Etui v. Bd. Of Educ. Et At.
| Decision Date | 24 November 1894 |
| Citation | 39 W.Va. 497 |
| Court | West Virginia Supreme Court |
| Parties | Shinn etui. v. Board of Education et at. |
1. Jurisdiction.
A court, of equity has jurisdiction of a suit by and on behalf of
the r sident taxpayers of a school district brought to set aside and hold for naught a contract made by the Board of Education, so far as the same creates and incurs a-debt to be paid out of the school-money of subsequent years.
2.Board of Education.
The following order is upon its face an order for the payment of money out of the building fund levied for a year.subsequent to the year, in which the debt wasjineurred, and is not negotiable according to the law of this state. Order No. 44 reads as fol- lows:" Ripley District, W. Va., Sept. 25, 1891. Sheriff of Jackson County: Pay to the order of Educational Aid Association or bearer four hundred and twenty dollars and charge to the building fund of Ripley District. By order of the Board of Education. Due Dec. 1st, 1892. (Without interest.) J. F. Coast, President. I. S. Little, Secretary. $420.00.
3. Parties.
Where a person files his petition asking to be admitted as a party defendant in a pending suit in equity, in which no allegation is made naming or referring to him in any way, and no relief is prayed against him, and he is admitted to become such party defendant, he does not become a party in'the cause, until he has been made a party by sonic allegation in the bill as amended.
4. Board of Education.
The Hoard of Education of a school-district is a corporation created by statute with functions of a public nature expressly given and no other; and it can exercise no power not expressly conferred or fairly arising from necessary implication, and in no other mode than that prescribed or authorized by the statute.
5. Equity.
A case in which certain points of equity practice are discussed and considered.
Leonard & Archer and W. Miller for Appellant:
I. School Law. Sees. 2, 6, 7, 8, 9, 14, 20, 23, 34, 38, 39,
II. Super ceiling Levy. Ch. 72, Acts 1875, App. 1062, Code.
III. Parol evidence not received to contradict record. 20 Am. & Eng. Ency. Law, 511.
IV. No particular method of notice required. 136 111. 478; 12 Minn. 17; 25 Conn. 556.
V. Entry and signature of minutes directory. 74 Am. Dec.
305.
VI. Board may purchase apparatus. 20 W. Va. 360, 366; 9 Am. & Eng Corp. Cases, 144; 30 Am. Rep. 447.
VII. School orders may be made payable at future dates. 38 W. Va.
VIII. Taxes paid over not subject to injunction. 59 N. Y. 21.
IX. Voluntary payment of taxes; can not be recovered by suit. 18 Am. &Eng. Ency. Law, 220.
X. Amended and supplemental bills; rules as to filing. Code,
s. 12, c. 125; 1 Bar. Ch'y. Prac. 105.
XL Plaintiff must mvke out his case by all material allegations. 37 W. Va. 571.
XII. Bill by taxpayers to restrain collection of taxes. 16 W. Va. 527.'
XIII. Powers of board of education. 21 Am. & Eng. Ency. Law, 832-4 and notes.
W. A. Parsons for appellees, cited Code, c. 45, s. 6, 23, 34, 38, 45; 15 Am. & Eng. Ency. Law 1234; Id. 1039; Id. 1290; 20 W. Va. 360; 5 Law. Rep. 546; 30 Am. Rep. 450; Id. 447; 25 la, 447; 119 Ind. 213; 20 Law Rep. 136; 123 Ind. 1; 18 S. E. Rep. 588; 28 X. II. 61; 21 Am. & Eng. Ency. Law 800 (n. 4); 30 W. Va. 424; 5 Minn. 280; 29 Ohio St. 419; 21 Am. & Eng. Ency. Law 793, 794.
