
    ADOLPH CLUSS, FOR THE USE OF JOHN A. J. CRESWELL, ROBERT PURVIS, AND ROBERT H. T. LIEPOLD, COMMISSIONERS OF THE FREEDMAN’S SAVINGS AND TRUST COMPANY vs. THE DISTRICT OF COLUMBIA.
    An act of Congress, July 11,1862, (12 Stats., 537,) created aboard of trustees of schools for colored children, and authority was given to the Secretary of the Interior to fill all vacancies; and subsequent acts of Congress provided that from the whole fund received for the support of schools a proportionate share should be set apart for the colored schools, and should bo paid to such trustees for the support of such schools, including the cost of buildings and improvements, and if not paid over, it should be recoverable in an action of debt by such trustees against the cities of Washington and Georgetown: Held, that the plaintiff, who was an architect, and had performed services for the board on four different school-houses for colored children, and a balance of whose claim therefor was due and unpaid, might maintain an action for such balance against the District of Columbia. The principle enunciated by the United States Supreme Court in Barnes vs. The District applied.
    STATEMENT OR THE CASE.
    The declaration contains the common counts and refers to a bill of particulars annexed. It consists of a demand against the board of trustees of colored schools of Washington and Georgetown, D. 0., for plans, specifications, drawings, and superintendence of Sumner school, and for services performed on three other school buildings, as an architect. There is a balance of §2,155 due. The defendant demurs, and the ground of demurrer is stated to be:
    “A matter of law intended to be argued upon this demurrer is that the District of Columbia is not liable for the plans, specifications, detail drawings, office expenses, and services specified in the declaration, because the same were furnished and rendered upon and for buildings for colored schools; and the District of Columbia could only pay to the treasurer of the board of trustees of schools for colored children, and to no one else, the sum, or any part of the sum, payable by said District for the purpose of establishing and sustaining colored public schools iu said District; and by law a right of action is given to the trustees of schools for colored children, and to no one else, against said District for the non-payment of any sum of money payable for the purpose aforesaid.”
    From an order overruling thé demurrer an appeal was taken to the general term.
    Properly to understand the point at issue, a reference to legislation in regard to colored schools is necessary. By an ordinance of the corporation of Washington, passed November 12,1858, the mayor was required to appoint a board of trustees for the management of all the public schools in this city. Webb’s Dig., 320. This was the beginning of the board of trustees. By the act of Congress of May 21, 1862, (12 Stats., 407,) ten per cent, of the taxes levied upon the property of persons of color in the cities of Washington and Georgetown was required to be set aside for the purpose of initiating a system of primary schools for the education of colored children, and the board of trustees of public schools was charged with the care and disbursement of the fund. Said board was also required “ to provide suitable rooms and teachers for such number of schools as * * * will best accommodate the colored children ” in said cities. The third section of said act clothes the said board of trustees with the same power over colored schools as they then possessed over the public schools by virtue of the laws and ordinances of the city.
    By the act of Congress of the 11th of July, 1862, the powers over colored schools given by the said act of May 21,1862, were taken away and given to three persons, who are named in the act, and their successors, who were thereby “created a board of trustees ” to “ possess all the powers and perform all the duties conferred upon and required of the trustees of public schools’* of the cities of Washington and Georgetown. The act provided that the successors of the persons named should be appointed by the Secretary of the Interior.
    The act of Congress approved Ju‘ly23,1866, (14 Stats., 216,) requires the cities of Washington and Georgetown to pay over to the trustees of colored schools of said cities such a proportion of the funds received or expended for educational purposes, including the cost of sites, buildings, improvments, furniture, and books, as tlie colored children bear to the whole number of children.
    The act of February 21,1871, (16 Stats., 419,) creates the District of Columbia a corporation for municipal purposes. The thirteenth section of this act provides that “ no money shall be drawn from the treasury of the District except in pursuance of an appropriation made by law,” and the eighteenth section enacts that the legislative power of said corporation shall extend to all rightful subjects of legislation within said District. The legislative assembly is enjoined by the twenty-third section “ to maintain a system of free schools.35, By the terms of this organic act the charters of the two cities, expired June 1,1871, “ and all offices of said corporation abolished at that date.”
    By the act of the legislative assembly approved August 23, 1871, (Laws, 108,) a general taxof §1.70 on each one hundred dollars was imposed upon the property of the inhabitants of the District “ for the support of the public schools, including colored schools, and for the erection of school-houses.”
    By the act of the local legislature approved August 23, 1871, (Laws, 141,) the sum of $146,390.98 was appropriated for the support of colored schools, and the act contains a proviso “ that there shall be deducted and retained out of the above amount a sum sufficient to pay all existing and unpaid claims heretofore created for the construction and furnishing of school-houses for the use of said colored schools.”
    By the act of the said assembly of August 23,1871, “ all laws and ordinances ” * * * in relation to public schools are continued in force, and the manner of paying the accounts or' the board of trustees of public schools is prescribed. Laws* 156, 157.
    By the act of Congress approved March 3, 1873, the board of trustees of colored schools is increased to nine members, to be appointed by the governor of the District, and a treasurer was provided for, whose duty it was to disburse all the money-under the control of the'board according to the laws of Congress and the acts of the assembly “ governing the disbursement of moneys appropriated for the support of the public schools of Washington and Georgetown.”
    Commissioners for the government of the District were pro-Tided for by the* act of June 20, 1874, (18 Stats., 116,) with the same powers as were possessed by the governor and board of public works. They are authorized to abolish any office, to consolidate two or more offices, remove from office, and make appointments to any office authorized by law. They are expressly authorized by the act to apply the revenues of the District to the support of the public schools.
    This statement is made as a convenient digest of all the laws affecting schools for school children in this District.
    
