An agreement between a school's town and township, forbidding the town to reincorporate and thereby throw upon the township the burden of expense incident to the construction of school buildings, would be void and inoperable.

STATE LIFE INSURANCE COMPANY-RIGIIT OF AUDI- TOR OF STATE TO COMPEL ATTENDANCE OF OFFI- CERS TO SUBMIT TO EXAMINATION. January 29, 1907. Hon. John C. IBillheinier, Auditor of State: Dear Sir-In answer to your inquiry dated January 28, 1907, as to whether, in my opinion you, as auditor of state, can compel the attendance at your office, for examination, pursuant to your notice of the president, vice-president, treasurer and sretary of the State Life Insurance Company, and require them to sub- mit to an examination with reference to the matters therein re- ferred to, I beg to advise that it is my opinion that you can coin- pel such attendance, and that a usual and proper method of- com- pelling such attendance is by mandate; but that in my opinion much more drastic measures can be adopted with reference to this matter, which would result in giving you an opportunity to make any examination you desire to make of the business or any of the officers connected with the company. I return herewith the correspondence in connection with said matter, 'submitted to ihe. SCHOOLS-REINCORPORATION OF SCHOOL TOWN AFTER ABANDONMENT OF CORPORATION. January 31, 1907. lIon. Fassett A. Cotton, Superintendent of Public Instruction: Dear Sir-I am in receipt of your favor of the 24th inst., stat- ing that there are a number of school towns which have abandoned their corporations, pursuant to section I of the act of 1899 (Acts 1899, p. 373), and have placed the management of their schools in the hands of the township trustees; that in some instances, the township has subsequently erected expensive buildings within the territory of the civil town, and the school town has reincorporated immediately thereafter. Upon this state of facts you inquire whether it is possible under existing laws for the school town and school township to enter into a contract for a term of years. forbidding-the school town to rein- corporate and thus throw u on the township the burden of expense. incident to the construction cf such school buildings. It is expressly provided by statute: "In all eases where any city or incorporated town of this state has annexed or shall hereafter annex any territory or where any town shall be hereafter incorporated in which territory so annexed or incorporated there was or shall be the property of any school township used by such school township for school purposes, and such school township was, or shall be at the date of such annexations, indebted either for the purchase of said school property, or for build- ings constructed thereon, which indebtedness is unpaid at the date of the passage of this act, it shall and is hereby made the duty of the school corporation of such city or in- corporated town to pay such indebtedness, and such school corporation is hereby declared to be and made liable there- for. Until such city or town school corporation shall have paid such indebtedness, it shall not be entitled to possession of such property, or to a deed therefor, and upon paying such indebtedness by said school township, such school township shall be entitled to recover the amount so paid from said city school corporation with interest at the rate of six per cent. per annum from date of payment, and on payment of such amount the said school corporation shall be entitled to a deed and possession of such property as now by law provided." (Burns' Statutes 1901, §5997a.) The above act, however, applies only to cases where, at the time of the incorporation of the school town, the school building has not been paid for in full; and is further limited to such indebtedness as existed at the date of the passage of said act, towit: 'llarch 3, 1899. Assuming that your inquiry does not refer to instances of incor- poration governed by the statute above quoted, I am of the opinion that a contract of the character you indicate would be void, for the following reasons: First: School corporations, like other municipal bodies, have limited powers, and must justify their actions by statute. It is stated in Gas Light Co. v. City of New Albany, 156 Ind. 406, 415: "It is elementary that municipal officers have no powers beyond those expressly conferred by statute or necessarily implied to enable them to make effective the powers granted, or to protect the public welfare. Therefore, when they at- tempt an act that is beyond the limit of their power, the act has no official sanction, and is no more effectual than if performed by non-official persons." There is no statute in this state expressly or impliedly enabling school corporations to enter into such a contract as is now in ques- tion. Hence, the corporation's act in this regard would be ultra vires and void. Futhermore, the fact that the statute above quoted, has been passed, providing for liability in case of incorporating school towns containing school township property, indicates that the legislature intended to limit such liability to the cases expressly provided for therein. Second: Such a contract would be invalid as against public policy. It would amount to a surrender, for a fixed period, of the right of the inhabitants of the town to form a school corporation; although exigencies might soon arise making it advisable and even imperative that a school town should be organized. Respecting contracts of this nature, the supreme 6ourt has said "A municipal corporation can not by contract bind itself, when such contract involves the surrender of the exercise of a discretionary right which it is the duty of the corpora- tion to exercise for the public good." (Schipper v. City of Aurora, 121 Ind. 154, 1.59.) And in Vandalia Co. v. State (Tnd. Sup.) 76 N. E. 980. 984, the court declare: "A municipal corporation has no power by contract, ordinance or by law to cede away, limit, or control its legis- lative or governmental powers, or to disable itself from per- forming its public duties." My opinion, therefore, is that the agreement mentioned in your communication would be absolutely void and inoperative. Your question further implies that some of the contracts entered into as above stated, provide that if the school town does incorpor- ate, it will assume the burden of expense connected with the erection of said school building, and already defrayed by the school town- ship. For the first reason given above, I think the school town would have no power to enter into this stipulation; especially as it is well settled that, immediately upon incorporation, the school town be- comes the trustee for school purposes of all school property exist- ing within its boundaries, and the virtual owner thereof. See Board v. Center Township, 143 Ind. 391; Maumee School Tp. v. School Town of Shirley City, 159 Ind. 423. INSURANCE-STATE LIFE INSURANCE COMPANY. February 2, 1907. Hon. John C. Billheimer, Auditor of State: Dear Sir-in answer to your request for my official opinion as to whether under §13 of the act of 1899, and the notice given by you, bearing date January 22, 1907, to the president, vice-president, treasurer and cashier of the State Life Insurance Company, of Indianapolis, Indiana, to appear at the office of the anditor of state, at Indianapolis, Indiana, on Monday, January 28, 1907, at ten o'clock a. m., and then and there testify under oath relative to the business and management of the State Life Insurance Com- pany (which examination has been delayed and continued from day to day since said 28th day of January, 1907, subject to certain negotiations pending between yourself and the officers of said company), you could legally have such examination of such offi- cers conducted by any person whom you might select, under your direct and personal supervision. I beg to advise that said section above referred to authorizes you, at any time, to make such examination, either in person or by some other suitable person; and, it is my opinion that the language of the statute referred to means, and will be construed to mean, such person as shall be suitable to you. It is also my opinion that, under said section, you may proceed to examine the officers of such company before examining the books, papers, etc., or conduct such examination in such order as to you seems best and even though you should examine the books, papers and securities of the company first, by persons other than yourself, I do not believe you would be concluded from conducting an exam- ination of the officers, under oath, thereafter, in person or with the aid of some other person, even though such person should not be one who examined or aided in the examination of the books, papers and securities. It is also my opinion that any one selected by you to make the examination of such officers, under oath, would have the power and authority to do so, under this statute, regardless of whether such