Cottongim v. Stewart

• Decision Date: 21 June 1940
• Citation: 283 Ky. 615,142 S.W.2d 171
• Parties: COTTONGIM et al. v. STEWART et al.
• Court: Kentucky Court of Appeals

142 S.W.2d 171

283 Ky. 615

COTTONGIM et al. v. STEWART et al.

Court of Appeals of Kentucky

June 21, 1940

Appeal from Circuit Court, Laurel County; F. P. Stivers, Judge.

Action by Willie Cottongim against Wilson Stewart and others constituting the Laurel County Board of Education, and Edgar Brook, for damages as result of County Board of Education illegally rejecting plaintiff's nomination to teach in the schools of Laurel county, wherein defendant Brook filed a counterclaim against plaintiff and a cross-petition against the defendant board, consolidated with nineteen similar actions by others whose nominations to teach in the schools of Laurel county were rejected by the defendant board. From judgments for defendants, the plaintiffs appeal.

Reversed and remanded for proceedings consistent with opinion.

Hiram H. Owens, of Barbourville, for appellants.

A. T W. Manning, of Manchester, for appellees.

MORRIS Commissioner.

The above-styled case is one of a series of twenty appeals, in each of which the complaining teacher was plaintiff below, and appellant here. The appellees, defendants below, were the persons constituting the Laurel County Board of Education, and in each case the teacher illegally employed by the board.

The controversy was before us on appeal at a time when there were twenty-three appellants. Cottongim v. Stewart et al., 277 Ky. 706, 127 S.W.2d 149. The opinion was rendered on February 7, 1939; rehearing was denied May 2d of the same year. Referring the reader thereto for all facts and conclusions, we shall nevertheless give a brief resume.

At a meeting of the board on May 2, 1938, the then superintendent, Chestnut, had made, as is directed by law, recommendations for teachers in the county schools, and was insisting on appointment. Pertinent to the discussion of the case it is shown that the superintendent was reading to the board an opinion of the Attorney General, directing their attention to the peremptory duty of the board to follow his recommendations. Some member of the board interrupted, saying the board would not "consider hiring teachers today," and a motion to that effect carried. Another motion to approve the list was lost by a three to two vote, members McCowan, Harrison and Johnson being the negative majority.

At the next regular meeting of the board, June 6, the minutes of the preceding meeting were approved, but later a motion was made and carried to strike from the minutes the language "hiring the teachers and attendance officer," and one member moved that the teachers recommended by Chestnut be employed. This motion was lost by the same vote. We observed in the former opinion that "no effort was made to postpone the consideration of this matter at this meeting and that the record is clear of any involvement." [277 Ky. 706, 127 S.W.2d 150.]

Chestnut went out of office July 1, 1938, and was succeeded by J. B. Means, and at a special meeting of the board on July 1, another motion to ratify Chestnut's recommendation was lost three to two. On July 8, all the rejected teachers filed separate suits, asking that the board be directed to recognize their rights to teach in the named county schools. Pending action on a motion for temporary mandatory injunction, the board on July 15, three to two, adopted a resolution undertaking to correct the minutes of the June 6 meeting, so as to show that the proposal considered was to defer the employment of all teachers until after July 1.

We said that the minutes of the June 6 meeting showed otherwise, and had been approved on July 1, and that "the falsity of the subject matter of this resolution, and the correctness of the June 6 minutes, are established by testimony of the members of the board."

The lower court refused a temporary order, and a similar motion was made before a member of this court, and in memorandum, the judge hearing the motion, stated that he had considerable doubt as to the correctness of the court's ruling. He pointed out that since it would be less than a month before the convening of the trial court, when a trial upon merits could be had, that if it should then be found that the plaintiffs were right in their contentions, they "would not necessarily be deprived of their salaries during that month, since at least the substitute teachers, who are defendants in each separate case, could be compelled to refund the salaries to plaintiffs so illegally paid."

