Mollohan v. Cavender.
| Decision Date | 29 September 1914 |
| Docket Number | No. 2739.,2739. |
| Citation | 75 W.Va. 36 |
| Court | West Virginia Supreme Court |
| Parties | Mollohan, McClintic and Mathews v. Cavender. |
It is the duty of the prosecuting attorney, imposed by section 49, chapter 39, Code, to serve independent district boards of education as well as other district boards, as thereby prescribed. (p. 37).
But said section does not deprive such independent district boards of the implied power, to employ other counsel, or additional counsel to assist the prosecuting attorney, where, in their judgment and reasonable discretion the character of the business, or on account of the absence of the prosecuting attorney, or his incapacity, sickness, or other disability, or his refusal to act, there is necessity therefor, (p.38).
Original mandamus by George W. McClintic and others against Nathaniel W. Cavender, County Superintendent.
Writ awarded.
Price, Smith, Spilman & Clay, for petitioners. T. C. Townsend, for defendant.
Miller, President:
Mandamus is sought to compel defendant, as financial secretary of Kanawha County, to countersign, pursuant to section 149-a, chapter 45, Code 1913, an order of the Board of Education of Charleston Independent District, dated February 10, 1914, on the Sheriff, in favor of petitioners, for two hundred dollars.
The alternative writ avers that said order was duly issued and delivered to petitioners in payment for legal services rendered pursuant to contract, in the chancery cause of I). c. Gallaher against said hoard, a most mportant suit, involving not only the right and authority of defendant to issue three hundred thousand dollars of bonds, but also its very life and legal existence; that the amount of said order was a reasonable compensation for said services, and that rt has been regularly and legally issued and delivered to petitioners in payment thereof, and that it had been presented to defendant, as such county financial secretary, for his counter signature, but that he had declined, assigning as a ground that same was illegal and void.
It is averred also that the charter act of said district makes no special provision for an attorney to advise it, or represent it in litigation begun or defended by it, and that the only statute on the subject is section 49, chapter 39, serial section 1602, Code 1913, the chapter relating to county courts, said section relating to salaries of county officers, and saying: "And it shall be the duty of the prosecuting attorney to attend to, bring or prosecute, or defend, as the case may be, all actions, suits and proceedings in which his county or any district board of education is interested, without additional compensation. ''
Tt is further averred that notwithstanding this general provision of the law, said board had been advised by the prosecuting attorney for said county, in office for many years preceding the institution of said suit, that he was not required thereby to represent said independent district, but only district boards, and that he had always declined to represent it in that behalf, and that this ruling and advice had been accepted and acted on, as said board was bound to do, and that it had not been otherwise advised at the time it employed petitioners, as aforesaid.
Defendant made no return, but rested his defense solely on his demurrer and motion to quash the writ, which perhaps presents all questions properly involved.
The first proposition of petitioners is that the general authority conferred upon said board of education, by its char- ter, section 4, chapter 74, Acts 1911, carries the implied power to employ counsel to advise and represent it in respect to the business of the district, and that said section 49, chapter 39, of the Code, has no application.
We cannot affirm this proposition. In our opinion it is the duty of the prosecuting attorney, as provided by said section, to represent all boards of education, including independent districts. The statute makes no exception, and there is nothing in the charter of said independent district negativing this construction. Nor does section 17 of the act, making inapplicable all provisions of the general school law and all other laws which are in any manner inconsistent therewith, in our opinion, do so. Why should independent districts be excepted? ''District boards of education" plainly includes independent districts. By the charter law the district is independent only in the sense that it has some powers not covered by the genera* law, and by its term the general law, except where it is otherwise provided or is inconsistent with the special charter, is made applicable. It is argued, however, that because section 161, of chapter 45, serial section 2235, subject "Definitions'7, provides that, "The words used in this chapter and in any proceedings pursuant thereto, shall, unless the context clearly indicates a different meaning, be construed as follows: * * * (8) 'District' shall not mean independent district", independent districts are excluded from the provisions of said section 49, chapter 39, of the Code, relating to county courts and the duty of the prosecuting attorney. We do not think this the proper construction of that statute. Chapter 45 of the Code is the statute relating to education in general, greatly amended and re-enacted in 1908. That chapter nowhere deals with the duties of prosecuting attorneys; that subject was not within the contemplation of the Legislature, and by plain intendment the definitions in section 161, were to relate solely to the things to be done and proceedings to be taken specifically designated in that chapter, and where the word "district" is employed in connection therewith.
The next and most important question is, has the board of education of an independent district, notwithstanding its right to be advised and represented by the prosecuting attor- ney, and his duties in the premises, the right also to employ other counsel, or counsel to assist the prosecuting attorney in extraordinary or important litigation? Mr. Dillon, than whom there is perhaps no better authority on municipal law, in the recent edition of his great work on municipal corporations, says: "If the scheme of municipal government provides a corporation counsel or city attorney or other legal officer for the municipality whose duty it is to appear on behalf of the municipality in all suits by or against the corporation, and to conduct all the law business of the corporation, the municipality is deprived of its power to employ another attorney to take the place of and perform the duties which naturally belong to its law officer." 2 Dillon on Municipal Corporations, (5th ed.) section 824. This, is a very clear and comprehensive statement of the law, and is well fortified by the numerous decisions cited therefor in the foot note. The words italicised are so emphasized by the author. An examination of the cases cited will show' that this rule is based on cases where the municipal authorities have attempted to ignore the rights, duties and authorities of municipal law officers, either to wholly supersede them, or to...
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