This is an injunction by and on behalf of the citizens and taxpayers of Ripley School District to restrain and enjoin the payment of three certain drafts for four hundred and twenty dollars each on the ground of illegality. On the 15th day of November, 1893, defendant Thomas E. Davis moved to dissolve the injunction, which motion the court overruled, refusing to dissolve same, from which order this appeal was allowed. Code, c. 135, s. 1, cl. 7. Stating the contract and orders as if they were valid, the facts are as follows: On the 25th day of September, 1891, the Board of Education of Ripley District in Jackson County entered into a contract with one of the defendants, viz: the Educational Aid Association of Chicago, for the purchase of forty two sets of "Public School Study Made Practical," to be delivered on board the cars, and shipped to J. F. Coast, Jackson C. II., Jackson county, W. Va., on the 15th day of October, 1891, in consideration of which the board of education agreed and bound itself to pay to the Educational Aid Association one thousand two hundred and sixty dollars, being thirty dollars per set, to be paid in the following manner: Four hundred and twenty dollars due 1st December, 1892; four hundred and twenty dollars due December 1, 1893; and four hundred and twenty dollars due December 1, 1894; and the president and secretary of the hoard were authorized and directed to issue, sign and deliver to the Educational Aid Association or its agents orders in due form on the sheriff of Jackson county payable out of the building fund of the said district for the said one thousand two hundred and sixty dollars payable as aforesaid, and this contract was entered on the record of the board. The president and secretary on the same day issued, signed and delivered to the agent of the Educational Aid Association orders No. 44, No. 45, and No. 48, which are as follows:
They are not negotiable even apart from the fact that they lack the statutory requirement of being payable at a bank, etc. (section 7, c. 99, Code); for the intention in such case as a general rule is to authorize the payment, and furnish vouchers to the proper disbursing officers, and not to put negotiable instruments in circulation; and they do not cut out equities as against the corporation, or in this case as against the resident taxpayers; and further on the ground that there is no implied authority in such officers to execute negotiable instruments. See 1 Daniel, Neg. Inst. (4th Ed.) § 427; Steinbeck v. Treasurer, 22 Ohio St. 144; School Directors v. Fogleman, 76 111. 18:); State v. Huff, 63 Mo. 288; 2 Beach. Pub. Corp. § 799; Fox v. Shipment, 19 Mich. 218.
On the 14th day of November, 1891, F. M. Durbin of the city of Parkersburg for a valuable consideration sold and delivered the three orders to the appellant, Thomas E. Davis. They bear no indorsement. On the 18th day of January, 1893, the plaintiffs filed their bill and obtained from the judge in vacation on the 19th day of January, an order of injunction, as prayed for, restraining the late sheriff, James M. Poling, an! the present sheriff, I. M. Adams, from paying said sum of one thousand two hundred and sixty dollars, or said orders or any part thereof.
The material grounds, upon which the plaintiffs base their right to the injunction in their original and amended bills, are as follows: (1) The order making and setting forth the contract of purchase was illegal, because Commissioner, D. L. Sayreal, though present did not concur, and he was necessary to constitute a quorum. The proceedings do not show upon their face who called the meetins: and directed notice to be sriven. That none in fact was given. That, therefore, the meeting was illegal, and its proceedings void. (2) The board had no authority under the law to use the building fund in the purchase of such things as those designated as "Public School Study Made Practical." (3) It was a debt directed to be paid out of the school-money of subsequent years, and was therefore unlawfully incurred, in violation of the school-law (section 45, c. 45, Code).
The defendant, Thomas E. Davis, was made a party defendant on his own petition and answered, that he purchased the orders in controversy for a valuable consideration; that a levy was made for the payment of the order Xo. 44, due December 1, 1892; that plaintiffs before that time had notice of defendant's purchase; that the levy was legal; that each plaintiff had notice of the levy and * had paid the assessment before the suit was brought, and they are therefore estopped as to the order No. 44, for four hundred and twenty dollars that having notice they made no attempt to supersede the levy; and that their remedy at law by writ of supersedeas was ample. Defendant denies that the meeting was illegal or irregular, but charges that the orders were legally and regularly issued in due course of business, under sanction of law, at a special meeting of the board of commissioners, regularly and duly called, a majority being present, and all having had due notice of the time and place, when the contract was made, and the order setting forth the same was entered on the record of the board; that the articles so purchased were such as the board was authorized to purchase; that they were delivered, accepted, placed in the schools and have since been in use; that the orders were negotiable, and not in excess of the amount authorized by law; that the board had a right to create a debt payable in one, two and three years; and that there...
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