Terry, &C. v. Cornett

• Decision Date: 10 February 1910
• Citation: 136 Ky. 628
• Parties: Terry, &c. v. Cornett
• Court: Kentucky Court of Appeals

136 Ky. 628

Terry, &c. v. Cornett

Court of Appeals of Kentucky.

February 10, 1910.

Appeal from Breathitt Circuit Court.

DAVID B. REDWINE, Circuit Judge.

Injunction granted and defendants appeal. — Reversed.

H. V. McCHESNEY and A. H. PATTEN for appellants.

MARTIN T. KELLY for appellee.

OPINION OF THE COURT BY JUDGE CARROLL — Reversing.

The purpose of this litigation is to determine whether the appellant Ellen Terry or the appellee Nellie Cornett was entitled to teach the public school in district No. 11 in Breathitt county for the school year of 1908-1909.

On July 1, 1908, Samuel Combs and Elisha Gross, who claimed to be acting as trustees of the district, entered into a contract with Ellen Terry, by which they employed her to teach the school. Under this contract she commenced the school on July 6th, and continued to teach until September 21st, on which date she was restrained from further teaching by an order obtained by Nellie Cornett in this action, brought by her on September 19th. In her petition she averred that on July 1st, as well as on the 7th of the same month, the trustees were Henry Spencer, Granville Spencer and Samuel Combs, and that on the 7th two of the trustees, Henry Spencer and Granville Spencer, entered into a contract with her to teach the school for the school year. She further averred that Elisha Gross, one of the persons who as trustee made the contract with Ellen Terry on July 1st, was not on that date a trustee, and, therefore, the contract made with Ellen Terry by Elisha Gross and Samuel Combs was a nullity, and did not entitle her to teach the school, or to receive any of the school fund. She asked that she be adjudged the legally employed teacher for the year, and entitled to the whole of the school fund. Ellen Terry in her answer, after averring that Gross and Combs were trustees, and setting up her contract with them, denied that Granville Spencer, one of the persons who made the contract with Nellie Cornett on July 7th, was a trustee. She made her answer a counterclaim, and asked that she be adjudged the legally employed teacher of the school for the year, and entitled to the whole of the school fund. The question as to which one of these teachers had a legal contract to teach the school depends on whether Granville Spencer or Elisha Gross was the legal trustee on July 1st. If Gross was the trustee, then the contract with Ellen Terry was a valid contract, if he was not the trustee, then the contract made by the two Spencers with Nellie Cornett was a legal contract.

The superintendent of schools of Breathitt county in his evidence said that Granville Spencer was appointed on June 28, 1907, to serve from July 1, 1907, until the 1st day of July, 1908, that on June 29, 1908, he appointed Elisha Gross as trustee in place of Granville Spencer, to take his office on July 1st, and hold until July 1, 1909, and that on the day of his appointment he qualified by taking the oath of office; that he recognized Sam Combs, Henry Spencer, and Elisha Gross as the trustees of the school on July 1, 1908. The evidence further shows that both Henry Spencer and Granville Spencer were present when the contract was made with Ellen Terry on July 1st, and knew that Elisha Gross, who had been appointed trustee to succeed Granville Spencer, was acting as such trustee when the contract was made with her, and that she commenced her school on July 6, 1908. Upon hearing the case the court sustained the injunction, and adjudged that Nellie Cornett was entitled to $183.62 of the school money set apart for that school in 1908, and Ellen Terry was entitled to $155.47. In short, the school fund was divided between the contestants in proportion to the time each taught.

It being conceded that Granville Spencer was the duly appointed and acting trustee on June 29th, as well as June 30th, and that his term did not expire until the beginning of July 1, 1908, the argument is made in behalf of appellee that the appointment and qualification of Elisha Gross, on the 29th of June, to take his office as trustee on July 1st, was a nullity — and this upon the ground that, as Granville Spencer's term did not expire until July 1st, no appointment of his successor could be made until his term actually expired. On the other hand, it is insisted by counsel for appellant that an appointment may be made to take effect at a future date, and therefore although the appointment of Elisha Gross was made on June 29th to become effective on July 1st, the appointment was valid, and Gross became, by virtue of it, entitled to the office on July 1st. It seems, therefore, that the only question in the case is the validity of Gross' appointment, or, in other words, whether an appointment can be made to fill a vacancy before the vacancy occurs.

In support of the proposition that an appointment made to fill a vacancy before the vacancy...