), 122 Wis. 85, 99 N. W. 603, 106 Am. St. 931; Snyder v. Boards, etc. (1900), 10 N. M. 446, 62 Pac. 1090; Crutchfield v. Warrensburg (1888), 30 Mo. App. 456; Mister v. City of Kansas (1885), 18 Mo. App. 217; West Co. v. Berry (1896), 98 Ga. 402, 25 S. E. 508.
Here we have a case of payment made in violation of an express statute, which fixes the status of all parties. The trustee can have no equities higher than he who furnishes material which is necessary and is used, and he is remediless, while the trustee, as it is held, may he relieved from the violation of the express law and his duty.
I am unable to comprehend the ground for, or the wisdom of such attempted distinction.
The judgment should he reversed, with instructions to sustain the demurrer to the complaint, and for further proceedings not inconsistent with this opinion.
Monks, J., concurs in this opinion.Note.—Reported in 99 N. E. 102, 99 N. E. 111. See, also, under (1) 38 Cyc. 657; (2) 29 Cyc. 1448, 1463; (3) 36 Cyc. 1106; (4) 38 Cyc. 632; (5) 16 Cyc. 106, 107; (6) 29 Cyc. 1465; (7) 28 Cyc. 650; (8) 38 Cyc. 645; (9) 38 Cyc. 630, 632; (11) 1 Cyc. 737; (13) 38 Cyc. 645; (14) 38 Cyc. 637; (15) 38 Cyc. 638; (16) 38 Cyc. 658; (18) 29 Cyc. 1435; (19) 16 Cyc. 145; (22) 16 Cyc. 137; (23) 8 Cyc. 926. As to the acts for which sureties on official bonds are *546liable, see 91 Am. St. 497. As to the liability of sureties on the bond of an officer after the expiration of his term of office, seo 108 Am. St. 932. As to the liability of ministerial officers to private individuals for the nonperformance, or misperformance of official duties, see 95 Am. St. 72. As to the right of a taxpayer in absence, of statute to enjoin unlawful expenditures by municipality, see 30 L. R. A. (N. S.) 1. As to the right of a taxpayer to maintain an action to recover money illegally paid out of the public treasury, see 19 Ann. Cas. 770.