Douglas v. Pittman

• Decision Date: 12 June 1931
• Citation: 39 S.W.2d 979,239 Ky. 548
• Parties: DOUGLAS et al. v. PITTMAN et al.
• Court: Kentucky Court of Appeals

39 S.W.2d 979

239 Ky. 548

DOUGLAS et al. v. PITTMAN et al.

Court of Appeals of Kentucky

June 12, 1931

Appeal from Circuit Court, Hardin County.

Petition under the Declaratory Judgment Act by Mrs. Ida Pittman and another against A. H. Douglas and others. From an adverse judgment, defendant named and another appeal.

Affirmed.

J. E Wise. of Elizabethtown, for appellants.

James &amp James, of Elizabethtown, for appellees.

BRATCHER J.

This is an appeal from the Hardin circuit court under Declaratory Judgment Act (Civ. Code Prac. §§ 639a--1 to 639a--12) to determine who were the legal members of the city board of education of the city of Elizabethtown; it being a fourth class city. The appellants, A. H. Douglas and Will Bethel and the appellees, Mrs. Ida Pittman, S. P. Bale, R. E. Day, and Mrs. Katie Mobley, were, prior to the acts complained of, the duly elected, qualified, and acting members of the city board of education.

The petition filed by Mrs. Pittman and S. P. Bale alleges that A. H. Douglas, R. E. Day, and William Bethel, while members of the city board of education, became interested in contracts with, and claims against, the board; that they thereby vacated their offices. The petition alleged that A. H. Douglas was president of the Victory Motor Company; that R. E. Day was a member of the firm of Day & Hays Insurance Agency, and that William Bethel was a member of the firm Hart & Bethel; that the three above-named members have been interested directly or indirectly in the sale of property to the board of education of the city; that by section 3587a-4, Kentucky Statutes, these acts render their respective offices vacant without further action.

It further averred that on the 7th day of March, 1931, A. H. Douglas, as chairman of the city board of education, undertook to declare the office of R. E. Day vacant, and attempted to appoint S. H. Jones as his successor. It alleges S. H. Jones is claiming to be a member of the board of education without right or authority. It further alleges that there is not a sufficient number of the members of the board of education of said city to transact the business of the board, and that the schools maintained in the city are likely to suffer if this controversy is not speedily settled; that S. P. Bale, R. E. Day, A. H. Douglas, and S. H. Jones are threatening to and are acting as members of the said board of education, and will continue, unless enjoined by the court, and they asked for an injunction enjoining the above members from acting in the capacity of members of said board of education. The petition asked for a declaration of the rights and judgment as to (1) whether or not, by his act, the defendant A. H. Douglas has vacated his office; (2) whether or not the defendant R. E. Day has vacated his office; (3) whether or not by his act William Bethel has vacated his office; (4) in the event any vacancy or vacancies should exist, by whom the same should be filled; (5) as to whether or not under the circumstances the three members of the board of education can order and direct the payment of bills and teachers' salaries.

A. H. Douglas, William Bethel, and S. H. Jones filed their joint answer, which was a traverse of the material allegations of the petition denying that they or either of them had at any time been interested in claims or contracts with the board of education while they had been members thereof. Mrs. Kate Mobley filed her answer, in which she denies having any interest in the questions involved in this action, and stated that she was ready and willing to act and fill all vacancies and perform all duties incumbent upon her as a member. After the parties introduced their proof, this cause was submitted to the court for judgment. The evidence shows that A. H. Douglas was president of the Victory Motor Company; that he owned one-third of the stock in that corporation. The Victory Motor Company had sold to the board of education of Elizabethtown several articles, one being a lawnmower for $16.85. Another bill for five gallons of shellac for $16.50; another bill for five gallons of shellac for $15.75; and a number of smaller bills. It is shown by the original exhibits that these claims were allowed and upon the bill is noted the number of the check given in payment.

Hart & Bethel is a dry goods firm. The original bills introduced as exhibits, and are here, shows one bill for $2, dated 2/16/28, one for $11.70, dated 9/17/28, one for $12, one for $20.65, one for $58.90, and a number of smaller items. The Day & Hays Insurance Agency has two bills, one for policy on stationary boiler for $221, dated 1/20/30, and, the other contains two items aggregating $64.16. The court found that A. H. Douglas, R. E. Day, and William Bethel, by their acts in dealing with the board of education, had vacated their offices. It further found and so adjudged that S. H. Jones was not legally appointed, and therefore not a member of the board of education. The judgment further declared that the remaining members of the board of education had a right to meet and fill the vacancies on the board of education, and enjoined A. H. Douglas, R. E. Day, William Bethel, and S. H. Jones from further attempting to exercise their duties as members of the board of education. Complaining of the correctness of the judgment, A. H. Douglas prosecutes this appeal.

The pertinent part of section 3587a-4, Kentucky Statutes, reads: "No person shall be eligible to this office who, at the time of his election, is directly or indirectly interested in the sale to the board of books, stationery, or other property. If, at any time after the election of any member of said board, he shall become interested in any such contract with or claim against said board, or if he shall after election, become a candidate for any office or agency or for the nomination thereto, the holding and the discharging of the duties of which would have rendered him ineligible before election, or if he shall move his residence from the city for which he was chosen, or if he shall do or incur anything which would have rendered him ineligible for election, his office shall, without further action, be vacant, and it shall, be filled as herein directed."

It will be observed that the above section of the Statutes provides that if, after the election of a member of the board of education, he shall become interested in contracts with the board, by such acts "his office shall without further action be vacant." It is a consistent rule adhered to in a long uninterrupted line of decisions that fiscal courts boards of education, and city councils are prohibited from becoming interested in claims or contracts with their respective bodies. Various penalties and restraining impositions are prescribed by the different statutes. These statutes were enacted as safeguards upon the spending of public funds and with the further view of...