Click v. Sample

• Decision Date: 03 December 1904
• Citation: 83 S.W. 932,73 Ark. 194
• Parties: CLICK v. SAMPLE
• Court: Arkansas Supreme Court

83 S.W. 932

73 Ark. 194

CLICK v. SAMPLE

Supreme Court of Arkansas

December 3, 1904

Appeal from Howard Chancery Court, JAMES D. SHAVER, Chancellor.

Reversed.

Decree reversed.

W. S McCain and D. B. Sain, for appellants.

A director must have written notice of a special meeting. 64 Ark. 489; 69 Ark. 159; 52 Ark. 511. This notice cannot be waived orally. 36 Ark. 545. Director Corbell did not forfeit his office merely because his oath of office was not filed in the clerk's office or could not be found there. Cf. Sand. & H. Dig. §§ 7035, 7036; 52 Ark. 511. The filing of his oath and recording of it in the records of the school district was, under the circumstances, sufficient. Cf. Sand. & H. Dig. § 7036. See also upon the questions of forfeiture of office and sufficiency of oath: 38 Ark. 81; 30 Neb. 360; 81 S.W. 1237; 38 Ark. 150; 25 Ark. 344; 52 Ark 356; 22 Ark. 556; 38 Ark. 571; 45 Ark. 143; 164 U.S. 657; 158 U.S. 232; 49 Ark. 439; 4 Ark. 582; 17 Neb. 553; 8 Am. & Eng Enc. Law, 343.

Feazel & Bishop, for appellees.

There being no actual controversy now between the parties and no rights to adjust by this appeal, this court should not take cognizance of this cause. 12 N.C. 74; 9 Wall. 602; 126 N.C 86, s. c. 35 S. E.; 125 N.C. 437, s. c. 34 S.E. 538; 7 Pa. S.Ct. 474; 26 S.W. 1116; 156 U.S. 651; 62 Ga. 747; 2 Cent. Dig. "App. & Error," § 69; 61 F. 208; 82 N.Y. 575; 49 Hun, 607; 95 N.C. 515; 35 S.C. 602; 139 N.Y. 446, s. c. 34 N.E. 931; 113 U.S. 216; 2 Johns. Ch. 317; 127 N.C. 243, s. c. 37 S.E. 263; 126 N.C. 86, s. c. 35 N.E. 228; 125 N.C. 437, s. c. 34 S.E. 538; 29 S.W. 415; 4 Tex. Civ. App. 174, s. c. 23 S.W. 279; 47 P. 424. The order appointing Corbell was void for uncertainty as to what vacancy he was to fill. Sand. & H. Dig. § 7040. The filing of the official oath with the clerk was necessary. 52 Ark. 514.

OPINION

HILL, C. J.

This case is submitted on a motion to dismiss the appeal; and as the merits are involved therein, and the questions are fully presented, the whole case is determined.

The suit was an injunction, brought by taxpayers and one member of a school board against the other members of the school board, a teacher employed by them and the county treasurer.

It is alleged that the two members of the school board made a contract with the teacher on behalf of the district to teach a three months' school, beginning February 1, 1904; that the contract was illegal; that under it the teacher had taught some two weeks, and the directors would issue warrants to her in payment of her services, and the county treasurer would pay such warrants, unless she was enjoined from teaching the school, and the directors from issuing and the treasurer from paying the warrants. An injunction in conformity with these allegations was prayed. On the 22d of February, 1904, the chancellor granted a temporary restraining order, enjoining the teacher from teaching, and the directors from causing to be taught, a school, under the contract complained of, on condition that the plaintiffs (appellants here) should give bond in the sum of $ 250 in the usual form of injunction bonds. This bond was given, and the injunction issued by the clerk.

On the 6th of May, 1904, on final hearing, the injunction was dissolved, and judgment rendered against the plaintiffs for costs, and they appealed.

1. The appellees move to dismiss the appeal on the ground that the contract against which the injunction was levelled had expired by its terms prior to the taking of the appeal; and insist that this court should not entertain a case merely to decide abstract questions where there is no substantial controversy remaining which is capable of enforcement, and that the costs, which are mere incidents of this terminated controversy, should not cause an appellate court to decide the abstract questions theretofore involved in order to adjudicate them. Authorities supporting these contentions are presented, and have been considered. While the contract in controversy cannot now be enforced or enjoined, there is a judgment of the chancery court dissolving the injunction, and, if that judgment stands unreversed, a liability is fixed upon the appellants and their sureties on the bond. That judgment fixing this liability is a substantial controversy, beyond the costs, and can only be reviewed by hearing this appeal.

2. The case turned in the chancery court upon the question as to whether Corbell was legally a member of the school board. The contract was made by the other two directors at a special meeting, and no written notice was given him of the time, place and object of the meeting. If he was a member of the board, under the decisions in Burns v. Thompson, 64 Ark. 489, 43 S.W. 499, and School District v. Adams, 69 Ark. 159, 61 S.W. 793, the contract was invalid; if he was not a member, the contract with the two directors was valid. School District v. Bennett, 52 Ark. 511, 13 S.W. 132.

In November, 1901, two vacancies occurred in the directory of this district. The term of one of the directors then vacated expired in May, 1902, and the other two years thereafter. The electors failed to fill these vacancies within fifteen days, and the county court, under section 7040, Sandels & Hill's Digest, appointed Corbell and Davidson as directors to fill these vacancies, but failed to designate which was appointed for the long term and which for the short term. Such appointments could carry no unexpired term beyond the next May meeting, when one expired, but were certainly valid that long as to both. At the annual school meeting in May following, by unanimous vote, it was decided that Corbell should hold the long term and Davidson the short one, and Davidson's successor was then elected. This was an untechnical, but effective, way to continue Corbell in office. He was thereafter holding under his appointment which had expired, because no successor was elected to succeed him. The tenure of a director only expires when his successor is elected and qualified. School District v. Bennett, 52 Ark. 511, 13 S.W. 132.

The district's action in refusing to elect a successor to Corbell has prevented in fact, whether it could in law or not, a successor from being elected or appointed and qualified. He continued to serve as director, being secretary of the board, from then until after the contract in question was made, but this time was within the term which the meeting decided he should serve. He was therefore a legal member of the board, if he ever was one, and that is the question the chancellor found against him.

The facts found by the...