      Enoch Totten for plaintiff.
    
      E. L. Stanton for the District.
   Mr. Justice MacArthur

delivered the. opinion of the court:

The plaintiff was employed as an architect by the board of trustees of colored schools of Washington and Georgetown, to do work as such on the Sumner school building, and also on the O-street, the Stevens, and Lincoln schoolhouses, in this city. His account amounted to $3,255, upon which he had received the sum of $1,100. Henry Johnson, chairman of the subboard of' colored schools and trustee and president of the board and William H. Wormley approved of the account, and Johnson certified that it had not been paid. The defendant has interposed a demurrer, which of course admits the indebtedness and its non-payment, but it proceeds upon the assumption that the trustees alone could sue, and that the District was not fiable to a creditor. The acts of June 25, 1864, and of July 23, 1866, make provision that the proper authorities of the District are to set apart, from the whole fund received from all sources for the support of schools, such a proportionate part as the number of colored children bears to the whole number of children in the District, and shall pay the same to the treasurer of the board of trustees of schools for colored children, and said trustees are authorized to maintain an action in the supreme court of the District against the District for the non-payment of any sum of money belonging to such proportion of the school-fund. The question raised by the demurrer is, whether the remedy of the trustees'excludes the right of a creditor to sue the District. We think the decision of the Supreme Court of the United States in the case of Barnes vs. The District of Columbia disposes of this point in favor of the plaintiff. It was there held that the board of public works was a part of the municipal corporation created by the act of February 21,1871, (16 Stats., 419,) and that the District of Columbia is responsible to an individual who has suffered injury from their want of care. The board, of public works were invested with the entire control of the streets; they were appointed by the President, by and with the consent of the Senate. They were subject to removal by the President, and received their compensation from the United States. And, notwithstanding these circumstances,it was decided that they were acting for and on behalf of the corporation, and that it was a matter of no-consequence from what source they derived their powers or by whom they were paid. The principle seems applicable to the present case. At the time the services of the plaintiff were rendered there was a board of trustees of colored schools, created by act of Congress, and the vacancies in which were to be filled by the Secretary of the Interior. This board had the control of the fund applicable to the maintenance of colored schools, just as the board of public works had control of the streets and avenues in the city, and in both cases the officers were appointed to perform a municipal duty by a power uncontrollable by the corporation. If it can be said that one body rep-represents the city, the same is equally true of the other, and, the law requiring payment by the District to the board of moneys for said fund, and giving to the board an action of debt against the cities of Washington and Georgetown upon default of payment, cannot affect the rights of creditors. That was a mode of compelling the cities to such a distribution of the school-fund as would secure to colored children the advantages of education at a time when, perhaps, there was a reluctance to expend money for that purpose. In the case referred to, the court was of opinion that the action by an individual could be maintained against the District although the board of public works were appointed by the President with the consent of t-he Senate, and that the manner of their appointment and the source from which they received.compensation were unimportant considerations, so long as they acted as agents or representatives of the city. We cannot see why this reasoning is not decisive of the case at bar. If the trustees can sue by force of the statute, it is because the District is liable; but surely the party on whose account the liability exists can sue independently of the statute,, unless expressly prohibited. We think the case, ought to be tried on its merits, and therefore overrule the demurrer, with leave to the defendant to plead over within twenty days, and the cause to be placed on the calendar in the order of its issue.  