Herald v. Board of Education.

• Decision Date: 11 June 1909
• Citation: 65 W.Va. 765
• Parties: Herald v. Board of Education.
• Court: West Virginia Supreme Court

65 W.Va. 765

Herald

v.Board of Education.

Supreme Court of Appeals of West Virginia.

Submitted June 10, 1908.

Decided June 11, 1909.

1. Schools and School Disteicts Lease of School Lot Action to Annul.

Residents and tax payers in a school district, being patrons of a free school therein, suing for themselves and all others similarly circumstanced, may sustain a chancery suit to annul a lease of a school lot for oil and gas, as unauthorized and void, made by a board of education, and enjoin the use of the lot for such purpose. (p. 767.)

2. Same Board of Education Power to Contract.

A board of education is a quasi public corporation, existing only under statute, having only the powers given by statute and such implied powers as are absolutely necessary to execute such express powers. It cannot engage in business or make contracts outside its functions touching education. It cannot lease a school house lot for production of oil and gas. (p. 769.)

Appeal from Circuit Court, Harrison County. Bill by John Herald and others against the Board of Education and others. Decree for defendants, and plaintiffs appeal.

Reversed.

Davis & Davis and W. S. Meredith, for appellants.

Douglass & Steptoe, John Bassell, Jas. A. Meredith, and E. M. Shqwalter, for appellees.

Brannon, Judge:

By deed dated 29th August, 1892, Isaac N. Harbert and others conveyed to The Board of Education of Sardis District and their successors in office, sixty-five poles of land, in Harrison county, "for the purpose of building a school house on the same for the benefit of free schools." The parcel of land is in use for free school purposes. It is used as a site for a school house, which is in actual use as a school house. The board of education passed a resolution, 27th May, 1907, authorizing a lease to W. J. Rowland and F. L. Grove of the lot for the purpose of the production of oil and gas, and under that resolution the president of the board made a lease of the lot to Rowland and Grove for the purpose of the production of oil and gas for one year and as long thereafter as oil or gas either should be produced from the lot. In July, 1907, John Herald and several others suing for themselves and other residents, citizens and tax payers of said district, brought a chancery suit against the board of education and Rowland and Grove stating that the plaintiffs were residents within School District No. 20 in the District of Sardis, and were tax payers within that district, and that they were patrons of the free school within that district, and that the said lot was situate within sub-district No. 20, and that children of the plaintiffs attended school on the said lot, and alleging that the said lease was unauthorized and beyond the power of the board to make and seeking to have it annulled as illegal and void. They prayed that said lessees be enjoined from using the said lot for the development of oil and gas. A provisional injunction was granted; but later a decree was pronounced declaring that the board of education had authority of law to execute the said lease, and that the lessees under it had authority to bore for oil and. gas on the said lot, and to produce oil and gas therefrom, provided that in so doing their operations should not interfere with, disturb or prevent the orderly conduct of the public school in session at any time during such oil productions, and that such school was not then in actual session, and would not be until later in the year. Thereupon it was decreed that the injunction be so modified and dissolved to such an extent as to admit Rowland and Grove to proceed with operation until the school in the district should begin, and that thereafter such operation should be conducted only before and after school hours and not while the school was in session or while such school house and lot were in actual use during school hours for school purposes. The plaintiffs appeal to this Court.

This is a very important case. It involves the power of a government corporation performing the most important function to divert public property to uses other than those contemplated by law.

