Corrothers v. Bd. Of Educ. Of Clinton Dist.

• Decision Date: 24 April 1880
• Citation: 16 W.Va. 527
• Court: West Virginia Supreme Court
• Parties: Corrothers et al v. Board of Education of Clinton District,Monongalia County.

16 W.Va. 527

Corrothers et al

v.Board of Education of Clinton District, Monongalia County.

Supreme Court of Appeals of West Virginia.

Decided April 24, 1880.

1. A suit in equity will not lie to restrain the collection of a tax on the sole ground that the tax is illegal. There must exist in addition special circumstances bringing the case under some recognized head of equity jurisdiction, such as, that the enforcement of the tax would lead to a multiplicity of suits, &c. t

2. Where the case is thus brought under some recognized head of equity jurisdiction, as where the plaintiff brings the suit in behalf of himself and all other tax-payers in the district, who are to suffer by the tax imposed, if the bill shows that the tax is illegal, to avoid a multiplicity of suits equity will take jurisdiction by injunction.

3. Where equity has jurisdiction of a subject, and the Legislature by statute gives a remedy at law for the injury complained of, and does not by the terms of said statute take away the equitable jurisdiction, it must be considered as an additional remedy; and the equitable jurisdiction is not thereby ousted.

4. If a board of education refuses to do an act required by statute to be done at a particular time, and the act is such that the board could be compelled by mandamus to perform it, the board may afterwards on its own motion do the act,

Appeal from and supersedeas to two orders of the circuit court of the county of Monongalia, made on the 18th day of August, 1876, in a cause in chancery in said court then pending, wherein John W. Corrothers and others were plaintiffs and the Board of Education ot Clinton District of the county of Monongalia was defendant, allowed upon the petition of said plaintiffs.

Hon. Charles S. Lewis, judge of the second judicial circuit made the orders appealed from.

Johnson, Judge, furnishes the following statement of the case:

In March, 1876, the plaintiffs presented to the judge of the circuit court of Monongalia county the following bill of complaint praying an injunction:

" To the Hon. Charles S. Lewis," Judge of the circuit court held in and for Monongalia, county, State of West Virginia:

" The prayer, petition and bill of complaint of John W. Corrothers, Thomas H. Watson, William E. Watson and Thomas E. Watson, partners under the firm name of-, John W. Lanham, Eliza L. Morgan, Zadoc

McBee, Peter Price, Zadoc Thomas McBee, Thomas Price, Coleman Trickett, Andrew J. Kincaid, Joseph Trickett and Oliver Travis, citizens and tax-payers of and residents of the district of Clinton, in the county and State aforesaid, on behalf of themselves and the other tax-payers in Clinton district, in the said county of Monongalia:

