West Virginia Secondary School Activities Commission v. Wagner

Decision Date11 April 1958
Docket NumberNo. 10939,10939
Citation102 S.E.2d 901,143 W.Va. 508
CourtWest Virginia Supreme Court
PartiesWEST VIRGINIA SECONDARY SCHOOL ACTIVITIES COMMISSION et al. v. F. Morton WAGNER, Judge, et al.

Syllabus by the Court.

1. 'In the absence of a statute authorizing such procedure, an unincorporated society of association can not be sued as an entity by its name, nor can judgment be rendered against it merely by name; but to confer jurisdiction, the members composing the association, or some of them must be named as parties, and process served upon them individually.' Point 1, syllabus, West v. Baltimore and Ohio Railroad Company, 103 W.Va. 417 .

2. Venue depends upon the actual existence of the cause of action and not upon the good faith of the plaintiff in the selection of the defendant.

3. Venue of a suit or action exists by virtue of law and when no cause of action arises and venue of a suit or action does not lie in a county, the circuit court of that county does not have jurisdiction of such suit or action.

4. Jurisdiction consists of two elements. One of these elements is jurisdiction of the subject matter and the other is jurisdiction of the person. Jurisdiction of the subject matter must exist as a matter of law. Jurisdiction of the person may be conferred by consent of the parties or the lack of such jurisdiction may be waived.

5. A court which has jurisdiction of the subject matter of litigation exceeds its legitimate powers when it undertakes to hear and determine the cause without jurisdiction of the parties.

6. The writ of prohibition lies as a matter of right when the inferior court does not have jurisdiction of the subject matter in controversy, or having such jurisdiction, exceeds its legitimate powers.

Joseph M. Sanders, Bluefield, Harold A. Bangert, J., Charleston, for relators.

Charles A. Tutwiler, Welch, for respondents.

HAYMOND, President.

In this original proceeding, instituted in this Court November 27, 1957, the petitioners, West Virginia Secondary School Activities Commission, a voluntary unincorporated organization, and Jonathan Y. Lowe, W. G. Eismon and F. P. Weihl, members of the Board of Appeals of the Commission, seek a writ to prohibit the defendants, Honorable F. Morton Wagner, Judge of the Circuit Court of Mercer County, and Robert Gerald Holbrook and Roy Rogers Bellamy, infants under the age of twenty one years, and Homer Hickam, their next friend, from proceeding further in a certain suit in equity, then pending in that court in which the infants Holbrook and Bellamy, members of the football team of Big Creek High School, a class AA school, in McDowell County, and residents of that county, are plaintiffs, and the petitioners, West Virginia Secondary School Activities Commission, Jonathan Y. Lowe, President, W. G. Eismon, Vice President, F. P. Weihl, Secretary-Treasurer, and members, and Melvin McClain, Deputy Member, of the Board of Appeals of the Commission, and all the unnamed agents, directors, servants and employees of, and other persons connected with, the commission and its board of appeals, and all high schools in this State, their coaches, teams, individuals, agents, employees and servants, are defendants.

The suit in which the petitioners seek to prohibit all further proceedings was instituted in Mercer County November 25, 1957, and on that day the defendant, F. Morton Wagner, the judge of the circuit court, upon the bill of complaint of the infant plaintiffs, issued an injunction which restrained and enjoined the defendants in that suit, and their agents, servants and employees, from in any manner interfering with, objecting to, or declaring the plaintiffs, or any member of the Big Creek High School football team, ineligible to play in any high school football game to determine the champion of class AA football in West Virginia, for the year 1957-1958, or to play as members of Big Creek High School team in such championship football game; restrained and enjoined the defendants and Weir High School, their agents, servants and employees, from arranging, sponsoring, holding, fixing or playing in a scheduled football game in Wheeling on November 28, 1957; restrained and enjoined the defendants and W. R. Fugitt, the executive secretary of the commission, their agents, servants and employees, from imposing any penalty upon Big Creek High School or its football team; and ordered the defendants to declare the football team of Big Creek High School eligible to participate in the championship football game to determine the class AA champion in West Virginia for the year 1957-1958 and, if such game is not played, to declare the Big Creek High School football team co-champion of class AA football in this State for the scholastic year 1957-1958. An injunction bond in the penalty of $250 was required by the circuit court and was executed in behalf of the plaintiffs.

