So far as the majority opinion holds that the trial court committed reversible error against the defendant I am in accord with that opinion. I do not agree with the conclusion that the indictment in this case was sufficient as a proper pleading and that it aptly charged a criminal offense. The indictment should have charged that the funds alleged to have been embezzled were the property of the trustees of schools of the township. The court in passing upon the sufficiency of an indictment is not permitted to depart from the words employed in the indictment and speculate as to the possible intention or thought of the drawer of the indictment. Neither can the court supply matters of substance that have been omitted nor change or alter matters of substance which are charged by the indictment. (People v. Hallberg, 259 Ill. 502.) The sufficiency of an indictment may be raised by motion in arrest after plea of guilty and judgment rendered thereon. Klawanski v. People,218 Ill. 481.
The legal title to the funds of the school district was in the trustees of schools. The school directors have the authority, under the statute, to levy a tax for school purposes and building purposes, yet it is significant that there is at no time provision for the payment to the school directors of any of the funds so raised by taxes. The statute limits their right to cause any of the money to be paid *Page 299 out. They have no legal authority to draw a check upon the funds. The most that is permitted them is to draw orders on the treasurer for the payment of a valid existing indebtedness which has been incurred in the manner provided by law. Such orders must state upon their face, except in the case of orders payable for the services of the teachers, for what purpose the orders are drawn. School orders drawn by school directors upon the township treasurer, where such orders are drawn without authority of law, cannot be collected from the directors even though the order may be in the hands of an innocent purchaser for value. School Directors v. Fogleman, 76 Ill. 189.
An examination of the various provisions of the statute pertinent to the subject of the taxes will disclose that the school directors have no vested interest in the funds. The funds may be apportioned in the case of the organization of a new school district. (Ketcham v. Board of Education, 324 Ill. 314. ) This court has also held that the property and funds of a school district are at all times subject to the control of the legislature. (People v. Camargo School District, 313 Ill. 321.) The evidence showed that all the funds that came to the treasurer were tax funds.
In determining the validity of the indictment under consideration, the name of the municipal corporation or body politic that could maintain a suit against the treasurer and his bondsmen for the recovery of the funds alleged to be embezzled is helpful. The case of Tappan v. People, 67 Ill. 339, involved a suit brought by the trustees of schools against a defaulting township treasurer and his bondsmen to recover certain township funds and the amount of district school taxes levied in eight school districts of the school township, collected by the township treasurer and not accounted for. In that case it was urged in behalf of the defendants that the suit should have been brought for the use of the successor township treasurer or for the use of the several school districts. In passing upon this question *Page 300 the court said: "We do not regard the objection as well taken that the suit should have been brought for the use of the township treasurer instead of the trustees of schools, and we consider as equally unfounded the claim that the suit should have been brought for the use of the school directors of the districts. Although these district school taxes are levied by the school directors for the benefit of the school districts, they do not, under the statute, go into the hands or the keeping of the school directors but they are paid into the hands of the township treasurer, to be by him kept and only paid out upon the order of the proper board of school directors, stating the purpose for which and on what account drawn. School districts, too, are subject to be altered or changed at any regular session of the school trustees, and in case of the formation of a new district from one or more districts the township trustees of schools are required by the statute to make division of the tax funds in the hands of the township treasurer, or which may be received by him, and distribute them among the districts concerned according to a certain mode pointed out in the statute. In order, then, to meet the contingency of any alteration of the school districts by the township trustees it is necessary that the taxes should go into the hands of the township treasurer, where the trustees can control any division and distribution of them they may make. We are of opinion that the suit was properly brought for the use of the trustees of schools of the township."
In an early case in this State a suit was brought by the trustees of schools against a township treasurer and his bondsmen to recover school funds which came into the custody and possession of the township treasurer. A judgment recovered by such trustees against the treasurer and his bondsmen was affirmed by this court. Thompson v. Board of Trustees, 30 Ill. 99.
It is imperative that the indictment correctly charge the ownership of the funds alleged to have been embezzled *Page 301 and such ownership must be proved as charged. People v. Hobbs,352 Ill. 224.
I am of the opinion that the trial court erred in refusing to quash the indictment, and in the alternative the motion made by the defendant in arrest of the judgment should have been granted.
JUSTICES FARTHING and SHAW concur in this dissenting opinion.