The defense contests the right of the plaintiffs-to interfere in the action of a public board. They say that the board has title, and the plaintiffs have no interest. But these people are the very persons most deeply and clearly interested in the use of the lot for school purposes for their children. It is said no individual can enjoin a public nuisance, unless he has a special interest affected. Talbott v. King, 32 W. Va. 6. But these plaintiffs have a direct, immediate, practical interest as parents. Are they to wait for the county superintendent or attorney-general to act? Who will surely vindicate their rights which they surely have? I quote the following from Spelling on Extra. Relief, sec, 684: "The letting of property belonging to a municipal corporation for any unauthorized uses will be enjoined at the suit of resident tax payers; and the use of a school house for religious worship, when not expressly authorized, is held to warrant the granting of an injunction to restrain the officers of the school district from permitting such use at the suit of a tax payer, without his showing special damage, since he is without means of redress at law. School officers may be enjoined from leasing a public school house for the purpose of keeping a private school, and the use of a public school house for private purposes, such as the holding of religious or political meetings, social gatherings and the like, is unauthorized by law and may be restrained at the instance of any party injured thereby; and this, though a majority of the electors and tax payers of the District assent to such use and an adequate rental is paid therefor; and it is immaterial in such case that the majority of the citizens and the Directors of the District have consented to the illegal use." "A tax payer or property owner has also the undoubted right to prevent by injunction public authorities from wasting or disposing of public property, or to restrain the diversion or misappropriation of public property which a public corporation holds, acquired either by private gift or through the use of public money, as a trust for special uses and purposes. This right in some states is definitely given by statute. In accord with this same principle, it has been held in many, many cases that private persons may oppose and prevent the making of illegal contracts which involve the use of public monies or property, or the granting of licenses or privileges by public legislative bodies, which, although without their discretionary powers, yet in effect result, in a waste, misappropriation or misuse of public funds or property." 3 Abbott Munic. Corp. sec. 1158. These parents and tax payers are, before all others, most seriously affected in this case. In Bull v. Read, 13 Grat. 4.7, inhabitants suing for themselves and other inhabitants were allowed to sue to test an act to establish free schools against the school commissioners appointed under it. The authorities there collected will warrant the right to sue in this case. In Shinn v. Board, 39 W. Va. 497, citizens and tax payers were allowed to sue to enjoin payment of drafts issued by a board of education. In Osburn v. Stealey, 5 W. Va. 85, tax payers and residents enjoined the removal of public records from Shepherdstown to Charlestown. A resident and a tax payer is allowed to sue to prevent diversion to private use of land dedicated for town site. Davemport v. Bufflngton, 97 Fed. (C. C. A.) 234.

Is that lease valid? That depends upon the power of the board of education to make it. A board of education is a public corporation having its birth and existence by statute. Code, chapter 45, section 7. The board of education is not a corporation vested with general powers of a business corporation. The books call it rather a quasi corporation. 27 Am. St. E. 412. It is a public corporation, in that it is a part of the governmental structure and perforins an important function in the body politic in the administration of government, a government agency "School districts are organized under the general laws of the State and fall within the class of corporations known as quasi corporations. Civil corporations are of different grades or classes, but in essence and nature they must all be regarded as public. The school-district or the road district is usually invested by general enactment operating throughout the State with a corporate character, the better to perform within and for the locality its special function, which is indicated by its name. It is but an instrumentality of the State, and the State incorporates it that it may the more effectually discharge its appointed duty. So with counties. They are involutary political or civil divisions of the State, created by general laws to aid in the administration of government. * * * * * Considered with respect to the limited number of their corporate powers, the bodies above named rank low down in the scale or grade of corporate existence; and hence have been frequently termed quasi corporations. This designation distinguishes them on the one hand from private corporations aggregate, and on the other from municipal corporations proper, such as cities or towns acting under charters, or incorporating statutes, and which are invested with more powers and endowed with special functions relating to the particular or local interests of the municipality, and to this end are granted a larger measure of corporate life." 1 Dillon Mu-nic. Corp., sees. 24, 25., Their functions are assigned by our statutes. They have no other than those so assigned, and those necessarily implied I say necessarily implied because essential to carry out the functions assigned mere creatures of the statute for the performance of functions specified by the statute.

We ventured to say in Shinn v. Board of Education, 39 W. Va. 498, that "The Board of Education...