Lively v. Bd. Of Educ. Of Kanawha County

• Decision Date: 31 July 1934
• Docket Number: No. 8009.,8009.
• Citation: 175 S.E. 784
• Court: West Virginia Supreme Court
• Parties: LIVELY. v. BOARD OF EDUCATION OF KANAWHA COUNTY.

175 S.E. 784

LIVELY.

v.BOARD OF EDUCATION OF KANAWHA COUNTY.

No. 8009.

Supreme Court of Appeals of West Virginia.

July 31, 1934.

Syllabus by the Court.

1. Although the Legislature, by making the County School Unit Act (chapter 8, 1st Ex. Sess. 1933) effective from passage, thereby "abolished" all magisterial and independent school districts as of May 22, 1933, the date of passage, the boards of education of the several districts retained their former legal status and authority until July 1, 1933, the date of the accession of the interim boards provided for in the act.

2. Point 2, syllabus, Mollohan v. Cavender, 75 W. Va. 36, 83 S. E. 78, L. R. A. 1917D, 248, Ann. Cas. 1918A, 499, relating to right of an independent board of education to employ counsel, applied.

Mandamus proceeding by Frank Lively against the Board of Education of Kanawha County.

Writ awarded.

Robert S. Spilman, of Charleston, for relator.

D. J. Savage, of Charleston, for respondent.

WOODS, President.

Relator seeks, by mandamus, to require the board of education of Kanawha county to issue, and the county superintendent of schools, as financial secretary, to countersign, a warrant in payment of legal services rendered at the behest of the board of education of Charleston independent school district after the passage of chapter 8, Acts 1st Ex. Sess. 1933, known as "County School Unit Act, " the constitutionality of which was, at the time of relator's employment, being seriously questioned.

Respondents, on demurrer, take the position (1) that the independent school board was abolished on May 22, 1933, and that relator's employment on the day following was therefore void and of no effect; and (2) that, in any event, the petition failed to aver facts showing an existing necessity for the employment of counsel, in the absence whereof the prosecuting attorney was, under Code 1931, 7-4-1, the only authorized legal advisor.

Did the independent board have an existence subsequent to May 22, 1933?

The act, which was put in effect from passage, provides that the state superintendent of schools, on or before the first day of July, 1933, shall appoint a board of education for each county, whose members shall serve until their successors shall be elected and qualified, and that "such interim board shall take office on July first, nineteen hundred thirty-three." Article 5, § 1. If, as contended for by the demurrant, the abolition of the several school districts of the state (article 1, § 3) automatically dissolved the respective boards of education, in whom did themanagement vest prior to July 1st, the date the new board was to "succeed and be subrogated to all the rights of former magisterial and independent district boards"? Article 5, § 5. We find nothing in the act which contemplates a vesting in any other agency during the period May 22 to July 1, 1933. From a reading of the act, it seems plain to us that the Legislature never intended that there should be a hiatus between the abolition of the old board and the accession of the new. We are of opinion therefore that the members of the old board...