McDonald v. Parker

• Decision Date: 14 May 1908
• Citation: 110 S.W. 810,130 Ky. 501
• Parties: McDONALD, School Treasurer, v. PARKER, County Superintendent of Schools.
• Court: Kentucky Court of Appeals

110 S.W. 810

130 Ky. 501

McDONALD, School Treasurer, v. PARKER, County Superintendent of Schools.

Court of Appeals of Kentucky.

May 14, 1908

Appeal from Circuit Court, Knox County.

"To be officially reported."

Mandamus by W. H. McDonald, as treasurer of a graded common school district, against B. E. Parker, county superintendent of schools. From a judgment for defendant, plaintiff appeals. Reversed, with directions.

J. M Robinson, J. D. Black, P. D. Black, and S. B. Dishman, for appellant.

BARKER J.

Appellant W. H. McDonald, who at the time this litigation commenced was the treasurer of graded common school district No. 1 instituted this action against B. E. Parker, county superintendent of common schools of Knox county for the purpose of obtaining a writ of mandamus requiring the appellee to pay over to him, as treasurer, the sum of $1,470 which was the pro rata of district No. 1 of the common school fund in his hands for distribution in Knox county for the school year 1906-07. Appellee does not deny the possession of the money, but resists the action to require him to pay it over to the treasurer on two grounds: First, a defect in the election proceedings by which the district was established as a graded school; and, second, because the trustees have made a combination with Union College, in violation of the provision of section 189 of the Constitution. The issues on these two defenses were properly joined, and, the case having been submitted to the circuit judge, on final hearing he dismissed the petition; and from this judgment this appeal is prosecuted.

The first defense may be disposed of in very few words. It is based upon supposed defects in the orders of the court authorizing the submission to the qualified voters of the district the question whether or not a graded school should be established therein and certain bonds issued for the purpose of erecting buildings, etc. The election by which the graded school was established in the district was held 17 years ago, and in due time thereafter it was declared by the proper authorities that the graded school was established by a majority of the votes cast upon the question; and ever since it is not disputed that a graded school has been maintained and carried on in the district without any question by either the state or county officials, or the taxpayers interested in the proposition. The appellee has himself as superintendent always recognized it as an established fact, and has made official reports accordingly. Before he became superintendent, he was employed as teacher in the school for several years. It is manifest that it would be intolerable, after a district has thus been established, if the legality of the election by which it was established could be called in question in a collateral proceeding every time a litigant is tempted by the stress of his case so to do. There was no contest inaugurated to call in question the validity of the election by which the district was established as a graded school, and, as the time has long since expired in which such a contest could be made, it cannot now be done. Hopkins v. Swift, 100 Ky. 14, 37 S.W. 155; Wilson, etc., v. Hines, 99 Ky. 221, 35 S.W. 627, 37 S.W. 148; Cole v. Commonwealth, 98 S.W. 1002, 30 Ky. Law Rep. 385.

The second defense, which is based upon the theory that the trustees of the school have made a combination with the authorities in charge of Union College, which is situated in the district, grows out of the following facts: Union College is an educational institution operated under the auspices of the Kentucky Conference of the Methodist Episcopal Church. In September, 1906, Union College had among its teachers Prof. G. H. Reibold and two ladies, the Misses Weaver, who were under contract with it to teach during the ensuing school year. In August, 1906, Union College suffered a disastrous fire, by which its administration building was totally destroyed. This misfortune made it impossible to open the institution to its full capacity until the burned buildings could be rebuilt, and the trustees of the institution found themselves with more teachers on their hands than they could utilize in teaching the student body they had room to accommodate in their remaining buildings. A rearrangement of their professorial corps became absolutely necessary. Shortly before the fire, the trustees of the graded school were anxious to secure the services of Prof. Reibold as principal of their school, and had made overtures looking towards his employment in this capacity. He informed them, however, that he was under contract with Union College to teach for it, and could not honorably release himself. After the fire the faculty of Union College became anxious to make some arrangement by which they could be relieved of some of the burden of paying teachers whom they could not use; and, looking to this end, the president of the college, Dr. Easley, opened negotiations with the trustees of the graded school. It was first thought that some sort of fusion could be entered into by the two institutions, which would be mutually advantageous to them, and considerable discussion along this line was had, some of the trustees being in favor of it if it could be legally done; but, upon the advice of counsel, this whole idea was abandoned, the attorney for the trustees being correctly of the opinion that no part of the public school fund could be lawfully paid over in any way or by any arrangement to a denominational school. Prof. Reibold then resigned his position as teacher in Union College, and was employed, along with Profs. Faulkner and Jones, as teachers to conduct the graded school. It was suggested also that the Misses Weaver should be employed in the lower grade department of the district school to teach the smaller children, but it was found to be an insuperable objection to this that they did not have the certificates required by the statute, which authorized their employment as teachers in the common schools of Kentucky. Thereupon the faculty of Union College, being under contract with the Misses Weaver for the ensuing year, donated their services as teachers to the graded school; Union College undertaking to pay them their salaries, and their services to be absolutely free to the district. The contract between the trustees and Profs. Reibold, Faulkner, and Jones is as follows:

"This contract made and entered into this September 13, 1906, between John Bolton, L. W. Farmer, A. W. Hopper, J. Stanfill, and Benjamin Mathews, trustees of Barbourville graded common school district No. 1, parties of the first part, and G. H. Reibold, W. C. Faulkner, and H. B. Jones, parties of the second part, witnesseth: That for and in consideration of the conditions and obligations hereinafter set out, the first parties have this day employed second parties to conduct and teach the said common graded school district No. 1, Barbourville, Ky. for a period of nine months, beginning on

...