The opinion of the court was delivered by
Stiles, J.
The first point made by the appellant is, that a school district of the State of Washington is not a corporation, and cannot be sued as such. In connection with this it is claimed that no action can be brought against a school district by name, but must be brought against the directors in their representative capacity. The position is taken that there can be no corporation without express legislative enactment, and inasmuch as §783, Gen. Stat., contains the only reference to school districts which could be taken as an attempt at a definition, it is strongly contended that the language used there does not justify the position that a school district is a corporation. The term ‘ ‘ school district ’ ’ is therein declared to mean the territory under the jurisdiction of a single school board, and all existing school districts are recognized by the act as legally organized districts. From 1877 until the passage of the act containing § 783, in March, 1890, there was no corresponding section in the laws of Washington unless the section which is found in the earlier school laws of the territory can be taken as having some continuing force, notwithstanding the language of the repealing section in the school law of 1877, and similar repealing clauses of subsequent acts.
We find in the school law of 1859 (Laws, p. 314), this provision:
“Seo. 11. When a district is organized it shall be to all intents and purposes a body corporate, capable of suing [144]*144and being sued, and fully competent to transact all business appertaining to schools or school houses in their own district; and it shall be the duty of the directors to prosecute or defend any demands for or against their district, and notice shall be served upon one of the directors of any suit brought against a district. ’ ’
The foregoing provision was contained in every school law enacted by the legislature until 1877, when for some inexplicable reason it seems to have been dropped. But the elimination of this section from the later school laws does not, we think, conclusively show that it was the intention of the legislature either to disincorporate the old districts, or to organize new ones upon any different system from that which had been theretofore followed. Sec. 34 of the act of 1877, after giving to the board of directors the custody of all school property belonging to the district, authorized them “in the name of the district, or in their own name, as directors of the district, to convey by deed all the interest of their district in and to any school house, ” etc. And § 39 provided that any board of directors shall be liable as directors ‘ ‘ in the name of the district for any judgment against the district.’’’’ These provisions have been perpetuated in all the school laws since that of 1877. It may even be doubted whether that portion of § 11 of the act of 1859 which declares school districts to be a body corporate capable of suing and being sued has at any time been repealed. The act of 1877 must in many respects be taken to have been a very incomplete school law’if the whole of the previous acts were actually repealed by it, since so far as organization goes it entirely ignores existing districts, and provides only for the organization of new districts. Laws 1877, § 27. Subsequent acts until 1890 were equally deficient. In 1886 it was provided that summons in an action against a school district should be served upon the clerk thereof, a requirement that would have been wholly illogical if the directors, and not the district, were [145]*145the defendants. For these reasons we think that a school district is, and always has been, a corporation.
The second point made is, that a school district is not a municipal corporation. The question here involved has been decided both ways in the various states. Ordinarily a corporation of this limited character would probably be more strictly termed a public corporation, but under our school system, where the body of inhabitants independent of the directors are invested with certain powers in connection with the directors of the school system of the state under its laws, it would not be a strain of the term to class them as municipal corporations equally with counties. The act which we are called upon to construe is that of January 31, 1888, which reads as follows:
“Whenever the board of county commissioners of any county of this territory, or the mayor and common council of any incorporated city or town, or the tribunal transacting the business of any municipal corporation, shall contract with any person or persons to do any work of any character which, if performed for an individual, a right of lien would exist under the law, or make any improvement for such county, incorporated city or town, or other municipal corporation, such board of county commissioners, or mayor, or common council of any incorporated town, or city, or tribunal transacting the business of any other municipal corporation, shall take from the person with whom such contract is made a good and sufficient bond. ’ ’
The question is, what municipal corporation did the legislature mean by this act! It had specified counties and incorporated cities and towns, but it evidently intended to apply the law to some other corporation which it meant to include in the term “municipal corporation.” Now, at that time, there were not, either in the state or territory, any other municipal corporations unless school districts were to be taken as such. The general idea of this law was to provide for laborers and material men some safe means of ob-[146]*146taming their just dues as against a contractor on a public work where they could in the nature of things have no lien. They could have no lien upon a school building, and yet there was likely to be more public work upon school buildings than upon any other class of corporation improvements in the state. Considering the object for which the law was passed, it would seem to have been a strange oversight if school districts had been intentionally omitted from the act.