" Humbly complaining, respectfully represent unto your honor that they are residents and tax-payers of said district, and as such cheerfully, as good citizens, obey and discharge all public duties fairly and lawfully imposed upon them, and as such have hitherto ever since the creation or establishment of the common or free school system of this State, materially contributed thereto; that the orators are advised and so charge that the said district of Clinton was and is sub-divided into sub-districts for school purposes, and that by virtue of chapter one hundred and twenty three of the Acts of 1872-3, passed April 12, 1872, entitled " An act to amend and re-enact the school law of the State," Nicholas C. Vandervort, Isaac Reed and Samuel T. Shuttleworth, of said district of Clinton, were duly elected and qualified asp the board of education of and for said district of Clinton, for the term of two years from the 1st day of September, 1873, and, as the orators are informed and believe, until their successors should be duly elected and qualified; that by section two of said act it is provided that " the board of education shall consist of a president and two commissioners. An election tor the officers shall be held at the school-house of each sub-district from nine o'clock in the morning till six p. m. of the second Friday of August, 1873, and every two years thereafter." The orators have no positive or personal knowledge whether such elections were held in each and all of said subdistricts on the second Friday of August, 1875, or not, but are advised that some kind of formal or informal elections were so held in some or perhaps all of said subdistricts on that day; but whether they were regularly or irregularly, lawfully or unlawfully held, the efrators are not personally or properly informed, but from information derived from others, the orators believe and so charge that said elections were in faet irregularly, improperly and unlawfully held and conducted. The orators are also informed and so charge that the records of such elections were not properly or lawfully forwarded or returned to the secretary of the said board of education; that in fact, as the orators are informed, the said elections were so badly, loosely and irregularly conducted and held, and forwarded and returned to the said secretary of said board as not only to render it difficult, but almost, if not altogether, impossible for the said board or anyone else to rightly determine who were elected as members of said board, or what was the will of the voters as to the question of levy for school purposes; that by the said second section of said chapter it is further provided:" The board of education for each district shall assemble on the second Monday after said election, and a majority of the same being present, shall open and examine the election records of the several sub-districts. They shall ascertain therefrom who has received the largest number of votes for the several officers of the district board of education, and give certificates of their election to the persons entitled thereto." The orators are advised and so believe and charge that the said board of education for said district did in met meet on the said second Monday after said election as so required by law, at the Price school-house in sub-district No. 10, of said Clinton district, said second Monday being the 23d day of August, 1875. Present: N. C. Vandevort, president, and Isaac Reed and S..T. Shuttlesworth, commissioners. At which time the said board, in accordance with section second, chapter one hundred and twenty three, acts of 1872-3, school law of West Virginia, proceeded to open and examine the election records of the several sub-districts of said district," * * * " and declared the said elections held in the several sub-districts of safe! district null and void." "Thereupon a motion was made to set the same (the said elections meaning) aside. After a spirited debate on said motion by said board, the motion prevailed." All of which official declarations, acts and proceedings were at the time, as the orators are informed, recorded by the secretary of said board in a book kept by said secretary and board for the purpose of recording therein the official proceedings of said board, and the same was then and there signed or attested by the signature of the said secretary, 'H. Stansberry, ' and the signature of the president of said board, as required by the eighth section of said chapter, an official copy whereof is now here filed as part hereof marked No. 1. Now, the orators have no means of accurately knowing, and do not personally know, whether the action and proceedings of said board touching the said elections as embodied in the foregoing order is right or wrong; but upon their information they believe it right and valid, and, in fact, binding and conclusive upon said board; that it, the said board, thereby exhausted its power in the premises; at least, unless and until the said order and proceedings were revised, set aside and annulled by a competent superior tribunal.

"And the orators are furthermore advised and so charge that the said board, when so acting in the premises touching the said election, were essentially a judicial tribunal, and that its said acts, decision and proceeding therein was and is essentially a judicial act and proceeding, and as such liable to be revised and corrected, if wrong, by the circuit court of said county; and that until so revised and corrected or set aside (if found to be wrong), said actsand proceeding are not only binding but conclusive upon said board. Nevertheless, the orators are informed, and so in fact charge as true, that the said board afterwards, to wit, at a special meeting held by the said board at the said Price school-house, in the said district, on the 30th day of August, 1875, without any authority of law so to do, and in violation of the provisions of the act aforesaid, and after the said ballots, records and proceedings so forwarded by the said several sub-districts in said district of Clinton had been opened, and had remained opened from the said regular or stated meeting of the 23d day of August, 1875, on file with the secretary of said board, as finished or worthless papers, unlawfully and wrongfully, as the orators are advised and believe, after re-considering (not setting aside) the order made at their meeting bearing date the 23d of August, 1875, being the said order making the elections of the several sub-districts in said district of none effect, 'proceeded to open and examine the election records of the several sub-districts, and found the result of said election as follows: J. S. Watson, president elect of the board of education, he having received the largest number of votes for that office; and J. W. Phillips and Morgan B. Hale, commissioners of said board, they having received the highest number of votes for said office. It was also ascertained that A. L. Wade had received two hundred and fifty-two votes for county superintendent, and G. W. Laishley, nine votes for same. The number of votes cast for levy, two hundred and thirty-seven; number against levy, twenty-six, ' After which the said board issued certificates of (lection for the board of...