Halbert v. Sparks

• Decision Date: 29 January 1872
• Citation: 72 Ky. 259
• Parties: Halbert v. Sparks.
• Court: Kentucky Court of Appeals

72 Ky. 259

Halbert v. Sparks.

Court of Appeals of Kentucky.

January 29, 1872

APPEAL FROM LEWIS CIRCUIT COURT.

W. C IRELAND, For Appellant,

CITED

Common-school Law of Jan., 1872, and Act of March, 1872.

Cooley's Constitutional Lim., pp. 159-188.

Story on Bailments, sec. 3, pp. 5-9.

6 Cranch, 128, Fletcher v. Peck.

12 Wheaton, 260, Ogden v. Saunders.

3 Met 576, Johnson v. Higgins.

3 Littell, 472, Elmondorff v. Carmichael.

7 Johns. 498, Dash v. Van Kleek.

E. C PHISTER, GEO. M. THOMAS, For Appellee,

CITED

Act of March 12, 1872, Session Acts, p. 564.

Constitution of Kentucky, sec. 1, art. 11.

1 Session Acts 1871-72, p. 159; ibid., p. 57.

1 Dana 112-117, Pool v. Adkisson.

1 Session Acts 1869-70, pp. 112-135.

OPINION

LINDSAY JUDGE:

Appellee charges specifically that Halbert obtained, without right, $90.68 of the amount due for the years 1871-72 from the common-school fund to District No. 8, in Lewis County; that he had refused upon demand to account for said sum; and that a right of action against him was vested in appellee by the act of assembly approved March 12, 1872.

It is further alleged that a common-school was regularly taught in the district for the years named, under the supervision and control of the trustees duly constituted, elected, and appointed; that the school was reported to the superintendent of public instruction, and that the sole reason why the amount sued for was not received by appellee, and paid over to the teacher employed, as before stated, under the provisions of the common-school law, was the unlawful interference of appellant in obtaining and refusing to account for it. None of these allegations are denied; but appellant claims that he had the right to receive the money, and that he paid it out in accordance with the provisions of an act of assembly approved 12th of January, 1872, all of which was done before the passage of the act under which this action was instituted. His answer is essentially a plea of confession and avoidance.

The act of January 12, 1872, which is set out in full, recites that the superintendent of public instruction had decided that there were no legally elected trustees in District No. 8, in Lewis County, and that Halbert, as president of the Vanceburg Male and Female Academy, could take charge of the common-school for that district, have it taught, and draw the public school-money to which it was entitled; that two schools had been partly taught; that all children in the district of proper age were invited to attend (and that a majority of them did attend) the school free of charge; but that the superintendent was then of opinion that these schools could not draw any part of the school-fund without further legislation. Wherefore it was enacted that said schools should be entitled " to one half the money due and to become due said common-school district," and the superintendent was directed to draw his warrant on the state treasurer for said sum in favor of W. C. Halbert to pay the teacher who had taught and was teaching the common-school at the school-house in Vanceburg.

The question raised by the demurrer to Halbert's answer is whether or not this act affords him protection. It does not appear that he was directly instrumental in procuring its passage; but it is charged by appellee, and not denied by him, that on the day of its approval he interfered and obtained the money in controversy. The answer further concedes, by failing to deny, that a...