But the constitution of 1889 seems to put it beyond doubt that school districts were regarded as municipal corporations. In several places in the constitution school-districts are mentioned in connection with other municipal corporations, as in art. 7, § 2; art. 8, § 6. A large portion of art. 8 is taken up with restrictions upon municipal indebtedness. Sec. 6 mentions school districts as within the prohibitions of the article; and although § 7 provides that “no county, city, town or other municipal corporation shall hereafter give any money or property, or loan its money or credit, to or in aid of any individual, association, company or corporation, ’ ’ and in that section school districts are not mentioned, there would seem to be little doubt that they should be included in its terms as municipal corporations. Wé, therefore, decide this point also against the appellant. Board of Directors v. Peterson, 4 Wash. 147 (29 Pac. Rep. 995).
In the third place appellant contends that, before the district could be sued, the indebtedness due to the respondent from the contractor must be found and established as a condition precedent to plaintiff’s right to recover, and that such indebtedness could not be established in this action. Sec. 2 of the act in question, as we have interpreted it, would read that, if the school board failed to take the bond required, the district should be liable to the plaintiff for [147]
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The opinion of the court was delivered by
Stiles, J.
The first point made by the appellant is, that a school district of the State of Washington is not a corporation, and cannot be sued as such. In connection with this it is claimed that no action can be brought against a school district by name, but must be brought against the directors in their representative capacity. The position is taken that there can be no corporation without express legislative enactment, and inasmuch as §783, Gen. Stat., contains the only reference to school districts which could be taken as an attempt at a definition, it is strongly contended that the language used there does not justify the position that a school district is a corporation. The term ‘ ‘ school district ’ ’ is therein declared to mean the territory under the jurisdiction of a single school board, and all existing school districts are recognized by the act as legally organized districts. From 1877 until the passage of the act containing § 783, in March, 1890, there was no corresponding section in the laws of Washington unless the section which is found in the earlier school laws of the territory can be taken as having some continuing force, notwithstanding the language of the repealing section in the school law of 1877, and similar repealing clauses of subsequent acts.
We find in the school law of 1859 (Laws, p. 314), this provision:
“Seo. 11. When a district is organized it shall be to all intents and purposes a body corporate, capable of suing [144]*144and being sued, and fully competent to transact all business appertaining to schools or school houses in their own district; and it shall be the duty of the directors to prosecute or defend any demands for or against their district, and notice shall be served upon one of the directors of any suit brought against a district. ’ ’
The foregoing provision was contained in every school law enacted by the legislature until 1877, when for some inexplicable reason it seems to have been dropped. But the elimination of this section from the later school laws does not, we think, conclusively show that it was the intention of the legislature either to disincorporate the old districts, or to organize new ones upon any different system from that which had been theretofore followed. Sec. 34 of the act of 1877, after giving to the board of directors the custody of all school property belonging to the district, authorized them “in the name of the district, or in their own name, as directors of the district, to convey by deed all the interest of their district in and to any school house, ” etc. And § 39 provided that any board of directors shall be liable as directors ‘ ‘ in the name of the district for any judgment against the district.’’’’ These provisions have been perpetuated in all the school laws since that of 1877. It may even be doubted whether that portion of § 11 of the act of 1859 which declares school districts to be a body corporate capable of suing and being sued has at any time been repealed. The act of 1877 must in many respects be taken to have been a very incomplete school law’if the whole of the previous acts were actually repealed by it, since so far as organization goes it entirely ignores existing districts, and provides only for the organization of new districts. Laws 1877, § 27. Subsequent acts until 1890 were equally deficient. In 1886 it was provided that summons in an action against a school district should be served upon the clerk thereof, a requirement that would have been wholly illogical if the directors, and not the district, were [145]*145the defendants. For these reasons we think that a school district is, and always has been, a corporation.
