Abler v. School District of St. Joseph
| Decision Date | 10 January 1910 |
| Parties | CHARLES B. ABLER, Respondent, v. THE SCHOOL DISTRICT OF ST. JOSEPH, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Buchanan Circuit Court.--Hon. H. M. Ramey, Judge.
Case affirmed.
H. K White for appellant.
(1) The merger of the two districts annulled the executing contracts sued upon, leaving the defendant district liable only for the value of services performed at the time of the merger. 7 A and E. Ency. of Law (2 Ed.), 116; People v. Insurance Co., 91 N.Y. 174; Mumma v. Potomac Co., 8 Peters 287; Read v. Bank, 23 Me. 321; Jones v Judd, 42 N.Y. 41; Segall v. Eaton, 165 Ill 550. (2) Under the Constitution and Laws of Missouri, the contracts were void, because at the time of their execution, district number seven had no funds to meet the claims sued for, and had not provided any means by which funds would accrue to meet these obligations. Constitution of Missouri, art. X, sec. 12; R. S. 1899, secs. 9840, 9770, 9790; Book v. Earl, 87 Mo. 246; Barnard v. Knox, 105 Mo. 390; State ex rel. v. Johnson, 162 Mo. 629; Railroad v. Thornton, 152 Mo. 575; Kane v. School District, 48 Mo.App. 408; State ex rel. v. Railroad, 169 Mo. 574; Anderson v. Ripley Co., 181 Mo. 65; Trask v. Livingston Co., 210 Mo. 582. (3) Plaintiff Drowns cannot recover because his certificate as licensed teacher would have expired before the expiration of the contract, and was not a certificate in form prescribed by statute. Section 9805 provides for examination of persons desiring to be teachers, and authorizing the commissioner to grant certificates. It also provides that "The certificate thus granted is to be of force only in the county for which it was granted and shall not be issued for a period of less than twelve months nor longer than two years." Section 9766 provides that only legally qualified teachers shall be employed. Section 9797 provides that no teacher shall be employed until he has received a certificate of qualification therefor signed by the commissioner of the county where he intends to teach. Section 7997 provides for penalties of a criminal nature to be imposed upon teachers and directors who disregard the provisions of the above sections. Section 9807 provides for two grades of certificates, "first grade certificate" and "second grade certificate." The certificate introduced by plaintiff Drownes was not of either of these classes.
Wm. H. Sherman and Jas. W. Boyd for respondents.
(1) This court has no jurisdiction of these cases. Respondent, Abler, recovered by the judgment of the circuit court $ 482.55. The other respondents recovered each a smaller sum, so that, as to the amount involved in any one of these cases, no jurisdiction was conferred upon this court. Section 12, of article 6, of the Constitution confers jurisdiction upon the Court of Appeals in cases wherein the amount recovered does not exceed the sum of $ 2,500, later amended, so as to increase the amount to $ 4,500, and to cases involving the construction of the Constitution. No question arises in this case involving a construction of the Constitution of this State, nor of any law the validity of which is questioned by and on account of any constitutional limitation or restriction. It is true that the appellant, in his second assignment or error claims that the contracts made and entered into by the respondents in District No. 7 are contrary to the provisions in section 12 of article 10 of the Constitution, but this section probably has nothing to do with the merits of this case; and, besides, it has been so many times construed and defined as to its meaning that there is nothing further left for this court to do or say in that respect. There is nothing suggested in the appellant's answer, nor in any pleading in the case, nor in any instruction asked by it, to in any wise indicate to the circuit court that any question involving the construction of the Constitution was to be considered in this case. In order to bring an appeal within the jurisdiction of the Supreme Court, a constitutional question must be involved, and such question must be raised on the record. Holland v. DePriest, 130 Mo. 89. (2) It must appear that a constitutional construction was essential to the deciding of the case. State ex rel. v. Smith, 141 Mo. 1; State ex rel. v. Smith, 152 Mo. 444; State ex rel. v. Smith, 176 Mo. 44; Curtis v. Smith, 177 Mo. 69; Tarkio v. Loyd, 179 Mo. 600. (3) It must appear that a constitutional question was raised in the trial court and ruled on against the party or person appealing. Hardin v. Carthage, 147 Mo. 442; Brown v. Railroad, 175 Mo. 185; 176 Mo. 44, supra. (4) Until the trial court has passed on the legality of an act the Supreme Court does not have jurisdiction on the ground that a constitutional question is involved. Colman v. Cole, 158 Mo. 253; Baldwin v. Fries, 103 Mo. 286. (5) As approving these cases, the doctrine therein stated is confirmed in the following cases: State ex rel. v. Smith, 173 Mo. 411; Karn v. Railroad, 114 Mo. 162. (6) As sustaining this doctrine from other States, we cite the following school cases: Winona v. School Dist., 40 Minn. 13, 41 N.W. 539; Board of Supervisors v. Thompson, 61 F. 914; Hoffield v. Board of Education, 33 Kan. 644, 7 P. 216; Brewer v. Palmer, 13 Mich. 104; Coler v. Dwight School Township, 3 N.D. 249, 55 N.W. 587, 28 L.R.A. 649; Schriber v. Langlade, 66 Wis. 629; Turnbull v. School Dist., 43 Mich. 496, 8 N.W. 65. (7) In addition to the two assignments of error hereinbefore referred to as having been made by the appellant, the appellant, as against respondent Drowns, suggests to this court that he ought not to recover, because, as appellant claims, his certificate as a licensed teacher, held by him at the time he entered into the contract with District No. 7, expired before the expiration of the contract, or before the expiration of the school year. Respondent Drowns, in answer to this point, says: That his teacher's certificate, introduced in evidence, is as follows: "It is hereby certified that William Drowns has furnished satisfactory evidence of good moral character, and has, upon examination, attained grades, as indicated in the following subjects: . . . ."
The plaintiff in the trial court sought to recover from appellant damages for failing to perform a certain contract, alleged to have been made with School District No. 7.
The petition after an allegation of the corporate capacity of the two districts, sets out that on the 9th day of September, 1904, the voters of district No. 7 voted in favor of becoming incorporated with defendant School District of St. Joseph, and that on September the 15th, 1904, the directors of the latter voted to accept District No. 7, and received all its property real and personal and assumed its debts. It is alleged that prior thereto District No. 7, entered into a contract with the plaintiff for performance by him of janitor work for the ensuing year. He claims that he entered upon the performance of his work and worked a few days prior to September, 1904, at which time defendant would not longer permit him to do his work although he was willing to do so. He asks for damages against defendant on his contract.
The answer of defendant admitted the corporate capacity of the two school districts, but denied all the other allegations and set up the following as a defense: That the pretended contract was void because District No. 7 had not provided any income and revenue for the fiscal year commencing July 1, 1904, had failed to make any levy of any taxes upon the property within its limits for that fiscal year, had failed to make any estimate of the amount needed for sustaining the schools and the rate required to raise such amount needed, and had failed to make any enumeration of children of school age living within the limits of the district, so that it was not entitled to any of the public school fund required to be apportioned by the county clerk of the said county, including the moneys received by the county in the treasury of the State, and including moneys arising from interest on funds derived from sale of school lands, and moneys arising from the county school fund, and moneys arising from the payment of railroad and bridge corporations of taxes levied on their property; and that the district had no other funds or sources of income whatever at the time of making the alleged contract.
The records of District No. 7 showed that at a meeting of its directors held on the 2d day of September, 1904, plaintiff was employed as janitor at a stipulated salary; and it was shown that defendant refused to permit plaintiff to continue his service in the performance of his contract.
For further statement we quote from that of the appellant, to-wit:
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