Maynard v. Gilbert
| Decision Date | 24 May 1940 |
| Citation | 283 Ky. 227,140 S.W.2d 1064 |
| Parties | MAYNARD v. GILBERT et al. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court; Greenup County; Harvey Parker, Jr. Judge.
Suit by Fred Maynard against one Gilbert and others, to enjoin defendants from preventing plaintiff's qualification as county school superintendent of Greenup county. Judgment for defendants, and plaintiff appeals.
Affirmed.
Woods Stewart & Nickell, of Ashland, and J. R. Sowards, of Greenup for appellant.
Hannah Vansant & McKenzie, of Ashland, and Thomas E. Nickel, of Greenup, for appellees.
MORRIS Commissioner.
The matter involved in this appeal was before us in Maynard v. Allen et al., 276 Ky. 485, 124 S.W.2d 765, but not determined on merits. There are incidentally involved two other appeals, Allen v. Hardin, 272 Ky. 396, 114 S.W.2d 494; Oakes v. Remines, 273 Ky. 750, 117 S.W.2d 948.
The suit here is a continuation of the first suit, in which Maynard sought an injunction against the then constituted county school board, seeking to prevent it from putting into effect a threat of refusing to permit him to qualify as County School Superintendent of Greenup County.
We gather from the first-named case that appellant was elected by the then existing board on February 3, 1938, to serve a four year term. He had theretofore been serving in the same capacity. His February 3, contract, for four years, was to begin on July 1, 1938 and was executed on March 5, 1938. Appellant had heard rumors to the effect that a differently officered board was going to cancel his contract, or refuse to recognize same, so on July 1, 1938, he filed his suit making the then members of the board defendants.
It was alleged in the petition, and is agreed, that appellant was at the time of his appointment possessed of necessary educational and statutory requirements qualifying him for office. It appears from the record the only ground mentioned was the illegality of his appointment, in that the board at the time had no power to appoint.
The court below had sustained defendant's demurrer to appellant's petition, same being based on the ground that it showed on its face that appellant's appointment was made prior to April 1, 1938, therefore under the law void. We disagreed with the chancellor, and pointed out a distinction in the 1934 Act and former laws, with relation to the time of election or appointment. Reference is made to the opinion on that point.
It will be noted also that we refused, as had the lower court, to take judicial knowledge of other suits involving the make-up of the board at various times, particularly with reference to appellant's appointment and contract, and due to the state of the record on return, when answer and other pleadings were filed, we are compelled to go into these matter, all of which have unnecessarily gotten into and made up a voluminous transcript. It may be said that in addition to the facts set out above, which are agreed to be correct, the following is gathered from quite a lengthy stipulation.
The County Board of Education, as of November 2, 1937, at which date three members were to be elected, was composed of J. B. Merrill, G. R. Remines, B. C. Holbrook, W. Sherman Bentley and Burns Litteral. The elective terms of Merrill, Remines and Holbrook expired by operation of law the first Monday in January, 1938, the date of qualification of successors. This left Bentley and Litteral as holdovers. At the regular election in November, Meadows, Hardin and Oakes received the highest number of votes cast, were awarded certificates of election, and on January 1, Hardin and Meadows took the necessary qualifying oaths and filed them with the board. Oakes took the oath on January 3, 1938, on which latter date the board should have been: Bentley, Litteral, Meadows, Hardin and Oakes.
However, it was stipulated that though having duly qualified neither Hardin nor Meadows discharged any of the duties of the office on January 1, 1938, or thereafter, except as is shown in the minutes of the board, showing their taking of the statutory oaths. It was stipulated that while Oakes took the statutory oaths, he was not present nor did he participate in the meetings of February 5, 1938, or of March 5, 1938.
The record shows that the following composed the board on the date the appointment was made: Bentley and Burns, legally holdovers; Merrill, Remines and Holbrook, whose terms expired on January 1, 1938, but were holding on because of the following manifested facts:
On November--, 1937, Belford and Allen, both candidates for members of the board, filed suits contesting the elections of Hardin and Meadows. The lower court decided for Meadows and Hardin. On appeal we reversed the lower court. This decision was rendered on March 1, 1938, and on March 6, 1938, certificates of election were issued to Belford and Allen, who qualified on March 26, 1938, after the dates of appointment and contract with appellant. These two displaced Merrill and Holbrook.
In March, 1938, Remines filed suit against Oakes, Contending that Oakes had forfeited his office by failing to properly qualify. His claim was that he had been appointed by the board to fill the vacancy because Oakes had failed to follow a board-made rule, requiring an electee to present evidence before assuming duties of his legal qualification as directed by § 4399-22, Ky. St. The lower court upheld Remines' contention, but we held that the board was without power to enforce its rule, and declared Oakes to have been entitled to his seat with the board. Oakes had been declared a successful candidate in the Allen, Hardin and Belford suits. This left the board as immediately above set out, except that Oakes stepped into Remines' place.
There is one stipulation between parties which is emphasized by appellees, and upon which the court based his ruling below finding against appellant: "It is further stipulated that the terms and tenure of office of J. B. Merrill, B. C. Holbrook and Remines did not extend beyond the first day of July 1938, when the vacancy occurred in the office of the county superintendent of schools, the date upon which plaintiff claims his term of office began."
And further, "That the terms of Merrill, Holbrook and Remines as members of the board, expired on January 3, 1938."
It was further stipulated that on July 1, 1938, the board was threatening to interfere with appellant in the performance of his duties, and to cancel his alleged employment of February 5, and the contract of March 5, and it did later enter an order holding for naught the board's actions of the dates mentioned, and refused to recognize him as an employee. Appellant filed his suit on July 1, 1938, and by pleadings following the remand of the case, the issue was raised as to whether or not the board, composed as it was on the dates of employment and contract, had the legal right to appoint or enter into contract with appellant.
On November 22, 1939, the court entered judgment that the election of appellant on February 5, 1938, and the subsequent contract, were void and of no effect, dissolved a temporary restraining order theretofore issued against the board, and dismissed appellant's petition.
The court rendered a written opinion which, in part, cited the cases we have mentioned above, and held that Oakes, Allen and Belford had been duly elected members of the board at the November, 1937, election....
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