Upon the petition filed in this proceeding on November 27, 1957, this Court issued a rule against the defendants returnable December 10, 1957, and by order suspended the operation of the injunction. The suspension of the injunction made permissible the scheduled football game between the teams of West Fairmont High School and Weir High School in Wheeling on November 28, 1957.

This proceeding was continued by agreement of the parties until January 28, 1958, when it was submitted for decision upon the petition, the separate answer of the defendant, F. Morton Wagner, the separate answer of the defendants Holbrook and Bellamy and Hickam, their next friend, which admits the principal facts alleged in the petition but denies and challenges its allegations that the circuit court was without jurisdiction to issue the injunction in the suit in equity, the summonses issued and served, the bill of complaint, and the decree awarding the injunction in the suit, which by stipulation were incorporated in the record, and the written briefs and oral arguments in behalf of the respective parties.

The West Virginia Secondary School Activities Commission is a voluntary unincorporated organization and it operates under its regularly adopted constitution and by-laws. The objects of the commission are to supervise and control, through its authorized instrumentalities, interscholastic authletic and other specified contests and such other interscholastic activities as may be properly regulated by it. Its membership is composed of public tax supported first class secondary schools which adopt its constitution and by-laws, pay annual dues, and are duly accepted as members. The activities of the commission are administered by the principals of its member schools. Each principal may cast one vote and the commission regulates interscholastic activities among its members. Its officers are a president, a vice president, and a treasurer, who constitute a board of appeals which is authorized to administer the by-laws governing interscholastic athletics; to appoint deputy board members to serve duty the will and pleasure of the board, and an executive secretary; to fill vacancies in its membership; to decide all cases of the eligibility of athletes and participants in other activities whose cases are not specifically covered by the constitution and by-laws; and to investigate, by a deputy board member, or otherwise, matters of eligibility and violation of rules. The decision of the deputy board member in matters investigated by him is final until reversed by the board. The executive secretary is authorized to receive and investigate complaints concerning the eligibility of athletes and participants in interscholastic activities and violations of the rules of the commission, and to render decisions and impose penalties which are subject to review by the board.

Under the provisions of the by-laws the board of appeals is authorized to adopt a point rating system for football to determine a state championship in all classes of schools, and if charges against any member of the commission can not be satisfactorily resolved by the deputy board member in the region in which they originate, they shall be submitted to the executive secretary who, if he also can not resolve such charges in a manner satisfactory to the schools involved, shall submit the protest to the board whose decision of the matter shall be final.

Neither the constitution nor the by-laws vests authority in the deputy board member to select the class AA school football teams to participate in the game to determine the championship of this State for the scholastic year 1957-1958, or to determine the co-champions in that class if a championship game should not be played. On the contrary, it is clear from the applicable provisions of the constitution and by-laws that the board of appeals of the commission has the exclusive power to determine the two football teams entitled to compete for the class AA championship of the State for the scholastic year, and that when the board has made that determination its action can not be altered, reversed or superseded by a deputy board member.

The bill of complaint in the suit in equity alleges that the plaintiffs are members of the class AA football team of Big Creek High School, located at War, McDowell County; that it and the class AA football teams of Weir High School of Weirton and West Fairmont High School of Fairmont were undefeated class AA teams during the 1957 regular season; that the football team of Weir High School is not entitled to compete in the championship game against West Fairmont High School but that the football team of Big Creek High School is entitled to compete in such game; that despite the objections and protests of the representatives of Big Creek High School, the board of appeals of the commission, at a meeting held in Parkersburg on November 24, 1957, refused to reverse the action of the executive secretary and the members of the board who, previously acting...

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