It then appears that plaintiffs took proof and actively endeavored to obtain an early decision, which was to some extent thwarted, since there was no decision until November, 1938, appeals filed in December with appellees' briefs coming in as late as January 23.

We found the law concerning the authority of the superintendent to be clear and well settled, of which fact the board was advised. We said the record disclosed an intent to ignore the law for the purpose of gaining political or personal preference through the incoming superintendent, hinting at nepotism.

There was argument presented, generally as to the danger of substituting the court's discretion for the board's, which might thereby disrupt the school program, and that since the school term had all but expired, to reverse the judgment would upset the orderly administration of school affairs, and "destroy the vested rights of appellee's teachers who have acted in pursuance thereto." On the whole case we found the defenses without merit and reversed judgment in each with directions to the lower court to decree that the "appellants were entitled to teach in the schools to which they were severally nominated the superintendent." Mandate was filed, and on May 10, 1939, an amended petition was filed making the new board members parties defendant. The amended pleading alleged that under the rules for payment of Laurel County teachers, the basic salary was $65.50, with credits for educational fitness and experience of $14.20 for a certain number of college hours (71), and $2.50 for two years' experience, which qualifications the plaintiff possessed. His pay thus would have been $82.20 per month during the seven months' school period, in all $575.40, which he had demanded, less his interim earnings, and recited that "prior hereto injunction was sought and plaintiff is now entitled to judgment preventing defendants from paying said money to any other person, and to a mandatory injunction directing the members of the board to disburse to the plaintiff the money now so owing. He prayed for judgment for the sum named and for an order compelling the board to pay. The same character of plea was made in each of the other nineteen cases.

Notice was given and plaintiff filed his motion for injunction, the motion asking that the board be compelled to set apart and pay plaintiff the money "to which under the decision of the Court of Appeals in this case, plaintiff is entitled to receive."

In the first case, as is shown, teachers had been employed by the board, and they were then teaching, and it was sought to have the substitute teachers refund to those who were contesting their rights. In all the twenty cases these teachers answered. Brock did in the instant case. His pleading was an answer and counterclaim against appellant, and a cross-petition against the board. He first denied the allegations of the amended pleading, and alleged that he was the duly employed teacher in one of the Laurel County sub-districts, and so employed on the recommendation of the superintendent.

He further says that he taught during the entire seven months of school, as provided in his contract, hence entitled to have and receive the salary for his services, which were rendered in good faith. He says plaintiff rendered no services, and is not entitled to be paid anything, or to receive any of "his remuneration for teaching said school." He merely asked that the amended petition be dismissed, and be allowed to retain what was paid him for service. This is the only intimation that substituted teachers had been paid.

The Board of Education filed its answer, denying the allegations of appellant's amended petition, particularly in his conclusion as to the effect of the decision of this court on the first appeal. In a second paragraph they affirmatively allege that plaintiff was never employed by the board to teach in any school in Laurel County, and hence rendered no service; but that he engaged in other gainful occupation during the school period, and that the service for which he is claiming was rendered by other persons, duly and regularly employed by the board, and who are now claiming the remuneration for their services.

The plaintiff demurred to the second paragraph of the answer, and upon consideration the court sustained same. Plaintiff then replied (notwithstanding demurrer was sustained) admitting that he had engaged in other occupation during the school term, but denying that the service for which he was seeking pay was performed by others regularly and duly employed, or that such other persons were claiming remuneration for such services. He supplements his plea by alleging that "he was not employed in any public school or other gainful occupation of like nature or at all, by which he earned more than the amount here in controversy, or any sum net above expenses." Like pleadings were filed in each case, save as to amounts. The court set aside the first judgment, and a judgment in conformity to our opinion was entered retaining the cases on the docket "to try out any issues raised, or to be raised on the petition as amended, and all other matters that may arise in this case hereafter."

Appellant testified by way of deposition, in which he stated that had he been permitted to teach the school in question, his pay would have been...