Day v. McCandless

• Decision Date: 06 June 1932
• Docket Number: 30077
• Citation: 142 So. 486,167 Miss. 832
• Court: Mississippi Supreme Court
• Parties: DAY et al. v. MCCANDLESS

142 So. 486

167 Miss. 832

DAY et al. v. MCCANDLESS

No. 30077

Supreme Court of Mississippi, Division B

June 6, 1932

(Division B.)

1. SCHOOLS AND SCHOOL DISTRICTS.

Evidence established that de jure trustees of school district never surrendered office to trustees who attempted to supplant them, as respects validity of latter's acts (Code 1930 section 2899).

2 OFFICERS.

If de jure officer, in possession of office, performing its functions, refuses to yield possession, no one can take office from him by force and become de facto officer (Code 1930, section 2899).

3 OFFICERS.

Unauthorized person does not become officer de facto if his authority is promptly challenged (Code 1930, section 2899).

4 ESTOPPEL. Estoppel operates only in favor of one who, relying on another's act, representation, or silence, so changes his situation that injury would result if truth were shown. To create estoppel, there must have been a representation or concealment of material facts, and the representation must have been made with knowledge of facts, party to whom it was made must have been ignorant of the truth thereof, it must have been made with intention that other party should act on it, and the other party must have been induced to act thereon.

5. ESTOPPEL. That school superintendent contracted with persons unlawfully assuming to act as trustees held not to estop superintendent (Code 1930, section 2899).

The superintendent was not estopped by entering agreement to resign as superintendent with persons unlawfully assuming to act as school trustees during time de jure trustees were functioning, since no injury was suffered by persons unlawfully attempting to exercise functions of school trustees because they had no rights which could be invaded by superintendent.

6. ABATEMENT AND REVIVAL.

After Supreme Court's decision that de jure school trustees had never been ousted, suit by usurpers to enjoin superintendent from exercising office held properly dismissed without requiring revival (Code 1930, section 519).

7. INJUNCTION.

Dismissal of bill and dissolution of injunction held conclusive that injunction was unlawfully sued out and defendant's right to damages.

HON. M. B. MONTGOMERY, Chancellor.

APPEAL from the chancery court of Yazoo county, HON. M. B. MONTGOMERY, Chancellor.

Suit by Walter. Day and others, claiming to act as trustees of Anding Consolidated School District of Yazoo county, against C. H. McCandless. Decree for defendant, and plaintiffs appeal. Affirmed.

Affirmed.

Holmes & Potter, of Jackson, for appellants.

Franklin, Easterling & Rosenthal, of Jackson, for appellee.

Briefs of counsel not found.

OPINION

Anderson, J.

Appellants, Walter Day, William Miller, and C. W. Kirk, claiming to be the trustees of the Anding consolidated school district of Yazoo county, filed their bill of complaint in the chancery court of that county praying for an injunction to restrain appellee from going upon the school grounds and in the school building of said school district, and acting as superintendent of said school for the scholastic year 1931-32. A temporary injunction was issued without notice. Appellee answered the bill denying its material allegations, and filed a motion to dissolve the injunction, and for damages for its unlawful issuance. The bill was filed on August 27, 1931. A final decree was rendered January 16, 1932, dissolving the injunction and awarding appellee damages for the unlawful suing out of the injunction in the sum of one hundred fifty dollars, as a reasonable fee for his attorneys in procuring the dissolution of the injunction. From that decree appellants prosecute this appeal.

The foundation of this litigation is the question whether or not appellee or J. O. Box was the legal superintendent of the Anding consolidated school district for the scholastic year 1931-1932. In order to fully understand the case, the opinion of the court in the case of State ex rel. Plunkett et al. v. Miller et al. (Miss.), 162 Miss. 149, 137 So. 737, should be consulted. By agreement of the parties, the record in that case is made a part of the record in this. The decision in that case determined that Warrington, Plunkett, and Day were the legal trustees of the school district, and as such had the right to control the school and elect its superintendent, and that the appellants in this case, Miller, Kirk, and Day, were not the legal trustees of the district and had no right to control the school and elect its superintendent. Day's right to act as a trustee was not questioned by either side, the contest was between Miller and Kirk on one hand and Warrington and Plunkett on the other. For convenience, the legal board will be hereinafter referred to as the Warrington board, while the illegal board, the appellant, will be referred to as the Miller board.

