The opinion
On Motion for Rehearing.
[13] Appellants insist that, since the contract was entered into between the contractor and the trustees, we should presume that the permit required by Vernon’s Sayles’ Oivil Statutes, art. 2904n, was previously issued. By the explicit terms of section 14, c. 120, Acts of 1913 (article 2904o), every disbursing officer of school funds is prohibited from paying out any portion of such fuuds for the construction of a building costing more than $400, until the permit required by the act has been procured; and a violation of this inhibition renders the disbursing officer liable for the sum so paid. Certainly a party who seeks to recover any part of such fund should show by Ms pleadings that he has met the condition precedent upon which his right to demand the money of the disbursing officer depends. No court should by its judgment require the payment of a claim to which the claimant was not entitled without suit, and it is fundamental that his pleadings should allege every fact necessary to a recovery. If the permit has, in fact, been issued, the pleadings should show it, and because they do not they are subject to general demurrer, and the error is fundamental. The requirement that the permit be obtained relates to the power and authority of the parties to contract, rather than to its form when the contract is made. Reynolds v. Schweinefus, 27 Ohio St. 313 , is a case where the power of a city council to improve the streets of the city, without the prior recommendation of the board of city improvement was involved. In discussing the presumption of the performance of official duty, Ash-burn, J., said:
“When a statute requires an act to be done, and gives no dii'eetion as to the mode of performance, and proceedings are had in the direction of performance, the duty will be presumed to have been rightfully performed until the contrary is made to appear. This presumption does not arise so strongly in regard to the exercise of power as to the performance of duty under the power. * * * So that, in cases where restraint is put upon their action by statute, and they can only act upon the authority of a report and recommendation of another body, it would not be wise, by mere construction, to lessen the force of the restraint to presume jurisdiction simply because of its exercise.”
The classification and appraisement of public lands before they are placed upon the market by the land commissioner and sold must not only be alleged, but proved.
“The establishment of that distinct fact has been held to be one of the essentials of a plaintiff’s case, so that no recovery can be had without it.” Anderson v. Walker, 95 Tox. 596. 68 S. W. 981 : Hardman v. Crawford, 95 Tex. 193 , 66 S. W. 206 ; Thompson v. Gallagher, 32 Tex. Civ. App. 591 , 75 S. W. 567 , writ'of error denied, 97 Tex. 649 , 77 S. W. xv .
[14] In our opinion, the statute in question limits the power of the parties to contract. It appears from the. motions for rehearing *755 that the statute had been complied with, but the record fails to show it, and we cannot consider questions presented which could properly arise only under a record showing compliance with the statute. That portion of the opinion in which it is stated that the bond, as between materialmen and laborers, upon the one part, and the contractor and his bondsmen, on the other, should be liberally construed, is probably a too generous statement of the rule, and that expression is withdrawn. 'In all other respects we think we hare correctly announced the rules of law which should govern in another trial, and the motions for rehearing are overruled.