The second point made is, that a school district is not a municipal corporation. The question here involved has been decided both ways in the various states. Ordinarily a corporation of this limited character would probably be more strictly termed a public corporation, but under our school system, where the body of inhabitants independent of the directors are invested with certain powers in connection with the directors of the school system of the state under its laws, it would not be a strain of the term to class them as municipal corporations equally with counties. The act which we are called upon to construe is that of January 31, 1888, which reads as follows:
“Whenever the board of county commissioners of any county of this territory, or the mayor and common council of any incorporated city or town, or the tribunal transacting the business of any municipal corporation, shall contract with any person or persons to do any work of any character which, if performed for an individual, a right of lien would exist under the law, or make any improvement for such county, incorporated city or town, or other municipal corporation, such board of county commissioners, or mayor, or common council of any incorporated town, or city, or tribunal transacting the business of any other municipal corporation, shall take from the person with whom such contract is made a good and sufficient bond. ’ ’
The question is, what municipal corporation did the legislature mean by this act! It had specified counties and incorporated cities and towns, but it evidently intended to apply the law to some other corporation which it meant to include in the term “municipal corporation.” Now, at that time, there were not, either in the state or territory, any other municipal corporations unless school districts were to be taken as such. The general idea of this law was to provide for laborers and material men some safe means of ob-[146]*146taming their just dues as against a contractor on a public work where they could in the nature of things have no lien. They could have no lien upon a school building, and yet there was likely to be more public work upon school buildings than upon any other class of corporation improvements in the state. Considering the object for which the law was passed, it would seem to have been a strange oversight if school districts had been intentionally omitted from the act.
But the constitution of 1889 seems to put it beyond doubt that school districts were regarded as municipal corporations. In several places in the constitution school-districts are mentioned in connection with other municipal corporations, as in art. 7, § 2; art. 8, § 6. A large portion of art. 8 is taken up with restrictions upon municipal indebtedness. Sec. 6 mentions school districts as within the prohibitions of the article; and although § 7 provides that “no county, city, town or other municipal corporation shall hereafter give any money or property, or loan its money or credit, to or in aid of any individual, association, company or corporation, ’ ’ and in that section school districts are not mentioned, there would seem to be little doubt that they should be included in its terms as municipal corporations. Wé, therefore, decide this point also against the appellant. Board of Directors v. Peterson, 4 Wash. 147 (29 Pac. Rep. 995).
In the third place appellant contends that, before the district could be sued, the indebtedness due to the respondent from the contractor must be found and established as a condition precedent to plaintiff’s right to recover, and that such indebtedness could not be established in this action. Sec. 2 of the act in question, as we have interpreted it, would read that, if the school board failed to take the bond required, the district should be liable to the plaintiff for [147]*147the full amount of its debt. There is nothing in the act which makes it incumbent upon the respondent either to. have succeeded in a prior action against the contractor, or to make him a party to his action against the district. No suit could be maintained against the district upon a judgment obtained in such an action; and it could not be used as evidence of the indebtedness. If the contractor were made a party and should default, the district would be in no worse or better position than if he had been left out of the action.
The complaint alleged that the district, by its duly authorized directors, entered into the contract for the building of the school house. Appellants construe this as an allegation that the directors were authorized by vote of the district to build, and claim failure of proof of the allegation, which was denied. 'We think the allegation merely referred to the official character of the persons who executed the contract, and' not to their special authority to build the school house.
But aside from this, the building was erected, accepted and used for school purposes long before the action was brought. The contractor gave the respondent certain orders on the directors, one of which was paid, and the other was accepted, but not paid. The complaint alleges these facts, and appellant claims that no recovery could be had except upon the unpaid order, because the acceptance of the order raised a new contract which wiped out the indebtedness to the contractor. If the directors could make such a contract, we fail to see the intention to sue upon it here. The facts concerning the orders seem to have been pleaded as some sort of an estoppel of the district to deny the amount of the debt, but the gist of the complaint was the statutory liability.
There seems to be no error, and the judgment is affirmed.
Anders, C. J., and Scott and Dunbar, JJ., concur.