Appellee was duly and legally elected superintendent of the school for its scholastic year 1930-1931, and also for the scholastic year 1931-1932. It appears that some of the patrons of the school, in conjunction with the county superintendent of education, were dissatisfied with appellee as superintendent and determined to oust him. To that end on March 17, 1931, while the Warrington board, the legal board, was acting as the board of trustees for the school district, and in full possession of the office as such, written charges were preferred against Warrington and Plunkett, two of the members of that board, upon which, after a hearing, the county superintendent of education undertook to remove them on the ground that they had ceased to be qualified electors of the county after they were elected trustees. Following their pretended removal there was an attempt to elect Miller and Kirk as their successors, and on March 21, 1931, Day joined Miller and Kirk and claimed the right to enter into the possession of the office of trustees of the school. Thereupon the Warrington board instituted quo warranto proceedings for the purpose of having the courts determine which board was the legal board. The circuit court held that the Warrington board was the legal board and not the Miller board, the appellants in this case. On November 23, 1931, the judgment of the circuit court was affirmed by the Supreme Court.

We think the solution of all the other questions involved in the case turns upon the right solution of the question whether or not from March 21, 1931, up to the final decision of the quo warranto case, the appellants, the Miller board, were de facto trustees of the school district. If they were, under the law, their acts were legal, notwithstanding the members of the Warrington board were the de jure trustees. In the quo warranto case Warrington and Plunkett, of the Warrington board, set up in their petition that they had been duly elected and qualified and were acting as trustees of the school district that the Miller board, without any lawful authority, was claiming to be the board of trustees, and prayed that it be ousted from the office which it claimed to hold. That case was tried on an agreed statement of facts. Paragraph 8 of the agreed statement of facts set out that the Miller board had "been exercising the duties and privileges of trustees of said Anding Consolidated School District, . . . but it is not agreed, however, that a vacancy in either of said offices of trustee in fact occurred, or that there existed occasion or necessity for said election held on March 21, 1931." Paragraph 10 of the agreed statement of facts was in this language: "That since the aforesaid election of the said C. W. Kirk and William Miller on March 21, 1931, the said C. W. Kirk and William Miller have each been claiming and asserting the right to the office of trustee of said Anding Consolidated School District, and the relators, I. H. Plunkett and J. B. Warrington, have each been claiming and asserting the right to the office of trustee of said Anding Consolidated School District."

The Warrington board had in its custody the minute book of the board of trustees and retained it, refusing to surrender it to the Miller board. After March 21, 1931, however, both boards attempted to function. It is true the county superintendent of education recognized the Miller board as the legal board until the Supreme Court decided to the contrary. Beginning on March 20, 1931, the Warrington board had meetings and transacted such business as it could. It held meetings at the following times, up to and including December 18, 1931; April 17th, May 15th, May 22nd, May 23rd, June 6th, June 12th, July 10th, August 7th, August 26th, September 25th, October 23rd, November 20th. The Miller board held several meeting, beginning with March 21, 1931, and ending with December 18, 1931, as follows: April 9th, May 23rd, May 30th, August 19th, August 29th, September 25th, October 23rd, October 30th, November 20th, and December 1st.

The county superintendent of education, in his testimony, showed how he treated the two boards while the quo warranto case was pending and before it was finally determined. He testified as follows:

"Q. Mr. Clark, following the election of C. W. Kirk and William Miller as trustees on March 21, 1931, who then assumed the duties of school trustees of Anding Consolidated School District? A. W. L. Day, C. W. Kirk and William Miller.

"Q. Who made reports to you from month to month as to the operation and conduct of that school and as to the teachers' salaries and superintendent's salary? A. The report handed me was signed by C. W. Kirk, W. L. Day and William Miller and also Warrington and Plunkett.

"Q. On whose report did you make payment? A. Report signed by the three trustees, Day, Kirk and Miller.

"Q. Were there any expenditures made on behalf of that school after. C....